AUGUST 1987 

Commission Decisions 

08-03-87 

08-17-87 

08-25-87 

08-25-87 

Secretary of Labor for Michael Price & Joe 

John Vach v. Jim Walter Resources, Inc. 

Same as above (Order) 

Odell Maggard v. Chaney Creek Coal Co. and 

Sec. for Odell Maggard v. Chaney Creek Coal 

John A. Gilbert v. Sandy Fork Mining Co. and 

Sec. for John Gilbert v. Sandy Fork Mining Co. 

Administrative Law Judge Decisions 

07-31-87 

08-03-87 

08-04-87 

08-04-87 

08-04-87 

08-06..:..87 

08-06-87 

08-12-87 

08-12-87 

08-13-87 

08-13-87 

08-13-87 

08-14-87 

08-14-87 

08-17-87 

08-19-87 

08-20-87 

08-20-87 

08-21-87 

08-21-87 

08-24-87 

08-26-87 

08-28-87 

08-31-87 

08-31-87 

08-31-87 

08-31-87 

08-31-87 

08-31-87 

(Order) John A. Harris v. Benjamin Coal Co. 

Robert H. Cheyney v. Hecla Mining Company 

Local 1810, Dist. 6, UMWA v. NACCO Mining Co. 

Western Fuels-Utah, Inc. 

Paul Hubbs Construction Company 

Patriot Coal Company 

Anlo Energy, Inc. 

Greenwich Collieries 

Greenville Quarries, Incorporated 

Billie D. Martin v. Gabriel Mining Co. Inc. 

Otis M. Schmoldt v. Gabriel Mining Co. Inc. 

Beckley Coal Mining Company 

B & B Excavating, Inc. 

Odell Maggard v. Chaney Creek Coal Corp. 

Peabody Coal Company 

Harley M. Smith v. Bow Valley Coal Resources 

Sec. Labor for Bryan Pack v. Maynard Branch 

Dredging Co. and Roger Kirk 

Florence Mining Company 

Sec. Labor for Joseph Gabossi v. Western 

Fuels-Utah, Inc. 

Utah Power & Light Company 

Consolidation Coal Company 

Roger Hall v. Jericol Mining, Inc. 

Galite Corporation 

Little Shepherd v. Big Elk Creek Coal Co. 

Orville Sparks v. Sandy Fork Mining Co. and 

Con-Ag, Incorporated 

Robert E. Hirschfield 

Lee Kuck 

Kaiser Sand & Gravel Company 

SE 

SE 

KENT 

KENT 

KENT 

KENT 

87-87-D 

87-87-D 

86-1-D 

86-51-D 

86-49-D 

86-76-D 

Pg. 1305 

Pg. 1312 

Pg. 1314 

Pg. 1327 

PENN 87-72-D Pg. 1345 

WEST 86-179-DM Pg. 1348 

LAKE 87-19-C Pg. 1349 

WEST 86-113-R Pg. 1355 

WEST 87-19-M Pg. 1368 

WEVA 86-400 Pg. 1373 

KENT 87-6 Pg. 1374 

PENN 87-62-R Pg. 1385 

KENT 86-133-M Pg. 1390 

KENT 87-64-D Pg. 1450 

KENT 87-65-D Pg. 1452 

WEVA 87-204-R Pg. 1454 

WEST 87-20-M Pg. 1456 

KENT 87-138-D Pg. 1464 

WEST 87-113-M Pg. 1466 

KENT 86-23-D Pg. 1468 

KENT 86-9-D Pg. 1474 

PENN 87-128 

WEST 86-24-D 

WEST 

WEVA 

KENT 

SE 

KENT 

KENT 

LAKE 

LAKE 

LAKE 

WEST 

87-31-R 

86-409-R 

87-51-D 

86-137-M 

87-29-D 

87-181-D 

87-15-M 

87-51-M 

87-84-M 

86-230-M 

Pg. 14 78 

Pg. 1481 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1507 

1509 

1514 

1515 

1529 

1530 

1532 

1532 

1532 

1534 

AUGUST 1987 

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

Secretary of Labor v. Florence Mining Company, Docket No. PENN 86-297-R, 

PENN 87-16. (Judge Fauver, June 30, 1987) 

Secretary of Labor v. Kaiser Coal Corporation, Docket No. WEST 86-225-M. 

(Judge Cetti, June 29, 1987) 

Secretary of Labor v. Rushton Mining Company, Docket No. PENN 86-253-R, 

PENN 86-1. (Judge Broderick, July 23, 1987) 

Local 2274, Dist. 28, UMWA v. Clinchfield Coal Company, Docket No. VA 83-55-C. 

(Judge Melick, July 23, 1987) 

Secretary of Labor on behalf of Michael Price & Joe John Vacha v. Jim 

Walter Resources, Inc., Docket No. SE 87-87-D. (Interlocutory Review of 

Judge Broderick's July 7, 1987 Temporary Reinstatement Order) 

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

Secretary of Labor on behalf of Alvin Casey v. Brent Coal Corporation, 

Docket No. VA 86-45-D. (Judge Broderick, July 6, 1987) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on 

behalf of MICHAEL L. PRICE 

and JOE JOHN VACHA 

v. 

JIM WALTER RESOURCES, INC. 

August 3, 1987 

Docket No. SE 87-87-D 

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

Commissioners 

ORDER 

BY: Backley, Lastowka and Nelson, Commissioners 

In this discrimination proceeding arising under the Federal Mine 

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

Commission Administrative Law Judge James A. Broderick's order of 

temporary re.instatement issued under Commission Procedural Rule 44, 29 

C.F.R. § 2700.44 (1986). For the reasons that follow, we affirm. 

On January 1, 1987, Jim Walter Resources, Inc. ("JWR") inaugurated 

a "Substance Abuse Rehabilitation and Control Program" for its 

employees. Section II E of the program provides for random urine 

testing of "employees whose duties •.. involve safety ••.. 11 On March 2, 

1987, JWR conducted urine testing of certain employees covered by this 

provision. Among the employees included in the.test group were the 

complainants, Michael L. Price and Joe John Vacha, who were elected 

United Mine Workers of America ( 11UMWA") safety committeemen. Both 

employees failed to provide the requested urine samples, assertedly by 

reason of physical incapacity, and that same day were suspended with 

intent to discharge. JWR's stated reason for discharge was insubordinate conduct. 

Following their terminations, Price and Vacha on March 9, 1987, 

filed discrimination complaints with the Secretary of Labor pursuant to 

section 10S(c)(2) of the Mine Act, 30 U.S.C. § 81S(c)(2), alleging that 

JWR had discharged them discriminatorily in violation of section 105(c) 

of the Act. 30 U.S.C. § 815(c). On May 14, 1987, after commencing the 

required investigation of the complaints and determining that they were 

not frivolous, the Secretary filed with this independent Commission an 

application for the temporary reinstatement of Price and Vacha. 30 

U.S.C. § 815(c)(2). JWR filed a request for a hearing on the appli1305 
cation pursuant to 29 C.F.R. § 2700.44(a). Subsequently, the parties 

engaged in discovery. On June 29, 1987, a hearing was held before Judge 

Broderick. At the outset of the hearing, the judge permitted the UMWA 

to intervene. 

Following the hearing, on July 7, 1987, the judge issued an order 

directing JWR to reinstate the complainants temporarily. The judge 

determined that the discrimination complaints 11were not clearly without 

merit, were not fraudulent or pretextual'i and that 11 the evidence 

establishes a reasonable cause to believe that the discharge of Price 

and Vacha was in violation of section lOS(c). 11 Accordingly, the judge 

concluded that the complaints were not frivolously brought. On July 17, 

1987, JWR filed with the Conunission a petition for review of the judge's 

order and a motion for stay of the order. 29 C.F.R. § 2700.44(e). Both 

the Secretary and UMWA have filed oppositions. 

We have carefully reviewed the evidence, pleadings, and briefs, 

and conclude that the judge's order is supported by the record and is 

consistent with applicable law. The scope of a temporary reinstatement 

hearing is narrow, being limited to a determination by the judge as to 

whether a miner's discrimination complaint is frivolously brought. 30 

D.S.C. § 815(c)(2); Q9 C.F.R. § 2700.44(c). The judge properly found 

that the testimony and other evidence raises a non-frivolous issue as to 

whether the terminations of the complainants were in violation of the 

Mine Act. 

We are not prepared at this preliminary juncture to conclude from 

the evidence and findings of record that section II E of JWR 1 s drug 

testing program itself contravenes section 105(c)(l) of the Mine Act, as 

alleged by the complainants. However, although the complainants' 

precise theories of discrimination have not been presented with the 

utmost clarity, we find in the Secretary 1 s pleadings, in the evidence, 

and in the closing arguments before the judge a claim that the specific 

manner of application of the drug testing program to Price and Vacha 

constituted discriminatorily disparate treatment, retaliation, or 

interference because of their prior protected activities. Evidence has 

been introduced tending to show that the complainants were active safety 

committeemen who had filed numerous safety complaints; that there may 

have been some hostility on the part of some JWR management officials 

towards that protected activity; and that the manner of testing the 

complainants and their resultant discharge may have been tainted by 

discriminatorily disparate treatment, retaliation, or interference. We 

make no determination at this point as to the ultimate merits of a case 

of discrimination on this evidence. We hold only that the evidence 

presented to date is sufficient to support the judge's conclusion that 

the complaints are non-frivolous. 

JWR also raises due process objections to the temporary reinstatement procedures employed below. The Supreme Court's decision in 

Brock v. Roadway Express, Inc., 481 U.S.~-' 95 L.Ed. 2d 239, 248-254 

(1987), approved temporary reinstatement without prior hearing under 

comparable reinstatement provisions of the Surf ace Transportation Act of 

1982. The Commission's temporary reinstatement procedures exceed the 

constitutional minimum sanctioned in Roadway Express. JWR has been 

1306 
. fairly heard in a pre-deprivation hearing in which it was allowed to 

present witnesses and to cross-examine the government's witnesses. 

We al$O note that the Commission does not sit as a .super grievance 

board to judge the industrial merits, fairness, reasonableness, or 

wisdom of JWR's drug testing program apart from the scope and focus 

appropriate to analysis under section 105(c) of the Mine Act. Finally, 

the Secretary is reminded of the imperative requirement and need to 

complete his investigation of the complaints pursuant to section 

105(c)(2). Secretary on behalf of Donald R. Hale v. 4-A Coal Co., Inc., 

8 FMSHRC 905, 907-08 (June 1986). 

1307 
No view is intimated in this order as to the ultimate merits of 

this case. The only issue decided is that the complainants' discrimination complaints were not frivolously brought. JWR's request for a 

stay is denied and the judge's order is affirmed. This matter is 

remanded to the judge. 

Richard V. Backley, C~ 

~Vt:· La~t~ c:mm~. ssioner 

\J:~ez ~ ! L~~l--'~'-' L. Clair Nelson, Commissioner 

1308 
Chairman Ford, dissenting: 

A temporary reinstatement proceeding is limited to deciding whether 

or not the miner's complaint has been "frivolously brought." The judge, 

correctly in my view, has cast the frivolousness test in terms of whether 

there is "reasonable cause to believe" that a violation of section 

105(c), 30 U.S.C. § 815(c), has occurred. I agree with my colleague in 

dissent, Commissioner Doyle, however, that before the frivolousness 

issue can be addressed, th€: burden is on the Secretary to establish the 

elements of a section lOS(c) claim. The record, here, fails to establish 

a causal nexus between the adverse action complained of (discharge for 

failure to provide a urine sample) and the protected activity of Messrs. 

Price and Vacha (engaging in safety activities in their capacities as 

safety conunitteemen). 

The majority states that the Secretary's theories of discrimination 

have not been presented with the "utmost clarity." I find that those 

theories lack coherence and are not congruent with established bases for 

asserting a violation of section 105(c). 

The Secretary argues that the Petitioner's drug abuse program is 

~ se discriminatory apparently because complainants reasonably believed 

it to be so. As noted by the majority, this Commission does not sit in 

judgment on the relative merits or demerits of a drug testing program. 

More importantly, to accept such a discrimination theory requires one 

to believe that Petitioner, solely for the purpose of discharging the 

complainants, established an elaborate and expensive drug testing and 

rehabilitation program and then predicted that these particular employees 

(out of a tested workforce of 232) would be unable or unwilling to 

provide urine samples after being on notice to provide them for several 

hours. Alternatively, the Secretary argues that section 105(c) can 

somehow be read to grant a miner the "right to refuse to comply with a 

discriminatory work order" even when such an order involves no safety or 

health hazard. Without further amplification this newly propounded 

theory of discrimination does not sunnount the frivolousness test. In 

any event, under either theory the Secretary does not establish a 

colorable nexus between the discharges and the protected activity. 

The majority suggests that discrimination may lie in the disparate 

treatment of the complainants in the application of the drug abuse 

program, but the Secretary has not so argued and the judge did not so 

find. My review of the record does not reveal evidence that would 

support this theory. 

Accordingly, I would vacate the judge's order of reinstatement but 

would join with my colleagues in urging the Secretary to expedite his 

investigation in this matter. 

~ Chairman 

1309 
Conunissioner Doyle, dissenting: 

Although a temporary reinstatement proceeding is limited to 

resolving whether the minerts complaint is frivolous, that issue 

cannot be addressed unless the basic elements of a claim of discrimination are offered. Without some evidence of these elements 

first being presented, one cannot advance to a determination of 

whether a claim is non-frivolous. 

In my view, the judge did not determine that there was any 

evidence tending to establish that adverse action was taken against 

the complainants in consequence of their engaging in protected activity. 

Absent this underlying determination, the issue of frivolousness 

could not be addressed. Accordingly, I would vacate the judge's 

order of temporary reinstatement. 

1310 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James P. Alexander, Esq. 

Robert K. Spotswood, Esq. 

John W. Hargrove, Esq. 

Bradley, Arant, Rose & White 

1400 Park Place Tower 

Birmingham, Alabama 35203 

Robert H. Stropp, Esq. 

2121 City Federal Building 

Birmingham, Alabama 35203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

1311 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on 

behalf of MICHAEL L. PRICE 

and JOE JOHN VACHA 

v. 

JIM WALTER RESOURCES, INC. 

August 17, 1987 

Docket No. SE 87-87-D 

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

Commissioners 

ORDER 

BY: THE COMMISSION 

Respondent Jim Walter Resources, Inc. ("JWR11 ) has moved the 

Commission for a stay of the Commission's August 3, 1987 order in this 

proceeding pending disposition of JWR's petition for review of that 

order in the United States Court of Appeals for the Eleventh Circuit. 

The Commission's order affirmed Commission Administrative Law Judge 

James A. Broderick's order of temporary reinstatement of complainants 

Price and Vacha. 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.44. The 

Secretary of Labor has filed an opposition to JWR 1 s motion. 

Upon consideration of JWR1 s motion and the Secretary 1 s opposition, 

the motion is denied. JWR argues only that the order of temporary reinstatement in this case poses substantial issues of law and policy. 

However, JWR has failed to make a showing of any of the factors 

ordinarily justifying stay of an agency order pending judicial review. 

~., Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. 

Cir. 1958). 

1312 
Accordingly, JWR's motion for a stay of the Commission's temporary 

reinstatement order is denied. 

Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James P, Alexander, Esq. 

Robert K. Spotswood, Esq. 

John W. Hargrove, Esq. 

Bradley, Arant, Rose & White 

1400 Park Place Tower 

Birmingham, Alabama 35203 

Robert H. Strapp, Esq. 

2121 City Federal Building 

Birmingham, Alabama 35203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Richard V. 

~~/Sa£~ Backley, Commissioner ~~ 

C/_~ a. ,L 

Joyce A. Doyle, Conunis~ 

~ Ai}'astowka, Commissioner. 

r/-,_{J~'Jl~ ii. Clair Nelson, Commissioner 

1313 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ODELL MAGGARD 

v. 

CHANEY CREEK COAL COMPANY 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 25, 1987 

Docket No. KENT 86-1-D 

on behalf of ODELL MAGGARD 

v. 

DOLLAR BRANCH COAL CORPORATION 

and CHANEY CREEK COAL COMPANY 

Docket No. KENT 86-51-D 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Backley and Lastowka, Commissioners 

This consolidated proceeding involves two discrimination complaints filed on behalf of Odell Maggard. Both complaints allege an 

illegal discharge based on the same circumstances. The first complaint 

(Docket No. KENT 86-1-D) was brought by Odell Maggard in his own behalf 

against Chaney Creek Coal Company. The second complaint (KENT 86-51-D) 

was brought by the Secretary of Labor ("Secretary") on behalf of Odell 

Maggard against Chaney Creek Coal Co. ("Chaney Creek") and Dollar Branch 

Coal Corporation ("Dollar Branch"). The complaints allege that Chaney 

Creek and Dollar Branch (collectively, "operators") discharged Maggard 

in violation of section lOS(c)(l) of the Federal Mine Safety and Health 

Act, 30 U.S.C. § 815(c)(l)(ttMine Act"). because of his refusal to 

1314 
perform certain work that he believed to be hazardous. l/ Commission 

Administrative Law Judge Gary Melick concluded that the termination of 

Maggard's employment was discriminatory, ordered that Maggard be 

reinstated at the same rate of pay, and assessed a civil penalty of 

$1,000 for the violation of section lOS(c)(l). 8 FMSHRC 806 (May 

1986)(ALJ). In a supplemental decision, the judge awarded Maggard back 

pay and attorney's fees, and assessed an additional civil penalty 

because of the operators' continuing failure to reinstate Maggard. 

8 FMSHRC 966 (June 1986)(ALJ). 

We granted the operators' petition for discretionary review, which 

questioned whether the judge's decision upholding Maggard's complaint of 

discrimination was supported by substantial evidence, whether the judge 

was biased, and whether the judge's award of attorney's fees was 

proper. ll On the bases explained below, we affirm the judge's finding 

of a discriminatory discharge, conclude the judge was not biased, and 

vacate the award of attorney's fees. 

I. 

In September 1984, Chaney Creek owned and operated the Dollar 

Creek No. 3 Mine, an underground coal mine located in southeastern 

Kentucky. Maggard worked at the mine as a shuttle car driver. On 

January 10, 1985, Maggard was advised by Howard Muncy, the section 

foreman, that Maggard was to work as a miner-helper. In this capacity 

Maggard was to keep the continuous mining machine's trailing cable from 

being run over when the machine backed up. }/ 

lf Section 105(c)(l) of the Mine Act provides in part as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner ... in any coal or other mine .•. because of 

the exercise by such miner •.• on behalf of himself 

or others of any statutory right afforded by this 

[Act.] 

30 U.S.C. § 815(c)(l). 

~/ After their petition for review was granted by the Commission, the 

operators filed a motion to dismiss Dollar Branch as a party to the 

proceeding on the ground that Dollar Branch's records showed no direct 

relationship between Dollar Branch and Maggard. Section 113(d)(2) 

(A)(iii) of the Mine Act limits the Commission's review authority to 

only those issues raised in petitions for discretionary review. 

30 U.S.C. § 813(d)(2)(A)(iii). Accord, 29 C.F.R. § 2700.70(f). No 

issue concerning Dollar Branch's party status was raised by Dollar 

Branch or Chaney Creek in their petition for review. Consequently, the 

operators 1 motion to dismiss Dollar Branch must be denied. 

~/ Coal is extracted at the mine by a continuous mining machine that 

1315 
According to Maggard, on January 10 he was shocked twice while 

handling the trailing cable. Maggard testified that on both occasions 

he told Muncy that he had been shocked and asked that Muncy fix the 

cable, but Muncy refused. Maggard further testified that he asked Muncy 

for alternative work, but Muncy told him to "pull cable or else." Tr. 

43. As a result, Maggard left the mine. 

On June 11, 1985, Maggard filed a complaint of discrimination with 

the Department of Labor's Mine Safety and Health Administration 

("MSHA"). !±/ In September 1985, the Secretary advised Maggard by letter 

that he had not yet made the determination required to be made within 90 

days of the filing of a complaint as to whether Maggard had been 

discriminated against. '}_/ The Secretary further informed Maggard that, 

receives its operating power through a 500-foot long, 480-volt cable 

that trails behind it. 

~/ Section 105(c)(2) provides that the miner file a complaint within 

60 days after the act of discrimination occurs. Congress, however, 

intended that the time limit not be jurisdictional and that delays be 

allowed "under justifiable circumstances." Senate Subcommittee on 

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

History of the Federal Mine Safety and Health Act of 1977, at 624 

(1978). No issue concerning the timeliness of Maggard's initial 

complaint has been preserved on review. 

21 30 U.S.C. § 105(c)(3) states in relevant part: 

Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in 

writing, the miner, applicant for employment, or 

representative of miners of his determination 

whether a violation has occurred. If the Secretary, 

upon investigation, determines that the provisions 

of this subsection have not been violated, the 

complainant shall have the right, within 30 days of 

notice of the Secretary's determination, to file an 

action in his own behalf before the Commission, 

charging discrimination or interference in violation 

of paragraph (1). The Commission shall afford an 

opportunity for a hearing .,, and thereafter shall 

issue an order, based upon findings of fact, 

dismissing or sustaining the complainant 1 s charges 

and, if the charges are sustained, granting such 

relief as it deems appropriate, including, but not 

limited to, an order requiring the rehiring or 

reinstatement of the miner to his former position 

with back pay and interest or such remedy as may be 

appropriate. Such order shall become final 30 days 

after its issuance. Whenever an order is issued 

sustaining the complainant's charges under this 

subsection, a sum equal to the aggregate amount of 

all costs and expenses (including attorney's fees) 

as determined by the Commission to have been 

1316 
pursuant to the Act and Commission Procedural Rule 40(b), Maggard had 

the right to file a complaint on his own behalf with this Commission. 

The Secretary also informed Maggard, however, that the Secretary's 

investigation was on-going and in the event it was determined that a 

violation of section 105(c) had occurred, the Secretary would file a 

complaint on Maggard's behalf. 

On October 1, 1985, Maggard, through private counsel, filed a 

discrimination complaint asserting jurisdiction under section 105(c)(3) 

of the Act and Commission Rule 40(b), 29 C.F.R. § 2700.40(b). QI On 

December 14, 1985, the Secretary informed Maggard that the Secretary had 

determined that a violation of section 105(c) had occurred and on 

December 26 the Secretary filed a complaint on Maggard 1 s behalf pursuant 

to section 105(c)(2) of the Act. 30 U.S.C. § 815(c)(2). ZI The 

Secretary thereafter moved the judge to dismiss the complaint that 

Maggard had filed in his own behalf. The judge reserved decision on the 

reasonably incurred by the miner, applicant for 

employment or representative of miners for, or in 

connection with, the institution and prosecution of 

such proceedings shall be assessed against the 

person committing such violation .•.. 

30 U.S.C. § 815(c)(3). 

£1 Commission Procedural Rule 40(b) stated: 

A complaint of discharge, discrimination or 

interference under section lOS(c) of the Act, may be 

filed by the complaining miner, representative of 

miners, or applicant for employment if the Secretary 

determines that no violation has occurred, or if the 

Secretary fails to make a determination within 90 

days after the miner complained to the Secretary. 

ZI Section 105(c)(2) states in relevant part: 

If upon such investigation, the Secretary 

determines that the provisions of this §ubsection 

have been violated, he shall immediately file a 

complaint with the Commission, with service upon the 

alleged violator and the miner, applicant for 

employment, or representative of miners alleging 

such discrimination or interference and propose an 

order granting appropriate relief. The Corrunission 

shall afford an opportunity for a hearing (in 

accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a)(3) 

of such section) and thereafter shall issue an 

order, based upon findings of fact, affirming, 

modifying, or vacating the Secretary's proposed 

order, or directing other appropriate relief. 

30 U.S.C. § 815(c)(2). 

1317 
Secretary's dismissal motion and consolidated the two complaints for 

hearing. 

After an evidentiary hearing, the judge found that Maggard 

suffered serious electrical shock while handling the cable and that 

Maggard had a good faith, reasonable belief that continuing to handle 

the cable would be hazardous. 8 FMSHRC at 815-16. The judge also found 

that Maggard had communicated his concern to the operators and had been 

denied alternative work. 8 FMSHRC at 816. Consequently, the judge held 

that Maggard was the subject of a discriminatory discharge, concluding 

that Maggard engaged in a protected work refusal when he left the mine 

rather than handle the cable. 8 FMSHRC at 818. The judge denied the 

Secretary's Motion to Dismiss Maggard 1 s individual complaint, stating: 

"It is clear ••. that Congress intended that the miner have the right to 

file a complaint on his own upon the failure of the Secretary to act 

within the prescribed 90-day period." 8 FMSHRC at 809. He further 

found that Commission Procedural Rule 40(b) implemented that intent. 

Id. 

The judge awarded Maggard back pay and interest through June 1, 

1986, totaling $33,660.19. In awarding attorney 1 s fees and expenses of 

$16,456.22, the judge rejected the operators' argument that Maggard 

would have been sufficiently represented by the Secretary and that 

retention of private cdunsel was unnecessary and unreasonable. The 

judge concluded that although Maggard's individual complaint paralleled 

the Secretary 1 s complaint, it was independent of it. The judge noted 

that Maggard 1 s private counsel took an active role in trying the case 

and that the Secretary did not file his complaint until twenty days 

prior to the hearing that had been scheduled on Maggard 1 s individual 

complaint. 8 FMSHRC at 967. 

II. 

In reviewing an administrative law judge 1 s findings of fact, the 

hine Act imposes on the Commission a substantial evidence standard of 

review. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The operators assert that the 

judge 1 s factual findings underlying his conclusion of illegal 

discrimination are not supported by substantial evidence. They argue 

that Maggard did not believe reasonably and in good faith that handling 

the cable was hazardous and that Maggard was not fired, but quit 

voluntarily because he was assigned a job he found onerous. On review, 

our task in deciding substantial evidence questions is to determine 

whether there 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). Applying this standard, 

we conclude that the challenged findings of fact are supported by 

substantial evidence. 

The general principles governing analysis of discrimination cases 

under the Mine Act are settled. In order to establish a prima facie 

case of discrimination under section 105(c) of the Act, a complaining 

miner bears the burden of production and proof in establishing that 

(1) he engaged in protected activity and (2) the adverse action 

complained of was motivated in any part by that activity. Secretary on 

1318 
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980), rev 1 d on other grounds, sub nom. 'consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

Robinette v. United Castle eoal Co., 3 FMSHRC 803, 817-18 (April 1981). 

The operator may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no part 

motivated by protected activity. If the operator cannot rebut the prima 

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

proving that it also was motivated by the miner's unprotected activity 

alone and would have taken the adverse action in any event for the 

unprotected activity. Pasula, supra; see also Eastern Assoc. Coal Corp. 

v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Robinette, supra; Donovan 

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

Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically 

approving the Conunission's Pasula-Robinette test). Cf. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-413 (1983)(approving 

nearly identical test under National Labor Relations Act). 

With respect to the first element of a prima facie case, the 

Conunission has held that a miner's work refusal is protected under 

section 105(c) of the Mine Act if the miner has a reasonable, good faith 

belief in a hazardous condition. Pasula, 2 FMSHRC at 2793, 2796; 

Robinette, 3 FMSHRC at 807-12. See also Miller v. FMSHRC, 687 F.2d 194 

(7th Cir. 1982). The judge found that Maggard's allegation that he was 

shocked by the cable was corroborated by the continuous mining machine 

operator and three other witnesses. 8 FMSHRC at 816; Tr. 107-110, 113, 

121-23, 130, 134-138. While the operators' witnesses testified that the 

trailing cable was in good condition and that it did not shock those who 

handled it, the judge found this testimony to be undercut by prior 

conflicting statements by those witnesses. 8 FMSHRC at 817. 

The judge stated that witness credibility was critical to 

resolution of the case and he found "(Maggard] and his supporting 

witnesses to be more credible. 11 8 FMSHRC at 815. We have recognized 

that a "judgeis credibility findings and resolution of disputed 

testimony should not be overturned lightly." Robinette, 3 FMSHRC at 

813. See also Secretary of Labor on behalf of Bush v. Union Carbide 

Corp., 5 FMSHRC 993, 999 (June 1983). Accord, Bjes v. Consolidation 

Coal Co., 6 FMSHRC 1411 9 1418 (June 1984). We have reviewed carefully 

the operators 1 allegations regarding the condition of the trailing cable 

and the alleged shock suffered by Maggard. We conclude that the 

operators have not provided evidence so compelling to justify the 

extraordinary step of overturning the findings of a trier of fact 

resting on credibility determinations. Thus, we conclude that 

substantial evidence supports the judge 1 s finding that Maggard had a 

good faith, reasonable belief that handling the cable was hazardous. 

Where reasonably possible, a miner refusing work ordinarily must 

communicate to a representative of the operator his belief that a safety 

or health hazard exists. Dillard Smith v. Reco, Inc., 9 FMSHRC ~-' 

Docket No. VA 86-9-D, slip op. at 4 (June 30, 1987); Simpson v. Kenta 

Energy, Inc. and Roy Dan Jackson, 8 FMSHRC 1034, 1038-39 (July 1986), 

appeal docketed sub nom. Simpson v. FMSHRC, No. 86-1441 (D.C. Cir. 

August 7, 1986); Secretary on behalf of Dunmire and Estle v. Northern 

1319 
Coal Co., 4 FMSHRC 126, 133 (February 1982). Such communication accords 

with the requirement that the work refusal be premised on a good faith, 

reasonable belief in the hazard. Maggard stated that he told Section 

Foreman Howard Muncy he had· been shocked, that he asked Muncy to repair 

the cable and report the accident, and that when Muncy refused he asked 

for other work. Muncy stated that Maggard did not tell him he had been 

shocked nor ask that the accident be reported. The judge found 

Maggard 1 s version, which was corroborated in part by the continuous 

mining machine operator, to be more credible and logically consistent. 

8 FMSRHC at 816. Again, we conclude that there is not a sufficient 

basis in the record for us to overturn the judge's credibility 

determination, and we c9nclude that substantial evidence supports the 

judge's finding that Maggard communicated his safety concerns to Muncy 

at the time of the work refusal. 

With respect to the second element of a prima facie case, that the 

adverse action complained of was motivated in any part by the protected 

activity, there is nothing in the record to suggest that prior to 

Maggard's discharge the operators were dissatisfied with his work. The 

operators argue that there was no adverse action and that M~ggard was 

not discharged, but rather quit because he was angry at being assigned 

the job of miner-helper. The judge noted that Maggard did not complain 

when assigned to pull cable prior to January 10 and similarly that he 

did not complain when assigned the task on January 10. The judge 

concluded that it was "highly unlikely that Maggard would have quit ... 

but for some extraordinary reason such as unsafe working conditions." 

8 FMSHRC at 817. Although the operators presented witnesses who 

testified that Maggard told them that he quit because he was assigned to 

pull cable, the judge did not credit their testimony. We conclude that 

the evidence is not so compelling that we can overturn the judge's 

finding that Maggard was discharged because of his protected work 

refusal. 

Accordingly, we affirm the judge's conclusion that the operator 1 s 

termination of Maggardis employment violated section 105(c)(l) of the 

Act. 

III. 

On the final day of the hearing, private counsel for Odell Maggard 

called Jerry Maggard, Odell Maggard 1 s cousin, as a rebuttal witness. 

The previous evening, a group composed of private counsel, counsel for 

the Secretary Odell Maggard, and W.F. Taylor, another Department of 

Labor attorney, had travelled to Jerry Maggard's residence to serve on 

him a subpoena requiring his attendance and testimony at the hearing 

which had been continued until the following morning. At the hearing, 

Jerry Maggard testified that he worked with Odell Maggard on January 10, 

1985, but that he could not recall the details of the events of that 

day. Upon completion of Jerry Maggard 1 s testimony, private counsel for 

Odell Maggard called W.F. Taylor to testify, over the objection of 

counsel for the operators, concerning statements that Jerry Maggard had 

made while being served with the subpoena the previous evening, which 

statements conflicted with his testimony at the hearing. Taylor 

testified that Jerry Maggard had stated the previous evening that he had 

1320 
seen Odell Maggard throw the cable and jump, and that Odell had told him 

that he was leaving because he had been shocked. The operators argue a 

denial of due process resulting from Taylor's testimony on a number of 

grounds. We conclude, ~owever, that the judge did not err in permitting 

Taylor's testimony. 

Although Taylor was not listed as a witness in Maggard's pretrial 

submissions, the judge, in his discretion, permitted both parties to 

call witnesses not identified previously. In addition, Taylor was 

called solely to impeach Jerry Maggard 1 s testimony. Although Taylor, 

unlike the other witnesses, was not sequestered during the hearing, h"' 

was not present in the hearing room during Jerry Maggard 1 s testimony. 

Further, Taylor's testimony regarding what he was told by Jerry Maggard 

was both material and relevant, and therefore admissible. Mid-Continent 

Resources, Inc., 6 FMSHRC 1132, 1135-36 (May 1984). Although Taylor was 

called to testify after Jerry Maggard had left the courthouse, the 

operators made no effort to have Jerry Maggard recalled or to have him 

testify at a later date. 

We also find no basis for the operators' assertion that the 

judge's treatment of Taylor's testimony establishes that the judge was 

biased against the operators. The judge noted that Taylor's testimony 

regarding Jerry Maggard's out of court statements corroborated the 

testimony of Odell Maggard and the continuous mining machine operator. 

8 FMSHRC at 815. This is not an impermissible characterization of the 

testimony and does not indicate that the judge was predisposed to decide 

the case in Maggard's favor. Further, the judge's comment at a 

continued hearing that he had always found Taylor's conduct 11 above 

board" and 11 highly ethical" was based upon Taylor's previous appearances 

before the judge and relates only to Taylor's character and not to the 

merits of the case. Tr. 2-4 (May 20, 1986). ~/ We conclude that the 

circumstances surrounding Taylor's testimony and its consideration by 

the judge in no way affected the judge's ability to rule impartially on 

the case. ':}_/ 

IV. 

Maggard filed his individual complaint of ,discrimination asserting 

jurisdiction under section 105(c)(3) and citing Commission Rule 40(b), 

29 C,F,R. § 2700.40(b), when the Secretary failed to determine within 90 

days of Maggard 1 s initial complaint to the Secretary whether Maggard was 

the subject of prohibited discrimination. Approximately three months 

~/ The comment was made in the context of a discussion as to the 

propriety of Taylor having testified on Maggard 1 s behalf. 

21 While this case has been pending, counsel for Maggard filed two 

procedural motions regarding the issue of Taylor's testimony and the 

alleged bias of the judge. In view of our conclusion that Taylor's 

testimony was heard properly by the judge and that the record does not 

support a finding that the judge was biased or prejudiced, the motions 

are denied. 

1321 
after Maggard filed on his own behalf, the Secretary filed a 

discrimination complaint on Maggard's behalf pursuant to section 

105(c)(2) of the Act. The Secretary then moved to dismiss Maggard's 

individual complaint arguing that it lacked a jurisdictional base since 

the Secretary had filed a complaint on Maggard's behalf under section 

105(c)(2). The judge denied the Secretary's motion, holding that a 

complainant had the right to file on his own behalf upon the failure of 

the Secretary to make a determination within 90 days. He also noted 

that Commission Procedural Rule 40(b) provides for such a procedure. 

8 FMSHRC at 808-09. 

In awarding attorney's fees totaling $16,452.22 to Maggard, the 

judge noted that the Secretary had filed his complaint with the 

Commission nearly two months after the hearing had been scheduled on 

Maggard's complaint and that Maggard's attorney had taken the lead role 

in the prosecution of the complaint. Under such circumstances, he found 

that attorney's fees were expenses "reasonably incurred by the miner" 

within the meaning of section 105(c)(3) of the Act. 8 FMSHRC at 967. 

In another decision issued today, we have concluded that section 

105(c)(3) of the Mine Act does not grant complainants the right to 

initiate an action on•their own behalf prior to the Secretary's 

determination as to whether a violation of section lOS(c) has occurred. 

Comcomitantly we have invalidated the part of Commission Procedural Rule 

40(b) that provides for such a procedure. John A. Gilbert v. Sandy Fork 

Mining Co., 9 FMSHRC ~-' Docket Nos. KENT 86-49-D and KENT 86-76-D, 

slip op. at 10-13 (August 25, 1987). Because Maggard filed his 

complaint alleging jurisdiction under section 105(c)(3) prior to the 

Secretary's determination as to whether a violation occurred, Maggard's 

individual complaint under section 105(c)(3) must be dismissed. 

Moreover, attorney's fees are no longer awardable to Maggard under 

our decision in Secretary on behalf of Ribel v. Eastern Associated Coal 

Corp., 7 FMSHRC 2015 (December 1985), rev 1 d in part sub nom. Eastern 

Associated Coal Corp. v. FMSHRC, 813 F.2d 639 (4th Cir. 1987). In 

Ribel, we held that in an action initiated by the Secretary under 

section 105(c)(2) the complainant was entitled to reimbursement for 

private attorney 1 s fees as long as the services rendered were nonduplicative of the Secretary's efforts and contributed substantially to 

the successful litigation of the claim. 7 FMSHRC at 2025. The U.S. 

Court of Appeals for the Fourth Circuit has disagreed with our 

conclusion and held that an award of attorney 1 s fees under the Mine Act 

is not authorized in cases where the Secretary has found a violation and 

has filed a complaint as the representative of the complainant pursuant 

to section 105(c)(2). Eastern Assoc. Coal Corp., supra, 813 F.2d at 

644. Although the court of appeals in Eastern reversed our contrary 

conclusion on this issue and this case does not arise in the Fourth 

Circuit, we will follow the court's holding in the absence of contrary 

judicial authority. 

Therefore, in accordance with the decision of the Fourth Circuit 

in Eastern, no attorney's fees may be awarded to Maggard since the 

Secretary prosecuted his complaint pursuant to section 10S(c)(2). 

1322 
Accordingly, we vacate the judge's award of attorney's fees. 10/ 

v. 

In sum, we hold that the judge 1 s findings of fact underlying his 

conclusion that Maggard was discharged in violation of section lOS(c)(l) 

of the Mine Act are supported by substantial evidence. We also find no 

error in his treatment of the testimony of W.F. Taylor. We further hold 

that the judge erred in awarding attorney's fees to Maggard in view of 

the Secretary's prosecution of his complaint. Accordingly, the judge's 

decision on the merits is affirmed as is his order of reinstatement, the 

award of backpay and interest through June 1, 1986, totaling $33,660.19, 

and his imposition of penalties. The award of attorney's fees is 

vacated. 

~~ FOrdB:jtffd, Chairman 

L~-t,z/~~ Richard V. Backley, Commissioner {.,,.-

10/ Also, the motion of counsel for Maggard for additional attorney's 

fees for time spent to prepare a reply to a motion by Chaney Creek is 

denied. 

1323 
Commissioner Doyle and Commissioner Nelson, concurring in part and dissenting in part: 

Applying the substantial evidence standard of review imposed by the 

Mine Act, we concur with the majority in affirming the judge's finding of 

discrimination and we also concur that the judge did not err with respect 

to the testimony of W.F. Taylor. We respectfully dissent, however, 

from the decision to the extent that it dismisses Mr. Maggard's individual complaint and vacates the award of attorneys' fees in their 

entirety. The majority's action comes as a result of their decision 

issued today in another case in which they conclude that the Mine Act 

"does not grant a miner a right of individual action until the Secretary 

of Labor makes a determination that no discrimination has occurred. 

On that basis, the majority invalidated that portion of the Commission's 

Rule 40(b) that provided claimants the right to bring their own action if 

the Secretary failed to act within the statutory time period. John A. 

Gilbert v. Sandy Fork Mining Co., 9 FMSHRC , Docket Nos. KENT 86-49-D 

and KENT 86-76-D, slip op. at (August _, 1987). 

Rule 40(b) read, in pertinent part, as follows: 

A complaint of discharge, discrimination 

or interference under section 105(c) of 

the Act, may be filed by the complaining 

miner, representative of miners, or applicant for employment if the Secretary 

determines that no violation has occurred, 

or if the Secretary fails to make a determination within 90 days after the miner 

complained to the Secretary, 

29 C.FoRo §2700,40(b)(l986) (emphasis added), 

Thus, under Rule 40(b), if the Secretary failed to act within ninety days 

after his receipt of a complaint, his exclusive jurisdiction to prosecute 

discrimination complaints arising under the Mine Act ended at that time. 

In this case the Secretary failed to take action within ninety days and 

so advised Mr, VJ.aggard in an undated letter that reads, in pertinent part, 

as follows 

the Act and the Federal 

the Commission beSecre tary has not completed his 

consideration within 90 days. Should you 

desire to file a complaint of discrimination directly with the Commission, it should 

be addressed ••. (emphasis added). 

Mr. Maggard followed the Commission's Rule 40(b) and the Secretary's 

advice and commenced his own action. Three months later the Secretary 

commenced an action under section 105(c)(2) and subsequently moved to 

1324 
dismiss Mr. Maggard's action on the grounds that it lacked a jurisdictional basis. The operator did not join in the motion or otherwise 

move to have one or the other of the actions dismissed. 1/ After a 

consolidated hearing, the judge denied the motion, finding that the 

Secretary lacked standing to file such a motion in Mr. Maggard's private 

action and that, in any event, section 105(c)(3) and the Commission's 

Rule 40(b) provided a jurisdictional basis for Mr. Maggard's individual 

complaint. After finding for Mr. Maggard, he awarded attorneys' fees in 

the amount of $16,456.22. 

For the reasons stated in our dissent in Gilbert, 9 FMSHRC , we 

are of the opinion that the Commission's Rule 40(b) was a reasonable construction of the Mine Act and, as such, should remain in effect. Chevron, 

U.S.A., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). 

Accordingly, we cannot join with the majority's action in invalidating 

Rule 40(b). As a consequence, we would affirm the administrative law 

judge's denial of the Secretary's Motion to Dismiss Mr. Maggard's individual complaint. We would also affirm the award of attorneys' fees 

in the individual action to the extent that they were incurred in 

instituting and prosecuting Mr. Maggard's discrimination claim, as provided in section 105(c)(3). We would disallow such fees to the extent 

that they were incurred in relation to the jurisdictional issue or in 

coordinating the prosecution of the two cases. 

L. Clair Nelson 

Commissioner 

1/ In its response to the statement of attorneys' fees filed after the 

hearing and in its brief on review to the Commission, the operator argued 

that fees should not be awarded after the date on which the Secretary 

commences representation of the complainant and, alternatively, that the 

fees should be reduced for time spent on peripheral issues. Respondent's 

Response to Statement of Attorney's Fees and Expenses at 2-3, Reply Brief 

for Respondent at 14-15. 

1325 
Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Thomas W. Miller, 

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

Suite 700, Security Trust Bldg. 

Lexington, Kentucky 40507 

Ann Rosenthal, Esq. 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Gary Melick 

Federal Mine Safety &, Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1326 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 25, 1987 

JOHN A. GILBERT 

v. 

SANDY FORK MINING CO., INC. 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA), 

on behalf of JOHN A. GILBERT 

v. 

SANDY FORK MINING CO., INC. 

Docket No. KENT 86-49-D 

Docket No. KENT 86-76-D 

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

Commissioners 

DECISION 

BY' Ford Chairman; Backley and Lastowka, Commissioners: 

This consolidated discrimination proceeding involves two 

discrimination complaints filed on behalf of John A. Gilbert. Both 

complaints allege an illegal discharge based on the same circumstances. 

The first complaint (Docket No. KENT 86-49-D) was filed by Gilbert on 

his own behalf against Sandy Fork Mining Company, Inc. ("Sandy Fork11 ). 

The second complaint (Docket No. KENT 86-76-D) was filed by the 

Secretary of Labor on behalf of Gilbert against Sandy Fork. The 

complaints allege that Sandy Fork discharged Gilbert in violation of 

section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seg. (1982), because of his refusal to perform work that 

he believed to be hazardous. 11 Commission Administrative Law Judge 

11 Section 105(c) provides in relevant part: 

(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 ... because such miner .•• has filed or made a 

1327 
Gary Melick issued a decision: (1) denying the Secretary's motion to 

dismiss the complaint filed by Gilbert on his own behalf; and 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

agent ... of an alleged danger or safety or health 

violation in a coal or other mine or because of 

the exercise by such miner ... of any statutory 

right afforded by this [Act]. 

(2) Any miner ..• who believes that he has been 

discharged, interfered with, or otherwise 

discriminated against by any person in violation of 

this subsection may, within 60 days after such 

violation occurs, file a complaint with the 

Secretary alleging such discrimination. Upon 

receipt of such complaint, the Secretary shall 

forward a copy of the complaint to the respondent 

and shall cause such investigation to be made as he 

deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt 

of the complaint ••.• If upon such investigation, the 

Secretary determines that the provisions of this 

subsection have been violated, he shall immediately 

file a complaint with the Commission, with service 

upon the alleged violator and the miner ... alleging 

such discrimination or interference and propose an 

order granting appropriate relief. The Commission 

shall afford an opportunity for a hearing •.. and 

thereafter shall issue an order, based upon findings 

of fact, affirming, modifying, or vacating the 

Secretary's proposed order, or directing other 

appropriate relief. Such order shall become final 

30 days after its issuance. The Commission shall 

have authority in such proceedings to require a 

person committing a violation of this subsection to 

take such affirmative action to abate the violation 

as the Commission deems appropriate, including, but 

not limited to, the rehiring or reinstatement of the 

miner to his former position with back pay and 

interest. The complaining miner ... may present 

additional evidence on his own behalf during any 

hearing held pursuant to [t]his paragraph. 

(3) Within 90 days of the receipt of a complaint 

filed under paragraph (2), the Secretary shall 

notify, in writing, the miner ... of his 

determination whether a violation has occurred. If 

the Secretary, upon investigation, determines that 

the provisions of this subsection have not been 

violated, the complainant shall have the right, 

within 30 days of notice of the Secretary's 

determination, to file an action in his own behalf 

before the Commission, charging discrimination or 

interference in violation of paragraph (1). The 

Commission shall afford an opportunity for a hearing 

1328 
(2) concluding that Sandy Fork Mining Company ("Sandy Fork") had not 

discriminated against Gilbert in violation of section lOS(c)(l) of the 

Act. 8 FMSHRC 1084 (July)(ALJ). For the reasons below, we affirm on 

substantial evidence grounds the judge's conclusion that Sandy Fork did 

not discriminate against Gilbert in violation of the Act, but we reverse 

the judge 1 s denial of the Secretary's motion to dismiss the complaint 

Gilbert filed on his own behalf. 

I. 

Facts and Procedural History 

For three and a half years prior to August 1985, Gilbert was 

employed as a miner at Sandy Fork's No. 12 underground coal mine in 

Beverly, Kentucky. During the last two and a half years of that period, 

Gilbert worked as an operator of a continuous mining machine on the 

second (evening) shift from 3:00 p.m. to 11:00 p.m. During the relevant 

time Gilbert worked in the 002 section, which consisted of six entries. 

For several weeks prior to August 6, 1985, the 002 section had 

experienced difficult roof conditions caused by "hill seams, 11 

encountered when mining operations are conducted near surf ace 

outcroppings. £/ Gilbert testified that during that period rock had 

fallen on his mining machine and that on August 5, 1985, he and another 

miner operator, Carmine Dean Caldwell, had left certain work locations 

because of 11working 11 hill seams -- that is, hill seams emitting creaking 

..• and thereafter shall issue an order, based upon 

findings of fact, dismissing or sustaining the 

complainant 1 s charges and, if the charges are 

sustained, granting such relief as it deems 

appropriate, including, but not limited to, an order 

requiring the rehiring or reinstatement of the miner 

to his former position with back pay and interest or 

such remedy as may be appropriate. Such order shall 

become final 30 days after its issuance. Whenever 

an order is issued sustaining the complainant 1 s 

under this subsection, a sum equal to the 

aggregate amount of all costs and expenses 

(including attorney's fees) as determined by the 

Commission to have been reasonably incurred by the 

miner for, or in connection with, the institution 

and prosecution of such proceedings shall be 

assessed against the person committing such 

violation. Proceedings under this section shall be 

expedited by the Secretary and the Commission. 

30 U.S.C.§ 815(c). 

'];_/ A "hill seam11 is a crack or fault in a mine roof that generally 

has mud or water emanating from it. Tr. I 30, II 143. 

, 5 FMSHRC 845, 847 & nn. 3 & 4 (May 1983 . 

1329 
noises indicative of unstable roof conditions. Bureau of Mines, U.S. 

Department of the Interior, A Dictionary of Mining, Mineral, and Related 

Terms 1244 (1968). 

On the afternoon of August 6, 1985, while travelling to the 002 

section, Gilbert and Caldwell expressed their concerns about the roof 

conditions to Section Foreman Willie Sizemore. Sizemore gave permission 

for the two to work together operating one mining machine so that they 

could look out for one another's safety. On the section, Gilbert was 

told by the miner operator leaving the earlier shift that the roof was 

bad and breaking up. Gilbert and Caldwell then examined the faces in 

the section. Gilbert testified and the judge found that the No. 3 entry 

had a hill seam and a stress crack in the rib and roof and that the 

crosscut approaching the No. 4 "kickback" had a hill seam and stress 

cracks. }/ Sizemore and Darrell Huff, Sandy Fork's chief engineer and 

acting safety director, also examined the faces on August 6 and 7, 1985. 

They testified that there were no exposed hill seams in the No. 4 

kickback, that a crack and hill seam were present in the No. 3 entry, 

and that hill seams were present in other areas of the section. The 

judge found that there was not an exposed hill seam in the No. 4 

kickback itself. 

After examining. the faces on August 6, Gilbert and Caldwell 

proceeded to the No. 4 kickback, where one cut of coal remained to be 

taken before moving to the No. 3 entry. Sizemore testified and the 

judge found that this final cut in the No. 4 kickback involved about 

four or five hours of work. Gilbert told Caldwell that he was going to 

refuse to cut the coal. He then left the face of the No. 4 kickback, 

located Sizemore and expressed his concerns about the condition of the 

roof. Sizemore testified and the judge found that Gilbert was referring 

specifically to roof conditions in the No. 3 entry. 

Gilbert testified that Sizemore stated that he would add a few 

extra 11 cribs 11 as support for the roof or stand with the two miners as 

they cut the coal, Sizemore testified that he told Gilbert that he 

would have cribs built on both sides of the No. 3 entry, the only area 

about which Gilbert had expressed concern. After speaking with 

Sizemore, Gilbert went outside and repeated his concerns to General Mine 

Foreman Eddie Spurlock. Spurlock told Gilbert that he would not insist 

that he resume work, but advised Gilbert to go home and return the next 

day to meet with Mine Superintendent Willie Begley and General Manager 

Bill Phipps. Gilbert left the mine. After Gilbert left, Sizemore spent 

the remainder of the shift having cribs built in the No. 3 entry. 

That same evening Gilbert went to Mine Superintendent Begley's 

home to repeat his concerns about the top. Gilbert also asked what 

Begley was going to do to get him another job. Begley told Gilbert to 

meet with him the next morning at the mine. During the night, a roof 

fall occurred in the No. 3 entry and the area was "dangered off. 11 

'}../ A "kickback" is an entry mined in the direction opposite to its 

normal course because of adverse roof conditions. Tr. I 111; II 140. 

1330 
On the morning of August 7, 1985, because of Gilbert's statements 

and because of the roof fall that had occurred in the No. 3 entry, 

Begley and Phipps went underground to inspect the face areas. Gilbert 

arrived at the mine office· about 9:00 a.m., six hours before his 

scheduled shift was to begin. While waiting for Begley and Phipps, 

Gilbert was told by another miner of the roof fall. When.the two 

supervisors returned to the office about 9:30 or 10:00 a.m., Gilbert 

asked what they intended to do to support the roof. Begley and Phipps 

responded, in essence, that they were doing all they could to provide 

adequate support given the roof conditions being encountered. Begley 

testified and the judge found that Gilbert requested alternate work at 

any mine other than the No. 12 mine. Begley replied that the only job 

available for Gilbert was his present position. Gilbert then handed in 

his safety equipment and left the mine. 

When Gilbert left the mine on the morning of August 7, he had not 

been given a specific assignment as to the work he would be performing 

later that day when the evening shift began. The judge found that "he 

could not have known where in the No. 12 mine he would be working. 11 

8 FMSHRC at 1091. According to company records and Phipps' testimony, 

Gilbert was paid for one hour's work on August 6, and was carried on the 

company rolls as an 11 absentee 11 until August 9, 1985, when the daily 

report listed him as 11 quit. 11 

On August 8, 1985, the day after he left the mine, Gilbert filed a 

section lOS(c) discrimination complaint with the Department of Labor's 

Mine Safety and Health Administration ( 11MSHA") alleging that he had been 

discriminatorily discharged. The Secretary of Labor timely initiated 

his investigation of the complaint, pursuant to section 105(c)(2) of the 

Mine Act. He did not, however, make a determination within 90 days of 

receipt of Gilbert's complaint, as required by section 105(c)(3) of the 

Act, as to whether a violation of section lOS(c) had occurred. See n. 1 

supra. 

By letter dated November 15, 1985, the Secretary informed Gilbert 

that the investigation into his complaint had not yet been completed. 

The letter also stated: "By the terms of the Act and the Federal Mine 

Safety and Health Review Commission's procedural rules, you have a right 

to file your own complaint with the Commission because the Secretary has 

not completed his consideration within 90 days. 11 Thereafter, on 

December 23, 1985, Gilbert filed his own discrimination complaint with 

the Commission pursuant to Commission Procedural Rule 40(b). ~/ Two 

~/ Commission Procedural Rule 40(b) states: 

A complaint of discharge, discrimination or 

interference under section lOS(c) of the Act, may be 

filed by the complaining miner, representative of 

miners, or applicant for employment if the Secretary 

determines that no violation has occurred, or if the 

Secretary fails to make a determination within 90 

1331 
months later, on February 24, 1986, the Secretary finally filed with the 

Commission a section 10S(c)(2) discrimination complaint on behalf of 

Gilbert. The Secretary then proceeded to move to dismiss Gilbert's 

individual complaint in light of the complaint filed by the Secretary. 

The administrative law judge deferred ruling on the motion and permitted 

both complaints to proceed to hearing. 

