FEBRUARY 1991 

COMMISSION DECISIONS 

08-14-90 

02-07-91 

02-07-91 

02-05-91 

Bob Sherman, employed by Blackhawk 

Transit Mixed Concrete Company 

Eastern Associated Coal Corporation 

Rochester & Pittsburgh Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-07-91 

02-07-91 

02-07-91 

02-07-91 

02-07-91 

02-07-91 

02-11-91 

02-11-91 

02-13-91 

02-19-91 

02-19-91 

02-21-91 

02-25-91 

02-25-91 

02-26-91 

02-26-91 

B & B Gravel Company, Inc. 

BethEnergy Mines, Inc. 

Ronny Boswell v. National Cement Co. 

Local 9909, Dist. 31, UMWA v. Consolidation Coal 

Bentley Coal Company 

Herba Sand & Gravel 

RBM Enterprises, Inc. 

Danny Sparks et al. v. VP-5 Mining Co. 

Wendell Cook v. South East Coal Company 

Warren Steen Construction 

Wyoming Fuel Company 

John A. Gilbert v. Sandy Fork Mining Co. 

Giant Cement Company 

David H. Brewer v. Westmoreland Coal Co. 

Sec. Labor on behalf of John A. Gilbert v. 

Sandy Fork Mining Co. 

Skelton Incorporated 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-15-91 Sec. Labor on behalf of Martin L. 

Richardson v. F.K.C., Inc. 

02-07-91 Robert V. Swindall employed by 

Clinchfield Coal Company 

02-20-91 Toler Creek Energy, Inc, 

WEST 90-110-M 

WEST 90-72-M 

WEVA 89-198 

PENN 88-284-R 

CENT 90-45-M 

PENN 90-206-R 

SE 90-112-DM 

WEVA 90-74-C 

WEVA 91-5 

YORK 90-9-M 

KENT 90-410 

VA 90-56-C 

KENT 90-351-D 

LAKE 89-68-M 

WEST 90-217-R 

KENT 86-49-D 

SE 90-140-M 

VA 90-58-D 

KENT 86-76-D 

WEST 90-194-M 

WEST 91-143-DM 

VA 90-54 

KENT 91-30 

Pg. 173 

Pg. 175 

Pg. 178 

Pg. 189 

Pg. 201 

Pg. 205 

Pg. 207 

Pg. 216 

Pg. 217 

Pg. 219 

Pg. 222 

Pg. 227 

Pg. 229 

Pg. 256 

Pg. 263 

Pg. 285 

Pg. 286 

Pg. 290 

Pg. 291 

Pg. 294 

Pg. 307 

Pg. 310 

Pg. 315 

FEBRUARY 1991 

Review was granted in the following cases during the month of Februa~: 

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

LAKE 90-53. (Judge Broderick, January 9, 1991) 

Drummond Company v. Secretary of Labor, MSHA, Docket No. SE 91-10-R, 

SE 91-11-R. (Judge Weisberger, January 14, 1991) 

Review was denied in the following case during the month of February: 

Secretary of Labor, MSHA v. C & C Crushed Stone, Inc., Docket No. 

CENT 90-21-M, CENT 90-68-M. (Judge Fauver, December 27, 1990) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v . 

BOB SHERMAN, Employed by 

BLACKHAWK 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 14', 1990 

Docket Nos. WEST 90-110-M 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq . (1988)("Mine Act"). On 

July 18, 1990, Commission Chief Administrative Law Judge Paul Merlin 

issued an Order of Default finding respondent Bob Sherman ("Sherman"), 

employed by Blackhawk, in default for failure to answer the Secretary of 

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

Sherman had been cited for violating the Mine Act's mandatory standards 

prohibiting smoking . 30 U.S.C. § 877(c). The judge assessed the civil 

penalty of $250 proposed by the Secretary. For the reasons that follow, 

we vacate the default order and remand this case for further 

proceedings. 

The judge's jurisdiction in this proceeding terminated when his 

default order was issued on July 18, 1990 . 29 C.F.R. § 2700.65(c). 

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

decision has issued, relief from .the decision may be sought by filing 

with the Commission a petition for discretionary review within 30 days 

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

August 2, 1990, the Commission received a letter from Sherman, addressed 

to Judge Merlin, in which Sherman explained that he had failed to timely 

respond to the judge ' s show cause order because he had been hospitalized 

until July 19, 1990. Sherman also expressed his belief that the penalty 

assessed against him was in the amount of $25.00 and sent that sum in 

payment. Under the circumstances, we deem Sherman's letter to 

173 
constitute a timely petition for discretionary · JView requesting relief 

from the judge's default order and assessment of the $250 penalty. See, 

~·Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988). 

It appears from the record that Sherman filed a "Blue Card" 

request for a hearing in this matter in response to the Secretary's 

initial notification of proposed penalty. It further appears that 

Sherman , proceeding without benefit of counsel, may have raised an 

explanation for his failure to timely respond to the judge's show cause 

order. In conformance with the standards set forth in Fed. R. Civ . P. 