In his decision on the merits the judge denied the Secretary's 

motion to dismiss. Acknowledging that section lOS(c) does not expressly 

provide a right of action to individual complainants when the Secretary 

fails to determine within 90 days whether a violation of section lOS(c) 

has occurred, he opined that Congress must have intended that the miner 

have the right to file a complaint on his own upon the failure of the 

Secretary to act within the prescribed 90-day period. 8 FMSHRC at 1087. 

The judge pointed to Commission Procedural Rule 40(b) permitting such 

complaints in those circumstances. He accordingly determined that he 

had jurisdiction to entertain both complaints. Id. 

With respect to the merits of Gilbert's discrimination claims, the 

judge treated Gilbert's departure from the No. 4 kickback on the 

afternoon of August 6 and from the mine premises on the morning of 

August 7 as two distinct work refusals, and found that neither was 

reasonable nor made in good faith. 8 FMSHRC at 1090-91. Addressing the 

events of August 6, the judge found that Gilbert had four to five hours 

of work left in the No. 4 kickback when he refused to cut coal and that 

there is "no credible evidence that any unusual hazard did in fact exist 

in the No. 4 kickback. 11 8 FMSHRC at 1091. The judge concluded: 

It was clearly premature for Gilbert to have 

exercised any work refusal for alleged hazards in 

the No. 3 entry some 4 to 5 hours before he would be 

expected to work in that entry and before any of the 

supplemental roof support promised by his section 

foreman had been erected •..• It was incumbent on 

Gilbert to at least wait and see what additional 

support would be provided before exercising a work 

refusal. Accordingly, the work refusal was neither 

reasonable nor made in good faith. 

8 FMSHRC at 1091, 

Turning to Gilbert 1 s decision on August 7 to leave the mirte, the 

judge stated: 

I also observe that Gilbert had not been 

discharged and was given the opportunity to return 

to work on August 7, the day after he refused to 

work and walked out of the mine. At that time there 

had already been a roof fall in the No. 3 entry and 

conditions had significantly changed. Indeed it 

days after the miner complained to the Secretary. 

29 C.F.R. § 2700.40(b). 

1332 
appea:.:s that when Gilbert was told on August 7, that 

he could return to his job in the No. 12 mine as a 

continuous miner operator he declined and insisted 

on being transferred to a different mine. At this 

time he had been given no specific work assignment 

and could not have known where in the No. 12 mine he 

would be working. Thus again he could not at this 

time have entertained a reasonable or a good faith 

belief th~t he would have been required to work in a 

hazardous condition. 

8 FMSHRC at 1091. 

Noting evidence revealing an interest and request by Gilbert to 

transfer to a day shift job, the judge questioned Gilbert 1 s good faith 

in his work refusals: "Thus it appears that Gilbert's refusal to work 

and his insistence on transferring to another mine may actually have 

been motivated by a pressing desire to work on a different shift." 

8 FMSHRC at 1092. In summary, the judge denied Gilbert's claims on the 

grounds that his work refusals were not protected activities, that he 

suffered no adverse action in that he was not discharged, and that he 

voluntarily quit his job on August 7. 

II. 

Discrimination Issues 

The general principles governing analysis of discrimination cases 

under the Mine Act are settled. 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 

that (1) he engaged in protected activity and (2) the adverse action 

complained of was motivated in any part by that activity. Secretary on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980), rev 1 d on other grounds sub nom. Consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). 

The operator may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no part 

motivated by protected activity. If the operator cannot rebut the prima 

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

proving that it also was motivated by the miner 1 s unprotected activity 

and would have taken the adverse action in any event for the unprotected 

activity alone. Pasula, supra; Robinette, supra; see also Eastern 

Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.); Donovan v. 

Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v. 

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

Commission.1 s Pasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly 

identical test under National Labor Relations Act). 

The Commission has held that a miner's refusal to perform work is 

protected under section 105(c)(l) of the Mine Act if it is based on a 

reasonable, good faith belief that the work involves a hazard. Fasula, 

1333 
supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12; 

Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 

126, 133-36 (February 1982) See also Secretary on behalf of Cameron v. 

Consolidation Coal Co., v.·FMSHRC, 7 FMSHRC 319, 321-24 (March 1985), 

aff'd sub nom. Consolidation Coal Co. v. FMSHRC, 795 F.2d 364, 366-68 

(4th Cir. 1986); Secretary of Labor v. Metric Constructors, Inc., 6 

FMSHRC 226, 229-31 (February 1984), aff'd. sub nom. Brock v. Metric 

Constructors, Inc., 766 F.2d 469, 472-73 (lJth Cir. 1985); Miller v. 

FMSHRC, 687 F.2d 194, 195-97 (7th Cir. 1982). If an operator takes an 

adverse action against a miner in any part because of a protected work 

refusal, a prima facie case of discrimination is established. !:_&., 

Dunmire & Estle, supra, 4 FMSHRC at 132-33; Metric Constructors, supra, 

6 FMSHRC at 229-30, aff'd, 766 F.2d at 472-73. 

We first consider Gilbert's refusal on August 6 to begin cutting 

coal in the No. 4 kickback. The judge found that Gilbert's safety 

concerns related solely to roof conditions in the No. 3 entry, 

conditions to which he would not have been exposed for several hours, 

and that his refusal to work was premature and evidenced a lack of 

required good faith and reasonableness. Counsel for both Gilbert and 

for the Secretary have presented us with extensive evidentiary 

challenges to these fi~dings, effectively inviting us to decide the case 

de novo. Our role, however, is to review the record to determine if 

substantial evidence supports the judge's findings of fact. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). In any event, we find it unnecessary to 

specifically address every contested fact in this regard, for we can 

assume for purposes of our decision that Gilbert engaged in a protected 

work refusal on August 6 based on a good faith, reasonable belief in 

hazardous roof conditions. ~/ 

Under the Mine Act, a protected work refusal itself does not 

implicate a violation of section 105(c) of the Mine Act if it does not 

result in an adverse action motivated by that protected activity. When 

Gilbert refused to cut coal on August 6, he was not ordered to resume 

work nor was he suspended or discharged. On the contrary, his foreman 

heard him out and proceeded to address the complaints by erecting 

support cribbing in the No. 3 entry. Further, Gilbert was able to leave 

the mine for additional discussion with the general mine foreman, who 

~/ For the sake of clarity, however, we conclude that substantial 

evidence does not support the judge's finding that Gilbert's concerns on 

August 6 were limited solely to the No. 3 entry. Rather, his fears 

regarding roof conditions extended to other work areas as well. Tr. I 

23-24, 32, 33, 47, 54. Also, with respect to the events of August 6, we 

reject any implication in the judge 1 s decision that a miner cannot 

exercise a valid work refusal until the precise moment of beginning the 

work that he reasonably fears poses a hazard. In some circumstances a 

miner properly could refuse work at some point in time in advance of the 

start of his hazardous assignment. Such a refusal would still be 

measured against the standards of good faith and reasonableness. As we 

make clear in our discussion of Gilbert 1 s actions on August 7, however, 

his refusal on that date was too anticipatory and premature and, 

therefore, was unprotected. 

1334 
allowed Gilbert to go home for the remainder of'his shift. Substantial 

evidence supports the judge 1 s findings -- and indeed it is indisputable 

on this record -- that Gilbert was not discharged or otherwise subjected 

to adverse action on August 6 or 7 because of his August 6 work refusal. 

Therefore, even assuming a protected work refusal on August 6, it did 

not result in an illegal adverse action against Gilbert. 

The disposition of this case turns on the events of the morning of 

August 7. The record leaves no doubt that Gilbert refused to work as 

miner operator and left the mine premises several hours before his shift 

was scheduled to begin. The judge found that when Gilbert confronted 

mine management on the morning of August 7, the precise conditions that 

he had observed on the previous day had changed significantly. The 

judge also found because Gilbert had not received any assignment to a 

specific area of the mine, 11 he could not at this time have entertained a 

reasonable or good faith belief that he would have been required to work 

in a hazardous condition." 8 FMSHRC at 1091. The judge further found 

that Gilbert 1 s decision most likely was motivated by his desire to be 

transferred to the day shift or to another mine, and that he was not 

discharged but "voluntarily gave up his job on August 7, 1985, at a time 

when he was not faced with any specific hazard. 11 8 FMSHRC at 1092. 

Substantial evidence supports these determinations. 

By the morning of August 7, as the judge pointed out, conditions 

in the mine had changed from the previous day. The No. 3 entry had been 

closed off and the last cut in the No. 4 kickback apparently had been 

completed on an earlier shift. Therefore, it appears that Gilbert would 

not be returning to the areas he had examined a day earlier. In any 

event, Gilbert's refusal occurred some five hours before he was 

scheduled to return to work on the evening shift of August 7. We agree 

with the judge's substantially supported finding that Gilbert could not 

reasonably have known at that time the specific areas of the mine in 

which he would be working later, Moreover, and importantly, given the 

dynamics of mining operations, Gilbert could not have known the actual 

mining conditions that would be present five hours later -- especially 

in view of the operator 1 s efforts to address the roof problems, In 

Dunmire & Estle, supra. the Commission held that a failure to examine 

personally an allegedly hazardous work area did not necessarily indicate 

bad faith or lack of reasonable belief, 4 FMSHRC at 137. Unlike the 

situation in the present case, however, the safety hazards in Dunmire & 

Estle were located in an existing work area to which the complainants 

already had been assigned and were about to enter to begin their 

assigned work and which had been recently examined first-hand by other 

miners. 4 FMSHRC at 128-29, 137-38, In short, substantial evidence 

supports the judge's conclusion that Gilbert refused work unreasonably 

and prematurely on the morning of August 7 and that his work refusal at 

that time accordingly lacked the required basis of a good faith, 

reasonable belief in a hazard exposing him to a danger. 

In reaching this conclusion, we also are persuaded by the fact 

that Sandy Fork's supervisors and managers did not react to Gilbert 

precipitately or manifest retaliatory intent. As noted, on August 6 

management's reaction was supportive and aimed at correcting the roof 

conditions concerning Gilbert. On the morning of August 7, both Mine 

1335 
Superintendent Begley and General Manager Phipps inspected underground 

conditions being encountered. To deem Gilbert 1 s refusal to work on 

August 7 to be protected would be to deprive the operator of a reasonable opportunity to fully address complained-of hazards before incurring 

legal liability. 

Finally, we affirm the judge's finding that Gilbert failed to 

prove that he was, in fact, discharged by Sandy Fork. We disagree with 

the assertion that Gilbert was faced with a 11Hobson 1 s choice" of working 

under unsafe conditions or quitting. In Metric Constructors, supra, the 

Commission concluded that ''Metric's decision that the men could either 

work under the unsafe conditions or have their employment terminated was 

equi.J.ralent to discharging them for engaging in protected activity. 11 6 

FMSHRC at 229. The same is not true here. The record supports the 

judge 1 s finding that Gilbert could have returned to work that afternoon 

on his regular shift. Had he done so and had the conditions then extant 

necessitated the "Robson's choice11 of working under demonstrably unsafe 

conditions or being fired we would be faced with a different case. 

Based on our examination of the record, we conclude that 

substantial evidence supports the judge's finding that Gilbert was not 

discharged but voluntarily gave up his job at a point in time when he 

was not faced with a hazard justifying a refusal to work at that time. 

We th~refore affirm the judge 1 s conclusion that a violation of section 

lOS(c)\1) was not established. 

III. 

Dismissal of Gilbert's Individual Complaint 

We further conclude that the judge erred in denying the 

Secretary's motion to dismiss the complaint that Gilbert filed on his 

ovm behalf, As noted, Gilbert 1 s individual complaint was filed pursuant 

t.o the last clause of Commission Procedural Rule 40(b)(n. 4 supra). 

permitting such actions where the Secretary fails to make any determination as to whether a violation of section lOS(c) has occurred within 

the required 90-day period following the filing of the miner's 

discrimination complaint. 

The obvious intent of this procedural rule was to protect miners 

from prejudicial delay by the Secretary in filing discrimination 

complaints and to encourage the Secretary to meet his statutory 

responsibilities under section lOS(c) in a timely manner. For a number 

of years, the Secretary voiced no opposition to the procedure set forth 

in Rule 40(b). Indeed, as the facts of this case illustrate, the 

Secretary transmitted letters to complainants in situations where his 

investigation exceeded the statute's 90-day limit, informing complainants that they could file a private action under under Conunission 

Rule 40(b). In this litigation, however, the Secretary argues that Rule 

40(b) 1 s authorization of a complaint filed by a miner prior to the 

Secretary's making a determination as to whether the discrimination has 

occurred conflicts with the enforcement schemes set forth in section 

105(c) of the Mine Act. Oral Arg. Tr. 39-48. Upon re-examination, of 

the statute and our procedural rule, we concur. 

1336 
Section lOS(c) does not provide that complainants may file 

complaints on their own behalf if the Secretary has not determined 

whether a violation has. occurred within 90 days of the filing of the 

complaint. To the contrary, section 105(c)(3) expressly provides that 

the complainant may file.his private action only after the Secretary 

informs the complainant of his determination that a violation has not 

occurred: 

Within 90 days of the receipt of a complaint filed 

under [section 105(c)(2)], the Secretary shall 

notify, in writing, the miner ... of his determination whether a violation has occurred. If the 

Secretary, upon investigation, determines that the 

provisions of [section 105(c)] have not been 

violated, the complainant shall have the right, 

within 30 days of the Secretary's determination, to 

file an action on his own behalf before the 

Commission, charging discrimination or interference 

in violation of [section 105(c)(l)]. 

30 U.S.C. § 815(c)(3)(emphasis added). 

Thus, the statute is clear and express concerning the filing of 

discrimination complaints. The Secretary is required to investigate all 

initial discrimination complaints under the Act (30 U.S.C. § 815(c)(2)); 

if the Secretary determines that the Act has been violated, the 

Secretary prosecutes a discrimination complaint on the complainant 1 s 

behalf (id.); if the Secretary finds that the Act was not violated, then 

the complainan~may file a complaint on his own behalf (30 U.S.C. 

§ 815(c)(3)). 

Further, the Mine Actcs legislative history is consistent with the 

plain statutory language. S. Rep. No. 181, 95th Cong., 1st Session 36 

(1977) reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 624-25 (1978)( 11Legis. Hist. 11 ). For 

example, the Senate Report emphasizes that the investigatory time 

obligations placed on the Secretary by section 105(c)(2) are not 

intended to be jurisdictional and that '

1

the complainant should not be 

prejudiced because of the failure of the Government to meet its time 

obligations." Legis. Hist. 624. This instruction suggests that what 

Congress had in mind in enacting section 105(c)(2) was that an 

individual could file a discrimination complaint with the Commission on 

his own behalf only upon the Secretary 1 s determination not to prosecute 

the complainant's claim. Had Congress intended otherwise, it would not 

have focused upon the prejudice to the complainant because of 

secretarial inaction, as the self-help remedy of the individual 1 s filing 

his own complaint would have been available. 

Congress has established discrimination enforcement mechanisms in 

other statutes different from that set forth in section lOS(c) of the 

Mine Act. For example, Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e et seq. (1982), provides that where the government has 

not determined within a prescribed period whether unlawful employment 

1337 
discrimination has occurred, the charging party is so notified and may 

file his own complaint. 42 U.S.C. § 2000e-5(f)(l). More recently, in 

the Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 

Stat. 3359, Congress expressly provided that where the government fails 

to determine within a specified period whether unfair immigrationrelated employment discrimination occurred, the charging person may file 

his own private action. 8 U.S.C.A. § 1324b(d)(2)(West Supp. 1987). 

Hence, Congress has enacted enforcement schemes permitting private 

actions where the government fails to make the requisite determination 

of a charged violation within a given period. However, by the express 

terms of section 105(c) it chose not to do so in the Mine Act. We must 

respect Congress' choice. See, ~·· UMWA v. Secretary of Labor, 

5 FMSHRC 807, 810-16 (May 1983), aff 1 d mem. sub nom. UMWA v. Donovan, 

725 F.2d 126 (D.C. Cir. 1983)(table). See generally e<m;;:cil of Southern 

Mtns. v. FMSHRC, 6 FMSHRC 206, 213 (February 1984), aff'd sub nom. 

e<m;;:cil of Southern Mtns. v. FMSHRC, 751 F.2d 1418 (D.C. Cir. 1985). 

This Commission already has spoken strongly concerning the 

importance of the Secretary's making determinations as to violations of 

section 105(c) within the prescribed 90-day period. Secretary on behalf 

of Hale v. 4-A Coal Company, Inc., 8 FMSHRC 905 (June 1986). As 

·emphasized in Hale (8 FMSHRC at 908) and as noted above, the legislative 

history indicates that while Congress intended that the 90-day 

investigation period not be jurisdictional, it was to be respected and 

followed by the Secretary. Legis. Hist, 624. Under the Mine Act, the 

Secretary bears enforcement responsibility of investigating all initial 

discrimination complaints. See Roland v. Secretary of Labor, 7 FMSHRC 

630, 634-36 (May 1985), aff'd mem. sub nom. Roland v. FMSHRC, No. 85-

1828 (10th Cir. July 14, 1986). That responsibility is not effectively 

discharged if the statutory time periods are ignored. At oral argument, 

counsel for the Secretary represented that the Secretary was undertaking 

administrative actions to address the problem of investigative delay of 

discrimination complaints. We welcome all efforts in this regard. 

We are aware of potential problems when the Secretary 1 s 

investigation of initial discrimination complaints is delayed. That 

concern notwithstanding, the approach suggested by our colleagues usurps 

the Secretary's primary enforcement responsibility under section lOS(c) 

and cannot be squared with the plain structure and language of that 

section. Review and redress of continued delays by the Secretary in 

this crucial area of the Mine Act are @ore appropriately the subjects of 

Congressional oversight. 

Accordingly, we hereby declare the clause in Commission Procedural 

Rule 40(b) permitting the filing of individual actions when the 

Secretary has not made a determination of violation within 90 days to be 

invalid. A Federal Register notice deleting this clause will appear. 

Our action here applies prospectively and also to any such individual 

1338 
discrimination complaints pending presently before the Commission. ~/ 

IV. 

Conclusion 

On the foregoing bases, we affirm on substantial evidence grounds 

the judge's dismissal of the discrimination complaint filed by the 

Secretary on behalf of Gilbert. We reverse the judge's denial of the 

Secretary's motion to dismiss the complaint filed by Gilbert in his own 

behalf. 

~/ Individual complainants remain free to retain private counsel at 

any time. However, in Maggard v. Chaney Creek Coal Co., etc., Nos. KENT 

86-1-D, slip op. at 8-9, issued this date, we have followed the decision 

by the United States Court of Appeals for the Fourth Circuit in the 

absence of contrary judicial authority, disallowing private counsel fees 

in Mine Act discrimination proceedings except where a complainant has 

successfully prosecuted a section IOS(c)(3) private action following the 

Secretary's determination not to file a complaint on the complainant 1 s 

behalf. See Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 644 (4th 

Cir. 1987). 

1339 
Commissioner Doyle and Commissioner Nelson, concurring in part and dissenting in part: 

We join in that part of the majority's decision affirming the 

administrative law judge's dismissal of Mr. Gilbert's discrimination 

claim. We respectfully dissent, however, from the decision to the extent 

that it invalidates that portion of the Commission's Rule 40(b) that 

provided claimants the right to bring their own action if the Secretary 

of Labor failed to act within the statutory time period. Consequently, 

we would affirm the judge's denial of the Secretary's Motion to Dismiss 

the individual complaint filed by Mr. Gilbert. 

When Mr. Gilbert filed his individual complaint with the 

Commission, it appeared clear to all concerned that he had the right to 

do so based on the Secretary's failure to determine, within ninety days 

after his receipt of the complaint, whether a violation had occurred. 

The Commission's position was articulated in its own procedural Rule 

40(b), which was promulgated in 1979, and provided: 

A complaint of discharge, discrimination 

or interference under section 105(c) of 

the Act, may be filed by the complaining 

miner, representative of miners, or applicant for employment if the Secretary 

determines that no violation has occurred, 

or if the Secretary fails to make a determination within 90 days after the miner 

complained to the Secretary. 

29 C.F.R. §2700.40(b) (1986) (emphasis added). 

That position was reaffirmed by the Commission as recently as June, 

1986. Secretary on behalf of Hale v. 4-A Coal Company, Inc., 8 FMSHRC 

905, 907, n. 3. 

The Secretary's position was articulated in its letter of November 

15, 1985, to the complainant and in similar letters to other complainants 

whose cases the Secretary had failed to determine within ninety days, as 

follows: 

By the terms of the Act and the Federal 

Mine Safety and Health Review Commission's 

procedural rules, you have a right to file 

your own complaint with the Commission 

because the Secretary has not completed 

his consideration within 90 days. Should 

you desire to file a complaint of discrimination directly with the Commission, 

it should be addressed .•• (emphasis added). 

1340 
Five weeks after receiving the Secretary's letter, Mr. Gilbert 

followed the Commission's rule and the Secretary's advice and filed his 

complaint with the Commission pursuant to section 105(c)(3) of the Mine 

Act and Rule 40(b). Two months later, the Secretary, having finally 

made a determination that a violation had occurred, filed his section 

105(c)(2) action. He then moved to dismiss Mr. Gilbert's private action, 

a motion in which the operator did not join and which the administrative 

law judge denied. Today the Commission has, at the Secretary's urging, 

reversed the judge's decision and invalidated the portion of Rule 40(b) 

that permitted a complainant to file his own action if the Secretary 

failed to act within ninety days after a complaint was filed with the 

Secretary, 

The Secretary's argument to the Commission is twofold: Gilbert's 

private action was based on an "implied" cause of action and Rule 40(b) 

conflicts with the enforcement scheme of section lOS(c). We find both 

of these arguments unpersuasive. The action was not based on an implied 

cause of action but rather on an action explicitly authorized by Rule 

40(b). Further, we find no conflict between Rule 40(b) and the enforcement scheme of section 105(c). We believe the rule is a reasonable construction of the Mine Act and see no reason to invalidate it. 

The majority bases its decision to invalidate Rule 40(b) on "the 

plain statutory language" of section lOS(c) and states that "the statute 

is clear and express ••• " It should be noted that the language that is 

today characterized as "clear and express" has now been interpreted by 

the Commission in two different manners (with its promulgation of Rule 

40(b) in 1979 and its reaffirmation in 1986, and today with its finding 

that the rule is without foundation) and by the Secretary in at least 

three different manners (that a claimant has the right to bring his own 

action because the Secretary has not made a determination within ninety 

days, as set out in the Secretary's letter to Mr. Gilbert, that a private 

right of action authorized by Rule 40(b) must give way to the Secretary, 

once he determines that a violation has occurred, as argued in the 

Secretary's brief to the Commission, Brief for the Secretary of Labor 

at 11, and that the Secretary has exclusive jurisdiction ad infinitum 

until he makes a determination, as asserted by the Secretary at oral 

argument Record at 72. These various interpretations provide ample 

evidence that the position enunciated today is not unambiguously expressed in the statute. 

While we are in agreement with the majority that section lOS(c) does 

not expressly provide for the filing of a private action by a complainant 

when the Secretary fails to make a determination within ninety days, we 

disagree that section 105(c)(3) expressly provides that private actions 

can be maintained only after the Secretary informs the complainant of his 

determination that--a-:violation has not occurred. (In fact, the statutory 

language is "[i]f the Secretary .•• "; it is not "only if the Secretary ••• "). We find the statute to be silent as to the consequences of 

the Secretary's fai~_ure to make a determination within the ninety day 

period, This view is apparently shared by the Secretary who, in support 

1341 
of his motion, stated that the Mine Act "is silent as to the implications 

of any delays by the Secretary in completing his investigation within 

the statutorily prescribed time frame.'' Secretary's Memorandum in 

Support of Motion to Dismiss at 4. 

While the unambiguously expressed intent of Congress must be given 

effect, it is a well established rule that where the statute is either 

silent or ambiguous, an agency has the power to formulate policy 

and make rules to fill any gap left, implicitly or explicitly, by 

Congress. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837, 843 (1984). The Commission, in promulgating Rule 40(b) 

more than eight years ago, filled the gap left by Congress by providing 

miners with the right to bring their own action where the Secretary 

failed to act within the statutory period. This was not only a reasonable 

construction of the statute, but one that effectuated Congress' intent 

that Mine Act discrimination complaints be processed expeditiously. 

The purpose of section lOS(c) of the Mine Act is to afford protection to miners who have been discriminated against in the exercise of 

their statutory rights. It is clear from the language of section 105(c) 

that the timely institution, investigation and resolution of discrimination complaints were an important part of Congress' plan with respect 

to these complaints. By Congressional direction, complaints are to be 

filed with the Secretary within sixty days after the alleged violation; 

within fifteen days .thereafter the Secretary is to commence an investigation; 

upon application of the Secretary in certain circumstances the Commission, 

on an expedited basis, is to order temporary reinstatement; and within 

90 days of the receipt of a complaint the Secretary is required to 

notify the miner of his determination whether a violation has occurred. 

In those instances where the Secretary concludes upon investigation that 

a violation has occurred, he is required to immediately file a complaint 

with the Commission. Where the Secretary makes a negative determination, the miner has the to pursue his own action with the 

Commission, but must do so by filing his complaint within thirty days of 

the Secretary 1 s determination. It is apparent that Congress envisioned 

prompt action aimed toward rapid resolution of discrimination claims. 

The Commission's reinterpretation of the statute and consequent invalidation of Rule 40(b) at this time endorses a change in policy that is 

inconsistent with the mandate of Congress and clearly frustrates its 

intent, 

There are a number of reasons (from both the miner 1 s and the 

operator's point of view) why cases should not be allowed to languish, 

awaiting a determination by the Secretary. Memories fade and witnesses 

relocate. Cases can be more easily resolved before positions harden and 

large sums of money are involved. The miner may be unemployed and without 

other means of support or he may find his case ultimately dismissed if 

the operator can show that he has been prejudiced by the delay. Hale, 

8 FMSHRC at 908. The operator may have been required to temporarily reinstate a miner whose claim, while not frivolous, is ultimately found to 

be without merit or he may be faced with a damage award that includes 

1342 
years of back pay rather than months. It is no answer to assert, as the 

Secretary did at oral argument, that excessive or chronic delays can be 

remedied by Congressional oversight of. the Secretary 1 s investigation and 

determination process. ·we doubt that .Congress intended the ninety day 

determination requirement set forth in section 105(c) (3) to serve only 

as a yardstick against which Congress could measure the Secretary's 

performance in oversight hearings. Yet the majority's decision leaves 

miners and mine operators with no other source of relief from delay by 

the Secretary except to write to their Congressmen. 

While finding the statute 11 clear and express," the majority nevertheless turns to legislative history and bases its decision in part on 

the section of the history that indicates that the complainant should not 

be prejudiced because of the government's failure to act in a timely 

fashion. They opine that this instruction "suggests" that Congress 

intended individual filing only upon a negative determination by the 

Secretary, otherwise Congress would not have focused upon the possible 

prejudice to the complainant arising from delay by the Secretary. This 

interpretation is somewhat at odds with the position recently expressed 

by the Commission when it found that due process considerations might 

necessitate dismissal of a claim where the operator shows material legal 

prejudice attributable to delay by the Secretary. Hale, 8 FMSHRC at 908. 

In any event, we do not read the legislative history to countenance the 

many and extended delays that have occurred over the years. 

The majority notes that Title VII of the Civil Rights Act of 1964, 

42 U.S.C. §2000e et seq. (1982), specifically grants the charging party 

the right to bring-his own action in the event that the Equal Employment 

Opportunity Commission (the "EEOC") fails to act within a certain period 

of time. Title VII, however, contains no language requiring the EEOC 

to act within a specified period. Rather, it indicates that a civil 

action may be brought the EEOC under certain circumstances. If the 

EEOC fails to act within a specified period, the complainant is to be 

so notified and, if he chooses to bring his own action, the EEOC 1 s 

further involvement is limited to the status of an intervenor, at the 

court's discretion. We do not find it remarkable that Congress included 

express language permitting initiation of a private action where the 

investigatory agency:s action is permissive and did not include such 

language where the agency 1 s responsibilities are mandatory. 

While the more recently enacted Irrunigration Refonn and Control Act 

of 1986, Pub. L. 99-603, 100 Stat. 3359, (the "Immigration Act") contains 

both mandatory language with respect to the time in which the Special 

Counsel must act and language giving the charging party the right to 

bring an action if the Counsel fails to act within the required time 

period, we suspect that this additional language represents a recognition 

by Congress that at least one investigatory agency now considers time 

requirements "not as mandatory but rather as 'directory in nature.'" 

Brock v. Roadway Express, Inc., 55 G.S.L.W. 4530, 4534 (U.S. April 22, 

1987) (No. 85-1530). We find it highly unlikely that Congress intended 

1343 
that discrimination complaints filed under the Mine Act should be 

prqsecuted less expeditiously than those filed under the Immigration Act • 

. In sum, we find no basis in either the Act or the legislative history 

to extend the Secretary's exclusive jurisdiction beyond the ninety days 

in which he is mandated to act and would therefore urge the retention 

of Rule 40(b), which represented a reasonable interpretation by the 

Commission of section 105(c). Accordingly, we would affirm the administrative law judge's denial of the Secretary's Motion to Dismiss. 

Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

William A. Hayes, Esq. 

P.O. Box 817 

Middlesboro, Kentucky 40965 

Michael T. Heenan, Esq. 

Ronald E. Meisburg, Esq. 

Smith, Heenan & Althen 

1110 Vermont Avenue, N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

</-~Dort~ 

~~ L. Clair Nelson 

Commissioner 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1344 
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 

(703) 756-6232 

July 31, 1987 

JOHN A. HARRIS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BENJAMIN COAL COMPANY, 

Respondent 

Docket No. PENN 87-72-D 

MSHA Case No. PITT CD 86-20 

Benjamin No. 1 Strip Mine 

ORDER TO SHOW CAUSE 

Statement of the Case 

This proceeding concerns a complaint of discrimination 

led by Mr. Harris against the respondent pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977. The 

complaint was filed on December 30, 1986, after Mr. Harris was 

advised by the Secretary of Labor (Mine Safety and Health 

Administration), that his complaint filed with that agency 

would not be pursued further. 

In his complaint filed with the Commission, Mr. Harris 

states 11 I am requesting reinstatement and back pay and clearing 

of my name by Benjamin Coal Company. I feel my letter of 

termination was very unfair." In response to an order issued 

by me on July lOF 1987, Mr. Harris furnished me with a copy of 

his termination letter of August 12, 1986. He also furnished 

me with a copy of a memorandum report prepared by a Commonwealth 

of Pennsylvania Department of Environmental Resources supervisory mine inspector concerning a fatal surface mine blasting 

accident which occurred at the respondent's mine on June 17 1 

1986, and a copy of a "Civil Penalty Worksheet" proposing a 

civil pena assessment in the amount of $7 1 750 against the 

respondent for a violation of a state regulation concerning 

"casting blasting debris." 

The information supplied by Mr. Harris reflects that he 

was employed by the respondent as a blaster, and that he was 

the blaster who detonated the shot which resulted in fatal 

injuries to a mine foreman who was killed by fly rock from the 

blast. As a result of this incident, Mr. Harris' state 

blaster's license was suspended, and he was subsequently 

1345 
discharged by the respondent on August 12, 1986, for violation 

of company safety rules and for "a pattern of disregard" for 

company safety procedures and practices. 

Mr. Harris takes issue with his discharge and asserts that 

no other blasters have ever been terminated by the respondent 

because of fly rock, and that numerous incidents of vehicle 

damage caused by fly rock, and one incident of personal injury 

requiring treatment by a doctor, have not resulted in any 

terminations or reprimands. He further asserts that his discharge does not comport with the state civil penalty assessment 

findings that the accident was "a freak incident" and that the 

respondent's culpability was "questionable." 

Discussion 

Section 105(c) (1) of the Act provides as follows: 

{c) (1) No person shall discharge or in any 

manner discriminate against or cause to be discharged or cause discrimination against or cause 

discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in 'any coal or other mine subject to 

this Act because such miner, representative of 

miners or applicant for employment has filed or 

made a complaint under or related to this Act, 

including a complaint notifying the operator or 

the operator's agent 1 or the representative of 

the miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or 

other mine? or because such miner, representative 

of miners or applicant for employment is the subject of medical evaluations and potential transfer 

under a standard published pursuant to section 101 

or because such miner, representative of miners or 

applicant for employment has instituted or caused 

to be instituted any proceeding under or related 

to this Act or has testified or is about to testify 

in any such proceeding, or because of the exercise 

by such miner, representative of miners or applicant for employment on behalf of himself or others 

of any statutory right afforded by this Act. 

Upon review of the complaint filed by Mr. Harris, I find 

nothing to suggest that his termination was the result of any 

1346 
rights or protections afforded him under section lOS(c) of the 

Act. In short, it would appear from his complaint and the 

pleadings filed in this matter that Mr. Harris does not state 

a claim for which relief can be granted under section 105(c) (1) 

of the Act. 

-ORDER 

In view of the foregoing, the complainant John A. Harris 

IS ORDERED TO SHOW CAUSE within fifteen (15) days as to why his 

complaint should not be dismissed for failure to state a claim 

for which relief can be granted under section 105(c) (1) of the 

Act. 

h~~ Administrative Law Judge 

Distribution: 

Mr. John A. Harris, RD 1, Box 118, Irvona, PA 16656 

(Certified Mail) 

Mr. John B. Martyak, Manager Personnel/Safety, Benjamin Coal 

Company, Benjamin #1 Strip, RD, LaJose, PA 15753 

(Certified Mail) 

/fb 

1347 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, 5UITE tOO 

DENVER, COLORADO 80204 

AUG 3 1987 

ROBERT H. CHEYNEY, 

Complainant 

. . 

. . DISCRIMINATION PROCEEDING 

v. . . Docket No. WEST 86-179-DM 

MD 86-27 

HECLA MINING COMPANY, 

Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached an amicable resolution of this 

matter. The terms of the agreement are that Complainant, in 

return for the payment of $300.00, agrees to accept the same in 

full satisfaction of all rights and remedies he may have under 

the Federal Mine Safety and Health Act of 1977; Respondent in no 

manner admits the violation of any provisions of said Act; 

Complainant withdraws the Complaint herein; and the parties 

jointly move for an order dismissing these proceedings with 

prejudice. 

In the premises, this settlement appears appropriate and is 

approved. Accordingly, Respondent, if it has not previously done 

sop is ordered to pay Complainant the sum of $300.00 immediately 

upon receipt of this decision. It is further ordered that these 

proceedings are dismissed with prejudice with each party to bear 

his Cits) own costs. 

Distribution~ 

~~?/ ?f ,~ //?-

Michael A. Lasheru Jro 

Administrative Law Judge 

Mr. Robert H. Cheyney, Route 2 0 P.O. Box 5212, Twin Falls, ID 

83301 (Certified Mail) 

Fred M. Gibler 6 Esq., Evans, Keane, Koontz, Boyd & Ripley, P.O. 

Box 659, Kellogg, ID 83837 (Certified Mail) 

/bls 

1348 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 4 l987 

LOCAL UNION 1810, DISTRICT 6, 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , 

Complainant 

v. 

NACCO MINING COMPANY, 

Respondent 

: 

. . 

DECISION 

COMPENSATION PROCEEDING 

Docket No. LAKE 87-19-C 

Powhatan No. 6 Mine 

Appearances: Earl R. Pfeffer, Esq., Washington, DC, 

for Complainant 

Thomas·c. Means, Esq., Washington, DC, 

· for Respondent. 

Before: Judge Fauver 

This proceeding was brought by the UMWA under § 111 of the 

Federal Mine Safety and Health of 1977, 30 U.S.C. § 801 et~' 

for compensation for miners idled by a modification of a~ 

§ 104(d)(2) order. 

The parties have filed cross motions for summary decision. 

Oral arguments were heard on the motions and the parties have 

filed briefs. 

The facts are not in dispute. On December 10, 1984, MSHA 

(the Mine Safety and Health Administration, United States 

Department of Labor) found that an intake escapeway in the north 

mains area was not being maintained to ensure safe passage of 

personnel, including disabled persons. Tne inspector issued 

Order No. 2329934 pursuant to§ 104Cd)(2) of the Act, citing a 

violation of 30 C.F.R. § 75.1704. The order closed all areas in 

the north mains inby the two main east junction. A civil penalty 

of $500 was assessed by MSHA and the fine was paid, without 

contest, in March 1 1985. 

The closure f ect of the order was lifted about 30 minutes 

afteL its issuance on December 10, 1984, when the order was 

modified to permit Nacco to continue normal mining operations in 

"Main north while the work of rehabilitating the intake escapeway 

•.• is being done." The modification also provided that: "The 

1349 
operator is to work at least 25 manshifts per week on this effort 

until this work is completed." Normal mining operations resumed 

at this point, and all previously withdrawn miners returned to 

work; at least 25 manshifts of work were devoted to 

rehabilitating the intake escapeway each week thereafter. 

Neither the company nor the union contested the original order or 

any of its modificatons. 

On January 25, 1985, the Ohio Division of Mines ("DOM") 

issued Nacco its own order finding that the escapeway was not 

being maintained to a required width of six feet in certain 

locations and requiring that this condition be abated within 60 

days. On March 22, 1985, the DOM issued a new order requiring 

the intake escapeway to be moved from the No. 4 entry where it 

had been to the No. 2 entry, requiring that Nacco continue 

working at least 25 manshifts per week on the new disignated 

escapeway on the old escapeway in the No. 4 entry. 

Nacco continued to do rehabilitation work in the No. 2 

entry, working at ieast 25 manshifts per week rehabilitating the 

intake escapeway. On October 2, 1986, MSHA issued a new 

modification of the 1984 order, requiring that the escapeway and 

all active sections inby be closed, because the MSHA inspectors 

found that the escapeway was still in violation in several 

locations and determined that the time for abatement should not 

be extended further. By reallocating the affected work force, 

Nacco was able to continue operating without idling any miners 

during the shift on which the modification was issued. Howeveru 

on the next shiftr and for the rest of the week 1 Nacco laid off 

87 minersr on October 6v 7, and 8r as a result of the October 2r 

1986" modification of the December lOu 1984, ordero On Octobr 8, 

the job of reabilitating the intake escapeway was completed, and 

MSHA modified the 1984 order by providing that the intake 

escapeway and the active working sections inby could again be 

reopenedo 

This case arises on a complaint for compensation under § 111 

of the Act 1 claiming that 87 miners were idled on October 6 1 7, 

and 8 as a result of of MSHA's October 2, 1986 1 modification. 

§ 111 of the Act provides~ 

Sec. lllo If a coal or other mine or area of such 

mine is closed by an order issued under section 103, 

section 104, or section 107, all miners working during 

the shift when such order was issued who are idled by 

such order shall be entitled, regardless of the result 

of any review of such order, to full compensation by 

the operator at their regular rates of pay for the 

1350 
period t.hey are idled, but for not more than the 

balance of such shift. If such order is not ierminated 

prior to the next working shift, all miners on that 

shift who are idled by such order shall be entitled to 

full compensation by the operator at their regular 

rates of pay for the period they are idled, but for not 

more than four hours of such shift. If a coal or other 

mine or area of such mine is closed by an order issued 

under section 104 or section 107 of this title for a 

failure of the operator to comply with any mandatory 

health or safety standards, all miners who are idled 

due to such order shall be fully compensated after all 

interested parties are given an opportunity for a 

public hearing, which shall be expedited in such cases, 

and after such order is final, by the operator for lost 

time at their regular rates of pay for such time as the 

miners are idled by such closing, or for one week, 

whichever is the lesser. Whenever an operator violates 

or fails or refuses to comply with any order issued 

under section 103, section 104, or section 107 of this 

Act, all miners employed at the affected mine who would 

have been withdrawn from, or prevented from entering, 

such mine or area thereof as a result of such order 

shall be entitled to full compensation by the operator 

at their regular rates of pay, in addition to pay 

received for work performed after such order was 

issued, for the period beginning when such order was 

issued and ending when such order is complied with, 

vacated, or terminated. The Commission shall have 

authority to order compensation due under this section 

upon the filing of a complaint by a miner or his 

representative and after opportunity for hearing 

subject to section 554 of title Su United States Code. 

Nacco makes the following principal arguments: 

lo Section 111 does not provide a right to compensation to 

miners who are idled by a modification of a previous 

order. 

2. The order was invalidated by the effect of the initial 

modification on December 10, 1984, because the Act does 

not authorize MSHA to impose affirmative duties on an 

operator in exchange for non-withdrawal of miners under 

§ l04(d). 

3. MSHA's attempt to modify the order to require a 

withdrawal of miners 22 months after the order had been 

1351 
modified to reopen the mine area exceeded MSHA's 

authority under the Act. 

To understand the parties' actions and responses, and the 

effect on their statutory rights, one must look at the sequence 

of events. At 1:30 p.m., on December 10, 1984, MSHA issued a§ 

104Cd>C2) order to Nacco stating that the intake escapeway was 

not being maintained to ensure safe passage and therefore was in 

violation of 30 C.F.R. § 75.1704. Thirty minutes later, MSHA 

modified the order to permit Nacco to continue normal mining 

operations while rehabilitation work on the intake escapeway was 

being done. The modification also provided that Nacco was to 

work at least 25 manshifts per week on the rehabilitation work 

until it was completed. The order was modified a number of times 

over a two year period. Neither Nacco nor the union contested 

the original order or any of the modifications. Also, Nacco paid 

a civil penalty of $500 for the violation cited in the order. 

On October 2, 1986, MSHA determined that a violation still 

existed, that it should have been abated by then, and that the 

period of time for abatement should not be further extended. 

MSHA therefore modified the order to specify the existing 

violative conditions and to withdraw the miners from the affected 

area of the mine until the violative conditions in the escapeway 

were corrected. Neither party contested the October 2, 1986, 

modification. 

In December, 1986, the union filed this claim. The claim 

arises under the third sentence of § 111, which reads: 

a coal or other mine or area of such mine is closed 

an order issued under section 104 or section 107 of 

s title for a failure of the operator to comply with 

any mandatory health or safety standardsf all miners 

who are idled due to such order shall be fully 

compensated after all interested parties are given an 

opportunity for a public hearing 7 which shall be 

expedited in such cases, and after such order is final, 

by the operator for lost time at their regular rates of 

pay for such time as the miners are idled by such 

closingp or for one week, whichever is the lesser. 

This language of § 111 requires that an operator's contest 

rights under § 105(d) be either exhausted or waived before the 

Commission may order compensation. 

There are significant procedural differences between a 

hearing of a third-sentence claim and a claim under the first two 

sentences of section 111. In the latter case, the hearing may be 

1352 
scheduled immediately because the miners' entitlement to 

compensation is independent of any subsequent review of the order 

upon which the claim is based. The hearing of a third-sentence 

complaint, however, may not be held until after the order upon 

which the claim is based has become "final." Thus, an award of 

one week's compensation may not be ordered by the Commission 

until either the operator has waived its contest rights or the 

underlying order has been upheld in a contest proceeding under 

§ 105(d). It is only when the underlying order becomes final 

that a third-sentence claim under § 111 may be adjudicated by the 

Commission. 

The Commission's review of all orders and modifications is 

governed by procedures provided by§§ 105(d) and 107(e), not 

§ 111. Thus, in a third-sentence claim under § 111, the validity 

of the order is not an issue, but it is the "finality" of the 

order that triggers jurisdiction to hear the claim. In such a 

proceeding, the Commission must determine whether or not an order 

is final. That determination must be based upon whether the 

order was contested under § 105(d) and, if so, whether the 

subsequent review deemed it to be valid. If the underlying order 

was not challenged it is, as a matter of law, final and not 

subject to further review. 

The finding of a violation of 30 C.F.R. § 75.1704 became 

final when Nacco paid the civil penalty, since the fact of a 

violation cannot continue to be contested once the penalty 

proposed for the violation has been paid. Old Ben Coal Co., 3 

FMSHRC 1685 (1985). In addition, since neither the order nor the 

subsequent modifications were contested by any party, they became 

final and are not subject to Commission review. See Pocahontas 

Fuel Co., l FMSHRC 1580, 1582-83 (1977)• and Turner Brothersr 

inc. 3 FMSHRC 1649, 1650 (1984). Nacco is therefore statutorily 

barred from contesting the validity of the order, its four 

modifications, and the charge of a violation of 30 C.F.R. 

§ 75.1704. Its arguments (summarized above) attacking 

the validity of the October 2, 1986, modification are thus not 

cognizable in this proceeding. 

Since Nacco concedes that the lay-off of the 87 miners was 

caused by the modification of the order on October 2, 1986, there 

is no issue as to a nexus between the modification and the 

lay-off. 

The union is therefore entitled to summary decision, and 

Nacco's motion for summary decision will be denied. 

1353 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. Nacco's motion for summary decision is DENIED. The 

Complainant's motion for summary decision is GRANTED. 

2. The affected miners are entitled to compensation at 

their last regular pay rates for wages lost on October 6, 7, and 

8, 1986, with interest computed from October 8, 1986, until paid. 

3. Within 15 days of this Decision, the parties shall 

confer in an effort to stipulate a final order awarding 

compensation and interest, computed in accordance with the 

Commission's decision in Arkansas Carbona, 5 FMSHRC 2042 (1983). 

Within 5 days of their conference, the parties shall file a 

report of their conference with the Judge, submitting either a 

joint proposed order for relief or a statement of the issues 

between the parties as to the relief to be granted. Respondent's 

stipulation of the terms of a relief order will not prejudice its 

rights to seek review .of this Decision. 

4. This Decision shall not be made final until a 

Supplemental Decision on Compensation is entered herein. 

tJ~ =rtMA.v~ William Fauver 

Administrative Law Judge 

Distributiong 

Earl R. Pfeffer, Esqo United Mine Workers of Americar 900 15th 

Stor NoWov Washingtonv DoC. 20005 (Certified Mail) 

Thomas Co Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave., 

NoW•u Washingtonu DC 20004 (Certified Mail) 

kg 

1354 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

WESTERN FUBLS-UTAH, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

WESTERN FUELS-UTAH, INC., 

Respondent 

AUG 4 \987 

DECISION 

CONTEST PROCEEDINGS 

Docket No. WEST 86-113-R 

Order No. 2830082; 3/3/86 

Docket No. WEST 86-114-R 

Citation No. 2830083; 3/4/86 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-245(A) 

A. C. No. 05-03505-03524 

Deserado Mine 

Appearances: Karl F. Anuta, Esq., and Nancy E. VanBurgel, 

Esq., Duncan, Weinberg & Miller, P.C., Denver, 

Colorado, for Contestant/Respondent; 

Before: 

Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, for 

Respondent/~etitioner. 

Judge Maurer 

This consolidated proceeding concerns the contestant, 

Western Fuels-Utah Inc.'s, challenge pursuant to§ 105(d) of 

the Mine Safety and Health Act of 1977, 30 U.S.Co 

§ 801 et seq. (the Act) of Order No. 2830082 dated March 3, 

1986, and Citation No. 2830083 dated ~arch 4, 1986, as well 

as the related civil penalty proceeding. 

Order No. 2830082, as modified, was issued under 

§ 104(g) (1) of the Act and alleges a violation of§ 115(a) 

of the Act. Additionally, § 104(a) Citation No. 2830083, 

issued the following day, c s the operator for a violation 

of 30 C.F.R. § 48.7. The gist of the violation in both 

cases, however, is that the company failed to task train a 

particular section foreman, one Carson Julius, on the roof 

bolting machine, prior to his operation of that machine. 

1355 
Since the citation was issued in conjunction with the 

§ 104(g) (1) withdrawal order and is based upon the same event, 

only the citation was assessed by MSHA. The Secretary contends that a civil penalty of $180, as proposed, is appropriate for the violation. 

These cases were heard in Denver, Colorado, on April 2, 

1987, and both parties have subsequently filed post-hearing 

briefs which I have considered in the course of writing this 

decision. 

ISSUE 

The ultimate issue in these cases is whether the Department of Labor (MSHA) training regulations require supervisory 

mine personnel subject to MSHA approved State certification 

requirements to be task trained under 30 C.F.R. § 48.7 prior 

to actually performing mining work involving operation of 

machinery, such as here, a roof bolting machine. 

STIPULATIONS 

The parties have made the following joint stipulations 

of facts in these proceedings: 

1. Western owns and operates the Deserado Mine, Identification No. 05-03505, which ip located in Rangely, Colorado. 

2. The mine is subject to the Federal Mine Safety and 

Health Act of 1977. 

3. The Federal Mine Safety and Health Review Commission 

and the presiding Administrative Law Judge have jurisdiction 

over these proceedings. 

4. Carson Julius, a section foreman with nine years of 

prior mining experience at other mines, had worked at the mine 

since November lp 1985. On November l; 1985, Julius completed eight hours of training under 30 C.F.R. § 48.6 for 

newly employed experienced miners. Before becoming a section 

foreman at the mine, Julius had worked at the mine as a miner 

helper, on utility, and on various machines, including the 

shuttle car, the pack rat, and the Wagner scoop tram. 

5. Julius was promoted to section foreman at the mine 

on February 3, 1986. Supervisors at the mine are subject to 

MSHA approved State certification requirements. The written 

criteria applied by Western in selecting section foremen included that the person should be able to operate equipment in order to properly direct the workforce and that the 

1356 
individual have on-the-job experience in underground operation 

of a coal mine, Colorado mine foreman papers, and supervisory 

skills. Western required that section foremen be capable of 

training the hourly workforce in the operation of underground 

face equipment in a safe and productive manner. Julius was 

certified as a mine foreman by the State of Colorado on May 15, 

1980. Julius met all of Western's criteria for promotion to 

section foreman. 

6. The Training Plan of the Mine submitted under 30 

C.F.R. § 48.3 and approved by the District Manager on May 2, 

1984, does not state that supervisors must take task training. 

The Training Plan does require task training under 30 C.F.R. 

§ 48.7 roof bolters. 

7. In the 12 months preceding March 1, 1986, the specific 

items of equipment on which Julius had been "task trained" under 30 C.F.R. § 48.7 were the shuttle car, the pack rat, and 

the Wagner scoop tram. Julius had operated roof bolting 

machines in the under both production and non-production 

conditions and circumstances. Julius had operated the Lee 

Norse TD-43-5-4F twin boom roof bolting machine briefly on 

prior occasions. 

8. On February 28, 1986, Julius was section foreman for 

a crew assigned to mine in the entries and connecting crosscuts off the East Mains working section of the mine. Julius 

instructed roof bo Sky Havens to go to lunch and filledin to operate the right hand boom of the Lee Norse roof bolting machine, working with left boom operator Austin Mullens. 

9. At all s relevant to these proceedings, Federal 

Coal Mine Senior Investigator Theodore L. Caughman 

and Federal Coal Mine Inspector Ervin J. St. Louis were duly 

authorized representatives of the Secretary. 

10. On March 3, 1986, Senior Special Investigator Caughman issued Order No. 2830082 and the accompanying Modification No. 2830082-2. The order as modified was issued pursuant to § 104(g) (1) of the Act and charged a significant and 

substantial violation of § llS(a) of the Act. 

lL The 

No. 2830082-L 

as modified was terminated by Termination 

12. On March 4, 1986, Senior Special Investigator 

Caughman issued Ci No. 2830083. The citation was 

issued pursuant to§ 104(a) of the Act and charged a significant and substantial violation of 30 C.F.R. § 48.7. The 

citation was issued in conjunction with the order as modified. 

1357 
13. The citation was terminated by Termination No. 

2830083-01. 

14. In Febru~ry 1982 MSHA distributed to all MSHA district and subdistrict managers and field supervisors a statement in question-and-answer format concerning the extent of 

the supervisory personnel training exception under Part 48. 

On November 27, 1984, MSHA issued Policy Memorandum No. 84-2 

EPD entitled "Training Requirements of 30 C.F.R. Part 48 for 

Mine Supervisors who Perform Non-Supervisory Work. On July 1, 

1985, MSHA published the "MSHA Administrative Manual 30 C.F.R. 

Part 48 - Training and Retraining of Miners" which incorporated on page 2 MSHA's position relative to supervisors who 

do non-supervisory work. 

15. Western had 38 assessed violations during the 24-

month period prior to the issuance of the order and citation 

at the subject mine, 32 of which have been paid. 

16. The assessment of the penalty will not affect 

West.ern' s ability to ,continue in business. 

17. Western abated the violation in good faith. 

18. Western is a large operator with 810,078 tons of 

production in 1986. 

APPLICABLE REGULATIONS 

The two particular regulations that are herein involved 

are reproduced their entirety below for the convenience 

of the reader. 

30 C.F.R. § 48.2(a) (1) provides as follows: 

(a) ( 1) "Miner" means, for purposes of §§ 4 8. 3 

through 48.10 of this Subpart A, any person working in an underground mine and who is engaged in 

the extraction and production process, or who is 

regularly exposed to mine hazards, or who is a 

maintenance or service worker employed by the 

operator or a maintenance or service worker contracted the operator to work at the mine for 

frequent or extended periods. This definition 

shall include the operator if the operator works 

underground on a continuing, even if irregular, 

basis. Short term, specialized contract workers, 

such as drillers and blasters, who are engaged in 

the extraction and production process and who have 

received training under § 48.6 (Training of newlyemployed experienced miners) of this Subpart A may, 

1358 
in lieu of subsequent training under that section for 

each new employment, receive training under § 48.11 

(Hazarq training) of this Subpart A. This definition 

does not include: 

{i) Workers under Subpart C of this part 48, including shaft and slope workers, workers engaged in 

construction activities ancillary to shaft and slope 

sinking, and workers engaged in the construction of 

major additions to an existing mine which requires 

the mine to cease operations; 

(ii) Supervisory personnel subject to MSHA approved State certification requirements; and, 

{iii} Any person covered under paragraph (a} {2) 

of this section. 

30 C.F.R. § 48.7, the herein cited standard, provides as 

follows: 

(a) Miners assigned to new work tasks as mobile 

equipment operators, drilling machine operators, haulage and conveyor systems operators, roof and ground 

control machine operators, and those in blasting operations .shall not perform new work tasks in these categories until training prescribed in this paragraph and 

paragraph (b) of this section has been completed. 

This training shall not be required for miners who 

have been trained and who have demonstrated safe operating procedures for such new work tasks within 12 

months preceding assignment. This training shall also 

not be required for miners who have performed the new 

work tasks and who have demonstrated safe operating 

procedures for such new work tasks within 12 months 

preceding assignment. The training program shall include the llowing: 

(1) Health and safety aspects and safe operating 

procedures for work-tasks, equipment, and machinery. 

The training shall include instruction in the health 

and sa aspects and the safe operating procedures 

related to the assigned tasks, and shall be given in 

an on-the-job environment; and 

(2) (i) Supervised practice during nonproduction. 

The training shall include supervised practice in the 

assigned tasks, and the performance of work duties at 

times or places where production is not the primary 

objective; or 

(ii) Supervised operation during production. The 

training shall include, while under direct and immediate supervision and production is in progress, operation of the machine or equipment and the performance of 

work duties. 

1359 
(3) New or modified machines and equipment. 

Equipment and machine operators shall be instructed 

in sa operating procedures app cable to new or 

modified machines or equipment to be installed or put 

into operation in the mine, which require new or different operating procedures. 

(4) Such other courses as may be required by the 

District Manager based on circumstances and conditions 

at the mine. 

(b) Miners under paragraph (a) of this section 

shall not operate the equipment or machine or engage 

in blasting operations without direction and immediate 

supervision until such miners have demonstrated safe 

operating procedures for the equipment or machine or 

blasting operation to the operator or the operator's 

agent. 

(c) Miners assigned a new task not covered 

paragraph (a) of this section shall be instructed in 

the safety and health aspects and safe work procedures 

of the task, prior to performing such task. 

(d) Any person who controls or directs haulage 

operations at a mine shall receive and complete training courses in safe haulage procedures related to the 

haulage system, ventilation system, firefighting procedures, and emergency evacuation procedures in effect 

at the mine before assignment to such duties. 

(e) All training and supervised practice and 

operation required by this section shall be given by a 

qualified trainer, or a supervisor experienced in the 

assigned tasks, or other person experienced in the 

assigned tasks. 

DISCUSSION 

During the investigation of an otherwise unrelated fatal 

roof fall accident at the Deserado Mine, it was discovered 

that Mr. Carson Julius, a section foreman at the mine, had 

instructed one of his miners to go to lunch while he took his 

place operating one boom of the roof bolting machine. The 

other boom of the twin boom machine was being operated by 

Mr. Austen Mullens, who was killed by the roof fall. Mr. Julius 

had not, at that time, been task trained on this piece of 

equipment. Although both the order and the citation subsequently issued both recite that this failure to be task 

trained did not contribute to the cause of the accident, the 

Secretary nevertheless took and takes the position that under 

the mine's training plan, Julius should have been task trained 

as a roof-bolter under§ 48.7, and the failure of the operator 

to so train him prior to his operation of the equipment amounts 

to a significant and substantial violation of the Act and 

§ 48.7. 

1360 
The real dispute in the case, however, concerns the language contained in§ 48.2(a) (1) (ii) which on its face purports to except supervisory personnel subject to MSHA approved State certification requirements from the definition 

of "miner", and therefore from the task training requirements 

of § 48.7. 

MSHA's Arguments 

In support of its position in these proceedings MSHA 

argues that to come within the above exception, a person must 

be "supervisory" and subject to MSHA approved State certification requirements. While the Secretary concedes that Julius 

met the latter requirement, he maintains that a person is 

"supervisory" only so long as he "supervises." Once that 

person diverts from supervising to running mining machinery, 

that person is no longer "supervisory" but rather is a "miner," 

regardless of his job tle. It is argued that MSHA's use of 

the adjectival form "supervisory" rather than the noun "supervisor" emphasizes that it is the quality about a person and 

what a person does, i.e., the act of supervising, that is 

important and not his job title. 

Further, MSHA argues that this interpretation of the 

exception preserves the statutory objectives pertaining to 

the training of miners because when a person performs a 

miner's work, such as operating heavy equipment normally 

operated by a miner, that person, even though perhaps 

nominally a "supervisor," is plainly exposing himself and 

others to the hazards incident to mining and is for all 

practical purposes, a "miner." Therefore, the argument goes 

that the supervisory personnel exception contemplates that 

such persons stick to supervising in the narrow sense of the 

word with only "incidental" assistance to a miner performing 

a mining task being allowed without Part 48 training. 

Additionally, the Secretary argues that MSHA's interpretation of the regulatory exception has been consistent, longstanding and widely no ced to the mining community. 

Since the training regulations were initially published 

in 1978, there have been several publications generated by 

MSHA to assist its training specialists in helping operators 

set up and ntain training programs under Part 48. One 

such early question-and-answer (Q-A) issue on the subject 

stating that "a state certi ed supervisor performing the 

work of a miner would be required to be trained under Part 

48." On November 27, 1984, MSHA issued MSHA Policy Memorandum 

No. 84-2 EPD concerning the "Training requirements of 30 CFR 

Part 48 for Mine Supervisors who Perform Non-Supervisory 

Work." This memorandum was distributed to all mine operators 

1361 
and in pertinent part states that the "exception applies only 

to the extent that supervisory work is being performed. 11 

Specifically, it advises the operators that: 

When supervisors perform or are expected to perform mining tasks, they are "miners" under Part 

48 and must receive the required training. For 

example, if a supervisor operates. mining equipment ..• that supervisor must have completed task 

training as specified by [section] 48.7 ..•. 

Thereafter, on July 1, 1985, MSHA published the "MSHA Administrative Manual 30 C.F.R. Part 48 - Training and Retraining of 

Miners." This publication includes on page 2 MSHA's position 

with regard to the herein-involved exception. Like the aforementioned memorandum, the Manual specifically states that "if 

a supervisor operates mining equipment, or performs extraction, 

production and maintenance work, that supervisor is a 'miner' 

when performing this work and must have been given task training under section 48.7." 

Once this inter~retation of the "supervisory exception" 

is accepted, then it is factually argued in this case that 

Julius became a "miner" for purposes of the training requirements when he stepped in to take over the roof bolting machine 

operation for the lunching miner. More specifically, it is 

argued that Carson Julius was working in an underground mine, 

personally engaged in the extraction and production process 

doing roof bolting, a non-supervisory task. He therefore at 

that particular time was working as a "miner" as that term is 

defined at 30 C.F.R. § 48.2(a) (1), Accordingly, he was a 

"miner" under that section for purposes of task training and 

it is stipulated in this record that roof bolters are slated 

the Mine Training Plan to receive the§ 48,7 task training. 

It is also stipulated that Julius was not task trained on the 

roof bolting machine prior to his operation of it on February 28, 1986, nor had he been task trained on that type of 

roof bolting machine in the twelve months preceding February 28u 1986. Thus, because Julius was required to be task 

trained under§ 48.7 and plainly was not, violations of 30 

C.F.R, § 48,7 and§ llS(a) of the Act are proven. 

The Secretary goes on to argue that such violation was 

a significant and substantial one since by the terms of the 

Act a miner who has not received the requisite training under 

the Act is "a hazard to himself and to others." Further, there 

was a reasonable likelihood that the hazard contributed to 

would result in injury because statistically supervisors who 

divert to do nonsupervisory work suffer a disproportionate 

rate of injury in comparison to coal miners in general and 

roof bolters in particular have incurred the highest risk of 

1362 
injury among key mining occupations. The argument goes on 

that there was a reasonable likelihood that the injury would 

be of a serious nature or even a fatal injury because roof 

fall acciden'ts tend to be fatal accidents such as the one that 

killed Austen Mullens and precipitated the investigation out 

of which the instant Order and Citation arose. 

Finally, based on consideration of the statutory criteria, the Secretary contends that a civil penalty of $180, 

as proposed, should be assessed against the operator on 

account of this violation. 

Operator's Arguments 

The operator concedes that Carson Julius was not task 

trained on the roof-bolter, but nevertheless maintains that 

no violation has occurred because the regulations (30 C.F.R. 

§ 48.2(a) (1) (ii)) specifically exclude supervisory personnel 

who have been State-certified from the task training requirement. Julius was State-certified. The operator also concedes that the Secretary has f rorn time to time by various 

and sundry vehicles promulgated policy statements concerning 

this particular regulatory exclusion to the effect that the 

exception applies only to the extent that supervisory work 

is being performed. However, the operator denies ever 

actually receiving copies of these documents and in any 

event characterizes them as nothing more than general statements of policy issued by the agency. None of these policy 

statements were ever published in the Federal Register or 

Code of Federal Regulations; nor were they ever explicitly 

brought to the attention of this operator prior to the 

issuance of the Order and Citation at bar. 

The bottom line of this argument is that the published 

regulation clearly states the rule, and according to the 

operator, they complied with the rule, as written. The 

agency cannot modify the rule and lay additional requirements 

on the operator by "interpreting" the rule to mean something 

other than what it clearly states. If MSHA wishes to amend 

the rule to mandate what may in fact be a reasonable requirement they must first comply with the procedural provisions 

of the Act regarding adoption and promulgation of regulations. 

Accordinglyr the instant Order and Citation should be dismissed. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

I accept the stipulated facts that the parties have 

to in this matter as true for purposes of this decision. 

also find as a fact that Carson Julius, while engaged in 

operating the roof bolting machine was primarily engaged 

1363 

agreed 

I 

in a 
nonsupervisory task in the extraction and production process 

although he nominally retained his role as a "supervisor," 

i.e., a section foreman, throughout the period of this incident. 

The Secretary acknowledges that Julius was a generally 

knowledgeable miner with many years of experience, who was 

State-certified by Colorado and was a qualified section foreman at the Deserado Mine, but argues that this hardly qualifies one as an experienced operator of a particular piece of 

mining machinery, such as a roof bolting machine. I agree, 

and in fact, if Julius cannot be brought within the coverage 

of the regulatory exception contained in § 48.2(a) (1) (ii), 

he should have been task trained on that roof bolter before 

he undertook to operate it. 

The Secretary urges that MSHA's interpretation of the 

regulatory exception is reasonable, preserves statutory 

objectives, has been consistent and longstanding and has 

been broadly noticed to the industry. 

It is well settled in the law that an agency's interpretation of its enabling statute and its own regulations is 

entitled to great deference. See, e.g. Emery Mining Corp. 

v. Secretary of Labor ("MSHA")-;744---P-:-2d 1411 (10th Cir. 1984). 

MSHA's interpretation of the exception is certainly 

reasonable. To require all persons to be task trained on a 

particular piece of mining machinery before being responsible 

for its safe operation has a lot of common sense appeal. 

Just because a person is a ''supervisor," even a Statecertified one does not in my opinion confer on that person 

the technical skill and abili to operate every piece of 

mining machinery he might encounter in the mine. 

MSHA's interpretation of the exception also preserves 

the statutory objectives of the Act pertaining to the training of miners, that is, that the safety training required by 

section 115 of the Act is a very important remedial aspect 

of the Act and that all persons regularly subjected to the 

hazards of mining should be well trained. It follows then 

that any exception carved out of the general definition that 11 any person working in an underground mine and who is 

engaged in the extraction and production process or who is 

regularly exposed to mine hazards" is a "miner," and therefore subject to the task training requirement, should be 

narrowly construed. MSHA's interpretation of the exception 

that only those "supervisors" who are actually "supervising" 

are exempt reasonably comports with the proposition that "a 

regulation must be interpreted so as to harmonize with and 

1364 
further and not to conflict with the objective of the statute 

it implements. 11 Emery, supra, at 1414; (quoting, Trustees of 

Indiana University V• United States, 223 Ct. Cl. 88, 618 

F.2d 736, 739 (1980)). I specifically find that MSHA's 

interpretation is consistent with and obviously furthers the 

objectives of the Act and is to be preferred. 

I further find as a fact that this supervisory personnel 

exception has been consistently interpreted by the agency 

from the beginning and as of at least November 1984, when 

MSHA issued MSHA Policy Memorandum No. 84-2 EPD which was 

distributed to all mine operators, the operators have been 

on notice that MSHA's interpretation of the exception was to 

the effect that it applied only to the extent that supervisory work was being performed. 

Therefore, I find that viewed in light of the Act's 

emphasis on the importance of training for those individuals 

exposed to the hazards of mining, the regulatory exception 

at bar must be limited to those supervisors who are actually 

primarily engaged in supervision. The operator's proposed 

construction of the instant regulatory exception, to the effect 

that all supervisory mine personnel who have been Statecerti ed are thereafter forever exempt from the task training requirement no matter the mining equipment they might 

undertake to operate in the future is specifically rejected. 

That construction is plainly at odds with the clearly intended training objectives of the Act, even though I concur 

with the operator that it is arguably within the ambit of 

reasonable interpretation of the regulatory language itself. 

Since at the time in question Carson Julius was primarily engaged in operating the roof bolting machine, not 

supervision, I find that he was required to be task trained 

on that roof bolting machine prior to undertaking the operation of it in the extraction and production process. Because he was not so trained, violations of 30 C.F.R. § 48.7 

and§ llS(a) of the Act stand proven. · 

A violation is properly designated significant and substantial "if, based on the particular facts surrounding that 

violation, there sts a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of 

a reasonably serious nature." National Gypsum, 3 FMSHRC 822, 

825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984), the Commission explained: 

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum the Secretary •.. 

must prove: (1) the underlying violation of a 

1365 
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. 

The Commission has 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 a~ injury." U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984}. (Emphasis 

deleted). They have emphasized that, in accordance with the 

language of section 104(d) (1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. 6 FMSHRC at 1836. 

In order to establish the significant and substantial 

nature of the violation, the Secretary need not prove that 

the hazard contributed to actually will result in an injury 

causing event. The Commission has consistently held that 

proof that the injury-causing event is reasonably likely to 

occur is what is required. See, e.g., U.S. Steel Mining Co., 

7 FMSHRC at 1125; UTS. Steel""""Mlnin:g:-co., 7 FMSHRC 327, 329 

(March 1985). 

The violation contributed to a discrete safety hazard. 

In my view, an untrained or undertrained miner or section 

foreman is a potential hazard to himself and others assigned 

to work around him. There was also a reasonable likelihood 

that the hazard contributed to would result in a serious or 

even fatal injury" Statistical supervisors who divert to 

do nonsupervisory work suffer a disproportionate rate of injury and roof bolters suffer the highest rate of injury 

among key mining occupations. Here we had a case of a section performing the function of a roof bolter, operating a roof bolting machine, without the site task training. I that operating this particular Lee Norse roof 

bolting machine is a relatively complex task in a generally 

high risk area of coal mining. Therefore, I find that his 

lack of task training could significantly and substantially 

contribute to the cause and effect of a coal mine safety 

hazard which could result in serious injury. Therefore, 

the violation was significant and substantial. The fact 

that the instant violation had nothing to do with the roof 

fall death of Austen Mullens, the co-operator of the bolter 

with Julius, is hardly evidence to support the contention 

that the lack of training did not or could not contribute to 

a hazard likely to result in injury. 

1366 
The violation was serious and resulted from the operator's negligence. I further find that Western Fuels is a 

large operator with a favorable history of prior violations. 

The violation here was abated in timely fashion and in good 

faith. Therefore, based on the criteria in section llO(i) of 

the Act, I conclude that an appropriate penalty for the violation is $180, as proposed. 

ORDER 

Based on the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Order No. 2830082 and Citation No. 2830083 ARE 

AFFIRMED. The operator's notices of contest of same ARE 

DISMISSED. 

2. Western Fuels-Utah, Inc., shall within 30 days of 

the date of this decision pay the sum of $180 as a civil penalty for the violation found herein. 

3. Upon payment of the civil penalty, these proceedings 

ARE DISMISSED. 

urer 

rative Law Judge 

Distribution: 

Karl F. Anuta, Esq., and Nancy E. VanBurgel, Esq., Duncan, 

Weinberg & Miller, P.C., Suite 1670, 717 Seventeenth St., 

Denver, CO 80202 (Certified ~ail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1961 Stout St., Rm. 1585, Denver, CO 

80294 ( fied Mail) 

yh 

1367 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE AOO 

DENVER, COLORADO 80204 AUG 4 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PAUL HUBBS CONSTRUCTION, CO., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEsr 87-19-M 

A.C. No. 04-04746-05503 

Atkinson Quarry 

DECISION 

Appearances: Theresa Kalinski, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioneq 

Before: 

Mr. Tony T. Paredes, Paul Hubbs Construction Co., 

Rialto, California, 

pro se. 

Judge Cetti 

Statement of the Case 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to Section 104(a) .of the 

Federal Mine Safety and Health ~ct of 1977v 30 u.s.c. § 801, et 

~· (the 01 Mine Act 11 ). The Secretary on behalf of the Mine -

Safety and Health Administration charges Paul Hubbs Construction 

Company th violating three regulatory safety standards. The 

charges are based upon citations issued as a result of an August 

6, 1986 inspection of respondent is Atkinson Quarry which is 

located in Riverside County, California. 

The respondent filed a timely answer contesting the 

existence of the violations. After proper notice to the parties 

this case came on for hearing before me at Riversideu California. 

The only issue was the existence of the violations charged in the 

three citations. The parties stated that there was no issue as 

to the penalty i.e.f that if the violations were found the appropriate penalty was the penalty proposed by the Secretary. The 

parties introduced oral and documentary evidence and requested 

that the matter be held open 30 days for filing post-hearing 

briefs. The Secretary submitted a post-hearing brief, the 

respondent did not. 

The Atkinson Quarry is ref erred to in the industry as a 

"grizzly" plant. It consists of a screening plant which 

separates the rocks by size, the scale house where loaded trucks 

are weighed and the surrounding quarry where the raw material is 

mined. 

1368 
The screening plant, also referred to as the rock plant or 

grizzly plant, has a box hopper where dirt and rocks are fed into 

the plant with front end loaders. The dirt and rocks are then 

fed through a screen which separates the dirt and segregates the 

rocks by size. Conveyor belts transport the segregated material 

to different areas. The rock material is then separated and 

stockpiled by loaders. The material is sold to contractors who 

use it for various projects including flood control. 

A 250-kilowatt generator is housed in a trailer located 

adjacent to the screening plant. 

Review of Evidence and Discussion 

Citation 2675008 - Fire extinguisher not fire-ready > 

Citation 2675008 charges a violation of 30 C.F.R. 

§ 56.4200(b)(2) which requires onsite fire fighting equipment to 

be maintained in fire-ready condition. The citation alleges that 

the fire extinguisher located inside the generator trailer which 

housed the 250-kilowatt generator was not maintained in a fireready condition. 

Federal mine inspector Dale Cowley, observed the fire 

extinguisher in its proper bracket, strategically located, and 

readily accessible and with its pin properly inserted in the 

handle but in a completely discharged condition. It was 

therefore not in fire-ready condition. 

The federal mine inspector was accompanied by the employer's 

representative, Jeff Hubb, the foreman in charge that day. Jeff 

Hubb, who is the adult son of the quarries manager, said nothing 

to the inspector that indicated the fire extinguisher had recently been discharged or vandalized. 

There was no other fire extinguisher located in the area. 

An employee was sent out to get a properly charged fire extinguisher. Later as the mine inspector was on the road leaving 

the quarry he was stopped by the employee who was coming back 

with a replacement fire extinguisher. 

The trailer in question houses a 250-KW generator which 

generates all the electrical power to run the plant. The trailer 

is located just adjacent to the grizzly. Evidence was presented 

that the generator is a potential fire hazard because the 

electrical circuitry could short out and cause a fire. The mine 

inspector testified "its a very logical place for a fire to break 

out" (Tr. 12). 

The testimony of the federal mine inspector was straight 

forward and credible. On the basis of his testimony as to what 

he observed and what was said by the employer representative 

during the course of the inspection I find that the fire extinguisher located in the trailer that housed the 250-kilowatt 

generator was not maintained in a fire-ready condition. The 

respondent offered no persuasive evidence to the contrary. 

1369 
The only witness to testify on behalf of respondent was its 

operations supervisor who supervises and trouble shoots several 

different quarries that are owned and operated by respondent. 

This witness was not at the Atkinson Quarry on the day of inspection nor had he been there for several days prior to that 

date nor the day after. 

Respondent offered into evidence a police report which indicated its water truck had been tampered with and taken for a 

joy ride. Wires had been pulled from trucks and locks broken. 

The operations supervisor speculated that vandals may have broken 

into the trailer and discharged the fire extinguisher but he 

offered no persuasive evidence to indicate that vandals discharged the fire extinguisher. 

Citation 2675009 - Tail pulley not guarded 

Citation 2675009 charges that the self cleaning tail pulley 

on the plant's waste conveyor was not equipped with a guard to 

prevent contact with belt and pulley. 

30 C.F.R. § 56.14001 provides "head, tail, and takeup 

pulleys • • • and similar exposed moving machines parts which may 

be contacted by persons, and which may cause injury to persons, 

shall be guarded." 

The federal mine inspector testified that during his inspection of the plant he observed that there was no guard on the 

self cleaning tail pulley on the conveyor belt. The unguarded 

tail pulley was in an area where employees had access to it while 

it was operating. 

Respondent speculated that the guard may have been taken off 

and stolen by vandalsv but offered no persuasive evidence to 

indicate that this had occurredo The mine inspector testified 

that he observed evidence that indicated the plant had been 

running without the guard in place. He looked very closely to 

see if the tail pulley guard had been taken off recently for 

repairs or some other reasonv and inadvertently not replaced. He 

found none of the usual evidence that would indicate that the 

conveyor belt and tail pulley had been operating with a guard or 

that the guard had been recently taken off. 

On the basia of the federal mine inspector's credible 

testimony it is found that, the tail pulley on the plant's waste 

conveyor was not guarded and therefore, in violation of 30 C.F.R. 

§ 56.14001. 

Citation No. 2675011 - Generator not grounded 

Citation 2675011 alleges a violation of 30 C.F.R. § 56.12025 

which mandates all metal enclosing or encasing electrical 

circuits be grounded or provided with equivalent protection. 

1370 
The mine inspector testified that the 250-kilowatt generator 

which provided the electrical current to operate the entire plant 

was not grounded. The mine inspector asked the foreman in charge 

if the generator was grounded. The foreman replied "I guess 

not". 

The inspector indicated that an acceptable ground for the 

generator would be a ground rod driven into the ground with a 

conductor coming from the generator attached to the grounding rod. 

He stated that an appropriate grounding rod would be a solid rod 

about one-half inch to three-quarters of an inch in diameter and 

eight feet long. It is generally driven all the way into the 

ground except for the top two inches. The mine inspector explained that if the rod is in the ground any length of time it 

can be covered up with litter. That this is why he walked around 

the trailer a couple of times kicking the ground, looking and 

asking questions. The mine inspector testified that he did not 

observe any evidence indicating that the generator was grounded 

or had recently been grounded. 

The employer's representative, foreman Hubbs, said 

nothing during the inspection to indicate that he thought that 

this failure to ground the generator might be due to recent 

vandalism. 

Respondent 1 s representative at the hearing speculated that 

the grounding rod, may have been stolen by vandals. However, he 

offered no evidence whatsoever to show that the lack of grounding 

had anything to do with vandals or that the generator had ever in 

fact been grounded. 

Federal mine inspector Dale Cowley's testimony was credible. 

Respondent 0 s offered no persuasive contrary evidence. 

Findings and 

Conclusions of Law 

1. Paul Hubbs Construction Company is the owner and 

operator of the Atkinson Quarry which is located in Riverside 

County, California. 

2. The Atkinson Quarry is subject to the jurisdiction of 

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

seq. 

3. The Federal Mine Safety and Health Review Commission has 

jurisdiction in this matter. 

4. .The fire extinguisher in the trailer which housed the 

250-kilowatt generator was a part of the onsite fire fighting 

1371 
equipment for fighting fires in their early stages and it was not 

maintained in fire-ready condition. This constituted a violation 

of 30 C.F.R. § 57.4200(b). Citation No. 2675008 is affirmed and 

the civil penalty of $20 proposed by the Secretary is assessed. 

5. The tail pulley on the plant waste conveyor was not 

guarded. This constituted a violation o~ 30 C.F.R. § 56.14003. 

Citation ~o. 2675009 is affirmed qnd the civil penalty of $54 is 

assessed. 

6. The metal enclosing the 250-kilowatt electric generator 

was not grounded nor provided with equivalent protection. This 

constituted a violation of 30 C.F.R. § 56.12025. Citation No. 

2675011 is affirmed and the $20 civil penalty proposed by the 

Secretary is assessed. 

ORDER 

Based upon the above findings of fact and conclusions of law 

it is ordered that respondent shall pay within 30 days of this 

decision the above ci~il penalties totaling ~· 

Augus F. Cetti 

Administrative Law Judge 

Distribution: 

Theresa Kalinski, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3247 Federal Building, 300 North Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Paul Hubbs Construction Companyu Mro Tony To Paredesu 140 West 

Valley Boulevardu toF CA 92376 (Certified Mail) 

/bls 

1372 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) , 

Petitioner 

v. 

PATKIOT COAL COMPANY, 

Respondent 

\987 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-400 

A.C. No. 46-06042-03518 

Patriot Coal Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On July 20, 1987, the Secretary of Labor filed a 

motion for approval of a settlement reached by the parties 

in this case. The violations were original asses at 

$250 and the parties propose to settle for 200. 

The motion states that Respondent's negligence was 

less than originally believed in connection with the 

alleged violation cited, namely the absence of a backup 

alarm on a pickup truck. Respondent believed that the truck 

in question was a service vehicle and not subject to the 

standard requiring backup alarms. I have considered the 

motion the light of the criteria in section llO(i) of 

the Act, and conclude that should be approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $200 within 30 days of the date 

of this order. 

Distribution: 

Broderick 

Administrative Law Judge 

James H. , Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Richard B. Bolen, Gen. Mgr., Patriot Coal Co., Rt. 12, Box 245, 

Morgantown, WV 26505 (Certif Mail) 

slk 

1373 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 6 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 87-6 

A.C. No. 15-13862-03523 

v. 

Peacock Mine No. 1 

ANLO ENERGY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, 

Tennessee, for the Petitioner. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977u 30 U.S.Co 

§ 820(a)o Petitioner seeks civil penalty assessments in the 

amount of $156 for two alleged violations of certain mandatory safety standards found in Part 75, Title 30, Code of 

Federal Regulations. 

The respondent filed a timely notice of contest and 

requested a hearing. Pursuant to notice served on the partiesu a hearing was convened in Owensboro, Kentuckyo The 

petitioner appeared, but the respondent did not. Under the 

circumstances, the hearing proceeded without the respondento 

Issues 

The issues presented in this proceeding are whether the 

respondent has violated the cited mandatory safety standards, 

and if so, the appropriate civil penalty to be assessed for 

those violations based on the criteria found in section llO(i) 

of the Act. The matters concern~ng the respondent's failure 

1374 
to appear, and its bankruptcy status, are discussed in the 

course of the decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Discussion 

Respondent's Failure to Appear at the Hearing 

Respondent, who is pro se, failed to appear at the scheduled hearing in Owensboro. Information in the file reflects 

that the respondent's president, Mr. Jack Anderson, resides 

in Houston, Texas. During the course of the hearings in 

several other cases in Owensboro immediately prior to the 

scheduled hearing in this case, petitioner's counsel advised 

me that she had spoken with Mr. Anderson, and he informed her 

that he would not appear at the hearing. I placed a telephone call to Mr. Anderson's home in Houston and he confirmed 

that he would not appear. Mr. Anderson explained that he is 

in bankruptcy and that he could not afford the expense of 

travelling to Owensboro. 

Mr. Anderson stated that the Peacock No. 1 Mine is idle, 

and that it is not closed. He also informed me that he 

intended to re-open the mine after the conclusion of the 

bankruptcy proceedings. I informed Mr. Anderson that in view 

of his failure to enter an appearance, the hearing would 

proceed without him and that pursuant to the Commission 1 s 

Rules, he would be defaulted. Mr. Anderson acknowledged and 

understood that he would be defaulted, had no objection to 

proceeding in this manner, and he expressed his apology for 

not appearing at the hearing. 

It seems clear to me that the failure of a partyrespondent to appear at a hearing pursuant to a duly served 

order and notice issued by the judge is sufficient ground for 

the judge to hold the respondent in default and to proceed 

without him, Williams Coal Co., 1 FMSHRC 928 (July 1979); 

White Oak Coal Company, 7 FMSHRC 2039 (December 1985); Neibert 

Coal Company, Inc., 7 FMSHRC 887 (June 1985); Pollard Sand 

Company, 8 FMSHRC 973 (June 1986). 

The respondent has been given an ample opportunity to 

refute the alleged violations and proposed civil penalties 

1375 
filed by the petitioner. However, it seems obvious to me 

that the respondent does not wish to litigate this matter 

further because he is in bankruptcy. Under the circumstances, 

I find the respondent to be in default, and I have treated its 

failure to .appear at the hearing as a waiver of its right to 

be heard on the merits of the violations. 

Respondent's Bankruptcy Status 

The fact that the respondent is in bankruptcy does not 

divest the Commission or its judges of jurisdiction to proceed 

with the adjudication of this case. Leon's Coal Company, 

et. al., 4 FMSHRC 572 (April 1982); Oak Mining Company, 

4 ~MSHRC 925 (May 1982); Stafford Construction Company, 

6 FMSHRC 2680 (November 1984). Accordingly, I conclude and 

find that I have jurisdiction to adjudicate this matter. 

Section 104(a) non-"S&S" Citation No. 2837468, issued on 

June 25, 1986, cites a violation of 30 C.F.R. § 75.1204, and 

the cited condition or practice is as follows: "Peacock Mine 

No. 1 ID 15-13862 has been permanently closed. The operator 

has not filed with the Secretary a copy of the mine map 

revised and supplemented to the date of closure." 

The inspector fixed the abatement time as 8:00 a.m., 

July 25, 1986. Subsequently, on July 25, 1986, at 10:00 a.m., 

he issued a section 104(b) withdrawal order, No. 2837470, and 

noted that "a reasonable time was given and the citation 

issued has not been abated." 

Section 104(a) non-"S&S" Citation No. 2837469, issued on 

June 25v 1986v cites a violation of 30 C.F.R. § 75.17llv and 

the cited condition or practice is as follows~ "Peacock Mine 

Nao l ID 15-13862 has been permanently closed and the drift 

openings have not been sealed in a manner prescribed by the 

Secretary." 

The inspector fixed the abatement time as 8:00 a.m.v 

July 25, 19860 Subsequentlyv on July 25 1 1986 1 at 10:05 a.m.v 

he issued a section 104(b) withdrawal order, No. 2837471, and 

noted that "a reasonable time was given and no action was 

taken to correct the citation. 11 

MSHA Inspector and Ventilation Specialist Paul o. Lee 

testified that he visited the mine in January, 1986, and spoke 

with the operator, Mr. Jack Anderson, and another individual. 

The mine was not in operation, the fan was down, and the power 

was off. Mr. Lee stated that he advised Mr. Anderson that he 

needed to file a ventilation plan, and Mr. Anderson advised 

1376 
him that he would do so. Since the mine was temporarily abandoned, Mr. Lee informed Mr. Anderson that if he did not start 

up again, he needed to file a final mine map and a mine sealing plan. Mr. Anderson advised him that he hoped to put the 

mine back into operation within a week and that a Mr. Woody 

Sutton would be in touch with him regarding the plans. 

Mr. Lee stated that the mine had been temporarily abandoned 

"off and on" for approximately a year prior to January, 1986, 

and while "sporadic work" was done for a week or so, it would 

then be abandoned. 

Mr. Lee identified an MSHA Mine Status Data Form 

2000-122, signed by Inspector Larry Cunningham on April 28, 

1986, showing the mine as "Temporarily abandoned." He also 

identified a second form signed by Inspector George W. Siria 

on May 23, 1986, showing the mine as "Permanently Abandoned." 

Mr. Lee surmised that Mr. Siria had visited the mine for an 

inspection and could find no one working there. Mr. Lee 

stated that subsequently, in June, 1986, he visited another 

mine operated by Mr. Sutton and discussed the plans for the 

respondent's mine. Mr. Sutton advised Mr. Lee that he had no 

connection with the respondent's mine (Tr. 7-9). 

Mr. Lee confirmed that he went to the respondent's mine 

site on June 25, 1986, and found the gate locked. However, 

he walked to the mine and found that the pit had begun to 

fill with water. He then returned to his office and prepared 

the two citations in question, and mailed t.hem to Mr. Anderson 

by registered mail to his last known address in Madisonville, 

Kentucky, as shown on MSHA's mine legal identify form. However, they were returned by the post office and Mr. Anderson 

did not accept them (Tro 9, 16). 

Mro Lee stated that he learned through hearsay that the 

only work which may have taken place at the mine between 

January and June 25, 1986, was the recovery of a continuous 

miner from the mine by a company which had leased it to the 

respondent, and "maybe a little pumping." Mr. Lee stated 

that it is MSHA 1 s position that as of June, 1986, the mine 

had been temporarily, if not permanently abandoned for 

90 days (Tr. lO)o 

Mr. Lee confirmed that Mr. Anderson has never informed 

his office that he was going to close the mine, and that he 

is required to notify MSHA "one way or the other or submit a 

final map and sealing plan," but this has not been done (Tr. 

12). Mr. Lee described the mine as an underground "open pit 

type," and that at the present time it has 20 to 25 feet of 

water in the pit. He stated that when a mine is temporarily 

1377 
abandoned, an operator will still show that people are working there. However, when it is permanently abandoned, not 

one is working there (Tr. 14). Mr. Lee did not know whether 

or not Mr. Anderson. operated any mines other than the one in 

question, and MSHA's counsel had no information that this was 

the case (Tr. 15). He confirmed that the citations are not 

"significant and substantial" because there is no one at the 

mine site (Tr. 15). 

Petitioner's Arguments 

MSHA's counsel argued that during her telephone discussions with Mr. Anderson concerning the citations, he informed 

her that he was searching for more investors to invest in his 

company, and that when he is through with the bankruptcy 

matter and pays off the debts, he will go back into mining. 

However, counsel took the position that this do'es not affect 

the citations because the cited mandatory standard requires a 

mine operator to file a final mine map and seal it even if it 

is temporarily abandoned for over 90 days. She asserted that 

the facts in this case clearly establish that the mine has 

been at least temporarily abandoned for over 90 days. Assuming that an operator anticipates re-opening the mine at some 

future time, if it is in an abandoned status for over 90 days, 

an operator is required to comply with the standard <Tr. 

14-15). 

With regard to Mr. Anderson's receipt of the citations, 

MSHA's counsel stated that it seems clear that he received 

them since he signed the MSHA proposed civil penalty "blue 

card," and wrote in his telephone number in Texas, and that 

how she contacted him there (Tr" 17)" With regard to 

Mro ~ndersonus bankruptcy statusu counsel asserted that there 

are distinctions in Chapter 11 and 13 bankruptcy proceedings. 

In a Chapter 11 proceeding, MSHA would consider this as 

impacting on the respondent's ability to pay the proposed 

civil penalty assessments and his ability to continue in 

business, as well as whether or not he may be able to go back 

into the mining business. Under Chapte~ llu it is considered 

a final proceeding that would dissolve the corporation, as 

contrasted to a Chapter 13 proceeding which is merely a 

reorganization plan and a way to stretch out the corporate 

debts (Tro 17). She confirmed that the respondent is in 

Chapter 11 bankruptcy (Tr. 18-19). 

MSHA's position is that on the facts of this case, it is 

clear that the mine was either closed or abandoned for more 

than 90 days, and since the inspector found no evidence that 

the respondent has complied with the requirements of the 

1378 
cited standard, the violations have been established and the 

citations should be affirmed. She confirmed that the subsequent section 104(b) orders were issued because there has 

been no compliance and the citations have not been abated 

(Tr. 19-20). 

Respondent's Arguments 

Although the respondent did not appear at the hearingu I 

have considered the arguments presented by Mr. Anderson in 

his answer of November 20, 1986, to the civil penalty proposals filed by the petitioner. In that answer, Mr. Anderson 

takes the position that the mine was not permanently closed, 

and he states in pertinent part as follows: 

The Citation/Order Number's 2837468 and 

2837469 are both based on the Peacock Mine 

No. 1, I.D. 15-13862 being alledged (sic) to 

be permanently closed. That is not the case. 

A dispute concerning the validity of the coal 

subleases held by Anlo Energy prevented continued mining ~nd forced Anlo Energy to 

declare Chapter 11 Bankruptcy and submit the 

dispute to an adversary proceeding. Consequently, the Peacock Mine No. 1 has been idled, 

not permanently closed, until a judicial disposition of the dispute issue is made. The 

bench trial on this issue occurred on April 28, 

1986 with no ruling as of this date. 

Findings and Conclusions 

An initial matter to be addressed is whether or not the 

respondent received notice of the citations and proposals for 

assessment of civil penalties. The inspector testified that 

the citations which were mailed to Mr. Anderson were returned 

by the post office because Mr. Anderson had moved to another 

address. On the facts of this casep it seems clear to me 

that the respondent received the citations and the notice 

concerning the petitioner 0 s proposed civil penalty assessments for the violations in question. It is also clear that 

he received the notice of hearing advising him of his opportunity to personally appear and present his case. Further~ 

the record establishes that the respondent, by and through 

its corporate president, contested the proposed civil penalty 

assessments and filed a timely answer. Under the circumstances, I conclude and find that all of the statutory and 

regulatory notice requirements have been met in this case. 

1379 
Fact of Violations 

Citation No. 2837468, issued on June 25, 1986, charges 

the respondent with a violation of mandatory safety standard 

30 c.F.R. § 75.1204, which provides as follows: 

§ 75.1204 Mine closure; filing of map with 

Secretary. 

[STATUTORY PROVISIONS] 

Whenever an operator permanently closes 

or abandons a coal mine, or temporarily closes 

a coal mine for a period of more than 90 days, 

he shall promptly notify the Secretary of such 

closure. Within 60 days of the permanent 

closure or abandonment of the mine, or, when 

the mine is temporarily closed, upon the 

expiration of a period of 90 days from the 

date of closure, the operator shall file with 

the Secretary a copy of the mine map revised 

and supplemented to the date of the closure. 

Such copy of the mine map shall be certified 

by a registered surveyor or registered engineer of the State in which the mine is located 

and shall be available for public inspection. 

Citation No. 2837469, issued on June 25, 1986, charges 

the respondent with a violation of mandatory safety standard 

30 C.F.R. § 75.1711, which provides as follows: 

§ 75.1711 Sealing of mines. 

[STATUTORY PROVISIONS] 

On or after March 30, 1970, the opening 

of any coal mine that is declared inactive by 

the operatorv or is permanently closed, or 

abandoned for more than 90 days, shall be 

sealed by the operator in a manner prescribed 

by the Secretary. Openings of all other mines 

shall be adequately protected in a manner 

prescribed by the Secretary to prevent entrance 

by unauthorized persons. 

The regulatory criteria and procedures for the sealing 

of mine shaft openings, and slope or drift openings pursuant 

to section 75.1711, are stated in sections 75.1711-1 and 

75.1711-2. 

1380 
The respondent takes the position that the mine has not 

been permanently closed, but simply idled pending final 

resolution of its bankrupt status. Mr. Anderson has indicated his intent to start mining again sometime in the 

future, contingent on the availability of investor capital. 

Respondent's position seems to be that since the mine has not 

been permanently closed, he need not comply with the requirements of section 75.1204 for the filing of mine map, or the 

requirements of section 75.1711 requiring the sealing of the 

drift openings as prescribed by the regulations. 

I take note of the fact that on the face of the citations issued in this case, Inspector Lee stated that the mine 

has been permanently closed. Under the circumstances, one 

can reasonably conclude that Mr. Anderson has focused on the 

inspector's assertion that the mine has been permanently 

closed. However, it seems clear to me that the regulatory 

language found in section 75.1204 and 75.1711, is not limited 

to mines which have been permanently closed. The requirements equally apply to mines which have been abandoned or 

temporarily closed for a period of more than 90 days. 

Although Mr. Anderson has stated that he intends to start 

mining again, on the facts of this case, it seems clear .to me 

that the mine has been temporarily closed or abandoned for 

more than 90 days, and that the petitioner's position constitutes a reasonable interpretation and application of the regu~ 

latory requirements found in the cited mandatory standards. 

Section 75.1204, requires a mine operator who has temporarily closed or abandoned a mine for a period of more than 

90 days to promptly notify MSHA of such closure. It also 

requires the filing of a mine map with MSHA upon the expiration of a 90-day period from the date of any temporary 

closure. Respondent has done neither. Section 75.1711 

requires sealing of any mine which has been declared inactive 

by the operator or is abandoned for more than 90 days. In 

this case, it is clear that the mine has not been sealed. It 

is also clear from the credible evidence produced by the petitioner in this case that the mine has not been an actively 

producing coal mine for a period exceeding 90 days. The 

inspector found no evidence of any active mining, the gate 

was locked when he visited the mine, the pit was filled with 

waterv and a posthearing mine production computer print-out 

filed by the petitioner reflects no production or work hours 

at the mine from 1984 to 1986. Although Mr. Anderson has not 

specifically declared the mine to be inactive, and takes the 

position that it is simply idle, I find no reasonable basis 

for making any distinctions between the terms "idle" and 

1381 
"inactive." I further conclude and find the credible evidence produced by the petitioner also establishes that the 

mine has been abandoned for a period exceeding 90 days. 

Accordingly, I conciude and find that the petitioner has 

established both violations, and the citations ARE AFFIRMED. 

History of Prior Violations 

No testimony was forthcoming from the petitioner with 

respect to the respondent's prior history of violations. 

However, an MSHA Proposed Assessment Form 1000-179, dated 

September 24, 1986, and attached to the pleadings in this 

case reflects 27 prior assessed violations for 141 inspection 

days during the preceding 24-months. Absent any further 

explanation, I find no basis for concluding that the respondent's prior history of violations warrant any additional 

increases in the civil penalties I have assessed for the 

citations which have been affirmed. 

Good Faith Compliance 

Although the violations remain unabated and the inspector 

issued section 104(b) orders after the expiration of the time 

fixed for abatement, I have considered the fact that the 

respondent has financial difficulties which apparently forced 

him to abandon his mining operation, and the possibility that 

lack of funds prevented the physical sealing of the mine. As 

for the filing of the mine map, while I have some doubts that 

this presented a monumental task on the part of the respondent, I have taken into consideration the fact that the respondent may have believed that compliance was only required if 

the mine were permanently closed. 

Negligence 

The inspector found "moderate negligence" with respect 

to both citations. I agree, and I conclude that the respondent knew or should have known of the reBuirements for filing 

a map and sealing the mine when it is temporarily closed or 

abandoned for more than 90 days. However, I have also considered the fact that the respondent may have believed that the 

requirements of section 75.1204 and 75.1711 only applied to 

mines which have been permanently closed. I conclude and 

find that the violations were the resu:t of ordinary negligence by the respondent. 

1382 
Gravity 

The inspector found that both violations were not significant and substantial, and that it was unlikely that any 

injury would result. Further, the evidence establishes that 

the mine in question has been non-productive for a long 

period of time, that the gate is locked, and during several 

visits by MSHA's inspectors, they found no one there. Under 

all of these circumstances, I cannot conclude that the violations presented any particular serious hazard to miners. 

Size of Business and Effect of Civil Penalty Assessments on 

the Respondent's Ability to Remain in Business 

The respondent is no longer actively engaged in the mining of coal, and while the 27 prior citations which were 

assessed sometime during the 24-month period prior to the 

issuance of the two citations on June 25, 1986, suggest some 

mining activity, it would appear to me that the respondent 

had a small mining operation when the mine was productive. 

It seems clear to me that the respondent is no longer in 

business at the mine in question. The petitioner has presented credible documentation confirming the respondent's 

financial inability at this time to continue in business. 

The petitioner has furnished a copy of the respondent's 1985 

tax return which shows an income loss of $591,763. Petitioner 

has also furnished copies of records from the United States 

Bankruptcy Court for the Western District of Kentucky, dated 

March 13, 1986, confirming the fact that the respondent is in 

Chapter 11 bankruptcy. Under the circumstances, I have considered the respondent 1 s financial status in mitigation of the 

proposed civil penalty assessments of $78 for each of the violations v and have reduced them accordingly" 

Penalty Assessments 

In view of the foregoing findings and conclusions, I 

believe that civil penalty assessments in the amount of $20 

for each of the two violations in question are appropriate 

and reasonable in this caseo 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $40 for the violations in question 

1383 
within thirty (30) days of the date of this decision. Upon 

receipt of payment by the petitioner, this case is dismis~ed. 

hA~o~ Administrative Law Judge 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Jack Anderson, President, Anlo Energy, Inc., 126 Hickory 

Ridge, Houston, TX 77024 (Certified Mail) 

/fb 

1384 . 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 121987 

GREENWICH COLLIERIES, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE~SAFETY AND HEALTH, 

ADMINISTRATION (MSHA) 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

ROCHESTER & PITTSBURGH COAL 

COMPANY 

Respondent 

. . 

: 

. . 

. . 

CONTEST PROCEEDINGS 

Doc~et No. PENN 87-62-R 

Order No. 2691006; 11/26/86 

Docket No. PENN 87-63-R 

Order No. 2691007; 11/26/86 

Docket No. PENN 87-64-R 

Order No. 2691008; 11/26/86 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-109 

A.C. No. 36-02405-03664 

Greenwich No. 1 Mine 

DECISION 

Appearances: Joseph Crawford, Esq., Office of the Solicitor, 

U.So Department of Labor, Philadelphia, 

Pennsylvania for the Secretary of Labor; 

Joseph Yuhas, Esq., and Joseph Kosek, Jr., Esq. 

Ebensburg, Pennsylvania for Greenwich Collieries 

and Rochester and Pittsburgh 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. 

Section 801 et~, the "Act 11 , to challenge three withdrawal 

orders issued by the Secretary of Labor under Section 104(d)(2) 

of the Act and for review of civil penalties proposed by the 

Secretary for the violations alleged therein. 

At hearing the Secretary filed a Motion for an Order 

Approving Settlement with respect to two of the orders at issue, 

Order Nos. 2691006 and 2691008, proposing a reduction in 

penalties from $1,500.00 to $1,200.00. I have considered the 

representations and documentation submitted in connection with 

1385 
the motion and I conclude that the proff erred settlement is 

appropriate under the criteria set forth in Section llO(i) af the 

Act. The motion is accordingly granted. In light of the 

settlement the mine operator requested to withdraw its contests 

of the same orders. The request is granted and Contest 

Proceedings Docket Nos. PENN 87-62-R and PENN 87-64-R are 

dismissed. 

The remaining order at issue, No. 2691007, charges a 

"significant and substantial" violation of the standard at 30 

C.F.R. § 75.202 and states as foliows: 

"Loose not adequately supported roof was present in the belt 

entry in the D8-l active working section 50 ft. outby spad 

12106. A cutter extended from the L-1 entry through the 

cross cut and across the belt entry. The roof in the belt 

entry was broke [sic] and loose some of which previously 

fell out. The roof in the L-1 entry was caving. Torque 

tests of the bolts in the belt entry indicated that some had 

bled off and some were loading up. The area was bolted with 

four foot conventional bolts. This area was pre-shifted by 

James Hartzfeld on the 12:01 to 8:00 a.m. shift." 

The cited standard requires that "loose roof and overhanging 

or loose faces and ribs shall be taken down or supported. 11 

The evidence shows that Samuel Brunatti an inspector for the 

Federal Mine Safety and Health Administration (MSHA), was 

inspecting the D8-l section of the subject mine in the early 

morning of November 26, 1986, when he discovered that some roof 

in the area of the L-1 entry had fallen from a "cutter". (See 

Exhibit No. l)o As described by Brunatti a "cutter" is a visual 

break in the roof. In this case the "cutter" passed from the 

roof of the L-1 entry through a crosscut and across the roof of 

the belt entry. Some rock had fallen out of the cutter in the 

belt entry. In Brunatti's presence the union escort then 

"torque tested" approximately ten of the roof bolts around the 11 cutter" in the belt entry 0 As he reported to Brunatti some of 

the bolts had "bled off" and were taking no pressure at all while 

others were "overloaded"o Brunatti observed that the roof had 

also broken off from the plates around 3 or 4 ·Jf these suspect 

bolts. 

Donald Sewalish, the day shift section foreman on the D8-l 

section on November 26, also observed these roof conditions at 

the time of the inspection. He agreed that the roof had indeed 

caved in the L-1 entry, that rock had fallen from the roof of the 

belt entry and that additional roof support was needed in the 

belt entry. Sewalish directed his crew to set supplemental posts 

to support the roof around the "cutter" in the belt entry. 

1386 
Within the framework of this essentially undisputed evidence 

it is clear that the violation is proven as charged. It is 

undisputed that loose and unsupported roof was found hanging in 

the "cutter" in the belt entry and a significant number of roof 

bolts were not providing any support in the area. The testimony 

of Inspector Brunatti that fatal injuries were also likely for 

workers passing beneath the unsupported "cutter" is also 

essentially undisputed. Brunatti observed that the cited area 

was in a retreat mining section thereby placing additional stress 

and pressure on the subject roof. Brunatti also observed that 

the mobile bridge operator would be expected to travel beneath 

the danger area during the course of his workshift. Within this 

framework I find that the violation was indeed of high grarity 

and "significant and substantial". Secretary v. Mathies Coal 

Company, 6 FMSHRC 1 (1984). 

I do not however find that the Secretary has met his burden 

of proving that the violation was the result of the 

"unwarrantable failure" of the operator to comply with the cited 

mandatory standard. Ziegler Coal Corporation, 7 IBMA 280 (1977); 

United States Steel Corporation, 6 FMSHRC 1423 <1984). Inspector 

Brunatti in support of his finding of "unwarrantable failure" 

relied upon unwritten hearsay recollections of a statement by a 

miner.of uncertain identity to the effect that the cited "cutter" 

had been "working" the' day before. Brunatti also relied on his 

recollection of the absence of roof material from the "cutter" 

in the belt entry leading to the conclusion that debris had 

previously been removed. Brunatti concluded that the materials 

must have been removed on a prior shift because the belt was not 

operating at the time of his inspection and other unidentified 

miners reported that they had not loaded any rock material on 

that shifto Thusr according to Brunattiy the operator must have 

been aware of the bad roof at least since the previous shift. 

On the other hand I find the testimony of Frederick Bender, 

a union employee who had worked on the preceeding shift (the 

midnight to s~oo a.mo or third shift) in the D8-l section under 

James Hartzfeld to be particularly credible. Bender saw no 

evidence that the "cutter" had been working during this shift and 

testified that the condition of the "cutter" had not changed 

since the 24th. Bender found that the ~oaf around the "cutter" 

had been solid when he checked it at the beginning of his shift. 

Bender further testified that when he left D8-l section around 

7~15 a.m. on the 26th the roof was neither loose nor working. 

James Hartzfeld, the section foreman on that shift, 

testified that he performed an on-shift examination on November 

26th, covering the area of the "cutter" and found conditions to 

be "normal". Hartzfeld further testified that no one on his crew 

1387 
reported any dangerous conditions in the area. Finally Hartzfeld 

testified that he completed a pre-shift examination between-5:00 

a.m. and 7:00 a.m. on November 26th and during this exam had 

passed through the cross-cut in which the "cutter" existed. He 

did not find any abnormal conditions at that time. 

Donald Sewalish was, as previously noted, the D8-l section 

foreman on the 8:00 a.m. - 4:00 p.m. day shift. He had not yet 

completed his pre~shif t examination of the face areas when he met 

Inspector Brunatti near the "cutter" where some rock had fallen. 

Brunatti had not yet examined the area in L-1 entry.where the 

roof had caved. He and Brunatti then discovered that problem 

together. Sewalish was in the same area on November 25th 

performing both a pre-shift and on-shift examination and found no 

unusual roof problems. Moreover none of his work crew complained 

about roof conditions that day. 

Within this framework of evidence I am constrained to find 

that the roof fall in the belt entry at the location of the 

"cutter 11 had occurred sometime after the preshift examination 

performed at the end of the third shift but before the 

commencement of the day shift and the discovery of the fall by 

Brunatti. Under these circumstances I cannot attribute 

significant negligence or determine that the violation was due to 

the "unwarrantable failure" of the operator to comply with the 

standard. Accordingly the order at bar must be modified to a 

citation under Section 104(a) of the Act. 

In determining the appropriate penalty in this case I have 

also considered that the operator is of moderate size and has a 

significant history of violations. I also observe that the 

violation was abated within the limits prescribed by the 

Secretary. 

ORDER 

Order No. 2691006 is affirmed with a civil penalty of $700. 

Order No. 2691008 is affirmed with a civil penalty of $500. 

Order No. 2691007 is modified to a "significant and substantial~ 

citation under section 104(a) of the Act with a civil penalty of 

$200. The civil penalties are to be paid within 30 days of the 

date of this decision. Contest Proceedings Docket Nos. PENN 

87-62-R and PENN 87-64-R are dismissed. Docket No. PENN 87-63-R 

is granted to the extent that Order No. 2691007 is modified to a 

"significant and substantial" citation under Section 104(a) of 

the Act. 
Law Judge 

Distribution: 

Joseph T. Crawford, Esq., Office of he Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Joseph T. Kosek, Jr. Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

npt 

1389 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth .FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 121987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 86-133-M 

A.C. No. 15-00034-05512 

v. 

GREENVILLE QUARRIES, 

INCORPORATED, 

Respondent 

Docket No. KENT 86-134-M 

A.C. No. 15-00034-05514 

Docket No. KENT 86-155-M 

A.C. No. 15-00034-05516 

Appearances~ 

Before~ 

Greenville Quarry 

DECISIONS 

Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, 

Tennessee, for the Petitioner; 

Brent Yonts, Esq., Greenville, Kentucky, for 

the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These civil penalty proceedings concern proposals for 

assessment of civil penalties filed by the petitioner against 

the respondent pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977u 30 U.S.C. ~ 820(a)" The 

itioner seeks civil penalty assessme~ts for seven alleged 

violations of certain mandatory safety standards found in 

Part 56, Title 30? Code of Federal Regulations" The respondent filed timely answers and contests, and hearings were 

held in Owensboro, Kentucky. The respondent filed posthearing 

arguments 1 but the petitioner did not. I have considered 

these arguments in the course of these decisions, and I have 

also considered the oral arguments made by the parties on the 

record during the course of the hearings. 