60(b)(1), the Commission has generally afforded relief from default upon 

a showing of inadvertence, mistake, or excusable neglect. . Hickory 

Coal Company, 12 FMSHRC 1201 , 1202 (June 1990) . We are unable on the 

basis of the present record to evaluate the merits of Sherman's position 

but, in the interest of justice, we will permit Sherman the opportunity 

to present his position to the judge, who shall determine whether final 

relief from the default order is warranted. See, ~· A. H. Smith Stone 

Company , 11 FMSHRC 2146, 2147 (November 1989) . 

Accordingly, we grant Sherman's petition for discretionary review, 

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

consistent with this order. 

~n 

V. Backley, Commissioner 

J~~c~~siW 

Ja~7~::r 

L. Clair Nelson, Commissioner 

174 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASH INGTON, D.C. 20006 

February 7, 1991 

Docket No. WEST 90-72-M 

TRANSIT MIXED CONCRETE COMPANY 

BEFORE: Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U. S.C. § 801 et seq. (1988)("Mine Act"). On October 

11, 1990, Commission Administrative Law Judge John J. Morris issued a decision 

in this matter approving settlement between the Secretary of Labor and 

respondent Transit Mixed Concrete Company ("TMC"). The Secretary now requests 

that the judge's decision be amended or that a supplemental decision approving 

settlement be issued. The Secretary asserts that the parties' settlement 

agreement inadvertently omitted one of the citations involved in this case and 

that the parties have now settled that matter as well. For the reasons 

explained below, we reopen and remand this matter to the judge for further 

proceedings. 

In relevant part, the record discloses that on August 24, 1989, an 

inspector of the Department of Labor's Mine Safety and Health Administration 

issued to TMC two cit ations at i t s Azusa plant in Los Angeles County, 

California. Citations No. 3466441 and No. 3466442 allege defective brakes on, 

respectively, a mobile sweeper and fork lift in violation of 30 C.F.R. 

§ 56.14101. 

TMC filed a "Blue Card" notice of contest of the Secretary's proposed 

civil penalty assessment for the two alleged violations. On January 26, 1990, 

the Secretary filed with the Commission a civil penalty petition proposing 

penalties of $600 for each violation. By letter to the Commission dated 

February 14, 1990, TMC indicated that it "accept(ed] citation /13466442 and 

[was] in the process of sending [penalty] payment" but that it still wished to 

contest Citation No. 3466441. 

On July 30, 1990, the Secretary filed with the judge a motion for 

approval of a settlement with respect to Citation No. 3466441. The motion 

175 
stated that TMC had agreed to pay a civil' penalty of $400 but without 

admission of the violation. On October 11, 1990, Judge Morris issued his 

Decision Approving Settlement ordering TMC to pay the agreed-to penalty of 

$400. 

By letter to Judge Morris dated January 16, 1991, the Secretary requests 

the judge to amend his October 11, 1990 decision or to issue a supplemental 

decision approving settlement. The Secretary's letter acknowledges that it 

was the parties' "error" not to have included Citation No. 3466442 in the 

original motion to approve settlement. The letter asserts that TMC has paid 

the proposed civii penalty of $600 for Citation No. 3466442. A copy of a 

check for $600 dated December 7, 1990, from TMC to the order of the U.S. 

Department of Labor is attached. On the statement accompanying the check, 

there is handwriting indicating "Citation :/103466442." Judge Morris has 

forwarded the Secretary's letter to the Commission. 

The judge's jurisdiction in this matter terminated when his Decision 

Approving Settlement was issued on October 11, 1990. The Secretary did not 

file a timely petition for discretionary review of the judge ' s decision within 

the 30-day period prescribed by the Mine Act (30 U. S.C. § 823(d)(2)(A)(i). 

See also 29 C.F.R. § 2700.70(a)). Nor did the Commission direct review on its 

own motion within this 30-day period (30 U.S.C. § 823(d)(2)(B)). Thus, under 

the statute, the judge's decision became a final decision of the Commission 40 

days after its issuance . 30 U.S.C. § 823(d)(l). Under these circumstances, 

we deem the Secretary's submission to be a request for relief from a final 

Commission order, and to incorporate by implication a late-filed petition for 

discretionary review. 29 C.F.R. § 2700.l(b)(Federal Rules of Civil Procedure 

apply, "so far as practicable" and "as appropriate," in absence of applicable 

Commission rules); Fed. R. Civ. P. 60(b) (Relief from Judgment or Order). 

See,~. Danny Johnson v. Lamar Minin~ Co., 10 FMSHRC 506, 508 (April 1988); 

Kelley Trucking Co., 8 FMSHRC 1867, 1868-69 (December 1986). Accordingly, we 

reopen this matter and proceed to consider the Secretary's substantive request 

for relief. 