1390 
Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Issues 

The primary issues presented are (1) whether the conditions or practices cited by the inspectors constitute violations of the cited mandatory standard, and (2) the appropriate 

civil penalties to be assessed for the violations, taking into 

account the statutory civil penalty criteria found in section 

llO(i) of the Act. Additional issues raised by the parties 

are disposed of in the course of these decisions. 

The parties stipulated to the following: 

1. The ·respondent is a Kentucky Corporation incorporated on May 27, 1948, and it owns 

and operates a quarry and mill located on State 

Highway 171 in Muhlenberg County, Kentucky. 

2. The respondent produces crushed and 

broken limestone for sale in interstate 

commerce and is subject to MSHA's jurisdiction, 

as well as the Commission's Administrative Law 

Judgeso 

3o The respondent averages a production 

of 650,000 to one million tons of crushed limestone per year at its quarry and mill, and it 

is a medium class operation. 

4 The respondent employs 30 persons at 

its quarry and millv working one shiftv 

8 hours per dayu and 5 days per week. 

So Federal Metal/Nonmetal Inspector Eric 

Shanholtz, a duly authorized representative 

of the Secretary of Labor, conducted a regular 

inspection of the Greenville Quarry and Mill 

from January 7, 1986 to January 9, 1986. 

6. The following vehicles were in operation at the Greenville Quarry and Mill from 

January 7, 1986 to January 9, 1986: 

1391 
one ( 1) 275 B Michigan Loader 

two ( 2) 475 B Michigan Loaders 

two ( 2) 35 ton Euclid Pit Haul trucks 

two (2) 20 ton Plant Stockpile Haul trucks 

one Cl) Powder truck 

7. The Euclid Pit Haul trucks in operation in January and February, 1986, were 

Euclid Model R35 trucks. These trucks had 

been in operation for several years. 

8. The respondent's history of prior 

violations for the 2-year period prior to 

January, 1986, is reflected in an MSHA 

computer print-out which has been made a part 

of the record in this case (exhibit P-3). 

Procedural Ruling 

At the hearing, respondent's counsel ro0ved for a continuance on the ground that he was retained by the respondent on 

Thursday, May 14, 1987, and that it was difficult for him to 

prepare for the hearing on such short notice. Counsel stated 

that he mailed me a letter requesting a continuance, and that 

he also spoke with my secretary on Friday, May 15, 1987, concerning a continuance. 

The parties were informed that since I was on leave 

status on Friday, May 15, 1987, I was unaware of the letter 

requesting a continuance until the morning of the hearing. 

After consideration of the request, it was denied from the 

bench (Tro 13)o Respondent was reminded of the fact that the 

original notice of hearings in these cases was issued on 

January 8v 1987v and that the cases were scheduled to be 

heard on April 7-8, 1987v but were continued at the request 

of the petitioner until May 19-20, 1987. In my view, the 

respondent had more than ample time to obtain counsel if it 

so desired, and I concluded that its request for continuance 

was untimelyo 

The issues presented in these cases are not that difficult. Respondent's vice-president, Mr. John Stovall, who 

represented the respondent until the retention of counself 

appeared to be thoroughly familiar with all of the citations, 

and he was present and testified at the hearing on the respondent is behalf. In addition, the record reflects that 

Mr. Sto,1all discussed some of the citations with MSHA's 

district supervisor, and had previously attempted to settle 

these cases with MSHA. 

1392 
Counsel's letter requesting a continuance reflects that 

he received the respondent's record on Thursday, May 14, 

1987, including copies of the petitioner's hearing exhibits. 

Although no witness list was included, none was required by 

my pre-trial notice. However, petitioner' witnesses were 

identified at the hearing, and the respondent's counsel had 

ample opportunity to cross-examine them. Although the petitioner presented an "expert witness" who was apparently not 

previously known to the respondent, his testimony was not 

critical or pivotal to the petitioner's case, and I cannot 

conclude that the respondent has been prejudiced by the petitio~er' s failure to disclose the identity of its expert 

witness until the morning of the hearing. Further, I take 

note of the fact that the respondent failed to avail itself 

of any of the Commission's pretrial discovery procedures. I 

also take note of the fact that the respondent's answers 

filed in these proceedings suggest that the respondent's 

principal concern was its belief that MSHA's proposed civil 

penalties were excessive and unreasonable, and its offer to 

settle the violations for 50 percent of the assessments was 

rejected by the petitioner's counsel. 

Discussion 

DOCKET NO. KENT 86-133-M 

Section 104(a) "S&S" Citation No. 2657368, issued on 

January 7, 1986, cites a violation of 30 C.F.R. § 56.12016, 

and the cited condition or practice is described as follows: 

An safer established lock-out procedure 

had not been established at the Greenville 

Quarryo The present procedure was to simply 

turn off the equipment and shut the door to 

the switch-house. The equipment could at anytime be energized while being worked on. A 

procedure shall be established to physically 

lock-out the equiprnento 

MSHA Inspector Eric Shanholtz testified as to his education, experienceu and background, including a B.A. degree in 

mine safetyv and an M.So degree in safety from the Marshall 

University, Huntington, West Virginia. He identified 

exhibits P-1 and P-2 as sketches which he made of the respondent 1 s Greenville Quarry and Mill property. He also identified exhibit P-4 as a series of photographs which are 

1393 
representative of the plant area, the terrain, and the roadways, and he described the areas shown in the photographs 

(Tr. 19-30). 

Inspector Shanholtz confirmed that he issued the citation 

after finding that the quarry had no established lockout 

procedure for electrical equipment. He stated that quarry 

superintendent Burdette Fox advised him that the procedure 

used at that time was to simply turn off the equipment and 

shut the door to the switch house (Tr. 31). Mr. Shanholtz 

stated that during his inspection of January 7, 1986, no locks 

were available or shown to him, and as far as he knew no provisions were made to use locks. The switch house contained 

the electrical switch gear for the plant area, and it also 

contained a partitioned-off control booth area from which the 

plant was operated by means of "push button starts." The 

switching gear consisted of standard electrical "square D" 

manual switches (Tr. 32-34). 

Mr. Shanholtz stated that when he returned to the mine 

on February 26, 1986, on a follow-up inspection, he observed 

an electrician working on some electrical cables by the 

crusher area. The system being worked on was a 480 volt 

system, and no locks were being used. The electrician 

admitted that he had not locked out the equipment, and 

Mr. Shanholtz stated that he personally observed the system 

switches, and while there was a lock lying on top of the 

electrical switch box which would fit the box, the lock was 

not used to lock out the switch box (Tr. 35, 37). Under 

these circumstances, he issued a section 104(b) withdrawal 

orderu Noo 2657191, and petitioner's counsel confirmed that 

he did so because of the failure by the respondent to timely 

abate the previously issued citation of January 7, 1986 (Tro 

36)o 

Mro Shanholtz was of the opinion that it was highly 

likely that the failure to have a lock-out procedure or to 

lock out the equipment would result in an accidento His opinion was based on the fact that there were other employees in 

the area and the electrical switch was not locked outo With 

480 bolts, one person would be exposed to a fatal injury or 

accident (Tro 38). Mr. Shanholtz stated further that he was 

aware of one accident which occurred after the citation was 

issued, during the summer of 1986, when the superintendent 

was working on some electrical switches and came into contact 

with some energized switch components and the resulting flash 

or arc caused burns to his face and hands. This incident 

involved the same switch house (Tr. 39). 

1394 
On cross-examination, the inspector confirmed that the 

power source to the switch house is from a nearby pole. In 

response to a question as to whether or not he had determined 

that the main power disconnect at the power pole was disconnected, during his inspections of January 7 and February 26, 

the inspector stated that he assumed that it was not because 

had the power been disconnected at the power center, it would 

have shut down the entire plant, and that did not happen (Tr. 

44). The individual who operated the switches in the switch 

house on February 26, was not the same person doing the 

electrical work, nor was he the person supervising the work 

(Tr. 44). 

The inspector testified that while there are two switch 

houses on the property, containing a total of 30 switches, 

his citation addressed the switch house at the plant area 

which contains 15 switches. He confirmed that he issued the 

citation because mine management did not have an established 

procedure for locking out electrical equipment or circuits 

while they were being worked on, and not because the 15 

switches in the switch house in question did not have locks 

(Tr. 48). He further explained his reasons for issuing the 

citation as follows at Tr. 51-52: 

THE WITNESS: The citation was issued because 

there was no procedures provided to physically 

lock out the equipment. There had been work 

done in the past. As with any quarry, there 

will be downtime and that downtime encompasses 

removing motors, taking -- climbing down into 

crushing areas. 

And you have to understand that they have to 

reasonably show me a way that they are physically lockout this equipment as they work on 

it. At the time this citation was issued, no, 

there was no actual work being done that would 

require the equipment to be locked out. 

But in the same sense, you rely on your experience, that they take out these motors. They 

replace them as they burn up, as they go. 

They change screens in the screening equipment. 

Theyvre down in these crushing areas. It's a 

procedure that a good, safe manager would provide, that as they work on this equipment, 

that it is going to be locked out. 

1395 
Now, I asked him at that time if 

lockout procedure or any locks. 

no, they didn't. As a matter of 

had to go to town and buy them. 

they had any 

I was told, 

fact, they 

Mr. Shanholtz could not recall how much time he gave the 

respondent for abatement of the citation, but he indicated 

that he usually fixes less than a week as the abatement time 

on citations such as the one in question (Tr. 53). He confirmed that the electrical equipment being worked on by the 

electrician on February 26, was not energized, and while 

locks were near the switches, they were not used to lock out 

the switch. He stated that he spoke with the electrician and 

the control room operator. However, the control room operator was in the control room and not with the electrician who 

was doing the work, and while the control room operator could 

not see the electrician from the switch house control room, 

he was aware that the electrician was doing some work (Tr. 

60) • 

Mr. Shanholtz stated that he abated the order after the 

switch was locked out, and after a lockout procedure was 

established in writing and the employees were instructed in 

its use (Tr. 59-61). However, when he issued the citation on 

January 7, he spoke with several employees who worked on the 

equipment, and they had no knowledge about any lockout 

procedures (Tr. 61). The employees were aware of a procedure 

for de-energizing the power source by turning off electrical 

equipment which was being worked on, and this procedure was 

in effect (Tr. 62). Mr. Shanholtz stated that MSHA "doesn't 

recognize simply throwing a switch as a safe procedure" (Tr. 

63)" He reiterated that when he spoke with superintendent 

Burdette Fox on January 6v Mr. Fox advised him that they had 

no locks to physically lock out the switches and simply shut 

the door to the switch house (Tr. 65)0 

Mr. Shanholtz stated that he observed a large number of 

burned out motors in the yard when he was at the mine on 

January 7y and he believed that they were from electrical 

equipment in the switch house. Based on this, he assumed 

that since no lock-out procedures were established that work 

on these motors had been conducted prior to January 7 without 

locking out the electrical equipment (Tr. 67-68). 

Mr. Shanholtz stated that a lock would add to the safety 

of the equipment if it de-energized because it would prevent 

the equipment from being energized or turned on electrically 

1396 
or mechanically. When asked what would happen if the equipment were turned on while someone was working on it, he 

responded as follows (Tr. 70): 

A. Essentially the same thing that happened 

in our last fatality in the Southeast 

District, that a person came by and noticed 

the crusher wasn't on. It wasn't locked out. 

He turned it on and it crushed the guy that 

was inside the crusher. 

As long as you have people who are in 

that general area of that electrical switch, 

there is a potential that somebody is going to 

turn on that piece of equipmento 

Q. And I believe you~ve already testified you 

saw employees in the area of that electrical 

equipment 

A. Yes. 

Q. -- on January 7th. 

A. Yes. 

Q. And in February when you issued the (B) 

order. 

A. Yes. 

John Stovall, respondent's vice-president and general 

manager testified that the mine in question is a union mine 

which has been represented by the United Steel Workers, and 

that a three-person mine safety committee composed of two 

union representative and one management representative has 

been functioning since a safety committee clause was added to 

the contract approximately 15 years ago. He stated that the 

safety committee chairman has always accompanied MSHA inspectors during their inspectionsu and that this was the case 

during January, February, and March, 19860 He also stated 

that mine procedure calls for the safety committee to discuss 

any safety problems with their supervisors, and if they 

cannot be resolved at that level, he was to be personally 

contacted (Tr. 136-139). Mr. Stovall also stated that he has 

a good working relationship with all of his employees, that 

he knows them all by name, and in the event they wish to 

speak with on the job they may do so by "flagging him down" 

(Tr. 140). 

1397 
With regard to the citation for failure to have an 

electrical equipment lock-out procedure in place, Mr. Stovall 

stated that prior to January, 1986, he had no electricians on 

the mine payroll and all electrical work was done by contractors. However, since February, 1986, a certified electrician 

was hired and he is now on the payroll (Tr. 148). Mr. Stovall 

stated that there have never been any electrical fatalities at 

the mine, and that prior to January, 1986, no one ever 

reported to him that any electrical equipment was not turned 

off while it was being worked on. He confirmed that the then 

existing procedure when work was to be performed on any equipment was to disconnect the switch in the switch house. If an 

electrical problem existed, the outside electrician would 

disconnect the switch himself and then proceed to do the work. 

Since the electrician was a certified electrical contractor, 

Mr. Stovall assumed that "the man knew what the rules of the 

game were and did what was necessary to protect himself" (Tr. 

149). 

With regard to the burned out motors observed by the 

inspector, Mr. Stovall stated that they did not all come from 

his operation, and that some were either purchased from other 

operators, or obtained from some of his other operations at 

the plant site (Tr. 150). 

Mr. Stovall stated that he had problems in January, 1986, 

because his equipment superintendent Don Joines suffered a 

heart attack and was off the job for about 5 months, and he 

was not on the job during the February, 1986, compliance 

inspectiono He also stated that the citations which were 

issued in January were discussed with the inspector and 

Mr" Joines and crushing foreman Burdette Fox, and not with himo 

He discussed them with the inspector during his subsequent 

inspection in February 26 (Tr. 152). 

Mr. Stovall stated that after the citation was issued, 

he immediately purchased locks 7 and the four or five people 

who had the ability and skills to perform electrical work 

were told to use the locks. The locks were available and 

"laying there in the switch house" in February, and he had no 

idea why they were not being used. He reiterated that the 

electrician and switch house operator were told to use them 

(Tr. 153). He confirmed that the prior oral instructions to 

use the locks was reduced to writing to abate the violation, 

and that this was accomplished by typing a two-sentence memorandum advising personnel to use the locks when they worked 

on electrical equipment, and the memorandum was taped to the 

wall of the switch house (Tr. 153). 

1398 
With regard to the burns suffered by Mr. Fox, Mr. Stovall 

stated that his injuries had nothing to do with the lack of a 

lock-out since the injury "wasn't past the switch" and "he was 

injured behind the switch when the electricity in the box 

itself arced and burned his hands." Mr. Stovall was of the 

opinion that any lock would be "absolutely useless" in that 

incident. Mr. Stovall stated that at no time during prior 

inspections was he ever told that the lock-out procedures were 

inadequate (Tr. 154). 

On cross-examination, Mr. Stovall stated that the work 

being performed by Mr. Fox at the time of his injury was not 

work typically performed by him, and that the work should 

have been performed by someone else because it was union 

classified work. Mr. Stovall identified the individuals who 

were told to use locks as Mr. Fox, the secondary plant operator who "is the guy that pushes the buttons up there," Tim 

Rogers, an electrician, and two welders who sometimes 

assisted but did not do electrical work. Mr. Stovall stated 

that all of these individuals acknowledged to him that they 

were aware of the fact that locks were provided in the switch 

house. He confi~med that the secondary crusher operator, and 

others in similar jobs, would have reason to turn on and off 

electrical equipment in order to perform mechanical work (Tr. 

155-156). 

Mr. Stovall confirmed that sometime in 1985, the secondary crusher operator was involved in an electrical accident 

at the plant, and while he was not sure, he indicated that 

the individual suffered burns to his hands similar to the 

incident involving Mr. Fox (Tro 156)0 

Section 104{a) Citation Noo 2657373u issued on January Bv 

1986, cites a violation of 30 C.F.R. § 56.9003, and the cited 

condition or practice is described as follows: 

The Michigan 275 front-end loader had 

several defects which affect the safe operation of the loader1 Cl) the front windshield 

was cracked and broken which affect the operator's visiono (2) The back-up alarm provided on the loader was not functioning? the 

view to the rear was obstructed, (3) the 

loader did not have an operable emergency 

brake. The brake would not function when 

tested, (4) the primary braking system was 

slow to stop the loader when tested, in an 

emergency condition the operator might not be 

1399 
able to stop in time, (5) the loader was not 

provided with a fire extinguisher. 

Inspector Shanholtz stated that he issued the citation 

after finding that the front-end loader in question had 

"quite a few defects that affected safety." He stated that 

the front windshield was cracked, broken, and shattered so 

much that it would impair the operator's vision. He determined this by leaning into the operator's cab and looking 

through the windshield (Tr. 75). He also determined that the 

backup alarm was not functioning in that when the operator 

put the loader in reverse, the alarm would not come on (Tr. 

77). He also determined that the loader emergency brake was 

inoperable. He had the operator test the lever operated hand 

emergency brake by applying it and then putting the loader in 

gear, and the brake would not stop the loader (Tr. 77). He 

also determined that the primary braking system on the loader 

"was slow" and that it took "more than the usual length of 

area to stop the loader." He had the operator test the 

brakes on a flat surface by putting it in both forward and 

reverse gears, and in each case "the unit was slow to stop" 

(Tr. 78). He also determined that the loader did not have a 

fire extinguisher (Tr. 78). 

Mr. Shanholtz stated that the loader was operated 

throughout the mine property in the stockpile area, around 

the jaw crusher at the primary plant, as well.as at the 

secondary plant area. The loader was also required to cross 

a state highway separating the primary plant area from the 

secondary plant area, and he observed the loader being used 

in both areas (Tr. 78-79). He stated that the loader was 

used to load customer trucks at both plantsv and it was used 

at the primary crushing area and the stockpile. He described 

the traffic on the highway on the day of his inspection as 

"light to medium," and the traffic around the other plant 

areas where the loader operated as "quite a bit" (Tr. 79). 

Except for one curved road which turns at the jaw crusherv 

the loader operatorus visibility would not be limited by the 

road conditions at the other locations where it travelled 

{Tr. 80-81)0 

Mr. Shanholtz stated that when he returned to the mine 

on February 26, 1986 1 he determined that the loader had no 

service brakes. However, the windshield, emergency brake, 

and the back-up alarm had been repaired, and a fire extinguisher had been provided (Tr. 83). He stated that sometime 

between January 7, when he first issued the citation, and his 

return on February 26, the primary brakes had failed. He 

observed the loader in operation on February 26, loading 

1400 
trucks at the riprap plant on the primary side of the highway. 

He believed that repairs were made by installing a new head 

on the braking system air compressor, and he further believed 

that this accounted for the weakness of the braking system 

when he first inspected the loader, and for the total loss of 

brakes when he returned (Tr. 84). 

On cross-examination, Mr. Shanholtz stated that it would 

take the loader approximately 50 feet before it would stop 

when he had the operator test the brakes on January 7. He 

also indicated that the loader worked 11 all over the plant, 

wherever it was needed," and not just on flat surfaces (Tr. 

87-88). He had no knowledge that the state nighway departmen~ had issued a permit allowing the loader to cross the 

state highway at the crossover in question, and he acknowledged that a sign was posted at that location warning of 

equipment crossing the road (Tr. 89). He also indicated that 

during the general operation of any loader, the bucket is 

raised or elevated off the ground to allow free movement, and 

that the raising of the bucket does "prevent vision of what 

is out there" (Tr. 89-90}. Mr. Shanholtz stated that while 

the bucket on the loader in question was not completely up in 

the airv it is raised enough so that the view directly in 

front of the loader is obstructed (Tr. 90). He did not know 

whether the raised bucket would be contrary to or consistent 

with the manufacturer's recommendations for loader travel 

with a loaded bucket (Tr. 90). 

Mr. Shanholtz stated that the loader operator who was 

operating the loader on February 26, when he next returned to 

the mine advised him that nothing had been done to repair the 

brakes since he first issued the citation on January 7 7 and 

this is what prompted him to issue a section 104(b) order 

(Tro 93)o Mro Shanholtz stated that the operator told him 

that he had verbally reported the fact that the loader had no 

brakes on February 25, the day before his return to the mine, 

and that his report was made to the acting maintenance superintendent Tom Nelson (Tro 94, 96)o Mr" Shanholtz confirmed 

that the gist of the citation which he issued on January 7, 

lies in the fact that the loader had inadequate brakes which 

would not completely stop it, and a totally inoperative hand 

brake (Tro 97)o 

Mr. Stovall stated that the cited front-end loader was 

used to load "over-the-road trucks out of the stockpile, 

trucks that haul up and down the public highways." These 

trucks were used by commercial purchasers of rock, and he 

estimated that the loader would be used to load 100 trucks a 

day. At no time prior to January 6, 1986, did he ever receive 

1401 
any reports that the loader was running into any trucks, and 

no supervisor or the safety committee ever report to him that 

there were problems with the brakes (Tr. 162). Mr. Stovall 

confirmed that he has a state permit to cross highway 171 with 

his equipment, that there are three designated crossings, and 

warning signs are posted north and south of the highway warning motorists of equipment crossing the highway (Tr. 163). He 

stated that the highway leads mainly to the quarry, that it is 

not highly travelled, and he estimated that three or four cars 

an hour may pass the property on the highway (Tr. 164). 

Mr. Stovall described the haul roads and entrances and 

exists to the mine property, and he estimated that from the 

two north crossing, one can see traffic for approximately a 

half mile up the highway, and from the south crossing, one can 

see for a quarter of a mile (Tr. 165). He confirmed that the 

loader crosses the road, but that its operation is limited to 

the stockpile area loading material out of the stockpile, and 

it does not operate throughout the quarry. When the loader 

travels or crosses the road, the bucket is approximately 

6 inches or a foot off the ground, or just high enough to 

clear the ground, and if it were in the air it would be top 

heavy. He has operated a loader, and while seated high in the 

cab over the bucket with the bucket raised as described, "you 

can absolutely see everything in front of the bucket." He has 

never had a moving vehicle accident at the mine (Tr. 166-167). 

Mr. Stovall stated that he first learned that the loader 

brakes had totally failed in February when he went to the 

quarry and met the inspectoro During the January inspection, 

he learned that the loader had been cited for "slow brakes" 

and the lack of an emergency brakeo Howeverv he believed 

that the emergency brake had been repaired and the brakes 

adjusted prior to February 26~ and while he assumed that the 

loader stopped quicker after the brake adjustment, he did not 

personally test brakes, but believed that attention was given 

to the braking system after the January inspection, and some 

of the work may have been done before Mro Joines had his 

heart attack (Tro 168)0 Prior to the February inspection, a 

compressor head which generated air and controlled the 

braking system had blown and it was promptly replaced (Tr. 

169)0 

With regard to the inspectorus assertion that he was 

told that the brake condition had been reported a day before 

the February 26 inspection, Mr. Stovall stated that he could 

not confirm thiso He stated that he spoke with two mechanic's 

helpers who did not admit that the loader operator had 

reported the lack of brakes and simply got into the loader and 

1402 
started work. Mr. Stovall stated that "the first time we knew 

that he had no brakes was when the inspector stopped him and 

tested him" and shut the machine down. Mr. Stovall denied 

that anyone told the loader operator that he had to operate 

the loader, and stated that two spare machines were available 

that day. The safety committee had not reported the condition 

CTr. 168-169). 

On cross-examination, Mr. Stovall confirmed that the 

safety committee has the authority to shut a piece of equipment down if it believes it constitutes an imminent danger. 

To his knowledge, this has never been done (Tr. 170). He 

conceded that the loader could also have been operating in 

the area of the riprap plant since that is a stockpile area, 

and he confirmed that there are 12 or 14 stockpiles of different sized stones at difference locations at the mine (Tr. 

171). Mr. Stovall stated that he learned about the brakes 

being repaired on the loader after the January inspection 

after reviewing the citation which was sent to his office by 

the scaleman after it was given to him by Mr. Joines and 

Mr. Fox (Tr. 174). Mr. Stovall could not recall any posted 

speed limit sign~ on the mine property (Tr. 175). 

Donald Joines, respondent's equipment superintendent and 

supervisory mechanic, stated that his responsibilities 

include the maintenance of all equipment at the mine site, 

but do not include anything connected with the electrical 

operation of the plant. He confirmed that until his heart 

problem on February 8, 1986, he helped do the maintenance 

work in addition to his supervisory work, and since that time vv I just oversee now" (Tr" 191-193). 

Mr. Joines stated that prior to January 8, 1986, no one 

reported any problems with the emergency brake or primary 

braking system on the Michigan 275 end loader, and no report 

was made that the loader was not stopping while it loaded 

truckso He was not aware of any customer complaints that the 

loader had ever run into any trucks, nor was he aware of any 

damage claims in this regard. Mro Joines confirmed that he 

was not with the inspector when he tested the loader, did not 

observe him test it, and he did not know how slow it stopped 

(Tr. 203)0 After the inspection, parts were ordered to 

repair the emergency brake, and new pads were installed and 

the brake was adjusted. The primary brakes were adjusted and 

cleaned up, and he estimated that repairs were completed 

within 3 or 4 days after the citation was issued. The brakes 

were working before he left work because of his heart 

problem, and he stated that they failed after this time 

1403 
because he tested them to make sure tha loader stopped (Tr. 

204-205). 

Mr. Joines stated that while the loader is loading from 

the stockpile, the operator can see over and through the 

bucket as it is raised and lowered, and that while travelling 

for a distance, such as across the state highway, the bucket 

would be almost to the ground so as to allow the operator to 

see in front of him, and the loaders are never operated with 

the buckets raised in such a position to obstruct the operator 1 s vision (Tr. 206). 

Mr. Joines stated that the terrain over which the loader 

operated was virtually level, although there are "a couple of 

hills, small grades." Other than the trucks being loaded, 

there are no other vehicles in the area where the loader is 

loading, and normally, other than a supervisor, people would 

not be walking around where the loader is loading. The 

operator can see approximately one-half a mile down the state 

highway at the first crossing, and a little less at the other 

crossing. In the event of a total brake failure, the operator would "slap that bucket to the ground" to stop it, and 

it would stop "so fast it will throw you out of the cab. 11 

This would be the case while going forward or backward with 

the loader, and if the bucket were loaded, it would stop 

faster (Tr. 206-207). 

On cross-examination, Mr. Joines stated that dropping the 

bucket to stop a loader is not a permissible alternative to 

brakes, but if the brakes completely fail that may be the only 

reasonable alternative (Tr. 208). Mro Joines agreed that the 

loader may load 100 trucks over a normal 8-hour work shiftv 

and that the loader may cross the state highway 20 to 25 times 

a day (Tr. 209)c He confirmed that the air compressor head is 

constructed of aluminum and one cannot predict when one will 

fail and "it just happened" (Tr. 210). 

Section 104(a) "S&S" Citation No. 2657377, issued on 

January 8, 1986v cites a violation of 30 C.F.R. § 56.900lv 

and the cited condition or practice is described as follows: 

"An equipment inspection, check-off list was not being 

utilized at the Greenville Quarry. Equipment operators have 

known of defects on equipment without reporting them. The 

inspection list shall be kept for 6 months." 

Inspector Shanholtz confirmed that he issued the citation 

after determining that equipment operators were not utilizing 

any equipment checkoff lists to report equipment defects. 

1404 
Mr. Shanholtz stated that during the course of regular inspections he had found a lot of equipment defects in the maintenance of the respondent's rolling stock which had not been 

reported, and he gave the respondent until January 21st to 

initiate a procedure to insure that such lists were made available to the equipment operators and used to report defects. 

Mr. Shanholtz stated further that section 56.9001 requires 

that such records recording defects be kept on file at the 

mine office for a period of 6 months. When he asked to review 

the records, he found that none were on file at the office, 

and none were filled out and turned in by the operators (Tr. 

98). 

Mr. Shanholtz stated that no one advised him of the existence of any union safety committee, and he saw no evidence 

of any union safety reporting procedure in existence (Tr. 99). 

He stated that he informed the respondent's representatives 

Donald Joines, Tom Nelson, and Burdette Fox that he was issuing the citation because of the lack of checkoff lists. At 

that time, Mr. Joines advised him that he had the lists, and 

he opened a cabinet next to his desk and Mr. Shanholtz 

observed "several stacks of unused checkoff lists" (Tr. 100). 

Mr. Shanholtz stated that when he returned to the mine 

on February 26, he found that the checkoff lists were not 

being used and that the respondent had not instructed the 

employees in their use, and this prompted him to issue a section 104(b) order for noncompliance (Tr. 100). Mr. Shanholtz 

confirmed that he found reportable defects affecting safety 

on both January 8, and February 26, which should have been 

found during the inspection of the equipmentv but that no 

reports had been filed. He stated that no one from management told him of any existing procedure for reporting any 

safety defects (Tro 100)0 

Mr. Shanholtz stated that his finding that it was "reasonably likely" that a fatality would result from the lack of 

a reporting procedure was based on the fact that he was finding a large amount of equipment defects, and had the checkoff 

lists been utilized, it was his belief that many of these 

defects would have been corrected. He stated that the equipment operators were not supplied with the lists, nor were 

they instructed in their usev and he believed that such 

instructions should be a part of any checkoff list procedure 

(Tr. 101). Mr. Shanholtz stated that even if the respondent 

supplied the lists to the equipment operators, the fact that 

they were not used would still prompt him to issue a citation 

for a violation of section 56.9001 (Tr. 102). Mr. Shanholtz 

believed that the lists were not utilized because equipment 

1405 
operators were aware of defects on equipment and did not 

report them (Tr. 104-105). 

On cross-examination, Mr. Shanholtz was asked whether or 

not he made any inquiry of the equipment superintendent or 

anyone else in the mine off ice as to what had been reported 

to them and what was done about it. His response was as 

follows at (Tr. 106): 

A. I talked to just about all of the operators on that property, of mobile equipment. 

And I was informed by them that these defects 

had existed for a long time, that they were 

told to operate the equipment or else. 

Mr. Shanholtz stated that he would have accepted any 

informal written record of equipment being checked and 

defects being reported (Tr. 110). He stated further that he 

asked maintenance superintendent Donald Joines whether or not 

any reporting system or records were being kept, and 

Mr. Joines simply opened a cabinet door and showed him the 

supply of checkoff lists, but he did not produce any list 

which had been turned in (Tr. 111). Mr. Shanholtz suggested 

that the equipment operators did not report equipment defects 

because they were intimidated (Tr. 114). 

Mr. Shanholtz confirmed that he abated the order after 

the respondent posted written procedures instructing equipment operators as to the procedures for the use of the 

checkoff lists (Tr. 114). He confirmed that the lists were 

being used (Tro 116)0 He also confirmed that the respondent 

was previously cited in 1985 for not having any checkoff 

listsu and that was the reason why it had them at the office 

(Tro 116)0 

Mr. Stovall described the equipment defects reporting 

procedure in place at the time of the January inspection as 

follows (Tro 175-176)~ 

Ao Every employee on the job knew that 

Joines was the equipment superintendent 

was totally in charge of the equipment. 

equipment defects were reported by these 

employees to Don Joines. 

Q. Were there, in fact, reports? 

A. Yes. 

1406 

Don 

and he 

Any 
Q. How were those reports logged? 

A. Don would note the reports himself on his 

caterpillar calendar, or whatever it was, as 

they were reported to him. 

Q. A calendar hanging on the wall is that 

what you're speaking of -- or on a desk or 

someplace? 

A. I think it was his desk calendar. It was 

a desk calendar. 

Q. Then would safety committee people report 

this or any employee report this, or how was 

it reported? 

A. It was reported verbally by the safety 

committee or the individual employees. And, 

of course, being around myself, too, I have 

discussed -- not what I would call equipment 

-- necessarily safety, but maybe a EUC. 

Engine doesn't have enough power. The operator miqht tell me, "I need more power out of 

his engine." and I'll say something to Don 

about it. But it's all verbal though. 

Q. Now, that system, how long had it been in 

effect? 

Ao Ever since I, you know, could remember. 

We tried to keep up -- not only from a safety 

standpointv but from a maintenance standpointu 

we tried to keep up with our equipment defects 

the best we could. 

Mr. Stovall stated that the procedure he described was 

in place during prior MSHA inspections. He indicated that 

the verbal system of reporting defects had been accepted on 

previous inspections, and while the checklist forms were 

available, he found that the verbal system worked better than 

any written system (Tr. 177}. He stated that after speaking 

with the inspector after the February inspection, "we was 

more or less ordered to go to the checkoff system," and he 

complied because "that is what it took to satisfy the inspector" and not because it was a better system (Tr. 177). In 

response to further questions, Mr. Stovall stated as follows 

(Tr. 181-183): 

1407 
JUDGE KOUTRAS: * * * But in this particular 

case, Mr. Stovall, obviously, the inspector 

found absolutely no record keeping at all and 

that is what prompted him to issue the 

citat.ion. 

THE WITNESS: Well, the records were being 

kept, because I discussed with Don Joines 

after the January inspection -- and they were 

not being kept to suit him, but other inspectors had accepted them as acceptable when Don 

showed them the calendar. 

* * * * * * * 

On January 9 when the inspector issued this 

citation -- on January 8 -~ did you have check 

lists, printed check lists? 

THE WITNESS: We had printed check lists in 

the storage cabinet at Greenville Quarries, 

yes, but we were not using them. 

JUDGE KOUTRAS: Let me ask you this. Aren't 

the individual equipment operators required to 

at least walk around their equipment and give 

it a preshift examination or at least check it 

before they get in and operate it? 

THE WITNESS: Yes, there are and another 

problem we had with two or three of our operators v they couldn 1 t read or writeo So a 

check list was -- number one, they couldn't 

fill it out" Number two 8 they didn't know 

what they hado 

JUDGE KOUTRAS: Were these particular check 

lists for that purposer for the ones that were 

literate? 

THE WITNESS~ Noo It had to be verbal with 

themo 

JUDGE KOUTRAS~ The ones that could read and 

writev I'm sayingo In other words, did you 

use these check lists for anything? 

1408 
THE WITNESS: We tried them one time, but then 

went away from them because we felt like they 

were not working. 

JUDGE KOUTRAS: In other words, you had this 

supply of check lists you had used before the 

inspector here came in on January 8. 

THE WITNESS: Right. 

JUDGE KOUTRAS: But you stopped using them 

because you felt they didn't work. 

THE WITNESS: Right. 

JUDGE KOUTRAS: The verbal system worked 

better. 

THE WITNESS: That is right. 

JUDGE KOUTRAS: Were you there when the inspector issued this citation on January 8? 

THE WITNESS: No. 

Donald Joines stated that prior to February of 1986, 

equipment defects were reported to him verbally, and he would 

write them down on a calendar. He would record the date that 

the condition was reported and the date that repairs were 

made. He stated that he maintained his records in this way 

after discussions with Inspector Lloyd Cloyd from MSHA's 

Knoxville officer and that Mr. Cloyd found this to be sufficient (Tr. 193). Mr. Joines stated that he had previously 

used a written checkoff list but found that system to be less 

effective than the verbal system because it generated 

"misunderstandings," and in some instances an operator would 

check off something and then turn in the list a week later. 

With the verbal systemu when equipment was down, it was 

reported and repaired" as quick as we could repair it" (Tr. 

194). 

Mr. Joines explained the circumstances of the inspection 

conducted by Mro Shanholtz as follows (Tro 195-197): 

Q. Did he question you about your reporting 

system for defects? 

A. Yes, sir. At the time, he came in and 

wanted to know if I had a checkoff list, 

1409 
period. I said, "Yes, sir." That is when I 

showed him the checkoff list. 

Q. What happened then? 

A. That was it. He started writing again. 

Q. Did you have the opportunity to show him 

your calendar? 

A. Well, at the time, really, I didn't. 

Q. Why not? 

A. Things was moving pretty fast. 

Q. Explain that. That doesn't tell me 

anything. 

A. Well, he had his pencil warmed up. 

reckon he was going to keep going. 

I 

Q. Did you say, "Hey, wait a minute. 

got a calendar right here that says •• 

I've 

" 

A. Well, really, I didn't -- I didn't -- you 

know, I didn't really get that far. But I had 

the calendar there. It was there in the desk. 

Q. That was the system that had been 

previously used --

Q. -- and was effective and had been approved. 

A. Yes. Because this guy from out of the 

Knoxville off icev every time he came he wanted 

to see it. Andv you know, and he u,nderstood 

what was happening and we had no problem with 

it. 

Q. Did there get to be any heated debate 

between you and the inspector? 

A. There was a few heated words, yes. 

Q. What happened to your calendar? 

1410 
A. While I was off, I guess they figured I 

wasn't going to make it, so they cleaned out a 

whole lot of stuff. 

Q. You don't have your calendar today. 

Somebody threw it 

A. No. I wish I did have. 

* * * * * * * 

Q. Are you saying you didn't have the 

opportunity to tell the inspector about your 

calendar? Is that what you're saying, or you 

weren't allowed to? 

A. I felt like I didn't have, yes. 

Mr. Joines stated that the present system in use at the 

mine is the checkoff list. However, he still believes it is 

less effective than the verbal system because equipment 

operators may hold the lists for 3 or 4 days before turning 

them in, and many times 3 or 4 days pass before he sees them 

(Tr. 197). 

On cross-examination, Mr. Joines stated that he could 

not remember a prior citation issued on March 13, 1985, by an 

inspector from MSHA's Franklin, Tennessee office because of 

the lack of a reporting system for equipment defects. He 

also denied that he had ever been advised by anyone from MSHA 

that his reporting system was less than adequate (Tr. 198). 

When asked why he did not tell the inspector that he was 

using a calendar to record defects, Mr. Joines responded 

"maybe there was a miscommunication 11 (Tro 199)" Mr. Joines 

could not recall whether he had recorded the cracked windshield condition on the front-end loader on his calendar (Tr. 

199)" MSHA's counsel confirmed that Inspector Lloyd Cloud 

works out of MSHAus Franklin officeq and she did not have a 

copy of the prior citation of March 13u 1985v available at 

the hearing (Tr. 201). Mr. Joines stated that he was not 

aware of any brake problems on the vehicles at the mine and 

none were ever reported to him (Tr. 202). 

Section 104(a) "S&S" Citation No. 2657386, issued on 

April 22, 1986, cites a violation of 30 C.F.R. § 56.4100(a), 

and the cited condition or practice states as follows: 

1411 
Cigarette butts were observed inside the 

oil storage shed, on the floor. This is a 

posted no smoking area. A high fire potential 

existed in this area due to oil spillage and 

accumulation of oily rags, employees utilizing 

the oil storage area shall be instructed in 

the hazards of smoking in this area. 

Inspector Shanholtz confirmed that he issued the citation 

after observing approximately five cigarette butts on the 

floor of an oil storage shed which is adjacent to and connected to the main outside shop. The shed is a three-sided 

structure, with one front opening, and it contained approximately 20 55-gallon drums of 10 and 30 weight oil, and some 

hydraulic fluid. The shed area is a posted no-smoking area, 

and the floor area was saturated with oil spillage to the 

point where one could smell it and leave footprints in the 

cement floor. Also present were oily rags and paper, and 

litter. The butts were fresh, and he did not believe they 

were there long since they were not soaked in oil (Tr. 

119-120). 

Mr. Shanholtz stated that he had previously cited the 

area for not having a "No Smoking" sign posted, and had 

previously discussed the matter with either Mr. Joines or 

Mr. Burdette (Tr. 120) 

Mr. Shanholtz stated that the oil stored in the shed was 

a Class II combustible liquid which emitted a vapor at 

100 degrees. In his opinion, a thrown cigarette, or one 

which was not extinguished properly, could have ignited any 

vapor and started a fire. He also believed that a "flash 

firen could occur or propagate because of the oil spillage 

and saturationu and the only means of escape would be out of 

the front of the shed (Tr. 121-122). His assumption that 

someone had been smoking was based on his observation of the 

cigarette butts (Tr. 122-123). He found no matches anywhere 

(Tr. 123). 

Mr. Shanholtz stated that no employees are regularly 

assigned to the shed area, and employees simply come and go 

from the area while servicing their vehicles (Tr. 124). 

Abatement was achieved by posting a letter warning employees 

about smoking in posted "No Smoking" areas (Tr. 126). 

On cross-examination, Mr. Shanholtz confirmed that the 

oil was stored on both sides of the inside of the shed, and 

that the large front opening was not obstructed. He observed 

people coming and going to service their vehicles, and he 

1412 
observed no one smoking (Tr. 128}. He did not believe the 

cigarette butts were tracked in, blew in by the wind, or 

dumped in from another area. Since they were fresh and were 

located inside the middle of the shed, he believed they were 

extinguished where he found them by someone who had been 

smoking (Tr. 130). 

Mr. Shanholtz confirmed that he also issued a citation 

on April 22, 1986, for a violation of section 56.4102, 

because of spillage and leakage of flammable or combustible 

liquid in the same shop were he found the cigarette butts 

(Tr. 131-132). MSHA 1 s computer print-out of prior violations, exhibit P-3, reflects a prior violation of section 

56.4100(b), issued on January 7, 1986, for smoking in an area 

where flammable or combustible liquids are stored or handled, 

but Mr. Shanholtz could not recall the details of that 

citation (Tr. 132). 

Mr. Stovall confirmed that a large "No Smoking" sign was 

posted at the oil storage shed in question and tnat he has 

never seen anyone smoking in the shed. He assumed that all 

employees understood the posted sign. He described the shed 

as a "room" located behind the metal shop building, and he 

stated that the south end is composed of doors which provide 

a 20-foot opening when they are opened. He stated that all 

employees have access to the shed while obtaining oil, and 

they park in a circular roadway that goes around the shed and 

simply walk in to get what they need. Mr. Stovall confirmed 

that smoking is prohibited only in posted areas, and he could 

not explain the presence of the cigarette butts on the floor 

{Tr o 188-189)" 

Mr. Joines stated that he has never observed anyone 

smoking in the oil shed, and he had no knowledge as to how 

the cigarette butts got there (Tr. 210-211). He confirmed 

that he was not at work when the citation was issued and that 

he had installed the "No Smoking" sign (Tro 211-212)" 

DOCKET NOo KENT 86-134-M 

Section 107(a)-104(a) "S&S" Order No. 2657189, issued on 

February 26v 1986, cites a violation of 30 C.F.R. § 56.9003, 

and the cited condition or practice is described as follows: 

The Euclid 35 ton haul truck, S/N 69035 

did not have a functional emergency brake. 

The emergency brake had been cited on 1/8/86 

during the course of a regular inspection. 

Upon this compliance inspection it has also 

1413 
been found that the rear brakes also do not 

operate on the haul truck and have not operated for several years. The fluid reservoir 

that provides ·braking fluid to the rear brakes 

was empty with scum like material in the 

reservoir, indicating that fluid had not been 

added for some time. The haul truck shall be 

parked until such time that the primary and 

emergency brakes are properly repaired. 

Section 107Ca)-104Ca) "S&S" Order No. 2657190, issued on 

February 26, 1986, cites a violation of 30 C.F.R. § 56.9003, 

and the cited condition or practice is described as follows: 

The Euclid 35 ton haul truck S/N 69036 

was observed being operated without adequate 

brakes. The primary braking system would not 

stop the haul truck when tested. The emergency brake when tested would not hold the 

truck. When inspected it was found that the 

haul truck had only 1 functional wheel brake. 

Upon inspection of the fluid reservoir to the 

braking system it was found that the reservoir 

to the rear brakes were empty. The hoses leading from the reservoir to the brakes had been 

disconnected. Dirt and oil on the hose connections indicate that the hoses had been disconnected for sometime. 

Inspector Shanholtz confirmed that he cited haul truck 

Noo 69036 because the emergency brake would not hold and the 

primary braking system or service brakes were also not functioning o When the truck was tested on a decline going from 

the primary crusher down into the pit area, he told the 

driver to put it in low gear and to stop and put the emergency brake ono The driver began driving down the incline 

but he could not stop the truck and had to put it in reverse 

gear to stopo The inspector checked the braking system and 

found that it had only one functional brake on the right 

front. 

Inspector Shanholtz stated that he also followed the 

same testing procedure with the No. 69035 truck and found 

that "it was slow to stop" when driven down the incline." 

This truck had been previously cited on January 7 1 1985, for 

lack of a functional emergency brake, but he did not check 

the service brakes at that time because the driver told him 

that they were working, and he took him at his word. 

1414 
Inspector Shanholtz described the truck braking system, 

and stated that upon visual inspection of both trucks, he_, 

found that the rear braking system reservoirs were empty and 

the hoses had been disconnected. Dirt had built up on the 

hydraulic hoses, and there was a thick "scum-like" substance 

in the hydraulic reservoirs which led him to believe that the 

brakes had not been functional for some time. He estimated 

that the brakes had been in that condition for a year (Tr. 

6-12). 

Referring to petitioner's photographic exhibits P-4, at 

pages 5 and 6, the inspector described the areas and service 

roads over which these trucks were operated, including a 

public highway, and he estimated that the trucks crossed the 

highway on an average of four times a day. He confirmed that 

the trucks operated primarily from the jaw crusher to the pit 

area, and that they travelled from 15-20 miles an hour over 

the service roads. Utility pick-up trucks and some public 

traffic would also be operating in these areas. The trucks 

were equipped with seat belts, and he cited no other truck 

defects during his inspection of February 26 (Tr. 12-14). 

On cross-examination, Inspector Shanholtz confirmed that 

he had previously inspected both of the cited trucks during 

the inspection of January 7, 1985, but did not cite the 

No. 69035 truck for anything other than a non-functional emergency brake because he took the operator's word that the other 

brakes were operational, and he failed to inspect them more 

thoroughly CTr. 15). During his inspection of February 26, he 

determined that the 69035 truck had no rear brakes, and when 

they were actuated during the testing there was no action on 

the brakeso He then traced out the lines and checked the 

reservoir (Tro 17)o 

Inspector Shanholtz stated that the truck operator told 

him that he had reported the condition of the truck. He also 

stated that when he discussed the brake conditions with 

Mr. Stovallu he denied that the conditions had been reported 

(Tr. 17). 

Kazimer Niziol, Mining Engineer, MSHA Technical Support 

Group, testified as to his background, education, and experience as a miner, maintenance superintendent, automobile 

mechanic, and prior work with a manufacturer of hydraulic 

braking systems. He confirmed that he has been involved in 

MSHA accident investigations involving haulage truck and 

underground equipment, and that he has discussed the braking 

systems on the 35 ton Euclid haul trucks in question with the 

manufacturer and different engineers (Tr. 23-25). Mr. Niziol 

1415 
described and explained the braking syst~ms on the trucks in 

question {Tr. 27-29). MSHA's counsel conceded that Mr. Niziol 

did not inspect the cited trucks in question, and that his 

testimony generally covers the truck braking systems (Tr. 28, 

30). 

John Stovall confirmed that on February 26, 1986, the 

emergency brake on the No. 69035 truck was not functional. 

When he checked the truck after it had been ordered out of 

service by the inspector, he found that the emergency brake 

did not work and he agreed with the inspector's finding that 

it was inoperative (Tr. 32). With regard to the rear brakes 

on that truck, Mr. Stovall stated that he spoke with the 

driver, Wayne Kiddinger, who informed him that when the truck 

was tested on the hill by the jaw crusher, it "would stop, 

but not fast enough to suit the inspector." Since the truck 

had been taken out of service, and he was instructed to take 

it to the shop for repairs, the truck was not tested again on 

the hill. When the truck was driven into the shop on a level 

concrete floor, the driver jammed on the brakes and the front 

wheels locked and skidded on the floor, but the rear wheels 

did not skid (Tr. 34). 

Mr. Stovall stated that in his opinion, there was "approximately 50% brake on the rear wheels" of the No. 69035 truck, 

but that the front brakes were 100 percent. Nothing was done 

to repair the front brakes, but the rear brakes were repaired, 

and by the time the parts arrived and the work was finished, 

it took 3 days to complete the repair job. Mr. Stovall confirmed that there was a leak in the rear braking system, and 

he conceded that 50 percent of the rear brakes were not 

working (Tro 35)o 

Mr. Stovall stated that Mr" Kiddinger informed him that 

he had not reported the brake conditions to anyone, and that 

he believed the brakes were sufficient (Tr. 35). Mr. Stovall 

also stated that when the brakes were applied on the level 

concrete floor of the shop, "he stopped quick enough that the 

front wheels skidded . " " the complete truck stopped just 

immediately, but he was on level" (Tr. 36)" 

With regard to truck No. 69036r Mr. Stovall stated that 

he checked its stopping power by having the mechanic drive it 

on a slight grade rock incline next to the shop, and that 

"the truck did hold on the hill," and that "both front wheels 

would scoot on the ground, the loose rock." Work was only 

done on the rear brakes of that truck and it was completed in 

3 days (Tr. 37). Mr. Stovall could not explain why the brake 

hose was disconnected, and in his opinion, the disconnected 

1416 
hose had no bearing on the operation of the truck. The 

driver of the truck, Norris Johnson, informed him that he had 

not reported any "bad brakes" on that vehicle (Tr. 38). 

Mr. Stovall confirmed that he recorded several notes concerning the citations on the face of his record copies and they 

were made a part of the record in this case (Tr. 38, exhibits 

R-1 and R-2). 

With regard to the abatement work on the No. 69036 truck, 

Mr. Stovall confirmed that new brake shoes and wheel cylinders 

were installed on the rear wheels, and the hoses were reconnected (Tr. 41). He also confirmed that he did not check the 

emergency brake on that truck after it was cited, and had no 

bae for disputing the inspector's finding that the emergency 

brake would not hold the truck (Tr. 42). 

In response to further questions, Mr. Stovall stated as 

follows (Tr. 42-43): 

JUDGE KOUTRAS: So when you get down to the 

bottom line on both of these citations, at 

least to some degree, the inspector's findings 

here that the truck brakes were defective was 

true, wasn't it, to one degree or another? 

THE WITNESS: They were not a hundred percent 

(100%), yes, sir. 

JUDGE KOUTRAS: They were not a hundred 

percent (100%). 

THE WITNESS~ That is right" 

JUDGE KOUTRAS~ So would you agreev thenv that 

the brakes were less than adequate? At least 

the emergency brakes were less than adequate 

if you agree they were both inoperative. 

THE WITNESS~ The emergency brakes on those of 

trucksf of coursev is something -- the driver 

might drive it for weeks and not know it 

was 

* * * * * * 

JUDGE KOUTRAS~ What I'm saying is you at 

least concede that these brakes weren't a 

hundred percent (100%), what they were 

supposed to be. 

1417 

* 
THE WITNESS: That is right. 

JUDGE KOUTRAS: So they were less than adequate. The standard says they have to be with 

adequate brakes. 

THE WITNESS: My opinion of adequate brakes 

might be something less than a hundred percent 

(100%). 

Inspector Shanholtz was called in rebuttal, and he 

stated that his contemporaneous notes made at the time of his 

inspection on February 26, reflect that Mr. Kiddinger, the 

driver of the No. 69035 truck told him that the brakes on 

that truck "had been that way for years, that they had never 

operated and that he was told by Donald Joines never to fill 

the two reservoirs because the brakes didn't work. He also 

stated the truck was like this for approximately three years 

that he had worked there" (Tr. 52). 

Mr. Shanholtz stated that the operator of the No. 69036 

truck, Norris Johnson, told him that he too was advised by 

Mr. Joines not to fill the two reservoirs because they had 

been disconnected and the fluid would run out. Mr. Johnson 

also informed him that "they had been that way for several 

years" (Tr. 53). Mr. Shanholtz also stated that Mr. Joines 

told him that the operator would continually burn the emergency brakes off and that they could operate the equipment 

the way it was (Tro 53)o 

Mro Shanholtz confirmed that he has taken MSHA training 

classes covering the operation of hydraulic braking systems, 

and in his opinion, rear brakes which are only 50 percent 

operational would be inadequate to stop a truck, even though 

the front brakes were fully operational (Tr. 55). 

Vernon Denton, MSHA Supervisory Inspectoru Lexington 

Field Office, testified as to experiencev education, and background, including work as a state mininef inspector, and he 

confirmed that he has worked for MSHA for 17 yearso 

Mr. Denton stated that Mro Stovall came to his office to discuss the braking citations with him and with sub-district 

manager Fred Jouppery, but that Mr. Stovall did not tell him 

that the brakes had been repaired or were in the process of 

being repaired (Tr. 60-62). 

Mr. Denton stated that Mr. Stovall told him that he had 

a letter from someone informing him that the brakes on the 

1418 
cited trucks were adequate with the rear brakes disconnected. 

Mr. Denton stated that he told Mr. Stovall that he could not 

accept anything less than the designed brakes, and that 

Mr. Stovall said nothing to him about the rear brakes operating at 50 percent efficiency (Tr. 63). Mr. Denton stated 

that as an enforcement policy, truck brakes must be maintained 

as they are originally equipped by the manufacturer, and if 

they are not, the designed safety of the vehicle is lost. In 

his opinion, one cannot do away with half of the designed 

braking capability and expect to have a safe vehicle under all 

conditions. Although the vehicle may be able to operate at 

one mile an hour with one or two brakes, consideration must be 

given to the fact that the trucks are operated up and down 

hills during reasonable mining conditions, and in order to be 

adequate the brakes must be at least as safe as they were 

designed (Tr. 64). The fact that the trucks in question may 

have operated with 50 percent rear brakes over a 3-year period 

with no reported accidents is no reason for inferring that an 

accident will not occur with brakes in those conditions (Tr. 

65). Mr. Denton stated that "adequate brakes," in terms of 

enforcement of the safety standard in question means brakes 

~hich are mainta~ned to their design specifications (Tr. 65). 

On cross-examination, Mr. Denton stated that he and 

Mr. Stovall discussed a number of matters during their meeting, including negligence and gravity, and Mr. Stovall 

expressed concern that he was being singled out for unusually 

strict enforcement (Tr. 66). Mr. Denton stated that even if 

the brakes were at 100 percent efficiency, this would not 

support a reasonable inference that one will never have an 

accident. Howeverv he believed the chances were better that 

no accident would happen with 100 percent brakes, and that 

this would be a "judgment call" (Tr. 67). 

Mr. Niziol was recalled, and he identified exhibit P-15 

as a schematic drawing depicting the rear truck braking 

system with one set of operative lines to the rear wheel, and 

one set of inoperative lines to the wheel. In his opinion, 

if one wheel had a problem and lost pressure, the remaining 

two front wheels and the one other rear wheel should be able 

to stop the vehicle within the stopping distances established 

by the Society of Automobile Engineers (SAE), and that is 

what the system is designed to do. However, if the truck is 

used in that condition without being repaired, it will result 

in further brake abuse and the braking system will be overheating and will cause a loss of friction in the lining. 

While the condition may be good enough to provide a stop, it 

is not good for further use (Tr. 70). In his opinion, while 

the brakes may stop the truck on this one occasion, they 

1419 
would be inadequate for continued day-to-day use (Tr. 71). 

The parking brake does no good for dynamic braking, and it. 

will only hold the vehicle in a stationary position on a 

grade (Tr.· 72). 

Mr. Niziol stated that a truck with only two functional 

front brakes may be capable of stopping when it is first operated, but after the brakes heat up, they may not work at all 

due overheating of the system and that this is very common 

(Tr. 7 6} • 

Mr. Donald Joines was called in rebuttal by the respondent, and he denied that he ever instructed the truck drivers 

in question not to fill the brake fluid tanks. He also denied 

that he had told the drivers not to properly maintain the 

brakes or not to report the braking conditions. He also 

denied that he ever instructed the drivers to operate the 

trucks when the brakes did not work because to do so would 

damage the transmissions which are expensive (Tr. 79). 

DOCKET NO. KENT 86-155-M 

Section 104(a) No. 2657392, issued on April 23, 1986, 

cites a violation of 30 C.F.R. § 56.9020, and the cited condition or practice is stated as follows: 

Adequate berms were not provided for the 

elevated roadway where it crosses the stream 

at two places in the crushing plant. Rock 

berms had been provided at one time but had 

slipped down the embankmento Haul trucks and 

front-end loaders utilize these crossover 

pointso 

Inspector Shanholtz confirmed that he issued the citation 

on April 23, 1986, after observing that the material used to 

berm two road crossovers of a dry stream bed that runs through 

the mine property had eroded and slipped down into the stream 

bedo There were several areas where there was either a very 

low berm or no berm at all. Mr. Shanholtz stated that the 

correct standard which should have been cited is section 

56.9022r rather than 56.9020. 

Mro Shanholtz identified photographic exhibit P-4, 

page 2, as representative of the appearance of the two crossovers and the stream bed, but not the oerms. The crossovers 

were approximately 10 to 11 feet wide, and the average width 

of the trucks crossing at those locations was 8 or 9 feet. 

1420 
Mr. Shanholtz stated that customer trucks, and company 

utility, pick-up, and 22-ton stockpile trucks used the crossovers, and that the crossover shown in the exhibit was the 

primary crossover and heavily travelled, while the other 

crossover was used less. The conditions at both cited locations were the same. 

Mr. Shanholtz estimated that the cited conditions had 

existed for at least several months. He confirmed that berms 

had existed at both locations at one time, but that the rocks 

had slipped over the bank. He identified the lower photographic exhibit P-4 page 2 of 11, as the rock which had 

sljpped over the bank. 

Mr. Shanholtz stated that abatement was achieved by providing more rock at the locations in question, and he confirmed that the crossovers are drawn in on the map of the 

main plant site, exhibit P-2 {Tr. 6-9). 

On cross-examination, Mr. Shanholtz stated that the 

crossover shown in the photograph was approximately 15 feet 

wide, and that the ditch is about 8 feet deep. He confirmed 

that when he issued the citation he made a finding that an 

injury was unlikely and that the violation was not signif icant and substantial. He changed these findings later on 

April 29, 1986, when he modified the citation to reflect the 

gravity as "reasonably likely," and that the citation was 

"significant and substantial." When asked why he had changed 

his mind, he responded "it was simply a clerical error on my 

part" (Tr. 11). 

Mr. Shanholtz believed that the berm conditions which he 

observed on April 23, were a "fairly serious and major 

problem.• When asked why he had not cited the conditions 

previously during his inspections of January 8, February 26, 

or March 4, 1986, he responded "I have no idea. I'm human, I 

guess." He did not believe that the rocks which apparently 

slipped into the creek "just happened," and he was certain 

that the berm conditions had existed for several months even 

though they were not previously cited (Tr. 12). 

Mr. Shanholtz stated that the roadway at the cited crossover locations was "elevated" at that portion where it 

crossed the stream bed in that there was a drop-of£ on both 

sides. The roadway at those locations was elevated above the 

stream bed (Tr. 15-17). Mr. Shanholtz believed that those 

elevated portions of the roadway created a hazard. 

1421 
In response to further questions, Mr. Shanholtz stated 

that berms were required at the crossovers to prevent a 

vehicle from going into the stream bed and overturning (Tr. 

21). He considered the fact that vehic traffic was heavier 

in April when there was more production then in January (Tr. 

22}. He believed that any ditch over 4 feet in depth could 

easily cause the dump trucks or a front-end loader using the 

crossovers to turn over (Tr. 22). 

Mr. Shanholtz stated that with the berms in place, the 

width of the roadway was adequate for daily truck usage (Tr. 

23). The berms are constructed from whatever material is 

available, such as rock or fill dirt (Tr. 25). 

Mr. Shanholtz stated that the three people exposed to 

the hazard would be the two stockpile truck drivers and the 

loader operator who crosses the crossover to load customer 

trucks or to clean up (Tr. 27). Access to the crossovers by 

the vehicles would depend on the direction of vehicle traffic. 

The flow of traffic varies, and some trucks may approach the 

crossovers straight across, while other vehicles could 

approach it at an angle or by turning into the crossovers 

(Tr. 28). Customer trucks also used the crossovers (Tr. 29). 

Mr. Shanholtz confirmed that the width of the crossovers 

only allowed for one truck at a time to cross, and he made no 

inquiries as to the respondent's traffic procedures or 

controls (Tr. 29). 

In response to further questions, Mr. Shanholtz stated 

as follows (Tro 29-32)~ 

Q" You on here that you thought 

that negligence was high in this case. Why 

did you mark it high? 

Ao Okayo At that timeP I didn 1 t feel the 

crossover berm was being maintained. It had 

been established and had been allowed to 

deteriorate. The operator knew that berms 

were needed in that area, that they had been 

provided once ore and that they had been 

&llowed to deteriorate. 

Q. There were some berms there, weren't there? 

A. Partial, yes. 

1422 
Q. So that is why you thought the negligence 

was high? 

A. Yes. 

Q. And you said initially the S&S -- when you 

found non S&S, it was strictly a clerical 

error? 

A. Yes, sir. 

Q. You talked to nobody on the 29th? 

A. No, sir. 

Q. This is not a case of your just not thinking it was S&S and then maybe your supervisor 

may have suggested, "Hey, this is a berm citation. This can't be non S&S." 

A. No, because the citation was issued on 

4/23 and the report probably wasn't issued 

until 4/29. ' So it was just a clerical error 

that I caught. 

Q. What about the gravity part where you said 

initially it was unlikely and later reasonably 

likely, was that also a clerical error? 

A. Yes, sir. That was changed due to the 

volume of traffic across that crossover. 

Q. When did you determine the volume of 

traffic, at the time you issued the citation? 

A. Yes, sir. 

Q. And the citation of 9020v was that 

clerical? 

A. Yes, sir. 

John Stovall stated that he "paced off" the primary 

crossover location and found that it was 27 feet wide without 

the berm in place, and 20 feet with the berm. The distance 

across and through the crossover was 15 feet. The widest 

truck and end loader using the crossovers was 14 feet, and 

the smallest were the customer truck and pick-ups, which were 

8 feet wide. He estimated that there would be 3 feet on each 

1423 
side of the largest vehicle as it passed over the crossover 

(Tr. 34-36). He stated that several years ago an MSHA inspector requested him to lay a couple of rocks on each side of 

the roadway, and he is not aware of any truck going into a 

ditch sinee he has operated the mine from 1962 to the present 

(Tr. 37). 

Mr. Stovall described the crossovers as a natural drainageway ditch. A drain pipe was placed in the ditch to allow 

water to flow through, and fill was dumped over the pipe to 

construct the crossover. During the prior inspections of 

January, February, and March, no mention was made of the 

ditch. The vehicles crossing the ditch travel at an average 

speed of 5 miles per hour, and most traffic that crosses is 

unloaded (Tr. 41). 

On cross-examination, Mr. Stovall confirmed that the 

drainage ditch is cleaned out every 3 or 4 years to keep the 

drain tiles free of debris. He also confirmed that there is 

not enough clearance to permit two vehicles to pass each 

other over the crossovers, and this is not done (Tr. 42). 

Mr. Shanholtz stated that he has observed vehicular 

traffic approach the crossovers from different directions, 

including right and left turns into and across the crossovers 

(Tr. 47). Mr. Stovall indicated that access to the primary 

crossover is by an approach of a "100 feet straight shot 

either side" (Tr. 48). 

Mr. Shanholtz was called in rebuttal, and he stated that 

he had issued another citation for lack of berms over a crossover ditch by the jaw crusherv and the condition was abated" 

He also indicated that in that instance it was reported to 

him that a hydraulic hose had broken on a Euclid 35 ton haul 

truck and that the truck lost its steering and went into the 

ditch beside the haul road. However 1 this incident occurred 

"on the other side" of the location where the citation was 

issued~ and it was not at the same location (Tro 51)" 

Mr. Shanholtz stated that the "rule of thumbn for compliance with the berm standard in question is that a berm be 

constructed so that its he ht is mid-axle to the largest 

piece of equipment using the roadway (Tr. 52). He also stated 

that assuming the width of the roadway and the depth of the 

ditch at the crossover were as stated by Mr. Stovall, it would 

not change his opinion as to whether berms were required at 

the cited locations (Tr. 53). 

1424 
Mr. Shanholtz reiterated that he observed vehicular 

traffic approaching and using the crossover from both dir~ctions and at different angles, and that there was no posted 

set traffic pattern (Tr. 53). Although he confirmed that he 

issued another citation for employee over-exposure to "nuisance dust" on the roadway near the secondary crushing plant, 

and indicated that this dust "could very well possibly" have 

contributed to a truck driver's visibility and could affect 

the gravity of the situation, he conceded that he did not 

consider this dust to impact on the gravity of the citation 

which he issued for inadequate berms (Tr. 54-57). 

Findings and Conclusions 

DOCKET NO. KENT 86-133-M 

Fact of Violation 

Citation No. 2657368, January 7, 1986, 30 C.F.R. § 56.12016 

The respondent is charged with a violation of mandatory 

safety standard section 56.12016, which provides as follows: 

Electrically powered equipment shall be 

deenergized before mechanical work is done on 

such equipment. Power switches shall be 

locked out or other measures taken which shall 

prevent the equipment from being energized 

without the knowledge of the individuals working on it. Suitable warning notices shall be 

posted at the power switch and signed by the 

individuals who are to do the worko Such 

locks or preventive devices shall be removed 

only by the persons who installed them or by 

authorized personnelo 

In North American Sand and Gravel Company, 2 FMSHRC 2017 

(July 1980), the judge affirmed a violation of section 

56.12016, after finding that a mine operator simply removed 

fuses when electrical equipment was down for repairs, and had 

no lock-out procedure to insure that anyone working on the 

equipment would not be injured by someone inadvertently starting the equipment" Likewise, in Brown Brothers Sand Company, 

3 FMSHRC 734 (March 198l)v a violation was affirmed where it 

was found that an employee working on a pump deenergized the 

equipment by opening the power "knife" switch, but failed to 

lock out the switch to prevent it from being energized without his knowledge. 
In Price Construction Company, 7 FMSHRC 661 (May 1985), 

a welder with 25 years experience lost a leg when he was 

injured by the rollers of a crusher he was working on. The 

accident occurred when the plant foreman misunderstood the 

welder's instructions and engaged a switch which had not been 

locked out and simply left in the "on" position. The plant 

superintendent admitted that he did not require padlocks to 

lock out roller switches, and the existing "lock-out" procedures was accomplished by merely turning off the generator 

and cutting the switches. The judge found a violation of 

section 56.12-16, and found that the company safety director 

admitted that he knew that a padlock had to be used on the 

roller switch to conform with the required lock-out procedures, and that it is a generally understood practice in the 

mining industry that a "lock-out" requires the use of a 

padlock. 

Section 56.12016, requires that power switches be locked 

out before work is performed on any electrically powered 

equipment, and the locks may only be removed by the person 

who installed them or by other authorized personnel. In this 

case, the inspector found that the mine had no established 

lock-out procedures and the evidence establishes that no 

locks were available or being used to lock out the switching 

equipment located in the switch house. Further, the respondent has not rebutted the inspector's testimony that the 

quarry superintendent admitted that no locks were available 

to physically lock out the switches, and that the only purported "lock-out" procedure in effect called for turning off 

the equipment and shutting the switch house door. Although 

the inspector testified that several employees told him that 

electrical equipment was de-energized at the power source 

when it was worked on, they also told him that they were 

unaware of any established lock-out procedures. 

While there is no evidence that anyone was performing 

any work on electrical equipment at the time the inspector 

noted the violation on January 7, the inspector noted some 

burned out motors stored in the yard and' he assumed that they 

came from the switch house. Since he found no evidence that 

locks were available or used to lock-out electrical equipment, he further assumed that any prior work on the motors 

was done without locking out the power switches. Further, 

the inspector determined that motors were routinely changed 

out as they burn out, and that crushing and screening equipment were similarly serviced periodically, and he also 

assumed that this work was done without locking out the power 

switches. 

1426 
In his posthearing brief of June 30, 1987, respondent's 

counsel argues that it was using independent contractors for 

its electrical work before hiring an in-house electrician. 

Counsel asserts that a lock-out policy was adopted and locks 

were purchased, but apparently on the occasion when the 

inspector was at the mine the individual doing the work did 

not use any locks. Counsel asserts further that the employee 

had been told to use a lock but failed to put it back on as 

required. 

The citation at issue in this case is the one issued by 

the inspector on January 7, 1986, and the petitioner seeks a 

civil penalty proposal for that violation. The incident 

concerning the electrical work being done by an individual 

who did not use the locks which had been purchased by the 

respondent to abate the January 7, citation, occurred on 

February 26, 1986, when the inspector re-inspected the mine 

and issued a section 104(b) order. That violation is not at 

issue in this case, and it is not the subject of this case. 

Accordingly, the fact that an employee was not using a lock 

which had been provided on February 26, is not material to 

the citation issued on January 7. 

The testimony and evidence advanced by the respondent 

does not rebut the inspector's findings with respect to the 

lack of a lock-out procedure mandating the use of locks to 

physically lock out the power switches on January 7, 1986. 

Mr. Stovall candidly admitted that at the time of the inspection no locks were available at the plant to lock out the 

switches, and only after the citation was issued was any 

effort made to purchase locks and make them available to 

service personnel. Although Mr. Stovall alluded to the fact 

that all prior electrical work at the site was performed by 

contractors who "knew what the rules of the game were and did 

what was necessary to protect himself," and that outside 

electricians would disconnect the switch itself before doing 

work on electrical equipment, the fact remains that respondent presented no credible evidence that any switches were 

ever locked out as required by the standard. With regard to 

the burned out motors observed by the inspector, Mr. Stovall 

simply suggested that not all of them came from the switch 

house. This suggests that some of them did. 

I take note of the fact that the citation, on its face, 

makes no mention of the fact that locks were not provided or 

used to lock out the power switches in the switch house. I 

also note that the inspector conceded that he issued the citation because he found no written established lock-out procedure requiring the physical lock out of electrical equipment, 

1427 
and not because there were no locks available to lock out the 

equipment. 

I find nothing in section 56.12016 that specifically 

requires a mine operator to promulsate written procedures for 

locking out electrical equipment. Although one may reasonably 

conclude that such established procedures in writing may be a 

desirable safety practice, I find nothing in the standard that 

requires it. However, on the facts of this case where the 

preponderance of the credible evidence clearly establishes the 

total lack of locks to physically lock out the electrical 

equipment during maintenance work, and an inadequate system in 

place which simply required the turning off of equipment and 

simply shutting the door to the switch house, I conclude and 

find that a violation of section 56.12016 has been established. 

Although the inspector confirmed that the respondent had a 

procedure for de-energizing the power source by turning off 

electrical equipment which was being worked on, this only 

establishes possible compliance with the first sentence found 

in section 56.12016. It does not comply with the requirement 

that power switches be locked out while the work is being performed. The citation IS AFFIRMED. 

Citation No. 2657373, January 8, 1986, 30 C.F.R. § 56.9003 

The respondent is charged with a violation of section 

56.9003, which provides as follows: "Powered mobile equipment 

shall be provided with adequate brakes." 

The inspector testified that when the loader operator 

tested the loader emergency brake in his presence by applying 

the brake while the loader was in gear, the brake would not 

stop the loadero The operator also tested the primary 

braking system on a level surface with the machine in gearu 

and the inspector found that while operated in both forward 

and reverse gears, the loader "was slow to stop" and that it 

took more than the usual length of area to stop the loader. 

In its posthearing brieff at page 2, the respondent maintains that the loader operator did not complain about the 

condition of the windshield 1 and that the inspector never got 

into the operator 1 s cab to determine whether there was any 

problem with operating the loader with a cracked windshieldo 

Further? the respondent points out that it received no complaint from union safety corrunittee concerning the condition 

of the loader, and that it operated on level ground with "adequate" brakes notwithstanding the inspector's findings. At 

page 3 of his brief, respondent's counsel states that the 

inspector had previously inspected the loader 2 or 3-months 

1428 
prior to the time he issued the citation, but failed to cite 

it for any defects. Counsel suggests that the inspector's 

assertion that the equipment had operated in this condition 

for years defies credibility because he failed to cite it in 

the past. 

In this case, the issue presented is whether or not the 

petitioner has presented credible evidence to support the 

inspector's findings that the cited loader had inadequate 

brakes. Although the condition of the windshield, the inadequate back-up alarm, and the lack of a fire extinguisher may 

have been contributory factors to the hazard presented, the 

gist of the violation lies in the inspector's finding that 

th~ brakes were inadequate, and the respondent's counsel 

agreed that this was the case (Tr. 97). Thus, the condition 

of the windshield is not particularly relevant to the question of a violation of section 56.9003, for inadequate brakes. 

I believe that counsel has confused the inspector's testimony with respect to any assertion that the cited condition 

may have existed for years. I believe that the inspector's 

testimony concerning any pre-existing brake conditions came 

about during his testimony regarding two citations that he 

issued for inadequate brakes on two haulage trucks (Docket 

No. KENT 86-134-M). In any event, such testimony goes to the 

question of negligence, and not to the question as to whether 

the brake condition found by the inspector constitutes a violation of the cited standard. Further, the fact that the 

safety committee failed to report any defective brake condition is irrelevant to the question of whether a violation has 

been established. 

on the facts here presented, the respondent has not 

rebutted the credible findings by the inspector with respect 

to the condition of the brakes on the cited loader in question Q Mr. Stovall stated that he first learned about the 

condition of the loader brakes when he reviewed a copy of the 

citation after it was issued. Equipment superintendent 

Joines confirmed that he was not with the inspector when the 

loader was cited, and he had no knowledge as to how slow it 

may have stopped. However, he confirmed that new pads were 

ordered and installed to repair the emergency brakes, and 

that the primary brakes were adjusted and cleaned. 

I conclude and find that the credible evidence adduced 

by the petitioner establishes that the emergency and primary 

brakes on the cited loader were less than adequate when the 

inspector inspected the loader and issued the citation. I 

1429 
further find and conclude that a violation of section 56.9003 

has been established, and the citation IS AFFIRMED. 

Citation No. 2657377, January 8, 1986, 30 C.F.R. § 56.9001 

The respondent is charged with a violation of section 

56.9001 which provides as follows: 

Self-propelled equipment that is to be 

used during a shift shall be inspected by the 

equipment operator before being placed in operation. Equipment defects affecting safety 

shall be reported to, and recorded by the mine 

operator. The records shall be maintained at 

the mine or nearest mine office for at least 

6 months from the date the defects are 

recorded. Such records shall be made available for inspection by the Secretary of Labor 

or his duly authorized representative. 

The second sentence of section 56.9001 requires that 

equipment defects affecting safety be reported to, and 

recorded by, the mine operator. The citation charges that the 

respondent's equipment operators knew of equipment defects but 

did not report them, and that the respondent failed to utilize 

an "equipment check-off" list for the reporting and recording 

of such defects. 

I find nothing in section 56.9001, that requires a mine 

operator to have any formalized written check-list system for 

the reporting and recording of equipment defects. The standard simply requires the pre-operational inspections of equipment F and the reporting and recording of any defects noted 

during that inspection" I take note of the fact that MSHA 1 s 

Metal and Nonmetal Mine Safety and Health Inspection Manualf 

1981 Edition, which contains guidelines and applications of 

the standards found in Parts 55, 56, and 57, Title 30, Code 

of Federal Regulations, makes no reference to any particular 

methods or systems which must be used for reporting and 

recording equipment defectso 

In United States Steel Corporation, 6 FMSHRC 1435 

(June 26, 1984), the Commission affirmed a judge's finding of 

a violation of the identical standard at issue in this case. 

The facts in that case reflect that the mine operator was 

using an oral system of reporting equipment defects, but had 

fai to----record an oral report made with respect to certain 

brake defects on a truck. The violation was affirmed because 

the evidence established that a defect had in fact existed, 

1430 
but that the person who received the oral report forgot to 

record it and act on it, and not because of the failure t~ 

utilize any particular written check-list form. 

In the instant case, there is support in the record for 

a reasonable conclusion that the inspector believed that section 56.9001 required a mine operator to utilize a formalized 

written equipment check-off list for the purpose of reporting 

equipment defects. The inspector readily admitted this during the course of the hearing. He testified that "I issued a 

citation on 1/8 for failure to have an operator's checkoff 

list utilized by the company. And I gave them till the 21st 

to initiate a procedure that they would make the list available and utilize it" (Tr. 98). And, at transcript page 99, 

where he states that "when I issued the citation and Donald 

Joines was in the office there and there was Donald Joines, 

Tom Nelson and Burdette Fox. I told them at that time I was 

issuing a citation for the checkoff list." He also confirmed 

that while the respondent had the forms available and therefore "satisfied the first requirement," they were not being 

used (Tr. 103). 

In addition to the inspector's testimony, the record 

establishes that the inspector subsequently issued an order 

after finding that the check-off lists were not being used, 

and it was terminated, and the violation abated, only after 

it was established to the inspector's satisfaction that the 

respondent had established a procedure for the use of written 

check-off lists and issued written instructions to its 

employees as to their use. 

During the hearingv it was suggested that the respondent 

had the written check lists available because it had been 

previously cited for a violation of section 56.9001, on 

March 13, 1985. However, no evidence was forthcoming with 

respect to this prior violation, and petitioner's counsel did 

not produce a copy of the citation. Respondent's evidence 

suggests that as a result of the prior citationF a supply of 

written formalized check-list forms were obtained but were 

not used because they proved to be ineffective. It also 

suggests that the respondent began using an oral system for 

reporting and recording equipment defects on--a-desk calendar 

kept in the equipment supervisoris office, and that another 

MSHA inspector somehow approved of this practice as acceptable 

compliance with section 56.9001. However, neither party 

called that inspector to testify. 

In further clarification of his interpretation of section 56.9001, the inspector testified that he would have 

1431 
accepted any written proof that equipmept defects were being 

reported and that such a reporting or recording system need 

not be formalized (Tr. 110). He confirmed that when he 

inquired of the respondent and asked for proof that defects 

were being reported and recorded, nothing was shown to him in 

writing (Tr. 117). In this regard, Mr. Stovall admitted that 

when the citation was issued on January 8, 1986, printed 

check-list forms were available and stored i.n a cabinet in 

the mine office but they were not being used. Mr. Stovall 

confirmed that he was not present when the inspector issued 

the citation and did not discuss the matter with him. 

Respondent's equipment supervisor Donald Joines also 

admitted that while the check-off lists were available on 

January 8, 1986, they were not being used. He contended that 

the inspector simply asked him if he had such a list, and 

that he showed him the blank printed forms. Even though 

Mr. Joines claimed that he had his "calendar check-list" 

available at the time of the inspection, he did not tell the 

inspector about it and did now show it to him. Mr. Joines at 

first testified that he did not believe that the inspector 

gave him an opportunity to explain about his calendar system 

and insinuated that the inspector was pre-disposed to write 

the citation, but later testified that there may have been 

some miscommunication between him and the inspector and that 

they had some "heated words" over the citation. Mr. Joines 

could not produce the purported calendar in question during 

the hearing, and he confirmed that it was destroyed during 

the time he was off the job recovering from heart surgery, 

and Mr. Stovall also confirmed that this was the case. 

The respondent has produced no evidence as to what may 

have been recorded on the calendarv nor has it produced any 

cred evidence or proof to establish that equipment operators were reporting equipment defects or that such reported 

defects were being recorded so that they would be available 

for inspection during the required 6-month period pursuant to 

section 56.9001. I note that neither party in this case saw 

fit to call any of the equipment operators-to testify in this 

case. I also find it amazing that the respondent would 

destroy the purported calendar which could have provided proof 

that equipment defects were being reported and recordedv and 

that Mr. Joines did not even mention it or show it to the 

inspector at the time the citation was issued. 

As a condition precedent to establishing a violation of 

section 56.~100, the petitioner must present some credible 

evidence that the kinds of equipment defects required to be 

1432 
reported and recorded so 

plished in fact existed. 

defects affecting safety 

or recorded prior to the 

tion on January 8, 1986. 

that repairs could be timely accomSome proof must be forthcoming that 

existed but were not being reported 

time the inspector issued the citaThe petitioner's proof that prior reportable equipment 

defects existed consists of the inspector's testimony that 

the condition of the equipment as he found it indicated a 

need to use a check-list, his assertion that since he found 

many defects which needed attention during his inspections, 

it was obvious that they were not being reported, recorded, 

or corrected, and his testimony that he talked to "just about 

all.of the mobile equipment operators on the property and was 

informed that these defects had existed for a long time" (Tr. 

106; 98; 101). The inspector also testified that even though 

the check-list forms were available to the respondent on 

January 8, 1986, they were not being used because the equipment operators were not reporting any equipment defects (Tr. 

105) . 

As indicated earlier, none of the equipment operators 

were called to testify in this case. It seems to me that 

these operators would be the best evidentiary source concerning equipment defects, the length of time that they existed, 

and the fact that they were being reported or not reported, 

recorded or not recorded, or ignored. The inspector suggested 

that the equipment operators were intimidated and instructed 

to operate the equipment with known defects. However, there 

is a total lack of evidence in the record to support these 

conclusionso Further, since such charges raise the possibility of section llO(c) violations, it seems to me that if the 

inspector had any evidence that operators were instructed to 

operate equipment with known safety defects that were in violation of any mandatory safety standards, he had an obligation 

to report this so that MSHA could pursue the matter further. 

There is no information that this was done. Although petitioner gs counsel expressed some reluctance about identifying 

the source of this information, she could have subpoenaed the 

equipment operators to testify about their knowledge of any 

safety defects, but she did not do so. 

Another available evidentiary source to establish the 

existence of reportable equipment defects prior to the issuance of the citation on January 8, 1986q is MSHA's computer 

print-out listing prior violations. However, petitioner 1 s 

counsel did not pursue this during the hearing, and she 

failed to provide any further information with regard to the 

prior violation of section 56.9001 which was issued on 

1433 
March 13, 1985. Further, no testimony was elicited from the 

inspector as to his knowledge of these violations, whethe~ or 

not he issued them, or whether they involved equipment safety 

defects required to.be reported and recorded pursuant to 

section 56.9001. Although the inspector did refer to his 

observation of equipment operating with no brakes, that notation was made on his subsequent order of February 26, 1986, 

and he indicated that they were observed "during this compliance inspection." I take this to mean the inspection of 

February 26, 1986, which was subsequent to the January 8, 

1986, inspection. 

A review of MSHA's computer print-out, exhibit P-3, listing the respondent's prior violations, reflects a total of 

49 violations during the period April 23, 1984 to April 22, 

1986. Seventeen of these violations were issued subsequent 

to January 8, 1986. Eight were issued in 1984 and 1985, more 

than 6-months prior to January 8, 1986. Six listed violations 

are the subject of the instant proceedings. With the exception of the instant citation, three of these violations were 

issued subsequent to January 8, 1986. One was issued on 

January 7, 1986, and did not concern equipment defects, and 

one was issued on January 8 1 1986, and it concerns the defects 

noted on the front-end loader which was cited on violation 

No. 2657373. The remaining violations, with two exceptions, 

concern mandatory standards which do not involve self-propelled 

equipment defects. The two exceptions concern a citation 

issued on January 7, 1986, for a violation of section 56.6042 

for failure to provide a fire extinguisher on self-propelled 

equipment for which the respondent paid a $20 "single penalty 

assessmentv" and one issued that same date for a violation of 

section 56o9003v for inadequate brakes on mobile equipment for 

which the respondent paid a penalty assessment of $2060 

After distilling the information reflected on the computer print-outv it would appear that the two prior violations 

issued on January 7v 1986v concerning the lack of a fire 

extinguisher on self-propelled vehiclesv and inadequate brakes 

on self-propelled equipmentv which were paid, involved equipment defects which were required to be reported pursuant to 

section 5609001. However, the petitioner failed to introduce 

these citationsv provided no information with respect to the 

circumstances under which they were issued, and presented no 

testimony or evidence that Inspector Shanholtz conducted the 

inspections which resulted in the issuance of those citations, 

or that he was even aware of them at the time he issued the 

citation of January 8, 1986. Under the circumstances, I 

cannot conclude that these citations were among the "many 

1434 
unreported equipment defects" that the inspector claims formed 

the basis for the issuance of the citation in issue. 

The only available credible evidence of the existence of 

any equipment defects affecting safety which were present on 

January 8, 1986, is the front-end loader citation (No. 2657373) 

which was issued that same day (exhibit P-7). It is the subject of this proceeding, and the cited violation has been 

affirmed. The citation reflects that it was issued at 

8:45 a.m., during the same inspection, and prior to the time 

the reporting citation in issue here was issued. During his 

testimony in connection with the loader violation, Inspector 

Shanholtz confirmed that he found "quite a few defects that 

affected safety" on the loader, including a cracked, broken, 

and shattered windshield that would impair the operator's 

vision, a non-functioning back-up alarm, an inoperable emergency brake, inadequate service brakes, and the lack of a fire 

extinguisher. Under the circumstances, I find that the inspector had reasonable cause to support his belief that equipment 

defects were not being timely reported or addressed by the 

respondent. Coupled with the fact that the respondent could 

produce no evidence that such defects were being reported or 

recorded as required by the regulations, I further conclude and 

find that the petitioner has established a violation of section 

56.9001. Accordingly, the citation IS AFFIRMED. 

Citation No. 2657386, April 22, 1986, 30 C.F.R. § 56.4100(a) 

The respondent is charged with a violation of mandatory 

safety standard section 56.4100(a)u which provides as follows: 11 No person shall smoke or use an open flame where flammable or 

combustible liquidsv including greasesv or flammable gases 

are~ (a) used or transported in a manner that could create a 

fire hazard; or (b) stored or handled. 11 

The inspector issued the citation after finding approximately five fresh cigarette butts on the floor inside a 

storage room or shed used to store combustible motor oil and 

some hydraulic fluid. The area was a posted "No Smoking" 

area, and the shed was used by employees to service their 

vehicles. The inspector saw no one smokingv and the presence 

of the tell-tale cigarette butts led him to conclude that 

someone had been smoking. 

In its posthearing brief, the respondent maintains that 

the citation should be dismissed "for a total want of proof. 11 

Respondent's assertion in this regard is rejected. The 

respondent does not deny the presence of the cigarette butts 

inside the shed, and it offered no reasonable explanation as 

1435 
to how the butts may have gotten there •. on the other hand, 

the petitioner has established that fresh cigarette butts 

were present inside the oil storage shed in question. While 

it may be true that the inspector did not observe anyone smoking, I conclude and find that the tell-tale fresh cigarette 

butts found by the inspector, while circumstantial, is sufficiently adequate to support a reasonable inference that someone had been smoking in or around the posted "No Smoking" 

area, and put out the butts on the floor where they were found 

by the inspector. Under the circumstances, the citation IS 

AFFIRMED. 

DOCKET NO. KENT 86-134-M 

Fact of Violations 

Order Nos. 2657189 and 2657190, February 26, 1986, 30 C.F.R. 

§ 56.9003 

The respondent is charged with two violations of section 

56.9003, which requires that powered mobile equipment be provided with adequate brakes. In these instances, the inspector found that a 35-ton haul truck had an emergency brake 

which did not function, and rear brakes which were inoperative. On a second truck, he found that the primary braking 

system had only one functional brake and an emergency brake 

which did hold the truck. Further, the inspector found that 

the brake fluid reservoir providing fluid to the rear brakes 

of the first truck was empty, and that the reservoir on the 

second truck was empty and that the brake hoses were 

disconnected" 

In support of the violations 1 the inspector testified 

that both trucks were tested during the inspection. With 

regard to the truck No. 69036, the inspector stated that when 

it was tested on a declinev the driver could not stop the 

truck with the brakes and he had to put it in reverse gear to 

stop ito Upon checking the braking systems, he found that 

the emergency brake would not work, and that only the right 

front service brake was functioning properly. With regard to 

truck Noo 69035, the inspector stated that the emergency 

brakes were not functioning, and that the truck "was slow to 

stop" when tested on a decline. 

Mr. Stovall conceded that the emergency brake on truck 

No. 69035 was not functioning, and that 50 percent of the 

rear braking system was defective or inoperative and that 

there was a leak in the system. With regard to truck 

1436 
No. 69036, Mr. Stovall did not dispute the inspector's finding that the emergency brake would not hold the truck. He 

also did not dispute the fact that the brake hoses were disconnected, and he confirmed that new brake shoes and wheel 

cylinders were installed on the rear wheels and that the hoses 

were reconnected. He also confirmed that the rear brakes on 

the No. 69035 truck were overhauled. 

In addition to the testimony of the inspector who issued 

the violations after inspecting the cited trucks, the petitioner also presented testimony from a supervisory inspector 

who testified that brakes which are not maintained as they 

were originally equipped, or which are not maintained to 

their design specifications, are less than adequate within 

the meaning the requirements of section 56.9003. This inspector also testified that a truck which has lost half of its 

established rear braking capacity has lost the designed 

safety of the vehicle and cannot be expected to be operated 

safely under all conditions. 

The petitioner also presented testimony from an MSHA 

braking expert who confirmed that while a truck with a partial 

operative braking system may be capable of stopping when first 

operated, it is common for such brakes to be rendered inoperative as they heat up, and operating the trucks in such a condition will result in further brakes abuse and render the brakes 

inadequate for continued use. 

The respondent's defense is based on Mr. Stovall's belief 

that even though the service brakes may not have been 

"one-hundred percent," they were still adequate within the 

meaning of the cited sectiono This contention is rejected. 

It seems clear to me from the credible evidence presented by 

the petitioner, that the emergency braking system on both 

cited trucks were not functioning at allo With respect to 

the primary braking systems the credible evidence establishes 

that the brake fluid reservoirs on both trucks were empty and 

the brake hoses on one of the trucks were disconnectedo 

Further, the evidence establishes that the driver of one of 

the trucks had to put it in reverse gear to stop it, and that 

the only functioning service brakes were those on the right 

front. The rear brakes on the second truck were only 

50 percent functional, and there was a leak in the system. 

I conclude and find that the petitioner has established 

the violations in question by a clear preponderance of the 

credible evidence adduced in this case. Accordingly, the 

violations and the orders ARE AFFIRMED. 

1437 
DOCKET NO. KENT 86-155-M 

Fact of Violation 

Citation No. 2657392, April 23, 1986, 30 C.F.R. § 56.9022 

Although the citation as issued cites a violation of 

mandatory safety standard section 56.9020, the inspector confirmed that this was a "clerical error," and that he intended 

to cite section 56.9022 which provides that "Berms or guards 

shall be provided on the outer bank of elevated roadways." I 

cannot conclude that the respondent has been prejudiced by 

the erroneous citation, and take note of the fact that the 

record establishes that the respondent was well aware of the 

fact that it was being cited for having inadequate berms, and 

ultimately abated the violation. Further, the factual basis 

for the issuance of the citation is the "condition or practice" stated by the inspector on the fact of the citation, 

and the petitioner has the burden of proof. Under the circumstances, I conclude that the inspector's reference to another 

standard was no more than a clerical error which has not 

prejudiced the respondent, Old Ben Coal Co., 2 FMSHRC 1187 

(1980), and the respondent has raised no objection, nor has 

it claimed any prejudice. 

The respondent is charged with a failure to provide adequate berms at two roadway locations which crossed a dry 

stream bed which ran through the mine property. The inspector testified that berms consisting of rock and other fill 

dirt material had been provided at one time, but it had 

eroded and slipped down into the stream bed. He issued the 

citation after finding no bermsv or very low berms; at 

several locations along the two crossovers in question. 

The inspector testified that photographic exhibit P-4y 

pg. 2 of 11, depicts the cited primary crossover which was 

more heavily travelled than the second cited crossover, and 

he confirmed that the photograph is representative of both 

locations. The crossovers were described as a natural drainage ditch or dry stream bed which ran through the property. 

Drain pipes were placed in the ditch to allow water to flow 

through, and fill dirt was dumped over the pipes to construct 

the crossovers. The inspector estimated the depth of the 

ditch as 10 to 12 feet, and "possibly 8 feet" (Tr. 8, 10). 

The inspector conf irrned that his conclusion that the 

roadway was "elevated" was based on the fact that at the 

crossover locations where the roadway passed over the ditch 

where "drop-offs" existed on eith':!r side of the road, the 

1438 
roadway was in fact elevated above the stream bed. He also 

confirmed his belief that the lack of adequate berms at the 

elevated locations above the stream bed created a hazard on 

each side of the crossovers in that a truck could go into the 

ditch and overturn, and he believed that adequate berms were 

required to prevent this from happening (Tr. 21). He further 

believed that a ditch over 4 feet deep created a hazard in 

that the trucks and front-end loaders using .. the crossovers 

could easily overturn if they ran into the ditch (Tr. 22). 

When asked to explain his understanding of the application of the berm standard in this case, the inspector replied 

that if the depth of the ditch at the crossover is such that 

it is reasonably likely to cause an accident, such as a 

vehicle overturning in the ditch, he would cite a violation 

of section 56.9022, and that this is a "judgement call" <Tr. 

32-33). The inspector stated that the "rule of thumb" is to 

require berms as high as the mid-axle height of the largest 

piece of equipment using the roadway, and that "we hope it 

helps to stop them" (Tr. 52). 

In its posthearing brief, respondent's counsel takes the 

position that the cited crossovers are not an elevated roadwai. Recognizing the fact that "the berms are supposedly 

there to prevent the equipment from going off into the ditch," 

counsel asserts that "very little danger, if any," existed in 

that the equipment using the road has adequate room for 

crossing and no more than one vehicle at a time crosses over 

the cited locations. 

In United States Steel CorporationQ 5 FMSHRC 3 (January 

1983)v the Commission held that proof of "inadequate" berms 

requires evidence as to what type of berm a reasonably prudent 

person would install under the circumstances. In fashioning a 

test for determining the adequacy of a berm, the Commission 

stated in part as follows at 5 FMSHRC 5: 

we hold that the adequacy of a berm or 

guard under section 77.1605(k) is to be measured against the standard of whether the berm 

or guard is one a reasonably prudent person 

familiar with all the facts, including those 

peculiar to the mining industry, would have 

constructed to provide the protection intended 

by the standard. See Alabama By-Products, 

supra. See also Voegele Company, Inc. v. 

OSHRC, 625 F.2d 1075, 1077-79 {3rd Cir. 1980). 

The definition of berm in section 77.2(d) 

makes clear that the standard's protective 

1439 
purpose is the provision of berms and, by 

implication, guards that are 11 capabJ.e of 

restraining a vehicle. 11 (Footnote omitted). 

With regard to the question as what constitutes an "elevated" roadway, .I take note of several berm decisions rendered 

by Commission judges and the Commission on this issue. In 

w. B. coal Company, 3 FMSHRC 193, 201-201 (January 1981), 

Judge Bernstein held that a roadway with "drops on both sides" 

was an elevated roadway. In Golden R Coal Company, 1 FMSHRC 

1843, 1848 (November 1979), I held that the location of an 

unprotected roadway where trucks were required to back up to 

begin their ascent up an incline was of sufficient height 

above the adjacent terrain to create a hazard in the event a 

truck ran off the unprotected elevated portion of the roadway 

and was in fact "elevated." In that case, the inspector testified that if a truck were to run off the road, it was likely 

to overturn, and he was aware of an accident where a truck 

overturned when the driver backed into a 2-foot hole. 

In Cleveland Cliffs Iron Company, 1 FMSHRC 1965, 1969 

(December 1979), Aff'd by the Commission at 3 FMSHRC 291 

(February 1981), Judge Broderick held that a cited roadway 

location which had 10 to 12 foot drop-off to a ledge below 

the roadway was of sufficient height above.the adjacent 

terrain to create a hazard in the event a vehicle ran off the 

roadway, and therefore was elevated. 

In Burgess Mining and Construction Corporation, 3 FMSHRC 

296 (February 9, 1981), Judge Fauver held that while a bridge 

could reasonable be found to be an elevated roadwayv the cited 

berm standard found at 30 CoFoRo § 77ol605(k)u was limited to 

roads cut along the side of mountain 1 hill, pit wall, or earth 

bank, and not to a bridge crossing a river. The Commission 

reversed, and stated as follows at 3 FMSHRC 297: 

Nothing logically suggests why a roadway ceases 

being such when it crosses a bridgeo A bridge 

is nothing more than that part of a road which 

crosses a streamo * * * Furtheru the hazards 

addressed by the standard are certainly no less 

serious and in need of prevention when a 

vehicle is elevated over a body of water that 

when it runs along elevated ground. 

In the instant case, Mr. Stovall estimated the distance 

of the roadway crossovers through and across the point where 

it crossed the drainage ditch as 15 feet, and a sketch of the 

area which he prepared reflects ~hat the depth of the ditch 

1440 
from the roadway surface to the bottom of the ditch is 8 feet 

(exhibit R-3; Tr. 35). The inspector's estimate of the depth 

of the ditch at the points where the roadway crossed at 10 to 

12 feet, and possibly 8 feet. While it is true that the roadway in question was generally on level ground, I conclude and 

find that the 15 feet portion of the roadway crossovers which 

continued across the ditches were elevated within the scope 

and meaning of section 56.9022, and the respondent's assertions to the contrary are rejected. 

With regard to the alleged inadequacy of the berms which 

were in place, I find the inspector's testimony that portions 

of the berms had eroded or slid over the roadway to the point 

where~they were either non-existent or too low to restrain a 

vehicle from going into the ditch to be credible. The respondent has not rebutted or denied the fact that the berms had 

slipped or eroded away. Further, I agree with the inspector's 

assessment of the potential hazard presented at the cited locations at the points where the elevated roadway crossed over 

the adjacent ditch areas which were 8 to 12 feet deep. I conclude and find that the inspector's belief that a vehicle 

driving across those locations would likely overturn and cause 

an accident with resulting injuries to the driver if it went 

into the ditch was reasonable. I further conclude and find 

that the petitioner has established that the eroded and 

non-existent berms at the cited locations adequately and reasonably support the inspector's conclusion that the berms 

were inadequate. Accordingly, the citation IS AFFIRMED. 

Size of Business and Effect of Civil Penalties on the 

Respondent 0 s Ability to Continue in Business 

The parties have stipulated that the respondent is a 

medium-sized operator. Respondent has advanced no argument 

or evidence to establish that the payment of the civil 

penalties which have been proposed will adversely affect its 

ability to continue in business. I conclude and find that 

the civil penalties which have been assessed for the violations will not adversely affect the respondent's ability to 

continue in business. 

History of Prior Violations 

The computer print-out summarizing the respondent's compliance record for the period April 23, 1984 through April 22, 

1986, reflects that the respondent paid civil penalty assessments totalling $8,672, for 43 violations, 17 of which are 

paid "significant and substantial" (S&S) violations. For an 

operation of its size and scope, I cannot conclude that the 

1441 
respondent's compliance record is such as to warrant any additional increases in the civil penalty assessments which I _have 

made for the violations which have affirmed in these 

proceedings. 

Negligence 

In Docket No. KENT 86-133-M, the inspector found a "high" 

degree of negligence at the time he issued the citations in 

question, and he marked the appropriate box on the citation 

form to reflect this finding. 

With regard to the lock-out citation, I take note of the 

fact that no prior citations were issued for violations of 

section 56.12016, and the respondent established that it at 

least de-energized the electrical equipment before work was 

performed on it, and that it also used the services of a contract electrician. With regard to the citation for failure 

to report and record equipment defects, the evidence establishes that the equipment operators themselves were not 

reporting these defects, and that the respondent did have the 

check-list forms available at the mine but apparently chose 

not to use them because it believed that its "oral" reporting 

system was more effective and had previously been approved by 

another inspector. Although the record shows one prior citation for a violation of section 56.9001, the petitioner failed 

to produce that citation and furnished no further details as 

to the circumstances under which it was issued. 

With regard to the smoking violation based on the existence of the cigarette butts which the inspector foundf 

although one prior violation of section 56.4100(b)u is noted 

in the respondent 0 s prior history of violations, no further 

explanation of that citation was forthcoming from the petitioner, and the record establishes that the respondent did 

have the area posted with a no-smoking sign. 

The petitioner has advanced no arguments to support the 

inspector 0 s "high" negligence findings, and I find no credible testimony from him in the record to support these findings. In any eventv I conclude and find that the three 

violations in question resulted from the respondent's failure 

to exercise reasonable care to insure compliance with the 

requirements of the cited mandatory safety standards. I 

further find and conclude that the respondent knew or should 

have known about the cited conditions and that its failure to 

address those conditions constitutes moderate and ordinary 

negligence. 

1442 
With regard to the inoperative hand brake and inadequate 

primary brakes on the front-end loader, since the loader had 

several other defects which were readily observable and 

detected, a reasonable and prudent operator would have taken 

the loader out of service for a thorough inspection. If this 

were done, I believe the lack of an operable handbrake and 

inadequate primary brakes would have been detected. Under 

the circumstances, the inspector's finding of a high degree 

of negligence is affirmed. 

In Docket No. KENT 86-134-M, the inspector's negligence 

findings for the two braking violations reflect findings of 

"reckless disregard." With regard to one of the trucks, the 

inspector indicated that the non-functional emergency brake 

condition had previously been cited during an inspection on 

January 8, 1986, and that the defective rear brakes had been 

inoperative "for several years." He also found that the 

brake fluid reservoir was empty, and the condition of the 

reservoir led him to believe that fluid had not been added 

for some time. With regard to the second truck, he found an 

empty brake fluid reservoir, and that the brake hoses had 

been disconnected. 

I find no credible evidence to support the inspector's 

belief that one of the trucks had operated with defective 

rear brakes "for several years." However, I find his testimony to be credible as to the condition of the brake fluid 

reservoirs and the fact that the brake hoses on one of the 

trucks were disconnected and that the emergency brake on the 

truck had been previously cited. Under these circumstances, 

although I cannot conclude that the evidence supports the 

inspector•s nreckless disregardn negligence findings, I do 

conclude and find that it supports a finding of a high degree 

of negligence as to both violations, and supports a finding 

that the respondent knew or should have known of the cited 

defective braking conditions. 

In Docket No. KENT 86-155-M, concerning the berm citation, the inspector found a "high" degree of negligence. The 

evidence establishes that rock berms were provided but had 

slipped down an adjacent embankment. Although the inspector 

testified that the conditions had existed for "several 

months," he did not cite the condition on prior inspections, 

and I find no credible evidence to support his high negligence finding. However, I do conclude and find that the 

respondent failed to exercise reasonable care by failing to 

add additional materials to reconstruct the berms, and that 

this omission on its part constitutes moderate and ordinary 

negligence. 

1443 
Gravity 

I conclude and find that all of the violations which 

have been .affirmed in these proceedings were serious. Failure 

to provide locks and to have an established lock-out procedure 

for electrically powered equipment presented a hazard in that 

the equipment could have inadvertently energized while someone 

was performing work on it. In this event, I conclude that it 

was reasonable likely that anyone working on the equipment 

would be exposed to an electrocution hazard with serious 

resulting injuries. 

All of the braking violations presented an accident 

potential which would reasonably and likely be expected to 

result in injuries to the vehicle operators as well as to 

other equipment operators and miners exposed to such hazards. 

The failure to report and record defective equipment would 

result in delays in correcting any hazards, as well as permitting equipment to continue to operate with defects. One 

can reasonably conclude that in such a situation, there was a 

reasonable likelihood of accidents, with resulting injuries 

to those mine personnel who were expected to operate the 

equipment, as well as to other miners in close proximity to 

the equipmento 

The smoking violation presented a potential fire hazard, 

particular in light of the evidence which established the 

presence of combustible oils, hydraulic fluid, fumes, and 

accumulated oily rags and oil spillage. In the event of a 

fire, I believe it is reasonably likely that miners in or 

around the shed would be exposed to hazards resulting in 

serious injurieso The lack of adequate berms presented a 

hazard in that a truck or other vehicle operator approaching 

the of the crossover, particularly those in large haulage 

trucks, would have an inadequate warning that they were close 

to the adjacent drainage ditch. If a truck were to drive over 

the edge of the ditch, it could possibly overturn, thereby 

exposing the driver to an accident hazard, with resulting 

l'.'.jurieso 

Siqnificant and Substantial Violations 

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." 30 C.F.R. § 814Cd)(l). A violation is properly 

designated significant and substantial "if, based upon the 

1444 
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). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission 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 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 United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further 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.v 6 FMSHRC 1834v 1836 (August 

1984). We have emphasized thatv in accordance 

with the language of section 104(d)(l>v 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 1866v 1868 (August 1984}q U.S. 

Steel Mining Company, Inc.r 6 FMSHRC 1573u 

1574-75 (July 1984). 

Incorporating by reference my gravity findings, and 

applying the principles of a "significant and substantial" 

violation as articulated by the Commission in the aforementioned decisions, I conclude and find that with one exception 

(Citation No. 2657392-lack of adequate berms), the remaining 

violations were all significant and substantial, and the findings by the inspector in this regard ARE AFFIRMED. 

1445 
I conclude and find that in terms of continued normal 

mining operations, the hazards noted in my gravity findingp 

support a conclusion that there was a reasonable likelihood 

that the cited conditions could contribute to the hazards 

resulting from the violative conditions in question. In each 

of these instances, had the events noted occurred, I believe 

it is reasonable to conclude that the injuries produced could 

be of a reasonably serious nature. 

With regard to the inadequate berm citation, the respondent's evidence, which I find credible, establishes that the 

roadway widths at the crossover points were wide enough to 

more than adequately accommodate the largest vehicle using 

that road, with more than adequate clearance on either side 

of the vehicle. Further, there is no evidence of any speeding or vehicles passing each other on the crossovers, and I 

believe that the respondent's testimony that the vehicles 

approached the crossovers on a "straight line" rather than 

cutting corners or approaching it at an angle to be more 

credible than that of the inspector. I also note that the 

inspector initially found upon inspection that an injury was 

unlikely and that the violation was not significant and 

substantial, but later changed his mind and modified the citation accordingly because of a purported "clerical error." I 

reject the inspector's explanation as to why he later changed 

his mind as less than credible. Although I have concluded 

that the violation was serious, I cannot conclude that the 

petitioner has established that it was significant and substantial. Accordingly, the inspector's finding in this regard IS 

VACATED. 

Good Faith Abatement 

With regard to Citation Nos. 2657189 and 2657190, concerning the defective brakes on the cited 35-ton haul trucks, 

the record reflects that they were taken out of service when 

the inspector issued the violations. Both violations were 

terminated on March 4v 1986, after repairs were made. Respondent s credible testimony reflects that parts were ordered 

and that the repairs were completed within 3 days of the issuance of the orders. Under the circumstances, I conclude and 

find that these violations were timely abated in good faith 

by the respondent. 

The smoking violation was timely abated when the respondent posted a letter advising employees not to smoke in posted 

areas, and the berm citation was terminated one day prior to 

the time fixed by the inspector. As to these citations, I 

1446 
conclude and find that the respondent exercised good faith in 

timely abating the violations. 

The lock-out violation (No. 2657368), front-end loader 

violation (No. 2657373), and check-off list violation 

(No. 2657377) were all initially issued as section 104(a) 

citations. Upon subsequent inspections, the inspector found 

that the cited conditions had not been timely abated within 

the time fixed, and this resulted in the issuance of section 

104(b) orders. In each instance, the inspector noted on the 

face of the orders that "no apparent effort" was made by the 

respondent to timely abate the violative conditions cited in 

the notices. No information was forthcoming as to whether or 

not the orders were contested, and it is clear that they are 

not the subject of these civil penalty proceedings. 

With regard to the lock-out citation, the evidence establishes that after the citation was issued, the respondent did 

purchase locks. However, upon his subsequent inspection on 

February 26, 1986, the inspector found that they were not 

being used, and that a lock-out procedure had not been formulated and adopted by the respondent. He also found that electrical and mechanical work was being performed without locking 

out the equipment., Under these circumstances, he issued the 

section 104(b) order. Although it is true that the purchase 

of locks indicates that the respondent made some effort to 

timely abate the violative conditions, the fact remains that 

total abatement was not achieved by the time the inspector 

returned on his subsequent inspection. Under the circumstances, I conclude and find that the respondent exhibited 

less than total good faith compliance in timely abating the 

citation" 

With regard to the inoperable emergency brake and inadequate primary brakes on the front-end loader, the inspector 1 s 

subsequent inspection on February 26, 1986, which resulted in 

the issuance of an order, indicated that the emergency brake 

was still inoperative; and that the primary braking system 

had completely failed. However, the order; on its face, 

reflects that a new emergency brake had been installed, and 

both Mr. Stovall and Mr. Joines confirmed that work had been 

done on the brakes shortly after the citation was issued, and 

Mr. Joines confirmed that repairs were completed within 3 or 

4 days of the issuance of the citation. They attributed the 

subsequent loss of braking power after the repairs were made 

to a defective air compressor which subsequently blew out and 

had to be replaced. I find their testimony to be credible, 

and find no credible evidence by the inspector to support his 

conclusion that the respondent "made no apparent effort" to 

1447 
correct the cited conditions. To the contrary, I conclude 

that the respondent did make a good faith effort to correqt 

the originally cited conditions, and that after the order was 

issued, additional repairs were timely "lllade to abate the conditions cited in the order. 

With regard to the equipment check-list citation, when 

the inspector returned on a subsequent inspection on 

February 26, 1986, he found no evidence that the available 

check-lists were being used and that instructions as to their 

use had not been given to the equipment operators. He also 

found some defective brakes on equipment, and this led him to 

believe that the lists were not being used and that defects 

were still going unreported. Since the inspector found that 

compliance had not been achieved by February 21, 1986, the 

date fixed for abatement of the citation, he issued the order. 

Under the circumstances, I conclude and find that the respondent exhibited less than good faith compliance in timely abating the citation, and that it did so only after the order 

issued. 

Civil Penalty Assessments 

' 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, the following civil penalties are assessed by me for 

the violations which have been affirmed. 

DOCKET NO. KENT 86-133-M 

Citation No. 

2657368 

2657373 

2657377 

2657386 

Date 

01/07/86 

01/08/86 

01/08/86 

04/22/86 

DOCKET NO. KENT 86-134-M 

30 C.F.R. Section 

56.12016 

56.9003 

56.9001 

56.4100(a) 

Order Noo Date 30 C.F.R. Section 

2657189 

2657190 

02/26/86 

02/26/86 

DOCKET NO. KENT 86-155-M 

Citation No. Date 

2657392 04/23/86 

56.9003 

56.9003 

30 C.F.R. Section 

56.9022 

1448 

Assessment 

$ 500 

$ 450 

$ 375 

$ 150 

Assessment 

$ 500 

$ 600 

Assessment 

$ 150 
ORDER 

The respondent IS ORDERED to pay the civil penalties in 

the amounts shown above within thirty (30) days of the date 

of these decisions. Payment is to be made to MSHA, and upon 

receipt of same, these proceedings are dismissed. 

4.~~ Administrative Law Judge 

Distt"ibution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Brent Yonts, Esq., 114 Mill Street, P.O. Box 195, Greenville, 

KY 42345 {Certified Mail) 

/fb 

1449 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTR~TlYE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 131987 

BILLIE D. MARTIN, 

Complainant 

v. 

GABRIEL MINING COMPANY, INC., 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

KENT 87-64-D 

BARB CD 87-05 

Appearances: Billie D. Martin, Evarts, Kentucky, Pro Se. 

Before: Judge Weisberger 

Statement of the Case 

On February 2, 1987, Complainant filed a complaint with the 

Commission, pursuant to Section l05(c) of the Federal Mine Safety 

and Health Act of 1977, alleging, in essence, that he was fired 

by Respondent because he refused to do electrical and mechanical 

work for which he was not qualified. The records of the 

Commission indicate that the Complainant sent Respondent, via 

certified mail, return receipt requested, a letter containing his 

complainto Respondent did not claim the letter and it was 

returned to the Complainanto 

On April 7v 1987v Chief Judge Paul Merlin sent Respondent, 

via Certified Mailv return receipt requested, an order directing 

Respondent to answer the Complainant within 30 days. The order 

further notified Respondent that failure to comply with the order 

will be deemed cause for the issuance of an order of default. 

The Respondent did not claim this letter, and it was returned to 

the Commission. The Respondent did not answer the order dated 

April 7p 1987. 

On July 8v 1987, a notice sent to Respondent, via Certified 

Mail, return receipt requested and via regular mail, scheduling a 

hearing in the above matter for July 30, 1987 in Knoxville, 

Tennessee. The Respondent did not claim the Registered Letter 

containing the notice of hearing, and it was returned to the 

Office of Administrative Law Judges. The notice sent regular 

mail was not returned. At the hearing, on July 30, 1987, the 

Complainant appeared and testified on his on behalf. The 

Respondent did not appear. 

1450 
On August 6, 1987, on Order was issued finding the 

Respondent in default. 

Inasmuch as the Respondent has been found to have been in 

default, the only issue presently to be decided is the scope of 

relief that Complainant is entitled. It was the Complainant's 

uncontradicted testimony that while employed at Respondent's mine 

in Bailey 1 s Creek, Kentucky, his salary was $10 an hour. He 

further testified that he worked 8 hour a day, and 40 hours a 

week. It was further his testimony that after he was fired by 

Respondent on October 1, 1986, he was unemployed until mid 

December 1986, when he entered into a p~rtnership driving a truck. 

The Complainant's partner uses the receipts of the partnership to 

pay all obligations of the partnership and the remainder is split 

between the Complainant and his partner. It was the 

Complainant's testimony that in the 32 weeks that he has been 

involved in this partnership, until July 24, 1986, he has earn 

$120 a week. The 32 weeks compute from December 8, through July 

24. Inasmuch as the Complainant has not requested reinstatement, 

it is concluded that Respondent is responsible for payment of the 

Complainant's back wages only during the time that he was 

unemployed and presumably available for reemployment by 

Respondent. 

Accordingly, it is ORDERED that, within 30 days of the date 

of this decision, the Respondent pay the Complainant $12,800 as 

back pay for the period between October 1 and December 5, 1986. 

With interest to be calculated in accordance with the formula in 

Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). 

Distribution~ 

~isbeke~ Administrative Law Judge 

(703) 756-6210 

Mro Billie Do Martin, Rt. 2r Box 188, EvartsF KY 40828 (Certified 

Mail) 

Gabriel Mining Company, Inc., Rt. 2, Box 322, Evarts, KY 40828 

(Registered Mail) 

dcp 

1451 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 13 i987 

OTIS M. SCHMOLD~, 

complainant 

v. 

GABRIEL MINING COMPANY, INC., 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

KENT 87-65-D 

BARB CD 87-06 

Appearances: Otis M. Schmoldt, Le Junior, Kentucky, Pro Se. 

Before: Judge Weisberger 

Statement of the Case 

On March 30, 1987, Complainant filed a complaint with the 

Commission, pursuant to Section 105(c) of the Federal Mine Safety 

and Health Act of 1977, alleging, in essence, that he was fired 

by Respondent because he refused to do electrical and mechanical 

work for which he was not qualified. The records of the 

Commission indicate that the Complainant sent Respondent, via 

certified mail, return receipt requested, a letter containing his 

complaint. Respondent did not claim the letter and it was 

returned to the Complainant. 

On April 7 1987v Chief Judge Paul Merlin sent Respondentu 

via Certified Mailu return receipt requested, an order directing 

Respondent to answer the Complainant within 30 days. The order 

further notified Respondent that failure to comply with the order 

will be deemed cause for the issuance of an order of default. 

The Respondent did not claim this letterv and it was returned to 

the Commission, The Respondent did not answer the order dated 

April 7v 1987. 

On July 8u 1987v a notice sent to Respondent, via Certified 

Mailv return receipt requested and via regular mail, scheduling a 

hearing in the above matter for July 30 1 1987 in Knoxville, 

Tennessee. The Respondent did not claim the Registered Letter 

containing the notice of hearing, and it was returned to the 

Office of Administrative Law Judges. The notice sent regular 

mail was not returned. At the hearing, on July 30, 1987, the 

Complainant appeared and testified on his on behalf. The 

Respondent did not appear. 

1452 
On August 6, 1987, on Order was issued finding the 

Respondent in default. 

Inasmuch as the Respondent has been found to have been in 

default, the only issue presently to be decided is the scope of 

relief that Complainant is entitled. It was the Complainant's 

uncontradicted testimony that he was unemployed from the date he 

was fired by Respondent on October 17, 1986 through July 7, 1987, 

when he obtained a position driving a truck at $3.35 and hours 

working 12 hours a day, 5 days a week. For the first 2 weeks of 

his job he was paid for 80 hours at $3.35 an hour and 26 hours at 

one and half times $3.35 an hour. It also was the Complainant's 

testimony that during the period that he was unemployed, from 

October 17, 1986 to July 7, 1987, the only income that he had 

consist~d of $2,000 he received as unemployment insurance 

benefits. 

Based upon all of the above it is ORDERED that: 

1. The Respondent shall, by August 24, 1987 reinstate 

the complainant to the position that he previously held on 

October 17, 1986, at the previous rate of pay. 

2. The Respondent shall, within 30 days from the date 

of this decision, pay the Complainant the sum of $13,200 as back 

pay for the period from October 17, 1986, through July 3, 1987, 

as reduced by the amount of unemployment insurance benefits 

received during that period. Interest shall be paid to the 

Complainant by the Respondent as calculated in accordance with 

the formula in Secretary/Bailey v. Arkansas Carbona, 

5 FMSHRC 2042 (1984). 

3o The Respondent shall 1 within 30 days from the date 

of the decisionv pay the Complainant the sum of $402 as back pay 

for the period from July 7, 1987, through July 24, 1987. The 

Respondent shall continue to pay the Complainant at this rate of 

pay until the Complainant is r~ ~-

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210 

Distribution~ 

Mr. Otis M. Schmoldt, P. 0. Box 57, Le Junior, KY 40849 

(Certified Mail) 

Gabriel Mining Company, Inc., Rt. 2, Box 322, Evarts, KY 40828 

(Registered Mail) 

dcp 

1453 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

BECKLEY COAL MINING 

COMPANY 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

Before: Judge Melick 

AUG 131987 

CONTEST PROCEEDING 

Docket No. WEVA 87-204-R 

Safeguard No. 2575910; 4/24/87 

Beckley Mine 

DECISION 

On April 24u 1987, a notice to provide safeguard was issued 

by the Secretary under section 314(b) of the Federal Mine Safety 

and Health Act of 1977v 30 U.S.C. § 801 et.~, the "Act," to 

the Beckley Coal Mining Company (Beckley). On May 26, 1987, 

Beckley attempted to contest that safeguard notice "pursuant to 

Section 2700.20 of the Rules of Procedure". 

Thereafter, on June 4, 1987, the Secretary filed his Answer 

and a Motion to Dismiss stating therein that neither section 

105(d) of the Act nor Commission Rule 20 provide for the contest 

or review before this Commission of notices of safeguardso The 

Secretary noted that Section lQl(c) of the Act provides a 

mectianism for the operator to challenge or contest mandatory 

safety standards (or a notice of safeguard enforced as a 

mandatory safety standard) and that such proceedings are not 

within the Commission 1 s jurisdiction. Beckley did not respond to 

the Secretaryus Motion to Dismisso 

Commission Rule 20 (a) cited by Beckley as authority for its 

attempt to contest the notice of s eguard at issue, tracks the 

language section 105(d) of the Act. Under that section a 

mine operator may contest an order issued under section 104, a 

citation or a penalty assessment issued under section 105(a) or 

section 105(b), or the reasonableness of the length of abatement 

time fixed in a citation. The safeguard notice here challenged 

is not within any of these categories. 

1454 
Accordingly the Secretary's Motion to Dismiss filed in-these 

proceedings is granted and the attempted contest of Safeguard 

No. 2575910 is dismissed. If the Secretary shou d subsequently 

issue a citation or order for a failure to compl with the 

safeguard notice the mine operator may then wish ~o file a 

contest under section 105(d) of the Act. 

Distribution: 

ary M lick 

Admini trative aw Judge 

(703) 56-6261 

Edward N. Hall, Esq., Robinson & McElwee, P.O. Box 1580, 

Lexington, KY 40592 (Certified Mail) 

Sheila K. Cronan, Esq., Office of the Solicitor, u. S. Department 

of Labor, Ballston Tow~r *3, Room 516, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

npt 

1455 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COlFAX AVENUE, SUITE AOO 

DENVER, COlORAOO 80204 AUG 14 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

B & B EXCAVATING, INC., 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 87-20-M 

A.C. No. 05-02140-05504 

Docket No. WEST 87-23-M 

A.C. No. 05-02140-05505 

Docket No. WEST 87-35-M 

A.C. No. 05-02140-05506 

Docket No. WEST 87-36-M 

A.C. No. 05-02140-05507 

Docket No. WEST 87-37-M 

A.C. No. 05-02140-05508 

Docket No. WEST 87-51-M 

A.C. No. 05-02140-05509 

Docket No. W~ST 87-91-M 

A.C. No. 05-02140-05510 

Docket No. WEST 87-92-M 

A.C. No. 05-02140-05511 

Eaton Pit 

DECISION 

Appearances~ Margaret A. Miller, Esq.v Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Mark C. VanNess, Esq., Jones, Meiklejohn, Kehl & 

Lyonsp Denverv Coloradov 

for Respondent. 

Before~ Judge Cetti 

STATEMENT OF THE CASE 

This consolidated civil penalty proceeding arises under the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

~, (Mine Act). The Secretary of Labor on behalf of the Mine 

Safety and Health Administration, charges the operator of Eaton 

Pit with ~iolations of Title 30 C.F.R. safety regulations. 

1456 
Pursuant to Section llOCa) of the Mine Act the Secretary of 

Labor filed a petition for assessment of civil penalties in each 

of the above captioned cases. The Respondent made a timely 

appeal in each of these cases. After proper notice to the 

parties the matter came on for hearing before me on June 24, 

1987. 

At the hearing I granted the joint motion of the parties to 

consolidate the above captioned cases for hearing. 

STIPULATIONS IN ALL CASES 

At the hearing the parties stipulated as follows: 

1. The Respondent, B & B Excavating, Inc., is engaged in 

the mining and selling of sand and gravel in the United States 

and itg operations affect interstate commerce. 

2. B & B Excavating, Inc. is the owner and operator of the 

Eaton Pit mine. 

3. The Respondent, B & B Excavating, is a sand and gravel 

operator, producing 120,000 tons per year. It has about 100 

employees of which approximately 9 to 12 work in the Eaton Pit 

area on a seasonal basis. 

4. B & B Excavating, Inc. is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et~ 

S. The administrative law judge has jurisdiction in this 

matter. 

6. All the citations in each docket were properly served by 

a duly authorized representative of the Secretary upon an agent 

of B & B Excavatingv Inc" on the date and place stated in the 

citation 0 and are to be admitted into evidence for the purpose of 

establishing the issuance of those citations. 

7. The proposed penalties will not affect the Respondent's 

ability to continue in business. 

8" The operator has demonstrated good faith in abating all 

citations. 

9" Respondent 1 s history of previous violations is shown in 

the computer printout received in evidence which lists the violations for which citations were issued at Respondent's Eaton Pit 

for the 2-year period terminating on July 8, 1986. 

Docket No. 87-23-M 

Citation No. 2634597 

Citation No. 2634597 charges a non-significant and substantial violation of 30 C.F.R. § 56.12008 which requires adequate insulation and proper fittings for power wires and cables. 

1457 
The citation alleges that 10/4 Type 50 power cable entering 

the motor terminal box for the "Seco" screen drive motor was not 

provided with a cable entrance fitting. The cable supplied 480 

VAC. 3 phase power to the motor and no cable damage was observed 

at the box. 

The violation was abated in a timely manner and the citation 

terminated when the 10/4 50 cable entering the "Seco" screen 

motor terminal box was provided with a fitting. 

At the hearing Respondent moved to withdraw its notice of 

contest. The motion was granted. 

The parties stipulated that the Secretary's proposed $20 

civil penalty was the appropriate penalty and agreed Respondent 

should be allowed 90 days to pay the penalty. 

Citation No. 2634507 

Citation No. 2634507 alleges a non-significant and 

substantial violation of 30 C.F.R. § 56.12008 in that certain 

cables were not properly installed where they passed into 

electrical compartments. 

The Respondent showed good faith in abating the violation in 

a timely manner. The citation was terminated. 

At the hearing the Respondent moved to withdraw its notice 

of contest. The motion was granted. 

The parties stipulated that the Secretary's proposed $20 

penalty was the appropriate civil penalty and that Respondent be 

allowed 90 days to pay the penalty. 

Citation Noo 2634598 

Citation Noo 2634598 alleges a non-significant and 

substantial violation of 30 C.F.R. § 56.12008 in that specified 

cables entering and exiting electrical enclosures were not 

properly installed in their respective entrance and exit 

fittings, 

At the hearing the Secretary moved without objection to dismiss the citation for lack of evidence. The motion was granted. 

The Secretary stated on the record that the basis for the motion 

was that preparation for hearing has shown that the Secretary has 

insufficient evidence to support the alleged violation. 

Docket No. 87-20-M 

This docket consists of thirteen citations. Each citation 

number, the safety standard allegedly violated, and the proposed 

penalty are as follows: 

1458 
Citation/Order 

2634461 

2634478 

2634479 

2634487 

2634595 

2634596 

2634599 

2634641 

2634644 

2634462 

2634470 

2634471 

2634473 

30 C.F.R. § 

56.12041 

56.12001 

56.12001 

56.12002 

56.12008 

56.12004 

56.12008 

56 .14001 

56.12032 

56.12008 

56.14026 

56.12030 

56.12025 

Proposed Penalty 

$ 42.00 

42.00 

42.00 

20.00 

42.00 

50.00 

42.00 

42.00 

42.00 

42.00 

74.00 

85.00 

42.00 

The Secretary moved to withdraw Citation Nos. 2634461, 

2634641, 2634644 and 2634470 for lack of sufficient evidence. 

The motion was granted. 

Respondent then moved to withdraw its notice of contest with 

regard to the other citations in this docket. The motion was 

granted. The parties agreed with respect to those citations that 

the appropriate penalty for each was the penalty proposed by the 

Secretary and that respondent should be allowed 90 days to pay 

the penalties. 

D9cket No. 87-35-M 

This docket consists of 20 citations. Ten of the citations 

allege a violation of the safety standard 30 C.F.R. § 56.12001 

which requires circuits to be protected against excessive overload by fuses or circuit breakers of the correct type and 

capacityo Eight of the citations allege a violation of 30 C.F.R 

§ 12002 which regulates control of switches used on electrical 

equipmento Two of the citations allege a violation of § 56.12004 

which regulates the size of current capacity of electrical 

conductors to ensure that a rise in temperature resulting from 

normal operation will not damage the insulating material. 

The citation numberq the standard allegedly violatedu and 

the Secretary's proposed penalty are as follows: 

Citation/Order 

2634463 

2634464 

2634465 

2634466 

2634467 

2634468 

30 C.F.Ro § 

56.12001 

56.12002 

56.12002 

56.12002 

56.12002 

56.12002 

1459 

Proposed Penalty 

$ 50.00 

50.00 

50.00 

20.00 

50.00 

50.00 
2634469 

2634475 

2634476 

2634477 

2634480 

2634481 

2634482 

2634483 

2634484 

2634485 

2634486 

2634488 

2634600 

2634643 

56.12004 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12002 

56.12002 

56.12004 

56.4102 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

so .• 00 

50.00 

20.00 

20.00 

50.00 

50.00 

Respondent moved to withdraw its notice of contest with 

r0spect to all 20 citations. The motion was granted. The 

parties agreed that the Secretary's proposed penalty for each 

violation is the appropriate penalty and that respondent should 

have 90 days to pay the civil penalties. 

Docket No. WEST 87-36-M 

This docket consists of 20 citations. Each citation number, 

safety standard allegedly violated, and the Secretary's proposed 

penalty are as follows: 

Citation/Order 

2634646 

2634647 

2634472 

2634474 

2634648 

2634489 

2634490 

2634491 

2634492 

2634493 

2634494 

2634495 

2634496 

2634497 

2634499 

2634500 

2634502 

2634505 

2634842 

2634843 

30 C.F.R. § 

56.12013 

56.12018 

56.12041 

56.12001 

56.9087 

56.12041 

56012041 

56.12041 

56.12041 

56.12001 

56.12041 

56.12002 

56.12002 

56.12002 

56.12002 

56.12002 

56.12001 

56.12001 

56.12001 

56.12001 

Proposed Penalty 

$ 50.00 

50.00 

20.00 

85.00 

68.00 

20.00 

50.00 

20.00 

50.00 

50.00 

20.00 

20.00 

50.00 

20.00 

50.00 

20.00 

20.00 

50.00 

50.00 

50.00 

The Secretary moved to dismiss Citation No. 2634647 for lack 

of sufficient evidence. The motion was granted. The respondent 

then moved to withdraw its notice of contest with respect to the 

remaining citations in this docket. The motion was granted. 

1460 
The parties stipulated that the Secretary's proposed 

penalties were the appropriate penalties for the violations and 

that respondent should have 90 days to pay these civil penalties. 

Docket No. WEST 87-37-M 

This docket consists of 10 citations. Each citation number, 

standard allegedly violated and the Secretary's proposed penalty 

are as follows: 

Citation/Order 

2634844 

2634845 

2634846 

2634847 

2634848 

2634849 

2634850 

2634852 

2634854 

2634857 

30 C.F.R. § 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12008 

56.14001 

Proposed Penalty 

$ 50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

20.00 

68.00 

Respondent moved to withdraw its notice of contest with 

respect to all citations in thi~ docket. The motion was granted. 

The parties agreed that the Secretary's proposed penalty for each 

violation was the appropriate penalty and that respondent should 

have 90 days to pay these civil penalties. 

Docket No. WEST 87~51-M 

This docket consists of citation number .02634498 issued on 

July 22, 1986 alleging a violation of 30 C.F.R. § 56.12002 for 

lack of individual motor running overload control protection on 

specified equipment. Respondent's motion to withdraw its notice 

of contest was grantedo The parties agreed that the Secretary's 

proposed penalty for each violation was the appropriate penalty 

and that respondent should be allowed 90 days to pay the civil 

penalties. 

Docket No. WEST 87-91-M 

This docket consists of 20 citations. Each citation number 

standard allegedly violated, and the Secretaryws proposed penalty 

are as follows~ 

Citation/Order 

2634649 

2634501 

2634503 

2634504 

2634506 

2634841 

2634853 

30 C.F.R. § 

56.11002 

56.12001 

56.12041 

56.12001 

56.12025 

56.12008 

56.12032 

1461 

Proposed Penalty 

$ 50.00 

50.00 

50.00 

20.00 

50.00 

20.00 

50.00 
2634856 

2634508 

2634510 

2634511 

2634512 

2634513 

2634514 

2634515 

2634516 

2634517 

2634518 

2634519 

2634520 

56.12030 

56.12002 

56.12013 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12001 

56.12002 

56.12002 

56.12002 

50.00 

85.00 

50.00 

50.00 

50.00 

33.00 

50.00 

50.00 

50.00 

50.00 

20.00 

20.00 

20.00 

The Secretary of Labor moved to withdraw Citation Nos. 

2634649, 2634853 and 2634511 for lack of evidence. The motion 

was granted. The respondent then moved to withdraw its notice of 

contest with respect to the remaining citations. The motion was 

granted. The parties agreed that the penalties proposed by the 

Secretary of Labor are the appropriate penalties for the violations and that respondent should have 90 days to pay said civil 

penalties. 

Docket WEST 87-92-M 

This docket consists of the four citations listed below with 

the citation number, standard allegedly violated and the 

Secretary's proposed penalty as follows: 

Citation/Order 

2634684 

2634858 

2634859 

2634860 

30 C.F.R. § 

56.12001 

56.12008 

56.12018 

56.12013 

Proposed Penalty 

$50.00 

20.00 

50.00 

50.00 

The Secretary of Labor moved to withdraw Citation No. 

2634859 on the basis of insufficient evidence. The motion was 

granted. Respondent then moved to withdraw its contest with 

respect to the four remaining citations within this docket. The 

motion was grantedo The parties agreed that the Secretary's 

proposed civil penalties are the appropriate penalties for each 

of the violations and agreed that respondent should have 90 days 

to pay said civil penalties" 

FINDINGS AND CONCLUSIONS OF LAW 

Based upon the pleadings, stipulations, and the information 

placed upon the record at the hearing, I enter the following 

findings and conclusions of law: 

1. The Respondent, B & B Excavating, Inc., is engaged in 

the mining and selling of sand and gravel in the United States 

and its operations affect interstate commerce. 

1462 
2. B & B Excavating, Inc. is the owner and operator of the 

Eaton Pit Mine. 

3. Respondent has about 100 employees of which approximately 9 to 12 work in the Eaton Pit area on a seasonal basis. 

4. B & B Excavating, Inc. is subject to the jurisdiction of 

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

et ~· 

5. As the Administrative Law Judge assigned by the Federal 

Mine Safety and Health Review Commission to hear this case, I 

have jurisdiction to hear and decide this case. 

6. Respondent's history of previous violations is shown in 

the computer printout which lists the violations for which 

citations were issued at Respondent's Eaton Pit for the 2-year 

period terminating on July 8, 1986. 

7. The penalties assessed will not affect Respondent's 

ability to continue in business. 

8. The operator has timely abated each of the citations and 

has demonstrated good faith in doing so. 

9. Each citations, except those listed below as dismissed, 

is affirmed and its related proposed civil penalty is assessed as 

the appropriate penalty for each of the violations. 

ORDER 

1. Each of the citations listed below is dismissed and its 

related proposed penalty vacated: Citation Nos. 2634598, 2634461, 

2634641, 2634644, 2634470v 2634647, 2634649, 2634853, 2634511, 

and 26348590 

2o All other citations are affirmed and in satisfaction of 

these citations IT IS ORDERED that Respondent shall within 90 

days from the date of this decision pay a civil penalty in the 

sum of $3,466 for the violations found herein. 

Judge 

~ 

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) 

Mark c. VanNess, Esq., Jones, Meiklejohn, Kehl and Lyons, 1600 

Lincoln Center, 1660 Lincoln Street, Denver, CO 80264 <Certified 

Mail) 

/bls 

1463 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 14 1987 

ODELL 1-t.AGGARD I DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. KENT 87-138-D 

MSHA Case No. BARB CD 86-72 

CHANEY CREEK COAL CORPORATION,: 

Respondent Dollar Branch Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of discrimination 

filed by the complainant against the respondent pursuant to 

section 105(c) of the Federal Mine Safety and Health Act of 

1977. The complainant alleged that after his reinstatement by 

the respondent as a result of a prior discrimination complaint, 

he was subsequently forced to quit his job because of harrassment by the respondent. A hearing on the merits of his complaint was scheduled for London, Kentucky, during September 1-3, 

1987. However, the parties have now filed a joint motion to 

dismiss the complaint on the ground that they have settled their 

dispute in accordance with a settlement agreement which they 

have filed" 

Discussion 

Pursuant to the terms of the settlement agreement, 

Mr. Maggard agrees to withdraw his complaint and to waive his 

claim to reinstatement and attorney fees in this matter. In 

return, the respondent agrees to pay Mr. Maggard the sum of 

$7,000 in damages. Said damages are to be paid in separate 

installments of $1,000 each. The first installment shall be 

paid on or before July 22, 1987; and the remaining installments 

shall be paid on or before the 22nd of each succeeding month 

(with the final installment due on January 22, 1988}. 

1464 
Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the parties in this proceeding, 

I conclude and find that it reflects a reasonable resolution of 

the complaint. Since it seems clear to me that the parties are 

in accord with the agreed-upon disposition of the complaint, I 

see no reason why it should not be approved. 

ORDER 

The proposed settlement IS APPROVED. Respondent IS ORDERED 

AND DIRECTED to fully comply forthwith with' the terms of the 

agre~ment. Upon full and complete compliance with the terms of 

the agreement, this matter is dismissed. 

~K~~ Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

Thomas w. Miller, Esq., Miller, Griffin & Marks, P.s.c., 

700 Security Trust Building, Lexington, KY 40507 

(Certified Mail) 

/fb 

1465 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

PEABODY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Before: Judge Lasher 

AUG 171987 

DECISION 

CONTEST PROCEEDING 

Docket No. WEST 87-113-R 

Citation No. 2830921; 2/11/87 

Black Mesa Mine 

The Contestant, Peabody Coal Company, in its Notice of 

Contest filed herein on March 9, 1987, contested the so-called 

"significant and substantial" and "unwarrantable failure" 

allegations of the subject Citation No. 2830921, which was issued 

under Section 104(d)(l) of the 1977 Mine Act. 

Pursuant to agreement reached by the parties, Contestant 

agrees to pay a reduced, administrative penalty (no penalty 

proposal has been filed with this Commission) of $50.00 and 

withdraw its Notice of Contest in return for Respondent MSHA's 

agreement to the rnodif ication of the Citation in the following 

respects: 

Ca> Deletion of the "unwarrantable failure" nature of the 

Citation by striking, in line 12 of the Citationu the 

authority shown for its issuance, •104Cd)(l),• and substituting therefor •104(a) 0 

Cb) Deletion of the •significant and Substantial• designation shown on line lOC of the Citation; 

Cc> Changing the degree of negligence (charged at line 11 

of the Citation) from "High" to 11Moderate 11 0 

Respondent agreeing to the above-specified modifications of 

the Citations, they are so ordered; to effectuate the settlement 

reached and the prompt and amicable resolution of this matteru 

and as requested by the parties, the Contestantv Peabody Coal 

Company, shall forthwith pay MSHA in accordance with its agreement and established procedures a penalty of $50.00; Contestant's 

withdrawal of its Notice of Contest is approved (29 C.F.R. 

2700.11) and this proceeding is dismissed. 

~~~?d· ~ffet::-;fi_ Michael A. Lasher, Jr. 

Administrative Law Judge 

1466 
Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 71 Stevenson Street, P.O. Box 3495, San 

Francisco, CA 94119-3495 {Certified Mail) 

Michael A. Kafoury, Esq., P.O. Box 373, St. Louis, MO 63166 

CCertif ied Mail) 

/bls 

1467 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 191987 

HARLEY M. SMITH, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 86-23-D 

BOW VALLEY COAL RESOURCES BARB CD 85-69 

INC., 

Appearances: 

Before: 

·Respondent Docket No. KENT 86-84-D 

BARB CD 86-7 

Oxford No. 5 Mine 

DECISION 

David M. Taylor, Esq., Smith & Carter Law Officers, 

Harlan, Kentucky, for the Complainant; 

Joshua E. Santana, Esq., Brown, Bucalos, Santana & 

Bratt, P.S.C., Lexington, Kentucky, for the 

Respondent. 

Judge Weisberger 

Statement of the Case 

On or about September 18p 1985p Complainant filed a Complaint 

with the Federal Mine Safety and Health Administration alleging 

that after making safety complaints to Respondent, commencing on 

December 13v 1984u he was required to work both as a miner's 

helper and also as a ventilation man. He also alleged that he was 

discriminated against unlawfully in that he did not receive benefits "while I was off." On October 21, 1985, Complainant was 

advised that the Mine Safety and Health Administration determined 

that a violation of Section 105(c) had not occurred. On or about 

November 18, 1985v Complainant filed. his complaint with the 

Commissiono 

On or about November 15, 1985, Complainant filed another 

complaint with the Mine Safety and Health Administration alleging 

that he was. served a letter, on November 12, 1985, terminating 

1468 
his employment, and that the termination is related to his discrimination complaint that he filed on September 18, 1985. On 

February 24, 1986, the Mine Safety and Health Administration 

advised Complainant that it determined that a violation of 

Section 105(c) had not occurred. On or about March 7, 1986, 

Complainant filed his complaint with the Commission. 

Subsequent to notice, these cases were scheduled and heard 

in Harlan, Kentucky on November 18-19, 1986. 

On April 14, 1987, I issued a decision that the Complainant 

had established a prima f acie case that a violation by Respondent 

of Section 105(c) of the Act occurred when it terminated the 

farmer's employment. The decision, by its terms, was not to be 

final until the issuance of a further order with regard to 

Complainant's relief. In this connection, the decision of 

April 14, 1987, ordered the Complainant to do the following: 

Complainant shall file a statement within 20 days of 

this decision indicating the specific relief requested. 

This statement shall show the amount he claims·as back 

pay, if any, and interest to be calculated in accordance with the formula in Secretary/Bailey v. Arkansas 

Carbona, 5 FMSHRC 2042 (1984). The statement shall 

also show the amount he requests for attorney fees and 

necessary legal expenses if any. The statements shall 

be served on Respondent who shall have 20 days from the 

date service is attempted to reply thereto. 

On May 8, 1987, Complainant filed a request to be allowed an 

additional 10 days to comply with the above Order. This request 

was grantedo In a telephone conference call between Counsel for 

both Parties and the undersignedu it was agreed that the 

Complainant would have an extension until June Sv 1987, to file 

his statement with regard to the relief requested. On May 27, 

1987, Complainant filed a letter asking that he be immediately 

reinstated to his former job. On June 15, 1987, in a telephone 

conference call between Counsel for both Parties and the undersigned, it was agreed that the time for the Complainant to file 

his statement for relief shall be extended until June 22, 1987, 

and the Respondent shall have 10 days from June 22, 1987, to file 

its response. On June 24, 1987, Complainant filed its statement 

for relief. On June 29, 1987, Respondent filed depositions of 

Mary Carroll Burnett taken on June 4, 1987, and a deposition of 

Harley M. Smith taken on May 5, 1987. On June 29, 1987, 

Respondent filed a Motion for Reconsideration. On July 2, 1987, 

Complainant filed its opposition to Respondent's motion. On July 

9, 1987, Respondent filed its reply to the Complainant's Statement for Relief. 

1469 
On July 15, 1987, in a conference call between Counsel for 

both Parties and the undersigned, Counsel were ordered to sμbmit 

evidence as to the proper amount of attorney fees to be awarded. 

Complainant filed a statement on July 15, 1987. On August 3, 

1987, Respondent filed a supplement response to Complainant's 

request 'for attorney fees. No response was filed by Complainant. 

Discussion 

I. Reinstatement 

Complainant has requested reinstatement, and I find that the 

Complainant should be reinstated to his former position at Bow 

Valley Coal Resources, Inc. 

II. Back pay 

In its response to Complainant's request for back pay, 

Respondent argues that the latter failed to make a diligent 

reasonable effort to find new employment. In this connection, 

Respondent relies on the deposition of Mary Carroll Burnett, a 

vocational rehabilitation counselor and vocational consultant, 

who analyzed Complainant's work skills and concluded that he is 

an excellent candidate for seeking and obtaining employment. She 

further indicated if a person is truly motivated to obtain work 

such a person will make a daily effort to seek employment. The 

Complainant in his deposition indicated that he has searched for 

employment at least twice a week. Further, in his deposition, as 

quoted by Respondent on pages two to four of its response to 

Complainant's request for back pay, the Complainant has detailed 

some of the sources that he contacted and the frequency with 

which he contacted them. According to his deposition, in 

addition to taking two test for Toyota, he applied to nine mines 

and followed up with these applications at three mineso Thus, I 

find that the Complainant did make a reasonable effort to obtain 

employment. 

Respondent also argues that the award to Complainant for 

back pay should be reduced by the unemployment benefits he 

received during the period of unemployment, in order to avoid 

unjust enrichment. I reject Respondent's argument and conclude 

that the Respondent 1 s obligation to make the Complainant whole as 

the result of the former's acts of discrimination, in violation 

of Section 105(c) of the Act, should not be reduced by the amount 

of the Complainant's unemployment benefits. To do so would 

create a windfall to the Respondent. See Boitch v. FMSHRC and 

Neal, 704 F. 2d 275 (6th Cir. 1983); NLRB v. Marshal Field and 

company, 318 U.S. 253, 255 (1943); NLRB v. GuIIett Gin Company, 

340 U.S. 361, 369 (1951). 

1470 
Based on the above, I find that the Complainant is entitled 

to back pay with interest less earned wages in the amounts set 

forth and calculated in Complainant's statement filed on June 24, 

1987. 

III. Attorney Fees 

Complainant submitted a statement, on June 24, 1987, which 

itemizes the time Counsel spent on this case and an "average 

hourly rate" of a $100 per hour. Respondent in its reply, which 

was filed on July 9, 1987, argued .that $100, an hour is excessive 

inasmuch as Complainant's attorney was ad~it~ed to the Kentucky 

Bar on October 22, 1985, and does not posses~ any peculiar 

expertise in the area litigated. Respondent further asserted 

that there are few experienced Kentucky attorneys who charge $100 

an hour. In a telephone conference call, ori July 15, 1987, the 

Parties were ordered to submit evidence on the issue of the 

proper attorney fees to be allowed. The only response received 

from Complainant, a statement filed on July 20, 1987, contains an 

assertion that $100 an hours is 11 •••• the usual rate for legal 

services before both the Social Security Administration and the 

Department of Labor, Federal Black Lung Division." No further 

documentation of any sort was submitted by Complainant. On 

August 3, 1987, Respondent filed its supplemental response to 

Complainant's request for attorney fees, and submitted a copy of 

an Order of Robert F. Stephens, Chief Justice of the Supreme 

Court of Kentucky, entered on March 5, 1987, suspending 

Complainant's Counsel for "nonpayment of dues." Also submitted 

was an affidavit from Robbin Brock which indicates she is a 1984 

law school graduate, and that she has been practicing in Harlan, 

Kentucky, and that her hourly rate ranges from $50 to $75 per 

hour" Also submitted was an affidavit from Respondent's Counsel 

indicating that he has been licensed to practice law in the 

Commonwealth of Kentucky since 1976, and that he is engaged in 

the practice of law in Lexington, Kentucky and that in the area 

in which he has particular expertise, his hourly rate is $90 per 

hour and that in all other matter his customary hourly rate is 

$80 per hour" Furtheru Respondent has submitted an affidavit 

from Ho Kent Hendrickson, President of the Harlan County Bar 

Association, in which affiant stated that after contacting other 

attorneys in Harlan, Kentucky, the range of hourly billing for 

attorneys in the area of the administrative law with up to 2 

years of experience is from $50 to $75 per hour. The affiant 

also stated that he has an excess of 5 years experience in 

administrative law and bills $75 per hour for such work. 

1471 
In calculating the amount of attorney fees to be allowed the 

reasonable hourly rate must first be considered. See Hensley v. 

Eckerhart, 103 S.Ct. 1933 (1983); Blum v. Stenson, 104 S.Ct. 1541 

Cl984); see also£ court Awarded Att:"Orney'Fees ~ 16.03. 

Inasmuch as Complainant is the party seeking attorney fees, 

he clearly h.as the burden of proof on this issue •. I find that 

the Complainant has not met his burden in establishing that $100 

is a reasonable rate for an attorney with his experience. Taking 

into an account the affidavits submitted by Respondent, the level 

of Complainant's Counsel's experience as indicated in the 

uncontradicted statements made by Respondent, and the complexity 

of this case, it is concluded that $50 ~n hour is a reasonable 

amount. 

Respondent also objected to Complainant's billing at 

one-quarter hour increments. The only evidence submitted on this 

issue by Complainant's Counsel is contained in a statement filed 

on July 15, 1987, wherein Counsel stated that the practice of 

billing by one-quarter hour increments 11 ••• is the customary 

practice in federal litigation, and in fact, is required by the 

Department of Labor's Division of Coal Mine Workers Compensation, 

and is also used by the Social Security Administration." 

Respondent's supplemental response filed on August 3, 1987, 

contains an affidavit by Respondent's Counsel wherein the affiant 

indicated that in all matters his customary billing increment is 

on an one-tenth hour basis. Also in a telephone conference call 

on July 15, 1987, Counsel for Complainant agreed to delete the 

last two items contained in the time sheet which were filed along 

with Complainant's statement on June 24, 1987. ·Accordingly, 

Complainant asked for an attorney fee predicated upon 72 total 

hourso 

There were no novel or complex legal issues in this casev 

and under the circumstances, I find that the time proffered as 

expended in this case was excessive, and that a reduction to 50 

hours is warranted. Thus I find that Complainant be allowed a 

reasonable attorney fee of $2,500 plus cost of $89.90 as itemized 

in the statement filed on June 24v 19870 

I further find that the affidavit of Amato Hoskins of June 

23, 1987p submitted by Respondent in support of its Motion of 

Reconsideration, is insufficient to cause me to reconsider my 

decision of April 14u 19870 Therefore, the Motion for Reconsideration is DENIED 

1472 
ORDER 

Based on the record in the case, it is ORDERED that: 

1. The decision issued April 14, 1987, is CONFIRMED and is 

now FINAL. 

2. Respondent shall, within 5 days of this decision, reinstate Complainant to the job that he formerly held at 

Respondent's Oxford No. 5 Mine. 

3. Respondent shall, within 30 days of the date of this 

decision, pay Complainant the sum of $2,500 for attorney fees and 

$86.90 for expenses. 

4. Respondent shall, within 30 days of the date of this 

decision, pay the Complainant $52,880.11 representing back pay 

and interest from lllovember 8, 1985 through June 30, 1987, less 

earnings during this period. The Respondent shall, in addition, 

within 30 days of this decision, pay the Complainant back pay and 

interest, at the rates set forth in Complainant's statement filed 

on June 24, 1987, for the period from July 1, 1987, until the 

Complainant is reinstated at his for r job. 

Administrative 

Avram Weisberger ~ Law Judge 

Distribution: 

David Mo Taylor, Esqou Smith & Carter Law Officersf Po Oo 

Box 710 Harlan, KY 40831 (Certified Mail) 

Joshua E. Santana, Esq., Brown, Bucalos, Santana & Bratt, P.S.C., 

201 Wo Short Street, Lexington, KY 40507 (Certified Mail) 

dcp 

1473 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath .FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 201987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF BRYAN PACK, 

Complainant 

v. 

MAYNARD BRANCH DREDGING CO., 

and ROGER KIRK, 

Respondents 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-9-D 

PIKE CD 84-10 

No. 1 Dredge 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for 

Petitioner; 

Hugh M. Richards, Esq., Maynard Branch Dredging 

Co., Auxier, KY, for Respondent. 

Before: Judge Fauver 

The Secretary brought this proceeding on behalf of Bryan 

Pack under§ 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977P 30 UoSoCo § 801 et ~v contending that he was 

discharged because of a safety complaint to Federal mine 

inspectors" The Secretary also seeks a civil penalty for the 

alleged violationo Respondents deny any discrimination against 

Pack and contend that he was discharged for cause. 

Based upon the hearing evidence and the record as a wholev I 

find that a preponderance of the substantial, reliablev and 

probative evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times Respondents operated a coal 

dredging and preparation facility in Lawrence County, Kentucky, 

where they produced about 9,000 tons of coal annually. The coal 

was regularly sold in interstate commerce. 

1474 
2. For about a year and a half before his discharge on May 

16, 1984, Bryan Pack was employed by Respondents as a night---time 

security guard and fill-in laborer. He usually worked alone, 

from 11:00 p.m. to 7:00 a.m. 

3. On May 15, 1984, before he left home to go to work, 

Bryan Pack was told by his brother, Jeffrey Pack, a former 

employee of Respondents, that the company was storing dynamite in 

the glove compartment of a school bus used as an office and 

storage facility at the dredging site. Since Bryan Pack spent 

most of his time in the school bus as a night security guard, he 

was very concerned about his safety when he heard that dynamite 

was being kept in the glove compartment. 

4. When he arrived at work, around 11:00 p.m., on May 15, 

1984, he carefully checked the glove compartment, where he found 

dynamite and blasting caps. He slowly and carefully .closed the 

glove compartment, left the bus, and spent the rest of the night 

in his truck or near it. 

5. He did not follow company procedure of telephoning the 

foreman at home to notify him of any danger or serious condition 

found at the mine. Also, the next morning, at the end of his 

shi.ft, he left the mine site without telling management or any of 

the incoming employees about the dynamite. He left the job site 

with his father, who drove there to pick him up. 

6. He told his father about the dynamite and as they drove 

by a restaurant his father recognized a Federal mine inspector's 

car in the parking lot. They pulled in, and Bryan Pack located 

two Federal inspectors in the restaurant. He told them about the 

dynamite and blasting caps. 

7o One of the inspectors, Bryan Wilson Lawson 0 went to the 

dredging site. He told the foreman he had a complaint about 

improper storage of dynamite. He then inspected the glove 

compartment, where he found two and a half sticks of dynamite and 

blasting caps. 

8. Inspector Lawson issued a citation to the company 

charging a violation of 30 C.F.R. § 77.130l(a). The company was 

assessed a civil penalty and paid without contest. 

9. Respondent Roger Kirk is the president of the company, 

and owns one-third interest in the business. He personally 

supervised the dredging fac ity. Kirk asked the inspector for 

1475 
the name of the person who had made the complaint about the 

dynamite. The inspector told him he did not get his name, but 

described him. Kirk recognized the description very well and 

stated, "We know who it is." Kirk believed that the complainant 

was Bryan Pack. 

10. After the inspector left the dredge, Kirk told the 

foreman, Rocky Fitzpatrick, to fire Bryan Pack. 

DISCUSSION WITH FURTHER FINDINGS 

Kirk testified that, before the dynamite incident, Pack's 

foreman wanted the company to fire him for a number of incidents, 

but Kirk gave Pack another chance. Kirk stated that Pack's 

failure to report the dangerous storage of dynamite and 

detonators to the company was "the straw that broke the camel's 

back." He explained this bosition in the following testimony: 

Q. What was there about this one particular incident 

that caused you to finally fire him? 

A. Like I said, it is pretty serious that you have 

people coming -- he is a security guard, he is a night• 

watchman, he is on the job. He testified a w1-ile ago how 

dangerous and how scared he was. Then you have six or seven 

guys coming back on the property to go to work, and instead 

of saying, hey, there's powder in there, do this and do 

that, he just runs off and leaves them. That is pretty 

serious in my book. [Tr. 193.] 

I find that the seriousness of Pack's misconduct as a 

security guard--in discovering a very dangerous situation and 

failing to report it to the foreman or oncoming crew--jeopardized 

their safety and motivated Kirk to discharge him. I also find 

that Respondents would have discharged him on that ground alone 

even if Pack had not complained to the inspectors. 

The Secretary made a prima facie case of discrimination. He 

proved that Pack engaged in a protected activity (notifying the 

inspectors of a danger and safety violation) and that Respondents 

were motivated at least in part by su~h protected activity in 

discharging him. However, Respondents rebutted the prima facie 

case by convincing proof that Respondents were motivated by 

serious unprotected misconduct of the employee and would have 

discharged him on that ground alone even if he had not complained 

to the inspectors. 

1476 
CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. On balance, the evidence does not establish a violation 

of section 105(c) of the Act as charged in the complaint. 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSED. 

Distribution: 

liJ~.VW\ r:L4VV<-

William Fauver 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S" Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Hugh M. Richards, Esq., HC 69, Box 300, Highway 23 North, Auxier, 

KY 41602 (Certified Mail) 

kg 

1477 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 20, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (~SHA), 

Petitioner 

v. 

THE FLORENCE MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-128 

A. C. No. 36-02448-03591 

Florence No. 2 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This is a civil penalty proceeding ar1s1ng under the 

Federal Mine Safety and Health Act of 1977 (Act). On 

June 22, 1987 tile Solicitor submitted a motion to approve 

settlements for the· four violations involved in this case. 

The originally assessed amounts totaled $3,500 and the 

proposed settlements were for $2,250. 

On July 24, 1987, I informed the parties that the 

proposed settlements for two of the orders, numbers 2695242 

and 2695244 1 did not satisfy the statutory criteria set forth 

in section llO(i) of the Act. Accordingly, the parties were 

informed that the June 22, 1987 motion would not be approved 

as submitted. The parties agreed to re-negotiate the 

proposed settlement amounts, and submit an amended motion to 

approve settlement. 

On August 6, 1987, the parties submitted an amended 

motion which proposed a settlement in the amount of $2,500. 

After review of this motion, I am satisfied that the recommended findings and conclusions set forth therein are in 

accordance with the record and that the settlement amount 

satisfies the requirements of the Act. 

The Solicitor's motion discusses each violation in light 

of the six statutory criteria set forth in section 110(1) of 

the Federal Mine and Health Act of 1977. Order No. 2695141 

was issued for a violation of 30 C.F.R. § 75.400 because 

1478 
loose coal and coal dust had accumulated in the No. 17 room 

of the mine. This penalty was originally assessed at $800 

and the proposed settlement is for $600. The Solicitor represents that a reduction from the original assessment is warranted for three reasons. First, the primary accumulation 

developed as a result of a coal spillage stemming from the 

connection of two cross ~uts; ·Thus, the hazard associated 

with the accumulation did not exist for a long period of time. 

Second, the machinery in the area of the accumulation satisfied permissibility standards. Thus, no ignition source was 

present. Third, only two people, as opposed to six cited by 

the inspector, could have been affected by the adverse condition. I accept the Solicitor's representations and approve 

the recommended settlement which remains a substantial 

amount. 

Order No. 2695160 was issued for a violation of 

30 C.F.R. § 75.400 because there was an accumulation of loose 

coal and float dust in the No. 2 main belt entry. The accumulation ranged from a light dusting to eighteen inches in 

depth. The inspector observed three areas of accumulation 

around the air locks, belt drives and inby the 4 West overcast. This violation was originally assessed at $900 and the 

proposed settlement· is for $600. The Solicitor represents 

that a reduction from the original assessment is warranted 

because no ignition sources were present in any of the cited 

areas. In addition, the belt drives are monitored by heat 

activated senors and are protected by a deluge type sprinkler 

system. I accept the Solicitor's representations and approve 

the recommended settlement which remains a substantial 

amount, 

Order No. 2695242 was issued for a violation of 30 C.F.R. 

§ 75.302(a) because the No. 3 and No. 4 rooms in the 1 South 

East working section were not adequately ventilated, This 

penalty was originally assessed at $800 and the proposed 

settlement is for $600. The Solicitor represents that a 

reduction from the original assessment is warranted because 

the affected areas were inactive, The Solicitor further 

represents that upon notification of the ventilation problem~ 

the operator promptly installed six check curtains to direct 

the air current towards the working face, I accept the 

Solicitor's representations and approve the recommended 

settlement. 

Order No. 2695244 was issued for a violation of 

30 C.F.R. § 75.400 because coal dirt and loose float coal 

dust had accumulated in the No. 1 belt entry. The accumulation ranged from a light dusting to 12 inches in depth. 

This penalty was originally assessed at $1,000 and the proposed settlement is for $700. The Solicitor represents that 

a reduction from the original assessment is warranted because 

1479 
no i·gni ti on sources were present in any of the cited areas. 

In addition, the belt drives are monito~ed by heat activated 

sensors and are protected by a deluge sprinkler system. The 

settlement motion also notes that no individuals were 

scheduled to work at the cited area during the shift. These 

factors reduce the likelihood and severity of the hazard. I 

accept the Solicitor's representations and approve the 

recommended settlement. 

Accordingly, the motion to approve settlement is GRANTED 

and the operator is ORDERED TO PAY $2,500 within 30 days from 

the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3S35 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

William M. Darr, Esq., 655 Church Street, Indiana, PA 15701 

(Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.i~ .• 

Washington 1 DC 20005 (Certified Mail) 

Mr, Edward J. Onuscheck 1 655 Church Street 9 Indiana. PA 

15701 (Certified Mail) 

I gl 

1480 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 AUG 211987 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On Behalf of 

JOSEPH GABOSSI, 

Complainant 

v. 

WESTERN FUELS-UTAH, INC., 

Respondent 

Docket No. WEST 86-24-D 

Deserado Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

· for Complainant1 

Richard s. Mandelson, Esq., Baker & Hostetler, 

Denver, Colorado, 

for Respondent. 

Before: Judge Morris 

This case involves a complaint of discrimination filed by 

the Secretary of Labor pursuant to the Federal Mine Safety and 

Health Act of 1977v 30 u.s.c. § 801 et~ 

The applicable portion of the Mine Act, Section 105(c)(l)v 

n its pertinent portionu provides as follows~ 

No person shall discharge or in any other manner discriminate against ••• or otherwise interfere with the exercise 

of the statutory rights of any miner ••• because such miner 

000 has filed or made a complaint under or relating to this 

Actu including a complaint notifying the operator or the 

operator us agent, or the representative of the miners ••• 

of an alleged danger or safety or health violation ••• or 

because such miner .•• has instituted or caused to be instituted any proceeding under or related to this Act or has 

testified or is about to testify in any such proceedings, 

or because of the exercise by such miner ••• on behalf of 

himself or others of any statutory right afforded by this 

Act. 

After notice to the parties, a hearing on the merits 

commenced in Glenwood Springs, Colorado on March 3, 1987. 

The parties filed post-trial briefs, 

1481 
Applicable Case Law 

The general principles governing analysis of discrimination 

cases under the Mine Act are settled. In order to establish a 

prima facie case of discrimination under section 105(c) of the 

Act, a complaining miner bears the burden of production and proof 

in establishing that Cl) he engaged in protected activity and (2) 

the adverse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 1981). 

The operator may rebut the prima facie case by showing either 

that no protected activity occurred or that the adverse action 

was in no part motivated by protected activity. If an operator 

cannot rebut the prima facie case in this manner, it nevertheless 

may defend affirmatively by proving that it also was motivated by 

the miner's unprotected activity and would have taken the adverse 

action in any event for the unprotected activity alone. Fasula, 

supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford 

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

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the Commission's Fasula-Robinette test). Cf. NLRB v. 

Transportation Management Corp., 462 U.S. 393-413 (1983)Capproving nearly identical test under National Labor Relations Act). 

Complainant's Evidence 

Joseph J. Gabossi, Boyd Emmons, Raja F. Upadhyay, Francis J. 

Kesting, Arthur Cordova and Daniel Ritter testified for 

complainant. 

JOSEPH Jo GABOSSI (sometimes called John Gabossi>u started 

mining in 1964 as a utility man and as a miner 1 s helper on a 

continuous miner" After a year and a half he moved to California 

for a different line of work. Two years later he returned to 

Mid-Continent Resources as a miner operator. He remained for a 

year and a half. At that point he took a pilot's training course. 

Thereafteru he started a security service and flew an airpl~ne 

part time (Tr" 9-11) o 

In 1971 he returned to Mid-Continent as a miner operator. 

He was promoted to fire boss, then face boss and later to mine 

foreman. In 1974 he became the mine superintendent. He remained 

in this position until 1979. While at Mid-Continent, he received 

his mine foreman papers. Such papers are issued by the State of 

Colorado after written and oral examinations. State certification is required to qualify an individual as a mine foreman in 

Colorado (Tr. 11-15, Ex. C4). A mine superintendent is responsible for all aspects of mining. However, a mine superintendent 

spends less time underground than a foreman (Tr. 16-18). 

Gabossi served as a mine foreman for two years. Thereafter, 

he worked as a mine superintendent for Black Rock Mining Company 

1482 
for a year and a half. After that stint he worked as a mine 

superintendent and foreman for Western Associated Coal Company. 

On October 1, 1982 he was hired by Western Fuels-Utah 

("Western"), as a mine superintendent/foreman for their coal mine 

in Rangely, Colorado. He was fired by Western on January 30, 

1985 (Tr. 9, 16-18, 117). 

At his initial job interview with Western he learned the 

company was hiring an underground mine superintendent as well as 

maintenance and surface superintendents. Gabossi was to have 

control of all underground operations. During Bootle's term as 

mine manager he did not have total control but he coordinated 

activities. At that time Gordon Burnett was the maintenance 

superintendent and John Trygstad was the surface superinten~ent. 

After he started at Western certain personnel changes 

occurred. Raja Upadhyay replaced John Bootle as the mine manager. 

Gabossi had also applied for the position. After being appointed 

Upadhyay requested assistance and Gabossi helped him. Burnett 

never went underground. Art Cardova, Gabossi's choice to be 

maintenance foreman, was hired. In June 1984, Burnett was 

replaced by A.B. Beasley CTr. 19). Although Gabossi and Burnett 

had.their "ups and downs", Gabossi and Beasley could not get 

along. Beasley would not coordinate any underground maintenance 

activities with him. Changes were made underground without 

informing him. This caused friction and Gabossi continually 

talked to Upadhyay about it (Tr. 20, 118-121, 155-157, 179). 

Shortly after Upadhyay started things became very 

disorganized; major unauthorized ventilation changes were made 

underground. In June, July and August 1 1983 maintenance workers 

shut fans off whi workers were underground~ they failed to 

notify anyone. A methane buildup can occur in these circumstances (Tr. u l23v 132u 133v 180)0 

Gabossi told Upadhyay that maintenance should notify him and 

coordinate any changes so people wouldn't be hurt. Upadhyay said 

maintenance wasnut Gabossi 1 s business$ he wasn 1 t to bother with 

it (Tr. 22). 

Gabossi was vaguely familiar with Upadhyay 1 s memorandum of 

June 1983u which discussed the separation of powers between 

department heads (Tr" 149, 150, 153, Ex. Rl). On February 14, 

1984 Upadhyay informed Gabossi that there was a definite separation between the departments (Tr. 149-152). 

In Oct.Ober 1984 Gabossi was told he would have a breakdown 

mechanic on each production shift. But maintenance at the face 

would be under Beasley (Tr. 23). As mine foreman and superintendent Gabossi felt it was his responsibility to know who is underground and where they are located. This is especially necessary 

1483 
in the event of an evacuation or a disaster (Tr. 23, 24). On 

weekends maintenance was working without notifying anyone they 

were in the mine. High voltage changes were also made without 

notifying anyone. Gabossi told Upadhyay that he should be 

advised when this occurred but he received thd same reply. 

Other instances occurred: In October 1984 miners were hurt 

underground whi operating a 913 EIMCOS; four sets of arches 

were knocked out. It was three or four weeks before repairs were 

made (Tr. 24, 25, 135). Gabossi complained; Upadhyay responded 

to the effect that maintenance was Beasley's function. In short, 

Gabossi should stay out of it. Gabossi was concerned about 

safety since someone could be hurt due to the delay in making 

repairs (Tro 25, 135). On February 14, 1984, Gabossi showed 

Upadhyay the Colorado statute ~/ and requested coordination 

between the two departments. Gabossi expressed concern that if 

!/ The relevant Colorado statute provides as follows: 

34-24-101. Mine foreman - eligibility - duties - reciprocity. (1) The owner shall employ a certified mine foreman 

for every mine, except those mines in which no more than 

three persons including the owner are employed or work 

underground in which case one man must be at least of the 

status of a certified shot firer. 

(2) The mine foreman shall have full charge of all inside 

workings and of all persons employed therein, in order that 

all the provisions of articles 20 to 30 of this title, 

insofar as they relate to his duties, shall be complied 

with, and so that the regulations prescribed for each class 

of workmen under his charge shall be carried out in the 

strictest manner possible. 

(3){a) Persons certified as eligible to hold positions of 

ne foreman, assistant mine foreman, mine electrician, 

strip t foremanv assistant strip pit foreman, or fire 

boss authority of any state in the United States produci coal shall be eligible to act in their respective 

classes in the state of Colorado" Recognition of a 

certificate from another state shall be given only where 

such state issuing such certificate shall make eligible for 

employment in such state all persons holding certificates 

of competency issued by the board of examiners of ColoradoQ 

and if the certificates of competency have been issued after 

an examination, which in the opinion of the board of examiners of Colorado shall be the practical equivalent of the 

of the examination provided for in articles 20 to 30 of 

this t 

(b) When approved by the board of examiners, any person 

holding a certificate issued by any other state may act in 

the capacity for which such certificate is issued in any 

mine in this state only until the next regular examination 

held by the board of examiners for Colorado certification. 

(4) No certified mine foreman, assistant mine foreman, 

mine electrician, strip pit foreman, assistant strip pit 

foreman, or fire boss need be employed in mines where no 

more than three persons, including the owner, are employed 

or work underground. 

Ex. Cl 

1484 
anyone was hurt he could lose his mine foreman papers. The issue 

of underground coordination was discussed ten to fifteen times. 

It got to be a headache. Upadhyay did not seem to be willing to 

work on the problem (Tr. 26, 126). 

Upadhyay's interpretation of the statute was that maintenance was none of Gabossi's business. In addition, he was going 

to check with Jack Kesting and get back with him. Gabossi believes the statute makes the mine foreman responsible for the 

safety and health of all employees underground (Tr. 128, 129). 

Gabossi wanted jurisdiction over breakdown maintenance and 

coordination between preventative maintenance and production (Tr. 

130, 131). 

After their initial confrontation on interpretating the 

statute, Gabossi next confronted Upadhyay on March 6, 1984 (Tr. 

153). Gabossi said he couldn't work under these conditions and 

he offered to resign if the company bought his house. Upadhyay 

talked him out of it (Tr. 154). Gabossi raised this issue on 

several other occasions (Tr. 154, 155). He offered to quit two 

or three times but the offer to quit was not made after November 

9 (Tr. 155). 

On November 6, 1984, Gabossi called Boyd Emmons, a state 

mine inspector. He explained the lack of coordination at the 

mine and the various happenings, including the ventilation 

problem. He also expressed concern about losing his papers. 

Emmons advised him that he was responsible for everything 

underground including 'health, safety, haulage ways and mechanical. 

Furtheru as mine foremanu he had to be informed of activities 

underground (Tro 28u 29). Emmons volunteered to talk to Upadhyay 

but Gabossi requested a confirming lettero The letter was 

received on November 7th. 

On November 9th while Upadhyay was advising him of certain 

additional responsibilities, Gabossi presented the letter (Tr. 

30u 31). Upadhyay became "instantly" mad and a heated discussion 

followedo Upadhyay told him if he didn 1 t like it he should quit 

(Tro 3lu Ex. CS) o This exchange occurred on a Friday. On Monday 

afternoon Upadhyay called him to his office. He said he was 

"madder than helln because Gabossi had called the State of 

Colorado. He was also put on probation because he was not getting along with senior staff members. The witness described the 

conversation in detail (Tr. 35). Gabossi indicated it was the 

letter that had made Upadhyay mad; further, Gabossi felt the 

probation bore no relationship to a failure to get along with 

other staff members (Tr. 34). Upadhyay said the probation would 

last indefinitely. A letter of reprimand was put in his file 

(Tr. 35, Ex. C3). The letter of reprimand mainly addresses 

Gabossi's inability to work harmoniously under the organizational 

structure. But it states, in part, that "you have repeatedly 

objected to the idea of maintenance superintendent being 

responsible for underground maintenance" (Tr. 36, Ex. C3). 

1485 
That evening Gabossi called rn·spector Emmons. He, in turn, 

indicated he would talk to Upadhyay; Gabossi declined: it would 

only make Upadhyay madder. He told Emmons he would try to work 

it out (Tr. 37). Emmons said he would send another letter to the 

company outlining the.duties of a mine foreman. When Emmons' 

letter, addressed to Western, was put in Gabossi's mailbox he 

intercepted it. It was not shown to Upadhyay because he was 

afraid he would be fired; he was already on probation {Tr. 38, 

163, Ex. C9). 

In November 1984, Gabossi also talked to Hamlett J. Barry, 

acting director of the Colorado Division of Mines. He explained 

the lack of coordination at the mine and indicated he would deny 

any responsibility if anyone was killed. He agreed when Barry 

indicated he thought it was a "cover your butt" call (Tr. 41, 42). 

Upadhyay was cool between the time Gabossi was put on 

probation and January 21, 1985. On that date Gabossi brought to 

his attention that an electrical mechanic was falsifying 

inspection books. From then until he was discharged on January 

30, 1985 there was hardly any communication between the two men 

(Tr. 42, 43}. 

From November 12th to January 30th the two men did not argue. 

There was nothing in that time frame to warrant his termination 

except for relating to Upadhyay the situation involving the 

electrical books (Tr. 43). Gabossi was more quiet at staff 

meetings after being put on probation (Tr. 44). 

Gabossi claims he was fired because of his complaints about 

the ventilation, the EIMCO brakes, the arches, the falsification 

of the logs and his position as to a foreman's authority as set 

forth in Emrnons 1 letter. No one was disciplined for the first 

four inciden~s although Gabossi had recommended discipline (Tro 

138u 139) o He also would have fired the mechanic for falsifying 

the electrical books (Tr. 139). The miner had admitted the 

falsification to Gabossi and Art Cordova (Tr. 140, 145). But 

Upadhyay had not told Gabossi he was going to fire him for 

mentioning these matters (Tr. 143). Upadhyay did not demonstrate 

a concern for safety (Trc 143u 144). At no time did Gabossi file 

any written complaint with MSHA or with the State of Colorado 

regulatory body (Tr. 177). Emmons, the state officeru told him 

he could only investigate if he had a written complaint. He did 

not file a written complaint because he wanted to work it out 

th Upadhyay (Tr. 178). 

Beasley was still employed at Western when Gabossi was 

terminated. But about January 28, [1985] Beasley told Gabossi he 

was leaving for a better job. Gabossi denies that Upadhyay told 

him that he was being discharged because he had caused him to 

lose another maintenance superintendent (Tr. 158). 

Ritter and Gabossi were discharged on the same day, January 

30, 1985. Beasley left January 27th or 28th (Tr. 166, 167). 

1486 
On January 30th at the termination meeting, Gabossi was 

called to the manager's office. Upadhyay wanted him to resign. 

They discussed the issue of the repurchase of Gabossi's home. A 

heated argument followed. They discussed different matters 

including Gabossi's telephone call to the State of Colorado over 

the separation of departments. Gabossi said it was bad that he 

"got run off" for showing the letter from the Bureau of Mines. 

But Gabossi could not remember Upadhyay's reply. The termination 

letter states, in part, that the company needed "Employees who 

can act together as a team" CTr. 45, 46, 160, 161, Ex. C2). 

Other than for a complimentary memorandum f rorn Kenneth Holum, 

Upadhyay's supervisor, Cin January 1984), there had never been a 

reference concerning Gabossi's ability to work with other people 

(Tr. 47, 48, Ex. C6). 

In December 1983, in an employee appraisal, Upadhyay 

indicated Gabossi was doing an excellent job CTr. 48, 49, Ex. C7). 

When he left Western Gabossi's annual salary was $52,000. 

On January 21, 1985 two people under Gabossi as well as the 

mechanic foreman and the rest of the people on the payroll 

received a 5.8 percent pay raise. Dan Ritter didn't get a raise 

and Gabossi didn't know if the staff in Washington, D.C. received a raise (Tr. 50, 167-169, Ex. Cll). 

After he was terminated he was next employed on August 15, 

1985 by Mid-Continent Resources in Carbondale, Colorado (Tr. 9). 

A portion of Gabossi's salary with Western included medical 

and dental insurance. He incurred medical expenses between his 

termination on January 30, 1985 and his subsequent employment on 

August 15, 1985. These expenses, in the amount of $1,313, were 

not insured (Tr. 54, 55). However, he failed to present any 

proof that the insurance carrier refused to pay any claims presented in the 30 day period after he was discharged (Tr. 173)0 

After he was hired, and before he moved to Rangely, Bootle 

advised him the company would repurchase his house at what he 

paid for it if he left the company for any reason within three 

years (Tr. 55u 56, 169-1711. Shortly after leaving Western, 

Bootle confirmed the agreement in writing. The house loan, 

financed by Western, was immediately due when Gabossi was fired. 

In order to prevent a foreclosure Gabossi secured a new loan (Tr. 

58, 59, 65). The agreement to buy the house was not a condition 

when he became employed; it arose before he would buy a house in 

Rangely (Tr. 65). Gabossi would not have purchased a house if 

Western had not represented they would repurchase it (Tr. 67). 

He purchased the house for $119,000 and sold it for $114,000 (Tr. 

68, Ex. Cll, Cl2). His initial loss was $6,000, i.e., $120,000 

less $114,000. Additional expenses included fees for an abstract 

company at $223.25 and a real estate agent expense at $2,500. In 

addition, he paid interest of $3,015 for the $60,000 he had 

borrowed to prevent the foreclosure (Tr. 72, 73, Ex. Cll, Cl2). 

1487 
Western had guaranteed the note on the house. When he was 

terminated Zion Bank automatically started foreclosure (Tr. 73>. 

Gabossi made certain improvements on the property (Ex. Cll, Cl2). 

BOYD EMMONS, now retired, was formerly a District Mine 

Inspector for the State of Colorado. His duties included a broad 

range of activities relating to coal mines. In 1984 Colorado had 

enforcement· authority over Western only if a written complaint 

was filed. 

The Colorado statute provides for the duties of a mine 

foreman (Tr. 79-81, 86, 87, 98). Each mine has such a foreman 

(Tr. 82, 83). The state enforces the statute for the safety of 

all personnel underground. They seek to eliminate explosions, 

cave-ins, as well as serious injuries and fatalities (Tr. 84, 85, 

Ex. C4) • 

The witness has known Gabossi since 1978. 

When the statute refers to "inside workings", it means 

everything underground. "[i]n full charge" means in charge of 

everybody and every piece of equipment (Tr. 88). If an explosion 

occurs it is in the interest of safety to know who is underground. 

The witness described how safety concerns interface with ventilation and high voltage wiring CTr. 89). 

In October and November 1984, John Gabossi contacted the 

witness about three times by telephone. He was kind of "hot 

under the collar" and he wanted to know about what his job was, 

and he wanted to know about miners going underground. 

Emmons quoted him the statute and mailed him a copy (Tr. 90, 

91, 105, Ex. C5). Emmons also said he would need a written 

complaint (none was ever received). Gabossi explained his 

problem related to people going underground and working on 

equipment without his knowledge. He also complained about the 

manner in which equipment, ventilation and gas checks were 

handled. Emmons told him it was a violation of Colorado law for 

miners to go underground without notifying him of that fact. 

Further, in Emmons' opinion, this created safety problems (Tr. 

92, 99f lOOu 108-lll)o 

About three to five days later Gabossi again called him. 

This was just after Emmons had written to Western. Emmons had 

intended that the letter go to Western. When Gabossi learned 

about the letter he said. "Oh God, I'm dead if they get that" 

(Tr. 93u 102, 103, Ex. C9). Emmons also offered to go to the 

mine and talk to Upadhyay, but he did not do so. Gabossi said he 

would present the law to them (Tr. 94, 104). Emmons told Gabossi 

he was responsible for everything underground. 

In Colorado a foreman's certificate can be revoked and, if 

so, he would lose his livelihood as a foreman (Tr. 94, 95). 

Gabossi could face some kind of disciplinary proceedings if 

someone went underground without his knowledge (Tr. 96). 

1488 
Gabossi had always been honest with the witness. In the 

inspector's opinion Gabossi is a good, safety conscious miner 

(Tr. 96, 97). 

Emmons had never known of a mine organization where the 

foreman was not in complete charge of the underground workings 

(Tr. 112). But he was not aware of any complaints filed by any 

individual because Western's mine foreman did not have complete 

jurisdiction (Tr. 116). 

RAJA P. UPADHYAY, called as a witness by the Secretary, 

indicated that he had six months of underground coal mining 

experience in India (Tr. 187, 188). 

Western's organizational structure resulted in people 

working in the mine who did not report to Gabossi. But he was 

on shift either he or his foreman would know the location of all 

individuals underground. Around March 1984 Gabossi started 

complaining about the company's reporting structure (Tr. 189, 

190). Their conversations became heated and it became a long 

lingering problem between the two men. On November 9th Gabossi 

told Upadhyay the organizational structure should be changed or 

he could lose his foreman papers (Tr. 191). Upadhyay considered 

that Gabossi's complaint about men being underground without his 

knowledge was a safety related complaint (Tr. 196). 

On November 9th Gabossi presented a letter from the state 

agency. At the meeting he also said his foreman papers were at 

stake. The meeting, which was on a Friday, was a "big blowup." 

The next business day Gabossi received his probationary letter 

(Tr. 196, 197, Ex. C3). At the Friday meeting Upadhyay learned 

the first time that Gabossi had gone to a government agency 

(Tro 197, 198). Gabossi was orally placed on probation as of the 

the 13thb he was given a on November 12th (Tr. 199). 

In September Mr. Kestingu Western us safety directoru talked 

to Upadhyay about the effect of the Colorado statute. Be 

indicated the law gives the mine superintendent or mine foreman 

the total underground authority (Tr. 200). Upadhyay replied to 

Kesting that the statute didn°t require that maintenance be under 

Gabossi. Upadhyay did not follow the recommendation of his 

saf director (Tr. 201 u 202) . 

Gabossi avoided Upadhyay after he was placed on probation. 

ey resigned January 29th; Gabossi was terminated the next 

Beasley 1 s resignation triggered Gabossi 0 s termination as 

the nblowup" on the 9th. 

It was less than a week before he was terminated that 

Gabossi told him about the falsification of the MSHA permissibility log book (Tr. 203-205). Before he left Burnett stated 

that one of the reasons he was leaving was his inability to work 

with Gabossi. He also said Gabossi was going to "stab" Upadhyay 

in the back (Tr. 206, 207). Beasley and Gabossi had a dispute 

over control or coordination of underground maintenance. They 

1489 
brought that dispute to Upadhyay on at least one occasion. 

Upadhyay would tell them to work it out between themselves (Tr. 

211) 0 

FRANCIS J. KESTING, a senior staff member, was Western's 

director of safety and training from May 1982 to February 1985 

(Tr. 213). The senior staff consisted of division heads, namely 

Kesting, John Gabossi and Gordon Burnett,(succeeded by A.B. 

Beasley). Additional staff members included Mike Weigand (senior 

engineer), Doug Wilson (purchasing), Dan Ritter (personnel} and 

Glen Goodworth (accounting). 

The production foreman reported to John Gabossi while the 

maintenance foreman reported to maintenance superintendent 

Burnett or Beasley. Everyone on the senior staff reported to the 

mine manager (Tr. 214, 215). 

The witness was aware of the division between underground 

maintenance and underground production. In his opinion, based on 

a reading of the Colorado statute, the reporting procedure 

constituted a real safety problem particularly as it related to 

ventilation and belts (Tr. 216-220, 241). However, Kesting is 

not a lawyer nor has he researched the legislative history. 

Upadhyay was willing to discuss Kesting's interpretation of the 

statutory provisions (Tr. 239, 240, 242). Kesting did not 

investigate how other coal mines were structured (Tr. 239). 

Kesting learned by asking questions that Upadhyay had no coal 

mining experience. He believed the problem between Gabossi and 

Upadhyay arose from reporting structure at the mine (Tr. 258, 

259) • 

In September or October 1984 Gabossi brought the issue of 

reporting problem to the attention of the witness. Gabossi was 

worried about compliance with state law and the possibility of 

osing his foreman°s license (Tro 220u 221) o The witness expressed the view that the failure to coordinate underground 

acti ies was a violation of state law. In sum, there should be 

one person in charge of the active workings in an underground 

coal mine (Tr. 221, 222). 

Kesting discussed the problem with Upadhyay who said he 

would look into Kesting had nothing further to do with the 

issue (Tro 223) o Kesting was not aware if Upadhyay took any 

action on his recommendation (Tr. 224, 225). 

Kesting observed the professional dispute between Gabossi 

and Upadhyay concerning underground jurisdiction and other issues. 

Kesting himself had a dozen or more disputes with Upadhyay. At 

some Monday morning meetings Gabossi would ask for a 

clarification of the problem he had with underground maintenance 

(Tr. 225, 236, 237). Those in attendance at the production 

meetings included Kesting, Upadhyay, Gabossi, Trygstad and 

Weigand (Tr. 226, 227). Gabossi was afraid someone would be hurt 

and he'd forfeit his foreman's papers. Gabossi was the most 

senior "papered" man on the mine site (Tr. 227). 

1490 
Beasley and Gabossi also engaged in a professional dispute 

concerning underground activities (Tr. 227, 228). The dispute 

concerned the scheduling of underground maintenance on the 

equipment and the belt (Tr. 228). A safety problem existed with 

the underground people reporting to Beasley. The same situation 

existed when Burnett was maintenance foreman. 

During Kesting's tenure as safety director Gabossi requested 

jurisdiction of the underground breakdown maintenance crew (Tr. 

244). One on each crew reported to Gabossi. Also Gabossi didn't 

want jurisdiction over preventative maintenance; he wanted to 

know when they were underground (Tr. 245, 246). 

Upadhyay was concerned about safety in the mine. He also 

took an active role in investigating safety (Tr. 246, 247, 249). 

Upadhyay would say that the mine was going to be run 100 percent 

"by the book" CTr. 247). By that he meant no violation was to 

occur (Tr. 248). 

When the safety department made underground inspections the 

men reported to Gabossi or the foreman in the section (Tr. 249). 

Kesting could not recall Gabossi ever complaining about 

ventilation (Tr. 250). 

The safety depattment investigated the EIMCO brake 

malfunction incident. The vehicle was red tagged and put in the 

shop CTro 250~ 251). 

The safety department also determined that the arches should 

be replaced (Tr. 253). 

After Gabossi made him aware of the problem, Kesting 

investigated the false electrical records. Kesting recommended 

to Upadhyay that the offending miner be dismissed (Tr. 254v 255)0 

Upadhyay said he would handle it. Kesting thought Beasley's 

letter reprimand was inadequate (Tr. 255, 256)0 He told 

Upadhyay he disagreed with the discipline CTro 257). 

Gabossi and Kesting disagreed on many things. Gabossi 

particularly objected to a mandatory policy requiring safety 

glasses (Tr. 260, 261). Gabossi and Kesting worked out their 

problems as they occurred (Tr. 261). 

Gabossiu who is a good miner, was concerned that the death 

a miner would cause him to lose his foreman 1 s papers (Tr. 

262). Further, he has a concern for miner safety. 

Upadhyay perceived his problem with Gabossi as a personnel 

or management prerogative problem. But Gabossi saw it as a 

safety and legal problem (Tr. 263). In Kesting's opinion it was 

a safety and regulatory problem (Tr. 264). 

During the staff and production meetings or while underground Gabossi was no more insubordinate to Upadhyay than any 

other man on the staff CTr. 230, 231). Kesting observed no behavior that would warrant placing Gabossi on probation or warrant 

1491 
his termination (Tr. 231, 233). Gabossi did not treat Upadhyay 

with less respect than anyone else on the senior staff (Tr. 232). 

~t p+oduction meeting staff members scream, holler and carry on 

if they don 1 t get what they want (Tr. 233). 

When Kesting was hired, John Bootle indicated Western wanted 

the staff to live in Rangely. Kesting was also told he could 

build or purchase a house. In addition, if he left within three 

years Western would buy it back (Tr. 234). In fact, Kesting sold 

his house before leaving Western, so there was no occasion for 

the company to buy it back (Tr. 234). 

ARTHUR CORDOVA was employed at Western from 1982 to 1985. 

After starting as a mechanic he was promoted to maintenance 

foreman in charge of all underground maintenance workers as well 

as electrical and mechanical repairs (Tr. 268-270). When he 

first went into maintenance he reported to Gordon Burnett, the 

maintenance superintendent. When Burnett quit he reported to 

John Gabossi. Subsequently he reported to maintenance superintendent A.B. Beasley. The maintenance supervisor was in charge 

of both breakdown and preventative maintenance. 

Cordova saw Gabossi every day during inspections and when 

generally checking the mine (Tr, 270, 271). Cordova originally 

reported to Gabossi. When Beasley came to Western Cordova was 

told he would no longer report to Gabossi but only to him (Tr. 

27lu 272). Gabossi never had control over underground 

maintenance (Tr. 285). 

Cordova holds various papers and has taken safety courses~ 

but Beasley 1 s directive not to deal with Gabossi caused him a 

safety concern. Cordova followed the directive. When he brought 

this to the attention of Upadhyay he was told to follow the chain 

of command and was not to report to Gabossi (Tro 273Q 274u 

281[' 282 0 

Cordova was familiar Ln the Colorado law, He believed he 

was not in compliance if he didn't report to Gabossi (Tr. 275, 

276) 0 

l~:i:. the Deserado mine, from the -c.1me he started working 

there, Gabossi ran the mine "to book" and "whatever the law 

stated concerning reporting and repairs (Tr. 276v 277). Cordova 

considered Gabossi a good rninerv foreman and manager. He was 

also concerned with safety. Gabossi insisted on a good job (Tro 

276-278) 0 

The witness was hired by Dan Ritter, Western 1 s personnel 

director. Cordova is presently working for Gabossi at MidContinent Coal Company and he has worked for him a number of 

years, beginning in 1975 (Tr. 278, 280). 

DANIEL RITTER, a person experienced in management, was 

employed by Western as Director of Human Resources from October 

1981 through January 1985 (Tr. 287). 

1492 
Ritter was responsible for hiring the senior staff members, 

including John Gabossi (Tr~ 288). 

In Western's reporting structure John Bootle, as the mine 

manager, was senior. John Gabossi was the mine superintendent. 

The classic mining structure would have maintenance activity 

reporting to the mine superintendent (Tr. 289, 290). But he did 

not know the reporting structure at the Powderhorn Coal Company 

(Tr. 309). 

In Ritter's opinion the failure of the maintenance workers 

to report to the mine superintendent could adversely affect the 

safety of an underground miner (Tr. 291-293)0 Ritter had at 

least ,.one conversation concerning the company's reporting 

structure with Upadhyay and his supervisor, Don Deardorff and 

John Bootleo But he never offered his opinion that Upadhyay was 

violating the statute CTr. 294, 310). John Gabossi, as mine 

foreman, was not in charge of the workings at Western's mine (Tr. 

296). 

Ritter, who attended only senior staff meetings, never 

observed any behavior by Gabossi that could be characterized as 

rude, abusive, insubordinate or in any way out of the ordinary 

toward Upadhyay. Nor did he warrant any behavior that would 

warrant placing Gabossi on probation or terminating him. However, Gabossi was not impressed with Upadhyay's knowledge of the 

underground operations and he made disparaging comments about him 

out of his presence. (Tr. 297v 298, 310, 311). Gabossi generally 

attacked Upadhyay on a professional level, not in a personal 

sense (Tr. 312). 

Gabossi was not the only person at Western who took 

exception to Upadhyay (Tr. 312). 

Mro Gabossi was a good miner and respected by the miners who 

worked for him. He was safety conscious and considerate of the 

employees who worked for him (Tr. 299)" Fifty percent of the 

payroll people were at the mine because of Gabossi (Tr. 315). 

The professional dispute concerning the companyis structure 

surfaced as soon as Gabossi was hired. Burnett and Gabossi 9 experienced rninersv were not hesitant to say something about the 

structure. Gabossi and Burnett seemed to be able to work out the 

problems posed by the structure (Tr. 301) When Beasley was 

hired he and Gabossi attempted to resolve their differences (Tr. 

30lv 302). The organization structure did not change between 

1981 and 1985 (Tr. 320). Under the structure Upadhyay was in 

charge. In his absence the mine superintendent or the chief 

engineer would be in charge (Tr. 321, 322). As a personnel 

relations officer Ritter felt that the men in those two positions 

should get along (Tr. 322, 323). 

There were discussions with Gabossi, Burnett and Kesting 

about Western repurchasing at their cost any house they might buy 

in Rangely (Tr. 302-304, 318). These discussions between Gabossi 

and Bootle took place in the trailer facilities in Rangely (Tr. 

304). 

1493 
Terry Fritz, as part of the engineering function, reported 

to the chief engineer. Gabossi would not have any contact with 

the surveyors who were on a different reporting ladder and two 

supervisory levels lower (Tr. 306). 

When Beasley terminated he advised Ritter he was going to a 

better position, a better location and he would earn more money 

(Tr. 326). 

Ritter resigned from Western on January 31, 1985 after being 

given the option to resign or be fired. Although he was in 

charge of Gabossi's personnel file he had not seen his probation 

letter (Tr. 307, 308, Ex. C3). 

Western's benefits package provided insurance for its 

employees for 31 days after a worker is terminated (Tr. 317). 

In Ritter's opinion Upadhyay would consider it traitorous if 

anyone took problems to a regulatory government official instead 

of taking them up the chain of command (Tr. 326). 

Terry Fritz created the expression of "sand-nigger" as a 

reference to Upadhyay (Tr. 327). Weigand also used the same term 

in the same reference more than once (Tr. 328). Ritter had no 

memory of Gabossi using that term (Tr. 329). Beasley and Gabossi 

remarked about Upadhyay's lack of mining experience (Tr. 329). 

The witness himself did not use that term (Tr. 330). Upadhyay is 

a cordial individual who had a concern for safety (Tr. 331). 

Respondent's Evidence 

Michael Weigand, Terry Fritz, A.B. Beasley and Raja Upadhyay 

testified for respondento 

MICHAEL Jo WEIGAND has been in Western s employ since 1981. 

3e was hired 1981 as a planning engineer and promoted to chief 

mining engineer in 1982 (Tr. 345, 346lo 

Weigand was one supervisory level above Joe Kracum" The 

latter was the direct supervisor over Fritz and Langford (Tr. 

363). 

His duties include planning belt linesv ventilationv new 

constructionu roof controls and all aspects of the property. As 

chief engineer he is in almost daily contact with John Gabossi. 

He attended weekly staff meetings but not production meetings 

(Tr. 346v 347). Those under his jurisdiction included the mining 

engineer as well as lab and envirionmental technicians (Tr. 347)Q 

In the fall of 1984 Weigand became assistant mine manager (Tr. 

376). 

Surveyors are underground on a daily basis and in contact 

with Gabossi's people, Sunstrom and Marquez, as well as with 

Gabossi himself if he was in the section. The workers under 

Weigand's jurisdiction would work directly with Gabossi. In 

1494 
Weigand's view it is abnormal for a constant conflict to exist 

between operations and the surveying staff (Tr. 348, 349, 364, 

365) • 

Weigand's work with Gabossi involved anything underground. 

Weigand felt it was necessary to report to Gabossi when he went 

underground. However, Gabossi did not request such a report when 

the witness went underground (Tr. 349, 350). 

Weigand was not aware of any specific event involving 

Gabossi but his people complained about how they were treated 

underground. They complained of verbal abuse as well as 

complaints about the quality and timing of the work. It became 

necessary to almost schedule the trips underground on a daily 

basis just to avoid arguments and complaints. Weigand brought 

this to Upadhyay 1 s attention on two occasions in 1983 and 1984. 

Weigand and Gabossi had a couple of shouting matches but normally 

the two men got along pretty well (Tr. 350, 351, 365, 366, 368). 

Weigand never observed Gabossi verbally abuse any of the 

surveyors (Tr. 364, 371>. 

The basic problem was with the surveyors. Joe Kracum, 

Weigand's assistant, talked about it. Gabossi made numerous 

derogatory comments about Upadhyay's decision. The two men had a 

different philosophy about managing the mine and they had a lot 

of managerial type disagreements. But Weigand didn't recall 

Gabossi exploding at Upadhyay at any staff meetings (Tr. 352, 

353, 381). Gabossi felt the mine could be better managed; he 

also felt a lot of Upadhyay's decisions were poor (Tr. 353). In 

the discussions involving the two men safety was not discussed in 

particular 1 only in general. Upadhyay's responses indicated a 

concern for safety. When it was discussed Upadhyay would state 

the mine would be run on a safe operating basis (Tr. 353, 354). 

At one staff meeting Upadhyay asked the senior staff to keep 

their vehicles ean so the company could uphold its image in 

towno Gabossi refused ng he personally would not do that 

(Tr. 379) o In Weigand's view that remark was insubordinate (Tr. 

379 9 386). On one occasion Gabossi complained about not receiving reports on the construction side but that was none of his 

business Tro 380~ 381) In the latter part of 1984 Weigand 

heard Gabossi slam Upadhyay's office door and as he left he said 

"that dumb son of a bitch" (Tr. 387). 

On June 4u 1984 Weigand received correspondence from Terry 

Fritz (Tr" 354-356 0 Exo R2) o They talked; in short, Fritz was 

leaving because of the verbal abuse and constant complaining by 

Gabossi (Tr" 358v 359). Fritz was not a malcontent at the mine; 

howeveru he was in his relationship with Gabossi (Tr. 368)" 

Gabossi also complained about the quality of Fritz's work.2/ 

Weigand would investigate and he found the work had been perform2/ In cross examination the witness indicated Gabossi never 

complained directly to him about the work of Fritz and Langford 

(Tr. 369, 372). 

1495 
ed in a satisfactory fashion (Tr. 359). Weigand conveyed Fritz's 

conversation to Upadhyay (Tr. 360). Bill Langford, a surveyor 

working with Fritz, also complained about verbal abuse or 

problems with Gabossi underground (Tr. ~60, 361). Weigand also 

conveyed this information to Upadhyay. He was concerned he 

couldn't keep his surveyors (Tr. 361). Weigand's investigation 

did not disclose any fault about Langford's work. 

No one at Western has ever been terminated or disciplined 

for bringing any safety complaint to Upadhyay's attention (Tr. 

362) • 

Since Gabossi left the company there have been no problems 

with the surveyors (Tr. 375, 376). 

TERRY FRITZ, experienced as a draftsman and trained as a 

surveyoru was employed by Western in March 1982 CTr. 389-391). 

Joe Kracum was Fritz's immediate supervisor. Langford worked 

with Fritz. 

Fritz's duties included mapping the mine, setting sites for 

entries, surveying surface facilities, checking elevations and 

establishing bench marks (Tr. 392, 393). In performing his job 

functions he was underground and interacted with Gabossi, 

Sundstrom and Marquez (foremen). Fritz primarily dealt with the 

two foremen. The surveyors were required to set the sites before 

the shift started" This required him to contact Gabossi and 

arrange for a foreman to fire boss the area. Usually Gabossi 

would initially contact the surveyors and advise them they needed 

sites CTr. 393, 394, 405). 

Fritz would usually contact Gabossi on a daily basis, if he 

was underground. Their relationship was very stormy; they were 

unable to establish a working relationship. He said they were 

not putting in sites correctly or they were hampering productiono 

Gabossi's language was harsh" While profanity is not out of 

context in c; coal mine he referred to them (in the context of 

their work) as "sons of bitches" and "ass holes". If he requested they do something in a different way they would try, 

usually unsuccessfullyo It seemed they could not do anything to 

satisfy hirno 

Gabossi claimed the sites in the belt entry were not 

properly seto After checking the specificationsu a subsequent 

control survey revealed that the belt was extremely straight 

within four seconds)o His claim that the belt was not straight 

was one of Gabossi us constant complaintso Neither Weigand or 

Kracum said was a problemo But Operations was concerned that 

the belt be straight. 

In one occurrence the surveyors had secured permission from 

foreman Sunstrom to set sites as the miners were going to break 

for lunch. As they started to put in the sites Gabossi appeared. 

He didn't belittle them and he wasn't abrasive but he told them 

in no uncertain terms that they were holding up production. When 

Fritz explained the situation Gabossi became very upset and 

stormed off. 

1496 
Fritz tried to work out his problems directly with Gabossi. 

When this was unsuccessful they started going directly to their 

supervisor, Kracum (Tr. 395, 396, 404-407). Fritz told Kracum 

they were being harassed, and accused of setting sites that were 

wrong and told the belt wasn't straight. On checking they found 

no problems. So they spent a good deal of time verifying 

something that was already accurateo At times Kracum, Upadhyay 

and Langford met underground. Gabossi claimed that they had 

sites off in one entry, also there were no belt spots. They were 

able to show them that the sites were in line, and that the 

existing belt spots were marked. Gabossi accepted the 

explanation (Tr. 396, 397}. The surveyors never found that 

Gabossi's complaints were valid. The complaints by Gabossi were 

also brought to the attention of Steve Magnuson, Fritz's new 

supervisor, and Mike Weigand (Tr. 397, 417}. Weigand said to 

relax and calm down; he was satisfied with the work (Tr. 397). 

The surveyors began to ignore Gabossi and they wouldn 1 t recheck 

on minor things that they knew they had done. If they did a 

followup they would tell Magnuson, and to a limited extent, 

Weigand. 

Fritz personally discussed his letter of resignation with 

Weigand. In the letter he did not mention Gabossi by name but he 

indicated that more influential factor in his decision to leave 

was "the constant unwarranted harassment he was subjected to by 

Operations (Tr. 398, 409, 419, 420v Ex. R2). Fritz got along 

with other people in Gabossi vs department {Tr. 399). Fritz also 

resigned because he thought Western 1 s wages were inadequate. 

About June 4th or 5th Fritz also talked to Upadhyay about 

the letter. They discussed the harassment, the failure to deal 

with Gabossi's unreasonable and unwarranted demands, and the 

fact that this was one of the few mines where they weren't 

allowed to set sites on shiftc This required them to stay late 

or come early. Survey sites are almost always set during shifts. 

Other things they discussed concerned setting belt spots a dozen 

different ways. Gabossi also complained about minor things~ the 

color of the paint and the methods they were using. Upadhyay 

responded that he knew there were some problems and he was sorry 

to see Fritz leave (Tr. 400 9 410v 412u Ex. R2). 

Gabossi complained to Weigand and Kracum about Fritz's work 

from about two months after Gabossi arrived until he lefto Fritz 

was offended because Gabossi"s attacks were without any basis. 

Fritz considered it just harassment if they were requested to 

make a change and the change itself did not amount to anything 

substantial. Howeveru the mine superintendentv and not the 

engineerQ is in charge of an underground mine. 

Fritz had no problems with the mine superintendent at his 

previous mine; there was a cooperative atmosphere (Tr. 402, 412, 

414} • 

A. B. BEASLEY is currently employed as maintenance and 

surface superintendent for Energy Fuels, an underground coal minP.. 

He worked for Western as maintenance superintendent from June 

1964 to January 1985 (Tr. 423, 424). 

1497 
When Beasley was interviewed by Western he learned he would 

be responsible for surface and underground maintenance at the 

mine (Tr. 425). Gabossi, one of the interviewers, never 

indicated he would not have control of underground maintenance 

nor did he discuss his job function (Tr. 426). 

Gabossi asked Beasley if he and Upadhyay had discussed 

underground maintenance. When Beasley response was negative 

Gabossi suggested he should get his job duties straight CTr. 427, 

428). Beasley then read and attempted to perform his duties as 

outlined in the company memorandum of June 29, 1983 (Tr. 

427-429, Ex. Rl). 

His duties placed him in daily contact with Gabossi. A 

definite conflict evolved as Beasley worked in areas that Gabossi 

considered within his realm of responsibility. Heated arguments 

or discussions involved the mechanics; however, except for 

reporting, they didn't have anything to do with the maintenance 

department. Gabossi was not using the best judgment to get the 

most out of the maintenance people on the section (Tr. 430, 431). 

They disagreed over whether the primary job of mechanics underground was to service equipment or to run errands, or stack a 

bolter or set miner bits. If a miner is idle for any time 

he should be doing something besides setting miner bits. They 

also disagreed concerning maintenance operations involving 

equipment being overhauled or rebuilt. They also disagreed as to 

whether things were being done in a manner to Gabossi 1 s liking or 

whether maintenance people were doing things in his job 

priorities. Gabossi was a hard man to coordinate with (Tr. 431, 

445). 

Gabossi never accused Beasley of interfering with his job 

function at the mine other than to the extent that he couldn't 

mine coal because everything was always down (Tr. 431, 432). 

Gabossi criticized Beasleyus maintenance of the equipment (Tro 

432)0 

At the beginning of Beasley 0 s employmentu he and Gabossi 

were social friends. At the very end, in nine monthsv they 

hardly spoke at work (Tr. 432). On several occasions Upadhyay 

told him to work it out when he brought it to his attention (Tr. 

432 433r 441). This didn't come about since Gabossi never 

attempted to meet him half way. Upadhyay demanded that all 

department heads work together. Upadhyay did not realign any 

responsibilities in an effort to solve the problem except to 

assign some mechanics by name {Tr. 433, 443u 444). At times 

Beasley was upset with Upadhyay because of his inability to 

coordinate between the departments (Tr. 446). 

Beasley suggested to Gabossi how maintenance needs at the 

mine might be solved. But since he was blocked there ~as not 

much room to coordinate (Tr. 447, 448). Beasley sent mechanics 

underground to do a specific job on an idle piece of equipment if 

the area had been fire bossed or pre-shifted (Tr. 449-450). 

Gabossi complained about that (Tr. 450). He wanted Beasley to 

ask his permission to do anything underground (Tr. 451). 

1498 
Beasley could not fault Gabossi's knowledge of m1n1ng but he 

faulted his management style. At the previous hearing of the 

case he described him as a good foreman. In addition, men will 

follow him into the mines where he works. Further, there are 

men who think highly of him in the mining industry (Tr. 451, 

452) • 

Beasley submitted a letter of resignation to Upadhyay on 

January 29th (Tr. 434; Ex. R4). 

Beasley gave Upadhyay his letter of resignation. He was 

upset because Beasley was leaving. He read the letter and they 

discussed his new job. Beasley said he. didn't need the hassle 

with Gabossi. About 15 or 20 minutes of the half hour meeting 

involved a discussion of Gabossi. The letter of resignation does 

not specifically mention Gabossi; slander is not one of Beasley's 

strong suits and he didn't want to include that in a letter of 

resignation. Beasley felt he didn't need the innuendoes and the 

derogatory remarks (Tr. 436, 437). 

There was a subsequent conversation with Upadhyay when he 

learned Gabossi was leaving the company. Upadhyay inquired if 

Beasley would reconsider his resignation. Beasley declined and 

he left February 8th (Tr. 438, 439). Beasley indicated his 

decision would have been more difficult if Gabossi had been fired 

earlier (Tr. 438v 439)0 

RAJA UPADHYAY, a mining engineer, attained a master's degree 

at the University of Arizona. In 1976 he was hired by Western as 

a senior mining engineer (Tr. 453, 455). 

In June 1983 he replaced John Bootle and assumed the duties 

of acting mine manager in Rangely. He was familiar with the 

operations and organizational setup at the mineo Upon arriving 

talked to all division headsu including John Gabossi (Tr. 456u 

45 7) • 

Upadhyay authorized the company 1 s June 29th organizational 

memorandum (Tr. 458, Ex. Rl). The memorandum reiterated the 

responsibilities for four operating division heads. Gabossi 

failed to comment when the memorandum was discussed at staff 

meetings <Tr. 459). 

In March 1984 Gabossi asked Upadhyay for total authority of 

the mine. He would like the maintenance people to report to him. 

At another meetingv (November 9th) he brought up the possibility 

of losing his papers. He was concerned about authority; he 

wanted the breakdown maintenance people to work for him (Tr. 500, 

501). 

In August 1983 Gabossi discussed with the witness the house 

buy back arrangement. He also brought up the issue of whether he 

had total authority of the mine, including maintenance and 

operations; both had been promised to him. Upadhyay disputed 

Gabossi's claim; he explained that the organizational setup had 

1499 
been as it was since the mine started. Gabossi then said he 

would leave if the company would buy back his house (Tr. 460). 

Upadhyay said he didn't want Gabossi to quit but the company 

wasn't going to buy back his house. This conversation repeated 

itself, with some regularity (Tr. 461). 

In March 1984 Gabossi confronted him with the Colorado 

statute. Upadhyay indicated to him that when it came to safety 

and health Gabossi had full authority. Gabossi was not satisfied. 

Upadhyay then checked with Powderhorn Coal Company. That 

company's structure was setup in the same manner as Western (Tr. 

462, 498). When Gabossi brought it up again Upadhyay said the 

company was abiding by the law. However, he granted that some 

people did not report to Gabossi. These included the mine 

manager and the chief mining engineer. At one point he indicated 

preventative maintenance could report to the maintenance 

superintendent, but he (Gabossi) wanted the breakdown maintenance 

under his authority (Tr. 463). Gabossi already had responsibility over the face mechanic. Preventative maintenance occurs 

underground almost daily. But Gabossi didn't want control over 

preventative maintenance (Tr. 464}. Gabossi didn't say if he was 

satisfied as a result of this discussion (Tr. 464, 465). 

When Upadhyay would occasionally leave the mine site Gabossi 

would be in charge (Tr. 465). Upadhyay took away this responsibility on October 1, 1984, when Gabossi indicated he didn't want 

to be his assistant. Gabossi's single reason was that Upadhyay 

failed to take action when Gabossi reported to him. On the same 

day Upadhyay prepared a memorandum changing the job (Tr. 466, 

467) 0 

About the end of September, Gabossi and Upadhyay were 

engaged in a conversation regarding Western advancing a cash 

payment for Art Cordova's disability injuryo Gabossi "blew up", 

got hot upset and left the office (Tr. 468). At that timeu 

before the first of October, Upadhyay concluded that in view of 

all the previous problems with Gabossi he was going to seek 

approval from his superior (Lloyd) to terminate him (Tro 469F 

510 r 511) o 

Upadhyay carried a handwritten memorandum to his superior, 

L:oyd Ernst; manager of operations~ in Washington. He didn°t 

have it typed because he didn°t want anyone at the mine to know 

about ito Lloyd read the memorandum1 Upadhyay was recommending 

that Gabossi be fired. Lloyd preferred Upadhyay 1 s alternative 

suggestiono He recommended that Gabossi be directed to work 

underground all dayo It was thought this would create dissatisfaction which might lead to his resignation. On returning to the 

mine he told Gabossi that he wanted him to spend more time underground (Tr. 47lf 502, 530, Ex. R5) o Gabossi agreed (Tr. 471, 

4 72) 0 

On November 9th a meeting with Gabossi took place in the 

change house. Upadhyay was talking to Gabossi about a monitoring 

system they had installed. Upadhyay indicated it would be 

Gabossi's responsibility. Gabossi then asked if Western was 

1500 
going to buy his house, also he brought up the matter of a pay 

cut and a bonus. Upadhyay said Western was not going to buy his 

house (Tr. 472, 473). Gabossi then said Upadhyay was the worst 

mine manager that he had ever worked for. He further indicated 

that a caste system didn't work in the United States. Gabossi 

then handed Upadhyay a folded letter (Emmons letter to Gabossi 

citing the Colorado statute) (Tr. 473, 474, Ex. CS>. Upadhyay 

replied that the letter didn't say they were doing anything wrong. 

As Gabossi kept raising his voice Upadhyay became upset and 

stated he didn't think much of Gabossi. He then left taking the 

letter with him. He later filed the letter (Tr. 474). 

After the meeting on November 9th Upadhyay contacted Lloyd. 

He advised him things were not working and he requested Lloyd's 

approval to discharge him. Lloyd said to put him on probation. 

The nex~ morning Upadhyay put Gabossi on probation until he 

changed his attitude and became a good employee for Western. The 

main thing Upadhyay and Gabossi discussed was his failure to work 

with other people (Tr. 476). The matters verb~lly discussed were 

later reduced to writing (Tr. 476, Ex. C3). 

Gabossi only questioned a reference in the memorandum about 

what Upadhyay had heard from "other companies". Upadhyay 

explained that the "other companies" were the power plant people 

Gabossi had taken underground. He had complained to them about 

Western's management, its ability to mine coal and its manager, 

Upadhyay (Tr. 477, 478). 

At a subsequent staff meeting with Gabossi, Beasley and 

Kesting allegations were made that a mechanic had falsified a 

record. Upadhyay asked Beasley to investigate the matter. After 

the investigation Beasley reprimanded the miner by letter. 

Gabossi wanted to fire him; Upadhyay refused because disciplinary 

action had already been taken (Tro 478v 479) o 

Gabossi brought to Upadhyay's attention the matter of the 

maintenance people shutting down a fan. On that occasion he 

directed Beasley to have a mechanic immediately restart the fan. 

Upadhyay didn't feel compelled to get back in touch with 

Gabossi everytime something had been brought to his attention for 

action" 

The ventilation items were investigated, resolved and 

scussed with Gabossi (Tro 480, 481) o 

Concerning the arches: Gabossi said an EIMCO had damaged 

some arches. Upadhyay immediately went to the area. Both he and 

Gabossi concluded there was no hazard although a leg had to be 

fixed. The following day the engineering people investigated 

(Tr. 482). It was decided the maintenance department would fix 

it (Tr. 483). The safety department also investigated and 

concluded there had not been a brake failure on the equipment. 

No one knows the cause of the accident. The only safety matters 

1501 
Gabossi talked about were ventilation, the miner, falsification 

of records, the arches and the coordination of underground duties 

(Tr. 483, 484). 

When Terry Fritz resigned in June 1984 he told Upadhyay that 

his letter of resignation referring about "constant and 

unwarranted harassme~t" was to only reflect on Gabossi. In later 

discussing Fritz's resignation, Upadhyay told Gabossi he would 

have to change his attitude because people were leaving but he 

didn't mind this one (Tr. 489, 498, Ex. R2). 

Upadhyay was totally surprised by Beasley's resignation of 

January 29, 1985 (Tr. 484, Ex. R4). He related he couldn't work 

with Gabossi (Tr. 484, 485). In the next couple of minutes 

Upadhyay decided to recommend Gabossi's termination. Too many 

people were leaving because of Gabossi's inability to work with 

them. He wanted to avoid having to rehire after losing another 

maintenance supervisor (Tr. 485, 486, 505). 

In pursuing his decision to terminate Gabossi he learned 

that Lloyd was hospitalized. He then talked to Lloyd's boss, Ken 

Holurn. The superior was knowledgeable about the situation. 

Upadhyay described that he had lost another maintenance 

superintendent. Holum authorized Gabossi's termination. The 

company attorney, Mr. Mandelson, drafted the termination letter. 

The next morning Gabossi declined an option to resign and he was 

fired. Gabossi said "Bullshit". Further, he could not "get away 

with it" and Upadhyay was the worst mine manager Gabossi had ever 

worked for (Tr. 485-488, 505, 531). 

The department heads continuously complained about Gabossi's 

performance. During Upadhyay's tenure the engineering department 

(Mike Weigand) complained they were harassed and not appreciated. 

The probation letter refers to Gabossi's inability to get along 

with division heads (Tro 49lu 492) o Upadhyay had tried many 

times to counsel Gabossio 

Neither the witness nor anyone else at the Deserado mine had 

ever seen Emmons¥ second letter of November 14 (Tro 492, 493; Ex. 

C9). Nor was there ever any conversation concerning the statute 

(Tr. 493). Nor was he ever contacted by MSHA relative to the 

statute. The Deserado mine continues to operate under the same 

organization structure it did on January 30u 1985 (Tr. 493). 

The mine has never received any MSHA or state complaints 

(Tr. 494). The witness 1 s handwritten recommendation that'Gabossi 

be fired was not typed by Upadhyayvs secretaryo Nor was the 

document entered in a log. The original was hand carried by the 

witness to Washington (Tr. 494-497, Ex. R5). 

During his tenure Upadhyay never disciplined, terminated or 

placed any employee on probation for filing a safety complaint 

(Tr. 535). 

Upadhyay is current manager of operations for Western (Tr. 

536) . 

1502 
Francis Kesting, Daniel Ritter and Joseph Gabossi were 

called as rebuttal witnesses by the Secretary. 

FRANCIS KESTING testified that he was told by Burnett that 

he was leaving because he had another job, also he felt stagnated 

and didn't think Western's mine was ever going to produce coal 

(Tr. 539, 540). The power plant was the only company contracting 

for its coal (Tr. 540). 

Upper management at Western, including Upadhyay, would be 

furious if someone went to a government regulatory agency. Such 

action would end a person's career (Tr. 541, 542). However, 

Kesting based his opinion on management at other mines (Tr. 542, 

543). In fact, no worker at Western had ever complained to a 

state regulatory body (Tr. 543). 

DANIEL RITTER indicated that Burnett left Western because 

the mine was static and he had a better future where he was going. 

Western 1 s only contract was to sell coal to a power plant at 

Bonanza (Tr. 545, 546). 

As Human Relations Director Burnett occasionally came to him 

with complaints about the inability of he and Gabossi to work 

under the structure (Tr. 546, 547). 

In rebuttal, John Gabossi indicated he didn't treat Fritz 

differently from any other employee, nor was he harsh with him 

(Tr. 548) • 

Gabossi complained to Fritz, as well as Upadhyay, about belt 

spots put in the ceiling for chain hangers. He, Upadhyay and 

Deardorff examined the condition. They all agreed it was a poor 

installation job (Tr. 549). Deardorff was Upadhyay's superior 

but in engineering and not in production (Tr. 549). 

John Sundstrom also had problems with sites underground" 

The condition described by the witness involved spots and spadso 

Gabossi concluded Sundstrom 0 s complaint was justified (Tro 550)0 

When Fritz resigned Upadhyay told Gabossi that he wasn°t 

very good anyway and it didnijt make any difference (Tr. 550g 

551) 

Gabossi expressed concern to Upadhyay about the archeso It 

was agreed Beasley was to change the arches immediately (Tro 551? 

552) o It was not done immediatelyo When Gabossi complained 

Upadhyay said it was Beasley 0 s decision and none of Gabossi vs 

business (Tr. 552) o 

Upadhyay did not discuss with Gabossi any of the complaints 

against him made by eight of the nine department heads. The only 

ones they talked about involved Beasley and possibly the 

purchasing department (Tr. 553, 555). The on-going complaint 

with Beasley involved coordinating efforts underground (Tr. 553). 

Every one had problems with Doug Wilson, the company purchasing 

agent (Tr. 554). 

1503 
Upadhyay did not admonish him about not getting along with 

division heads prior to receiving the adverse performance report 

of November 16, 1984 (Tr. 554, 555 u 558 g Ex C3) o 

Gabossi only queried Upadhyay about his reference to "other 

companies" in paragraph 3 of his memorandum (Tr,, 555, 556). 

Gabossi also disagreed with the analysis of the engineering 

department that the arches were safe" Until the hearing he 

hadn't known that the arches had been investigated (Tr. 557). 

Discussion 

In this case of first impression the facts clearly establish 

that complainant, Joseph Gabossiu was £ired because of his 

continuing and extensive conflict with mine management over the 

company's failure to coordinate underground mining activities. 

This conflict came about because the company's reporting 

structure placed underground mechanics under the jurisdiction of 

the maintenance supervisor. Safety concerns arose and Gabossi 

expressed his opposition to the company"s procedures. He further 

attempted to have management alter s position and to, at least, 

coordinate such maintenance activit with the mine foreman. 

Gabossi believed his authority to either control or at least 

coordinate with the underground mechanics arose from Section 

34-24-101 of the Colorado Revised Statutes. The section, in its 

pertinent part, provides the certified ne foreman (Gabossi was 

such a foreman) "shall have full charge of 1 inside workings 

and all persons employed therein." 

Complainant's tenacity and concern 

miners are to be complimented. 

the safety of the 

Howeverr the cornerstone of s that a 

ner is engaged in a protected ac~1 .. ~ ~e has "filed or 

made a complaint under or related :.,::: tr:.'... :eou:c separate 

references are made in the section tc1 ·t.he-·;~::·0·i:.ection afforded "£y_ 

t.his Act"o 

The legislative history 

scope of protected activities oe 

the history also shows the Congressionai iew that 

activities a::.::·e thin the framework o:E ·.~.".":·.'"' :'2ciezal 

The Congressional view is note~ ~ Jena~e 

It states in partv that~ 

s intended the 

Butr again 

such protected 

Acto 

t NOo 95-181~ 

The Com.mi ttee intends that the scope :)1: protected 

activities be broadly interpreted the Secretary, and 

intends it to include not only the filing of complaints 

seeking inspection under Section 104Cf) or the participation 

in mine inspections under Section lG Ce), but also the refusal to work in conditions which are believed to be unsafe 

or unhealthful and the refusal to comply with orders which 

1504 
are violative of the Act or any standard promulgated thereunder, or the participation by a miner or his representative 

in any administrative and judicial proceeding under the Act. 

The listing of protected rights contained in section 106(c) 

Cl) is intended to be illustrative and not exclusive. The 

wording of section 106{c) is broader than the counterpart 

language in section 110 of the Coal Act and the Committee 

intends section 106(c) to be construed expansively to assure 

that miners will not be inhibited in any way in exercising 

any rights afforded by the legislation. This section ;~ 

intended to give miners, their representatives, and applicants, the right to refuse to work in conditions they believe to be unsafe or unhealthful and to refuse to comply 

if their employers order them to violate a safety and 

health standard promulgated under the law. 

Senate Report No. 181, 95th Cong., 1st Sess. 14 (1977) reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977 at 623, 624 

" Leg is . Hist • " 

Neither the federal Act nor MSHA regulations contain a 

provision on a mine foreman's duties corresponding to Section 

32-24-101(2), CRS. Accordingly, the complaints lodged herein by 

the mine foreman could not be an activity "under or related to" 

the federal Act. In sum, while Gabossi's complaints concerning 

the company's reporting structure were safety related they were 

not an activity protected under the federal Act. 

There are, however, several instances where Gabossi's 

activities were protected. These involve the complaints about 

ventilationu the EIMCO brakesv the archesv his concern about the 

falsification of electrical logs and finally his contacting the 

Colorado Division of Mines and his presentation of a letter from 

the Colorado Bureau of Mines to the mine manager. 

The first three items involved a protected activity but the 

company took no adverse action andu in factv remedied the 

problems. The last two items occurred after November 9u 1984. 

But on October lu 1984 the mine manager had decided to fire 

Gabossi. The company had refused him permission at that time. 

Subsequently, however, when Beasley resigned the manager again 

sought and secured the company's permission to terminate Gabossi. 

Beasley's resignation again involved the long standing conflict 

over the company's reporting system. I conclude that the company 

was motivated by Gabossi's unprotected activity and would have 

taken the adverse action for such unprotected activity alone. In 

short, his unprotected activity, insofar as the federal Act is 

concerned, was his continual clash with management over the reporting structure. 

1505 
Evidentiary Ruling 

During the hearing the judge sustained respondent's 

objection and excluded evidence of Burnett's testimony from a 

prior hearing, heard by Commission Judge John A. Carlson (Tr. 

512-520, 527, 531, 552). 

The evidence, even if received, would not affect the result 

in this case, because the principals, Gabossi and Upadhyay, 

clearly establish the focus of the case. Accordingly, it is not 

necessary to rule on Complainant's offer of proof. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

this decision the following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. complainant did not prove he was discriminated against 

in violation of Section 105(c). 

3. Respondent did not discriminate against complainant in 

violation of the Act. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

The complaint herein is dismissed. 

Law Judge 

Distribution: 

James Ho Barkley, Esq., Office of the Solicitor, UoSo Department 

Labor, 1585 Federal Building~ 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Richard s. Mandelson, Esq., Baker & Hostetler, 303 East 17th 

Avenue, Suite 1100, Denver, CO 80203 (Certified Mail) 

/bls 

1506 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE AOO 

DENVER, COLORADO 80204 

AUG 211987 

UTAH POWER AND LIGHT COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF L.ABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UTAH POWER AND LIGHT COMPANY, 

Respondent. 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 87-31-R 

Citation No. 2928408; 10/9/86 

Docket No. WEST 87-32-R 

Citation No. 2928409; 10/9/86 

Little Dove Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-100 

A.C. No. 42-01393-03546 

Little Oove Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached a settlement of these two contest 

matters and the related penalty proceeding which collectively 

involve two citations whichv in turnQ were each administratively 

assessed $20000 penaltieso 

Pursuant to the settlement, the Secretar1 has agreed to 

vacate Citation No. 2928409, which was contested in Docket No. 

WEST 87-32-R. The mine operatoru Utah Power and Light Company 

agreed to voluntarily withdraw the contest of Citation Noo 

2928408 in Docket No. WEST 87-31-R and to voluntarily pay the 

$20.00 civil penalty in full for that violation. The mine 

operator also agrees in the future to accept the Secretary's 

position that chiropractic treatment constitutes Hother 

professional treatment" under 30 C.F.R. 50.20-3(a)(8)(ii) and is 

therefore reportable under 30 C.F.R. Part 50. 

Information contained in the settlement motion reflects that 

Utah Power and Light Company Mining Division, is a large mine 

operator with an average history of prior violations and that the 

violation reflected in Citation No. 2928408 involved low degrees 

of beth seriousness and ne~ligence and was abated in good faith. 

07 
ORDER 

The various provisions of the settlement appearing to be 

full¥ justified, it is Ordered: 

1. Utah Power and Light's withdrawal of its contest in 

Docket No. WEST 87-31-R is approved and that proceeding is 

dismissed; 

2. The Secretary's request for vacation of Citation No. 

2928409 is approved and such Citation is vacated; 

3. With respect to Citation No. 2928408 (Docket No. WEST 

87-31) 1 Utah Power and Light, if it has not previously done so, 

is ordered to pay the Secretary of Labor a penalty of $20.00 

within 30 days from the issuance of this decision. 

~"4~ # ~-<-,?} ~ Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Edward Fitch, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Timothy Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, NW, Washington, D.C. 20004 

Mro Dave Lauriskiu Utah Power & Light Companyu P.O. Box 310u 

Huntingtonv UT 84528 

/bls 

150 8 
f ED ~i2 SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 4 1987 

CONSOLIDATION COAL COMPANYp 

Complainant 

CONTEST PROCEEDING 

Docket No. WEVA 86-409-R 

Order No. 2703894; 7/14/86 

SECRETARY OF LABOR, 

MINE SAFETY A.ND HEALTH 

ADMINISTRATION ( MSHA) ,. 

Respondent. 

Ireland Mine 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

Docket No. WEVA 86-454 

A. C. No. 46-01438-03651 

Ireland Mine 

CONSOLIDATION COAL COMPANY 

Appearances~ 

Before~ 

s 

DECISION 

Michael R. Peelish, Esq., Consolidation Coal 

Companv Pittsburgh, Pennsylvania, for the 

Comolal.nant/Respondent; - n 3ush 7 Esq. and Mark Swirsky, Esq., (on the 

,. .' ,. " "" ' ... '·~ - ' ':,. - ~:c;·. ;_, '-! ,;_ .. 

Judge 

of the Solicitor, u. S. Department 

iladelphiaf Pennsylvaniav for the 

sberger 

In these cons~ _dated cases, the Operator (Respondent) seeks 

to chal a c_ta~:c~ issued to it by the Secretary (Petitioner) 

:c~a~ic~ ~f 30 C.F.R § 70.207(e)(7). The 

Secretary seeks ~ Civ ~ Penalty for an alleged violation by the 

Operator of Sect a~ 0 207(e)(7), supra. Pursuant to notice, the 

cases were heard i Wheeling, west Virginia on May 12, 1987. John 

Dower testified for Petitioner, and John Russell and Steve Perkins 

testified for the Respondent. Petitioner and Respondent filed 

proposed Findings of Fact and Briefs on July 27, 1987 and July 29, 

1987, respectively. No reply briefs were filed. 

1509 
_egulatory Provision 

30 C.F.R. § 70.207Ce}(7} provides for follows: 

{7) Longwall section. 

the return air side of 

along the working face 

inches of the corner. 

Issues 

On the miner who works nearest 

the longwall working face or 

on the return side within 48 

1. Whether Respondent violated section 70.207(e)(7), supra. 

2. If a violation of section 70.207(e)(7), supra, occurred, 

was it of such a nature as could have significantly and substantially contributed to the cause and effect of a safety hazard. 

3. If the Respondent violated section 70.207{e)(7), what is 

the proper penalty to be assessed? 

Findings of Fact and Conclusions of Law 

The essenti facts herein are not in dispute. In 

Respondentus Ir Mine, in the 6D longwall section coal is 

mined by a shear which is operated by two miners who are called 

shear operators. There is no distinction, in terms of work 

assignments or pay, between the two shear operators. 

In the extraction phase, when the shear is traveling from 

the headgate to the tailgate, one miner is assigned to operate 

the drum of the shear and the other miner is positioned 

end of the shear and operates the tailgate drum. 

When the travels from the tailgate to the headgatev the two 

miners operating it remain at their positions until the shear 

reaches shield 113v at that pointv the miner who was 

working at the tail drum 11 floats out," and goes to the headgate 

in order to n esh air, and take a break from working in 

the cramped quarters in proximity to the shearo The two miners 

working on the shear will alternate "floating out~ to the 

headgate each t the shearv on its pass from the tailgate to 

the headgate reac shield number 1130 The remaining miner 

will stay at the shear operating the controls of the head drum 

while the shear travels from shield number 113 to the headgate. 

During this phase of the operation, most of the coal is cut, and 

90 to 95 percent of the dust is generatedo 

John Dower, a mining engineer for MSHA, testified on direct 

examination that "routinely" after the tailgate operator has 

"floated out" to the headgate, the headgate operator would have 

to go to the tail drum to readjust it because of face rolls. In 

1510 
contrast, John Russell, Respondent's dust and noise supervisor of 

the Eastern Region, testified that it would be "very rare" for 

the headgate operator to move to the tail position after the tail 

operator has "floated out." This appear to be consistent with 

the testimony of Dower, on cross examination, that there is no 

need for the head drum operator to go to the tail position unless 

there is a "severe problem." However, Dower explained, on 

redirect examination, that such severe problems could occur if 

there are massive stones under the mach~ne or if there is a 

mechanical malfunction of the drum. In the same connection, 

Russell indicated that if the shear comes in contract with a 

shield, the shear will stop and the head shear operator would 

then have to go the tailend to fix it. Based on the above, I 

conclude that, as part of the normal mining process, there are 

occasions when the head shear operator, after the tail operator 

has "floated out," would be required to go to the tail drum 

position. 

Prior to May 1986, it.was the policy of MSHA that a dust 

sampling device be given to the tail drum operator who wore it 

constantly even when he "floated out" to the headgate. In 

practice, Respondent conformed to this policy. On May 13, 1986, 

MSHA District Manager, Ronald L. Keaton, in response to an 

inquiry from William Schlaupitz, Respondent's Regional 

Manager-Safety, set forth a policy quoting from the Coal Mine 

Health and Safety Inspection Manual, for underground mines dated 

March 9, 1978, that "If the operator's mining procedures result 

in the changing of miners from one occupation to another during a 

production shift, the sampling device must remain on or at the 

'high risk' occupation." On July 14, 1986, Dower observed the 

tailgate shear operator ~aaring the dust sampling device on the 

entire shift, including the time when he "floated out" to the 

headgate on alternate passeso 

Russell testified that after the May 13, 1986 letter from 

the District Manager was received, he talked to an MSHA employee, 

Ellis Mitchell, who informed him that when the tailgate shear 

operator "floated out" to the headgate, it was not to be 

considered a ~rotation'' as no one replaced the tailgate shear 

operator. Russell testified, in essence, that accordingly 

Respondent did not take any action to change its procedure of 

having the tailgate drum operator wear the dust testing device 

throughout the shift, even when "floating out." 

The evidence is clear that the tailgate drum operator is 

exposed to a certain amount of coal dust from the cutting drums, 

conveyor chain, and debris falling from the ribs or roof. His 

exposure to the coal dust is considerably more than that of the 

headgate drum operator, as the former is nearest the return air 

side, and as such is in the path of the airborne coal dust. It 

1511 
is also clear that most of the time he is the miner who works 

nearest the return air side of the longwall working face. 

However, on every other shift, when the tailgate operator "floats 

out" to the headgate, the headgate operator then becomes the 

miner working nearest the return air side. It would thus appear, 

from the plain reading of the language of section 70.207(e)(7), 

suora, that, accordingly, when the tailgate operator has "floated 

out" the remaining headgate operator is required to wear the dust 

testing device. 

It is true that requiring the tailgate operator to 

continuously wear the dust sampling device would give an accurate 

reading of the dust exposure to this miner who, as noted above, 

is at a higher risk than the headgate shear operator. However, 

the time the operator spends in the fresh air of the headgate 

must be considered. This has the effect of reducing the amount 

of his average exposure to coal dust. Further, by having the 

tailgate shear operator wear the dust sampler, even in the 

headgate, has the effect of not providing an accurate indication 

of exposure of coal dust to the headgate operator who may, in the 

ordinary course of the mining operation, be required to perform 

some work in the tailgate position, thus enhancing his exposure 

to coal dust, as being in the path of the airborne coal dust. 

Hence, I hold, that section 70.207(e)(7), supra, requires that 

the headgate shear operator wear the testing device when the 

tailgate operator "floats out." Furthermore, I find that the 

policy statement of the MSHA District Manager, of May 13, 1986, 

does not contain any contrary direction. It is clearly the 

intent of the District Manager to protect the person in a "high 

risk" occupation by requiring him to wear the dust sampler. This 

policy would clearly be ffiwarted in not requiring the headgate 

operator to wear the dust sampler during portions of the pass 

when he is alone at the shear and may be required, in the normal 

course of mining operations, to go to the tail position and 

perform duties where there is a "high risks" of exposure to coal 

dust" For all the above reasonsv I conclude that Respondent 

herein has violated section 70.207(e)(7), supra. 

It was the uncontradicted testimony of Doweru in essence, 

that if there is coal dust in the subject section above the 

maximum permittedu and the coal dust is not being monitored 

because the testing device is on the tailgate operator, who is in 

the headgate area? then it is potentially likely that a miner 

could be exposed to dust which could result in black lung disease 

or a permanent disability of a very serious nature" Accordingly, 

based on this testimony, I find that Respondent's violation of 

section 77.207(e)(7), suora, was significant and substantial 

(See, Consolidation Coal Company v. Federal Mine Safety and 

Health Review Commission, Slip" Op", July 24, 1987 (D.C. Cir.); 

Mathies Coal Co. 6 FMSHRC 1 (January 1984)). 

1512 
I have considered all the factors set forth in Section,110 

of the Act. Specifically I note that the Respondent was not 

negligent in violating Section 771207(e)(7), supra. I conclude 

that the proposed penalty of $112 is appropriate. 

ORDER 

It is ORDERED that the Notice of C-ontest filed July 28, 

1986, be DISMISSED. It is further ORDERED that Respondent pay 

the sum of $112, within 30 days of the date of this decision, as 

a civil penalty for the violation found herein. 

~~ Avram Weisberger 

Administrative Law Judge 

Distrii::>ution: 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 19241 (Certified Mail) 

Mark Swirsky, Esq., Office of the Solicitor, U. S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

dcp 

1513 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ROGER HALL, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, l(:)th- FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 61987 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 87-51-D 

JERICOL MINING, INC., 

Respondent 

BARB CD 86-80 

Creech No. 2 Mine 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

On August 17, 1987, Complainant filed a Motion to Dismiss 

predicated upon an assertion that the matter in issue had been 

settled. 

Accordingly, it is ORDERED that the above case be dismissed 

with prejudice. 

It is further ORDERED that the stenographic notes and 

recordings made during the trial of this matter on June 16 - 18, 

1987, be DESTROYED. 

Distribution~ 

Avram Weisberger 

Administrative Law Judge 

Susan Naglf Esq.f Appalachian Research and Defense Fund of 

Kentuckyv Inc 0 v Po O. Box 187, Harlan, KY 40831 (Certified Mail) 

Lloyd R. Edens, Esq., P. O. Drawer 2220, Middlesboro, KY 40965 (Certified Mail) 

Ms. Jo Ann Stewart, Court Reporter, Accurate Court Reporting 

Service, 917 Old National Bank Building, Huntington, wv 25701 

(Certified Mail) 

Mr. Everett Means, 5100 Shannon Drive, Apt 103, Cross Lanes, wv 

25313 (Certified Mail) 

dcp 

1514 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 281987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 86-137-M 

A.C. No. 09-00022-05515 

v. 

Galite No. 1 Mine 

GALITE CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Larry A. Auerbach, Esq., Office of the 

Solicitor, U.S. Department of Labor, Atlanta, 

Georgia, for Petitioner; 

Kenneth P. Mayeaux, General Manager, Galite 

Corporation, Rockmart, Georgia, for 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977u 30 U.S.C. § 820(a), seeking a civil 

penalty assessment of $147 for an alleged violation of mandatory safety standard 30 C.F.R. § 56.9002. The respondent 

filed an answer denying the violation, and a hearing was held 

in Mariettau Georgiau on June 30v 19870 The parties waived 

the filing of posthearing briefs. Howeverv I have considered 

the oral arguments made by the parties on the record during 

the course of the hearing. 

Issues 

The issues presented in this case are Cl) whether the 

conditions or practices cited by the inspector constitute a 

violation of the cited mandatory safety standard, and (2) the 

appropriate civil penalty to be assessed for the violation, 

taking into account the statutory civil penalty criteria found 

1515 
in section llO(i} of the Act. Additional issues raised by the 

parties are discussed in the course of Ehis decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et~· 

2. Section llO(i} of the 1977 Aet, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to jurisdiction, and that during 

1986 the subject plant and quarry, including office personnel, 

worked 143,705 man-hours. They -also stipulated that any civil 

penalty assessment for th'e violation in question will not 

adversely affect the .respondent's ability to continue in 

business (Tr. 5). 

The parties agreed that exhibit P-1, a computer print-out 

of prior violations for the respondent's controller corporation reflects the controller's history of violations for the 

period July 9, 1984 through July 8, 1986. The print-out 

reflects 50 paid violations, 22 of which are "significant and 

substantial 11 violations. Petitioner's counsel asserted that 

for this same time period, the respondent's Galite No. 1 Mine 

received civil penalty assessments for nine citations which 

were 11 other than single penalty items, 11 and that they were 

timely paid (Tr. 6-7). 

Discussion 

Section 104(a) "S&S" Citation No. 2848584, July 9, 1986, 

cites a violation of 30 C.F.R. § 56.9002, and the condition 

or practice is described as follows: 11 Qne bolt was missing 

and others loose on the plate that connects the drive shaft 

to the transmission on the R-22 Euclid haulage truck." 

Petitionerus Testimony and Evidence 

MSHA Inspector Bobby A. Underwood confirmed that he 

issued the citation. He described the truck as an R-22 

U model used to haul material from the pit to the primary 

crusheru and he confirmed that it was used daily during the 

full shift. The route of the truck took it over level 

ground, but there were declines where the truck entered and 

exited the pit. The truck had a 25-ton capacity and was 

approximately 20 years old (Tr. 11-12). 

1516 
Inspector Underwood described the truck drive shaft, and 

he stated that the front of the universal joint had a flange 

which attached to the transmission with approximately eight 

one~half inch bolts. He found that one of the bolts was 

completely missing, and that the others which he examined 

were loose to the point where "you could actually turn them 

with your fingers, 11 and they were "backed out halfway" (Tr. 

13) • 

Inspector Underwood stated that he was alert~d to the 

condition of the drive shaft when he noticed a "shiny spot" 

in the area next to the differential which appeared to have 

been caused by some rubbing action. He checked the drive 

shaft and found the loose and missing bolts which "was making 

the transmission work up and down." Based on what he 

observed, he concluded that it would have taken several days 

for the bolts to work loose. He confirmed that upon inspection of the truck he alsd issued two additional citations, 

one for an inoperative horn, and one for a badly worn tie rod 

for the steering cylinder (Tr. 15-16; exhibits P-2 and P-3). 

The condition of the tie rod was such that it had the potential for breaking, and if it did, the truck would lose its 

steering capability. Both cited conditions were repaired 

(Tr. 16). He also observed that two bolts were missing from 

the left rear transmission hangar plate, but did not issue a 

citation for this condition. Although he did not believe 

that this condition in and of itself would cause an accident, 

"it would contribute to this drive shaft because it would 

move back and forth" (Tr. 17). 

Mr. Underwood described the hazard associated with the 

cited conditions as follows (Tr. 18-19)~ 

Qo What kind of hazard did you see associated 

with this problem with the drive shaft? 

A. The drive shaft -- with the lost motion in 

itv if the bolts didn't come out, there was a 

good possibility of snapping those bolts, but 

this truck doesn 1 t have a cross member underneath. The drive shaft would fall down, 

possibly sticking into the ground and throwing 

the truck out of control, or wham around and 

possibly hit the brake line and breaking it 

where you would lose your braking system. 

Q. What would cause it to go around? What 

would cause the drive shaft to fly around like 

that? 

1517 
A. Well, the front end would be loose and the 

differential would turn the drive shaft 

around. 

Q. The differential is hooked onto the rear 

end of the drive shaft? Is that right? 

A. Right. 

Q. The back wheels? 

A. Right. 

Q. And that would still be turning as the 

truck is moving. Is that right? 

A. Right. Yes. 

Mr. Underwood stated that it is not unusual to use the 

transmission to help brake the truck while it is on a grade 

or an incline (Tr. 20). He identified a copy of an MSHA 

fatal accident report involving another mine operator where a 

drive shaft on a haulage truck gave way and the operator lost 

control of the vehicle (Tr. 21; exhibit P-4). Petitioner's 

counsel asserted that this incident is a representative 

example of what could happen when a truck loses its transmission (Tr. 21). Respondent's representative took the position 

that the report is not particularly relevant because it 

states that "the direct cause of the accident could not be 

determined" (Tr. 23). 

Mr. Underwood believed that the violative conditions 

which he cited with respect to the drive shaft could result 

in serious injuries or a fatality in the event the truck 

overturned or collided with another vehicle or individual. 

He believed that the condition was observable and that the 

lost transmission motion and noise from the rubbing action 

should have alerted the respondent. Since the result of the 

rubbing action was observable, a routine further inspection 

under the truck would have detected the loose and missing 

bolts (Tr. 24). Mr. Underwood confirmed that the truck was 

taken to the shop, and that when he next saw it, it was 

repaired. To his knowledge, the truck was not used after the 

citation was issued (Tr. 24). 

In response to further questions, Mr. Underwood stated 

that the truck operator is required to inspect his truck 

before operating it. Although one would have to be urider the 

1518 
truck to observe the drive shaft flange, the results of the 

rubbing action of the drive shaft against the transmission 

was noticeable to anyone simply walking around the truck. 

The truck was being operated when he stopped it to inspect 

it, and he observed the area which had been rubbing and 

wanted to know what caused it. The truck· was empty and the 

driver did not seem to know anything about the conditions in 

question (Tr. 26-27). He believed that the driver should 

have been alerted to the condition in.the normal course of 

his driving (Tr. 28). 

On cross-examination, Mr. Underwood confirmed that the 

condition of the bolts, the wear on the side of the transmission where it had been working up and down, the loose bolts 

on the flange, and the missing bolts on the left rear of the 

transmission, led him to believe that the cited condition had 

existed for 2 or 3 days (Tr. 30). He could not state how 

long it would have taken to work the drive shaft loose (Tr. 

31). He confirmed that he was aware of a prior accident at a 

mine where he once worked which was caused by a loose drive 

shaft which turned a haulage truck over on a decline (Tr. 

31). 

Mr. Underwood stated that in the event the drive shaft 

on the cited truck had come loose, it was possible that the 

driver could have stopped it safely with the brakes if he had 

the opportunity.to do so. Although the brakes were adequat~, 

if the drive shaft had fallen down while the truck was 

operating in loose dirt and rock and the end of the shaft 

caught on this material, it could have pulled the truck out 

of (Tr. 32). 

In response to further questionsu Mr. Underwood stated 

that the truck was used to haul expanded shell rock which was 

being minedu and that other company vehicles used the roadway. 

Pedestrians did not usually use the roadway, and the trucks 

normally travelled 35 miles an hour empty and approximately 

10 mi an hour loaded (Tr. 34)o Respondent's representative 

stated that the posted speed limit is 15 miles an hour for 

trucks which are empty and loaded, and that the distance from 

the pit to the quarry is about half a mile, and from 

quarry to the crusher about half a mile. He concluded that 

the trucks do not attain much speed in the half mile of travel 

(Tr. 35). Mr. Underwood agreed with these distances, but 

suggested that the drivers exceeded the posted speed limit 

(Tr. 35). He also agreed that the haulage road is 80 

wide for most locations over which the trucks are driven, 

except for an area directly where they enter the quarry. At 

1519 
that point the roadway is 50 feet wide ~or a distance of 

100 feet {Tr. 36). 

Respondent's Testimony and Evidence 

Although the respondent's safety director was present 

during the hearing, he was not called to testify, and the 

respondent presented no testimony or evidence in defense of 

the citation other than the arguments·of its representative 

(Tr. 36). 

Arguments Presented by the Parties 

The parties waived the f i~ing of posthearing briefs and 

relied on their oral arguments made on the record during the 

close of the hearing (Tr. 43) •. Respondent takea the position 

that the cited standard, 30 C.F.R. § 56.9002, as worded, does 

not apply to the cited condition of the drive shaft. Respondent points out that.the:standard speaks in terms of "defects 

affecting safety," and that since the alleged truck defect 

was in the drive mechanism rather than on the truck's safety 

equipment, the standard is inapplicable. Respondent concedes 

that a steering mechanism may affect safety, but not necessarily a drive shaft, especially one that is still intact and 

operating. Respondent also believes that the condition of 

the drive shaft was something that could have happened after 

the equipment was started and not prior to its operation. In 

this regard, respondent asserted that the bol~s could have 

been in place and fallen off in the 3 hours that the truck 

was in operation prior to its being inspetted and that "it's 

very hard to say that this did happen during the opeLating 

period11 (Tro 8-9~ 37)o Since the condition was not noted by 

the driver during his inspectionu respondent concludes that 

it occurred during the operation of the truck immediately 

prior to the inspection (Tr. 41). However, respondent agreed 

that "we do not go over the truck completely every day" (Tr. 

41) 0 

The petitioner takes the position that the cited truck 

defect involving the drive shaft of a large haulage truck 

with a 25-ton capacity was in such a condition that it was 

subject to coming loose, causing lack of control of the 

vehicle, which could result in serious injury or death, and 

that it is in fact a defect which directly and perhaps substantially affected the safety of the employees (Tr. 8). The 

petitioner points out that it was not difficult for the 

inspector to observe the clue that led him to find the defect, 

and that he simply walked around the truck and observed this 

clue. Under the circumstances, petitioner believes that had 

1520 
the operator of the truck conducted the same type of inspection, he would have detected the defect and taking appropriate 

corrective action (Tr. 38). 

Petitioner asserted that while the cited condition indicates a possible maintenance problem, such problems, as 

reflected by the defect found by the inspector, directly 

affects safety. Petitioner pointed out that the inspector 

found another maintenance problem during his inspection, but 

did not cite it because it was not, of itself, a pafety 

defect. With regard to the respondent's suggestion that the 

cited condition may have occurred during the 3 hours that the 

truck was operated prior to the inspection, the petitioner 

submits that the unrefuted test.imony by the inspector is that 

the condition of the drive shaft simply cannot reasonably 

happen in 3 hours. In any event, petitioner asserts that 

this issue goes to the question of negligence rather than to 

the existence of any viol~tion (Tr. 39). In further support 

of its case, the petitioner cites a decision by the Commission 

in Allied Chemical Corporation, 3 MSHC 1544, August 28, 1984, 

6 FMSHRC 1854 (August 1984), affirming a violation of an identical surface mining standard found in 30 C.F.R. § 57.9002, in 

which the Commission held that "Defects affecting safety in 

equipment continuously in operation, including those occurring 

during the course of operation, must be corrected before the 

equipment is used any further, 11 3 MSHC 1584 (Tr. 40). 

Findings and Conclusions 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.9002, which provides that 

"Equipment defects affecting safety shall be corrected before 

the equipment is used.n 

In Ideal Basic Industries, Cement Division, 3 FMSHRC 843 

(April 1981), the Commission affirmed a violation of section 

56.9002u and stated as follows at 3 FMSHRC 144 with respect 

to its interpretation of the standard: 

[W]e hold that use of a piece of equipment 

containing a defective component that could be 

used and which, if used, could affect safety, 

constitutes a violation * * *· This interpretation is more likely to prevent accidents, a 

primary goal of the Act. * * * 

United States Steel Corporation, 4 FMSHRC 616 (April 

1982), concerned a violation of an identical standard found 

in 30 C.F.R. § 55.9-2. In that case, a driver of a 2-1/2-ton 

1521 
pick-up truck detected that the dual rear wheels of the truck 

had shifted in the rear wheel-well while he was driving it. 

He reported the condition to his foreman, but the condition 

was not corrected. ~wo days later, another driver visually 

inspected the truck, and believing that it had been repaired, 

proceeded to drive it with a crew of men ·in it. On a 

straightaway, the driver noticed that the rear tires were 

smoking in the rear wheel-wells. Within seconds the rear end 

started to steer itself around the cab, and when the driver 

let up on the gas pedal, the truck's qrive shaft dropped 

loose, and the truck overturned injuring the occupants. 

The operator advanced an argument similar to that of the 

respondent in this case. The o~erator contended that the 

term "defects affecting safety"· should be intended to cover 

detects which are normally associated with the safe operation 

of the vehicle, and that the question of whether the mechanical problem cited by the inspector constituted an equipment 

defect affecting safety ~hould be interpreted in light of the 

knowledge and understanding of the operator's personnel at 

the time it was first observed, rather than after the truck 

had rolled over under circumstances which had never previously 

been known to cause a truck to turn over. Judge Steffey 

rejected this argument, and found that the shifting rear end 

of the truck constituted a "defect affecting safety" which was 

not corrected before the equipment was used, and he aff irrned 

the violation. 

The Commission affirmed Judge Steffey's decision, and 

observed as follows at 6 FMSHRC 1434-1435: 

Substantial evidence also supports the judge 1 s 

conclusion that the shifted rear end of this 

truck was a defect affecting safety * * *o 

There is evidence in the record that a shifted 

rear end is a sign of mechanical defect, with 

a potential to cause an accident. Also, at 

some pointv a shift in a vehicle's rear end 

will affect safetyo * * * In this particular 

instance 1 the shifted rear end caused the 

spring package to break, a punctured rear 

tire, the. broken drive shaft to separate from 

the vehicler and the truck to roll over. * * * 

All of these facts point to a defect affecting 

safetyo 

The Allied Chemical Corporation case cited by the petitioner involved two missing bolts on a chock leg used for 

roof support on a longwall system. In affirming the judge's 

1522 
finding that the missing bolts constituted an equipment 

defect affecting safety, the Commission stated as follows at 

6 FMSHRC 1857-1858: 

In both ordinary and mining industry usage, a 

"defect" is a fault, a deficiency, Or a condition impairing the usefulness of an object or 

a part. Webster's Third New International 

Dictionary (Unabridged) 591 (1971); U.S. 

Department of Interior, Bureau of Mines, A 

Dictionary of Mining, Mineral, and Relatecr--

Terms 307 (1968). 

* * * * * * * 

The judge further found that the absence 

of the two bolts in this case affected safety. 

We agree. Although the effect on safety of 

two missing leg ,bolts in a hydraulic chock 

line of some 125 units could be viewed as 

inconsequential and beyond the standard's 

purview, we are not prepared to dispute the 

judge's findings as to the adverse impact on 

safety occasioned by the two missing bolts. 

The starting point for analysis is the 

broad language of the standard, "affecting 

safety." That phrase is neither modified nor 

limited. Although this case does not require 

us to describe the minimal effect on safety 

cognizable under the standard, it is clear 

that the standard has a wide reach. The 

safety effect of an uncorrected equipment 

defect need not be major or immediate to come 

within that reach" 

Andf at 6 FMSHRC 1859: 

Defects affecting safety in equipment continuously in operation, including those occurring 

during the course of operation, must be 

corrected before the equipment is used any 

further. The contrary approach urged by 

Allied could result in such defects not being 

repaired for substantial periods of time, thus 

needlessly increasing safety risks. 

1523 
Fact of Violation 

In this case the inspector issued the citation because 

of his belief that the loose and missing bolts on the flange 

plate which connected the front universal joint to the transmission presented a potential for the drive shaft to come 

loose, thereby resulting in loss of control of the truck. He 

found one missing bolt and several other bolts which were 

loose to the point where they could be turned with his fingers. These conditions resulted in the transmiss~on moving 

up and down, and the inspector believed that even· if the 

loosened bolts had not come completely out as the truck was 

driven, there was a good possibility that they would snap 

off, thereby causing the drive ahaft to fall out. If this 

had occurred, and since the underside of the truck had no 

restraining cross-member on its undercarriage, the fallen 

drive shaft could possibly stick into the ground causing gear 

loss and a loss of control of the vehicle. Since the truck 

differential is hooked to the rear end of the drive shaft at 

the back wheels of the tiuck which w6uld be turning, had the 

drive shaft come loose at the front end, it could whip around 

and possibly strike the brake lines, thereby resulting in a 

loss to the truck braking system. 

The inspector's testimony is unrebutted, and the respondent presented no testimony or evidence to refute his contentions with respect to the cited conditions. Further, the 

respondent has not refuted the testimony of the inspector, 

which I find credible, as to the potential consequences which 

may flow from the loosened and missing bolts in question. 

There was a real potential for the drive shaft to come loose 

and whip around freely under the truck while it was being 

driven, thereby contributing to the loss of control and 

possible loss of braking power. Under the circumstances, and 

in light of the conditions which were described and cited by 

the inspector, I conclude and find that the missing and loose 

bolts in question were equipment defects affecting safety 

within the meaning of section 56.9002v and the citation IS 

AFFIRMED. 

The respondent 1 s suggestion that section 56.9002 is 

inapplicable because the cited conditions related to a mechanical drive mechanism, rather than a safety component of the 

truck is rejected. The standard makes no such distinctions, 

and the decisions which have been discussed with respect to 

the interpretation and application of this standard hold 

otherwise. 

1524 
The respondent's assertion that the bolts could have 

been loosened and fallen off during the 3-hour period that 

the truck was in operation immediately prior to its inspection is not relevant to the fact that a violation occurred. 

As noted by the Commission in Allied Chemical Corporation, 

supra. "Defects affecting safety in equipment continuously 

in operation, including those occurring during the course of 

operation, must be corrected before the equipment is used any 

further" (emphasis added). 

History of Prior Violations 

I conclude and find that the respondent's past compliance 

reccrd is not such as to warrant any additional increase in 

the civil penalty which has bee·n assessed for the violation 

which has been affirmed. 

Size of Business and Effe'ct of Civil Penalty on the 

Respondent's Ability .to Continue in Business 

I conclude and find that the respondent is a relatively 

small operator, and that the civil penalty which has been 

assessed for the violation in question will not adversely 

affect its ability to continue in business. 

Gravity 

I conclude and find that the cited conditions constituted 

a serious violation. Although the inspector found that the 

brakes on the cited truck were adequate, and that it was 

possible that the driver could have stopped the truck in the 

event the drive shaft came loose, he nonetheless believed that 

a loose drive shaft whipping freely under the truck could have 

pulled the truck out of gearv sheared the brake lines, or 

caused loss of control by sticking in the ground. 

Negligence 

While it is true that the inspector had to look under 

the truck to detect the cited defectsv his unrebutted testimony is that the shiny spot caused by the rubbing action of 

the transmission which alerted him to look under the truck 

was readily observable to anyone walking around the truck. 

Given the fact that the truck driver is required to inspect 

the vehicle prior to placing it in operation, and given the 

admission by the respondent's representative that "we do not 

go over the truck completely every day" (Tr. 41), I conclude 

and find that the violation resulted from the respondent's 

1525 
failure to exercise reasonably care, and that this constitutes 

ordinary negligence. 

Good Faith Compliance 

The inspector confirmed that the truck was taken to the 

shop after the citation was issued, and that when he next saw 

it the conditions had been corrected. I conclude and find 

that the respondent exercised good faith in abating the 

violation. 

Significant and Substantial Violation 

A "significant and substan~ial" violation is described 

in section 104(d) Cl) of the Min'e 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." 30 C.F.R. § 814'(d)(l). 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, 

825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission 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 wi be of a reasonably serious 

nature, 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125r 1129, the Corrunission stated further 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 

1526 
in an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized 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, 1868 (August 1984); U.S. 

Steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

I agree with the inspector's finding that the cited conditions constituted a significant and substantial violation. 

Based on the facts of this case, I conclude and find that it 

was reasonably likely that the ~ontinued operation of the 

truck with loosened and missing bolts which obviously affected 

the drive shaft would cause the drive shaft to come loose, 

thereby contributing to ~ loss of control of the vehicle and a 

potential accident o~ a reasonably serious nature. The inspector's "S&S" finding IS AFFIRMED. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I concluae and find that the petitioner's proposed 

civil penalty assessment of $147 is reasonable and 

appropriate. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $147 for the violation in question, and 

payment is to be made to MSHA within thirty (30) days of the 

date of this decision. Upon receipt of payment, this case is 

dismissed. 

~.tfcu~ Administrative Law Judge 

1527 
Distribution: 

Larry A. Auerbach, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 339, 1371 Peachtree Street, N.E., 

Atlanta, GA 30367 (Certified Mail) 

Mr. Kenneth P. Mayeaux, General Manager, Galite Corporation, 

P.O. Box 468, Rockmart, GA 30153 (Certified Mail) 

/fb 

1528 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 311987 

LITTLE SHEPHERD, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BIG ELK CREEK COAL COMPANY, 

Respondent 

Doeket No. KENT 87-29-D 

BARB CD 86-84 

No. 2 Deep Mine 

ORDER OF DISMISSAL 

On August 27, 1987, Re'spondent filed an Agreed Order 

executed by Respondent~s C9unsel, Complainant's Counsel and 

Complainant. The Agreed Order set forth the terms of the 

settlement which disposes of this matter. I approve of the terms 

of the settlement. 

Accordingly, it is ORDERED that the Parties comply with the 

terms and provisions of the Agreed Order filed on August 27, 

1987. It is further ORDERED that this case be DISMISSED • 

Distribution~ 

. · /Y -·· (__.G, 

Avram Weisberger 

Administrative Law Judge 

Phyllis Robinson Smith, Esq., P. O. Box 952, Hyden, KY 41749 

(Certified Mail) 

Stephen Co Cawoodu Esqo, Cawood & Fowlesu Esqs., Po Oo 

Drawer 280u Pinevillev KY 40977 (Certified Mail) 

dcp 

1529 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ORVILLE SPARKS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

August 31, 1987 

DISCRIMINATION 

Complainant 

Docket No. KENT 

SANDY FORK MINING COMPANY, 

INC., 

BARB CD 87-18 

Respondent No • 10 Mine 

•. 

SECRETARY OF LABOR DISCRIMINATION 

PROCEEDING 

87-181-D 

PROCEEDING 

MINE SAFETY AND HEALTH 

ON BEHALF OF Docket No. KENT 87-189-D 

ORVILLE SPARKS, 

Complainant BARB CD 87-18 

v. 

No. 10 Mine 

SANDY FORK MINING COMPANY, 

INC. I 

Respondent 

ORDER OF DISMISSAL 

On January 29, 1987, Orville Sparks filed a complaint, with 

the Mine Safety and Health Administration, alleging that on 

December 2, 1986, he had been discharged by Sandy Fork Mining 

Companyv Inc.v in violation of Section 105(c}(l) of the Federal 

Mine Safety and Health Act of 19770 The Secretaryv by letter 

dated April 29v 1987, advised Mr. Sparks that the investigation 

of his complaint had not been completed, and that it had not yet 

been determined whether or not a violation of Section 105(c) had 

occurred. On June 12, 1987, Mr. Sparks filed his own complaint, 

with the Commissionu pursuant to Commission Rule 40Cb), 29 C.F.R. 

§ 2700.40(b)o Subsequentlyv on June 25v 1987v the Secretary filed 

his own complaint with the Commission on behalf of Mr. Sparks 

against Sandy Fork Mining Company, Inc. under Section 105(c}(2) of 

the Acto On July 23, 1987, the Secretary filed an amendment to the 

complainto On July 17r 1987, the Secretary filed a Motion to 

Dismiss arguing that Mro Sparks' complainant, Docket No. KENT 

87-181-D, should be dismissed. In its Motion, the Secretary argued 

that the Federal Mine Safety Act, created a private right of action 

only in situations where the Secretary reaches a negative determination regarding the miner's complaint. The Secretary further argued 

that once it determines that a violation of the Act has occurred, 

the Commission no longer has jurisdiction over the private cause of 

action. 

1530 
On August 25, 1987, the Commission, in Gilbert v. Sandy Fork 

Mining Co., Inc. (Slip. Op. August 25, 1987), in essence, sustained the position of the Secretary. Based on Gilbert, supra, 

as applied to the facts herein, the complaint of Mr. Sparks must 

be dismissed. 

Accordingly, Docket No. KENT 87-181-D is DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

G. Elaine Smith, Esq., Office of the Solicitor, U. s. Department 

of Labor, 280 U. S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail> 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, P. o. Box 260, Hazard, KY 41701 (Certified Mail) 

Mr. William A. Hayes, Esq., P. o. Box 817, Middleboro, KY 40965 

(Certified Mail) 

dcp 

1531 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 311987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CON-AG, INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROBERT E. HIRSCHFIELD, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LEE KUCKr 

Respondent 

Doeket No. LAKE 87-15-M 

A. C. No. 33-0~825-05502 

Con-Ag Crushing Plant 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 87-51-M 

A. C. No. 33-03825-05503 A 

Con-Ag, Inc. 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 87-84-M 

A. C. No. 33-03825-05504 A 

Con-Ag, Inc. 

ORDER OF CONSOLIDATION 

AND 

ORDER OFJ5ISMISSAL 

In the interest of justice, the unopposed Motion of 

Respondent to consolidate the above cases is GRANTED. It is 

accordingly ORDERED that the above cases be CONSOLIDATED. 

On August 26 1 1987? Counsel for both Parties filed a 

for the "termination of the above captioned proceedings." 

memorandum submitted along with the Motion indicates that 

Respondents have agreed to pay in full the proposed civil 

penalties. 

1532 

Motion 

Their 

all 
Accordingly, and in the interest of justice, the above cases 

are DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, u. s. Depactment 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Richard A. DuRose, Esq., Smith & Schnacke, 41 South High Street, 

Suite 2250, Columbus, OH 43215 (Certified Mail) 

Patrick M. Zohn, Esq., .Office of the Solicitor, U. S. Department 

of Labor, 1240 East Ninth Street, Cleveland, OH 44199 (Certified 

Mail) 

Ann Rosenthal, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail} 

dcp 

1533 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 AUG 3 i 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KAISER SAND & GRAVEL COMPANY, 

Respondent 

Docket No. WEST 86-230-M 

A.C. No. 04-01616-05504 

Santa Margarita Mine 

DECISION 

Appearances: Marshall P. Salzman, Office of the Solicitor, U.S. 

Department of LaborF San Francisco, California, 

for Petitioner; 

Mr. Clair E. Hay, Manager, Kaiser Sand & Gravel 

Company, Pleasanton, California, 

pro se. 

Before: Judge Cetti 

STATEMENT OF THE CASE 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977u 30 U.S.C" § 801 et seq., (Mine 

Act)o The Secretary of Labor initiated this proceeding by the 

filing of a petition for assessment of a civil penalty pursuant 

·to section llO(a) of the Mine Act. The respondent Kaiser Sand 

and Gravel Company (Kaiser) filed a timely answer contesting the 

existence of the violationu its classification as significant and 

substantial, and the amount of the penalty. After notice to the 

parties, an evidentiary hearing on the merits was held before me 

on May 2lu 1987. The parties presented oral and documentary 

evidence and submitted the matter for decision waiving their 

right to file post-trial br s. 

On June lOv 1986v Mr. Dale Cowley an MSH~ inspector conducted an inspection of respondent's Santa Margarita Quarry and Mill 

located at Santa Margaritav San Lu Obispo County, California. 

As a result of that inspection the federal mine inspector issued 

a citation charging the respondent with a significant and substantial violation of Title 30 C.F.R. safety standard. The 

citation originally alleged a violation of Title 30 C.F.R. 

§ 56.14001. Prior to the hearing I granted the Secretary's 

motion to amend the citation to allege a violation of 30 C.F.R. 

§ 56.14003, which requires guards on conveyor drive pulleys to 

extend a distance sufficient to prevent a person from accidentally reaching behind the guard and becoming caught between 

the belt and the pulley. 

1534 
Stipulations 

The parties stipulated as follows: 

1. Kaiser Sand & Gravel is a large company and operates a 

moderate-sized facility. The company has close to a four million 

man hours' work per year as a company with about 23,000 man hours 

work per year at the facility. 

2. Respondent has an average history having had four violations in the previous two years. 

3. Imposition of the penalty will not affect the ability of 

respondent to continue in business. 

4. The violations were abated in good faith. 

Review of Evidence 

and Discussion 

The Citation as amended by the Secretary charges Kaiser with 

violating 30 C.F.R. § 56.14003 which provides as follows: 

Guards at conveyor drive, conveyor-head, and conveyor-tail 

pulleys shall extend a distance sufficient to prevent a 

person from accidentally reaching behind the guard and becoming caught be.tween the belt and the pulley. 

The mine inspector testified that in the course of his June 

10, 1986, inspection of the secondary plant at the Santa 

Margarita mine he observed the guard for the V-Belt drive pulley 

on the wet shaker screen. He concluded the top portion of the 

guard did not extend a distance sufficient to prevent a miner 

from accidental reaching behind the guard and getting his 

fingers caught between the belt and the pulley. The top portion 

of the guard was about three feet high and extended horizontally 

a distance of three-feet parallel to an adjacent designated 

walkway. The mine inspector concluded that if an employee were 

walking down the walkway and he became unbalanced or slipped he 

could accidental reach behind the guard and get his fingers 

caught between the belt and the pulley. The violation was abated 

by extending the top portion of the guard towards the back a 

distance of inches. This narrowed by three-inches the gap 

that existed between the outer edge of the shaker screen and the 

inner edge of guard through which a hand could accidentally 

reach behing the guard and become caught in the pinch point 

between the belt and the drive pulley. 

Evidence was presented that just beneath the top horizontal 

portion of the guard are three C-120 V-belts and drive pulleys 

that shake the wet screens. Fingers caught in the pinch points 

could be amputated. 

1535 
Kaiser contends that the shaker screen is not a conveyor and 

that therefore 30 C.F.R. § 56.14003 is not applicable and no violation· existed. 

The Federal Mine Inspector testified that the wet shaker 

screen is a conveyor of materials. As it separates the material 

by size, it conveys the material from one end of the screen to 

other. The ~lant manager described the screen as a "finished" 

shaker that screens and separates material of different sizes. 

The screened material drops below into a series of four bunkers. 

He stated that it is an inclined screen that moves material down 

the conveyor or screen by shaking it down. It vibrates and the 

material advances. 

Mr. Cowley has been a mine inspector with MSHA the past 

eleven years and all together has had 32 years mining experience. 

He testified that the Dictionary of Mining, Minerals and Related 

Terms is the standard reference material for defining terms in 

the industry and is often used by his contemporaries and his 

supervisors. This dictionary is referenced in many court cases 

to define mining terms. The Secretary's counsel read into the 

record from page 260 of this dictionary the definition of a 

"conveyor vibrating type" as follows: 

Conveyor, vibrating type. A conveyor consisting of a movable bed mounted at an angle to the horizontal, which vibrates in such a way that the material advances. 

It satisfactorily appears from the record that the shaker 

screen in question is a conveyor within the meaning of the safety 

standard and that the safety standard is applicable. 

The preponderance of the evidence establishes that the guard 

at the conveyor (screen shaker) drive pulley did not extend a 

distance sufficient to prevent a person from accidentally reaching behind the guard and becoming caught in the pinch point and 

between the belt and the pulley. I therefore find that there was 

a violation of the guarding requirements of 30 C.F.R. § 56.14003. 

However, I do not find from the evidence presented that the 

violation was significant and substantial. 

A violation is properly designated significant and substantial "if v based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonal::)ly serious nature." National Gypsum, 3 FMSHRC at 825. In 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission 

explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary ••• must prove: Cl> the 

llnderlying violation of a i~1andatory safety standard; 

(2) a discrete safety hazard--that is, a measure of 

1536 
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. 

The Commission pointed out that the third element of the 

Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed will result in 

an event in which there is an injury." U.S. Steel Mining Co., 6 

FMSHRC 1834 at 1836 (August 1984). The Commission has further 

explained that in accordance with the language of section 

104Cd)(l), it is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial, 

6 FMSHRC 1836. 

Whi~e it is possible that the hazard contributed to will 

result in an event in which there is an injury this possibility 

is relatively remote. Even though the guard as it existed in 

place at the time of the inspection was not sufficient to fully 

satisfy the requirements of the safety standard, it was sufficient to reduce the likelihood of injury to "unlikely". It is 

therefore found under the evidence presented in this case that it 

is unlikely that the hazard contributed to by the violation will 

result in injury. 

The mine inspector testified that the V-Belt and drive 

pulleys were guarded on all sides and ends except the back. He 

stated "the hazard was not obvious just by walking by observing". 

The plant manager testified that he has walked around with 

each of the mine inspectors on all inspections 6f the site since 

he became manager eight or nine years ago. He stated that the 

area where the guard in question is located has been inspected 

before and mine inspectors have never issued a citation or made 

any comment about this particular guard. 

The violation was easily and completely abated by extending 

the top of the guard three-inches. While the fact that no prior 

MSHA inspection found that the guard was inadequate is of no 

weight or value on the issue of the existence of the violationu 

it is consistent with the finding that the violation was not a 

significant and substantial violation and also with a finding 

that the operators negligence was lowo 

The gravity of the violation is high with respect to the 

seriousness of the injury which could result if one's fingers 

became caught in the pinch point of the V-Belt drive pulley but 

is evaluated as low with respect of the likelihood of such an 

accident. I accept the stipulation of the parties with respect 

to the remaining statutory criteria set forth in section llO(i) 

of the Mine Act. 

Based upon my consideration of the six statutory penalty 

criteria in section llO(i) of the Mine Act I conclude that the 

appropriate penalty for this violation is $50.00. 

1537 
Based upon the entire record and the findings made in the 

narrative portion of this decision, the following conclusions of 

law are entered: 

Conclusions of Law 

1. The Santa Margarita Quarry and Mill operated by Kaiser 

Sand & Gravel Company at Santa Margarita San Luis Obispo County, 

California is subject to the provisions of the Mine Act. 

2. The Commission has jurisdiction to decide this case. 

3. The respondent violated safety standard 30 C.F.R. 

§ 56.14003. 

4. The violation was not significant and substantial and 

said allegation is stricken from the citation. 

5. The citation as modified is affirmed and a civil penalty 

of $50.00 assessed. 

ORDER 

Accordingly, the citation as modified is affirmed and Kaiser 

Sand and Gravel Company is ordered to pay within 30 days of the 

date of this decision a civil penalty of $50.00 . 

Distribution~ 

. . &tct F. Cetti 

nistrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Streetv Denver, 

CO 80294 (Certified Mail) 

Mark C. Van Ness, Esq., Jones, Meiklejohn, Kehl and Lyonsv 1660 

Lincoln Street, Denver, CO 80264 (Certified Mail) 

/bls 

1538 

*·I. S. GOVERNMENT PRINTING OFFICE 1987: 181·224/72927