Relief from a final judgment or order on the basis of mis.take, 

inadvertence, surprise or excusable neglect is available to a movant under 

Fed. R. Civ. P. 60(b)(l) & (6). The record suggests that the Secretary's 

original motion for settlement approval erroneously and inadvertently failed 

to present to the judge a complete settlement agreement addressing Citation 

No. 3466442. Now the Secretary has proffered, in effect, an amended 

settlement approval motion addressing that citation. We conclude that this 

matter should be remanded to the judge, who shall conduct appropriate 

proceedings necessary for final disposition of Citation No. 3466442. 

176 
For the foregoing reasons, this case is remanded to the judge for 

appropriate proceedings. 

Distribution 

John C. Nagle, Esq. 

Associate Regional Solicitor 

U.S . Denartment o~ Labor 

3247 r.ederal Suilding 

300 North Los An~eles Street 

Los Angeles, California 90012 

Hr. r.ene Hade 

Transit Mixed Concrete Co. 

4760 Valley Blvd. 

Los Angeles, California 90032 

Arlene Holen, Commission 

L: Clair Nelson, Commissioner 

Administrative Law Judge John J. ~orris 

T."ederal !1ine Safetv & Health Revie\v Commission 

280 Federal BldP.. 

1244 Sneer Boulevard 

Denver, Colorado 80294 

177 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

~ebruary 7, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEVA 89-198 

EASTERN ASSOCIATED COAL 

CORPORATION 

BEFORE: Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding ar1s1ng under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), 

presents the question of whether a violation by Eastern Associated Coal 

Corporation ("Eastern") of 30 C.F.R. § 75.400, a mandatory underground coal 

mine safety standard requiring that combustible materials be cleaned up and 

not permitted to accumulate in active workings, was of a "significant and 

substantial" nature ("S&S") and the result of Eastern's "unwarrantable 

failure" to comply with the standard. 1 Commission Administrative Law Judge 

Avram·Weisberger concluded that Eastern violated 30 C.F .R. § 75.400 but that 

the violation was not S&S and was not the result of its unwarrantable 

failure. 12 FMSHRC 239 (February 1990)(ALJ). The Commission granted the 

Secretary of Labor's petition for discretionary review, which challenges the 

judge's determinations that the violation was not S&S and was not 

unwarrantable. For the reasons that follow, we affirm, on substantial 

evidence grounds, the judge's conclusion that the violation was not S&S, and 

vacate his conclusion that the violation was not unwarrantable, remanding 

the issue of unwarrantability for reconsideration. 

1 30 C.F.R. § 75.400, entitled "Accumulation of combustible 

materials," states: 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on 

electric equipment therein. 

178 
I. 

Factual Background and Procedural History 

Eastern owns and operates the Federal No. 2 Mine, an underground coal 

mine located in West Virginia. On February 8, 1989, a Department of Labor 

Mine Safety and Health Administration ("MSHA") inspector, Thomas Doll, 

examined the 3 North tipple area during the course of a quarterly inspection 

of the mine. When Doll entered the tipple area, James Merchant, the tipple 

operator, informed Doll of an oil leak on the opposite side of the track and 

stated that he had reported the leak to Eastern's management "more than 

once.;' Tr. 137-38. 

Upon inspection, Doll found accumulations of hydraulic oil on and 

around the hydraulic tub structure. The hydraulic tub is designed to hold 

over 30 gallons of hydraulic oil. It has a 460-volt AC motor, pump, and a 

series of hoses and fittings that take oil where it is needed for the 

operation of the tipple. Doll testified that the oil was leaking from 

numerous hose fittings and that some of the fittings were "dripping really 

bad, ... coming out really fast .... " Tr. 146, 175. The oil was on and 

under the motor and motor frame, on the tub's hoses, and under the hydraulic 

tub. A piece of belting was hooked under one of the fittings to direct one 

of the leaks to the mine floor. The puddles under the tub were 

approximately three feet wide, four feet long, and up to four inches deep. 

According to Doll, the oil was pure hydraulic oil and was not mixed with mud 

or dirt. The motor on the hydraulic tub was functioning, but the tipple 

itself was not running. Tr. 144-48. 

Doll also found accumulations of hydraulic oil under the car spotter 

motor, which was located near the hydraulic tub. 2 Doll did not notice any 

leaks on the car spotter motor and believed that the accumulations came 

entirely from the hydraulic tub. Doll estimated that the total accumulation 

of hydraulic oil was 20 to 25 gallons. Doll also noticed that a trench, 

measuring 10 inches wide, 6 to 8 inches deep, and 15 feet long, had been 

hand-dug to collect the oil. Tr. 143-47. 

Doll issued a withdrawal order to Eastern, pursuant to section 

104(d)(2) of the Mine Act, 30 U.S.C,, § 814(d)(2), alleging a violation of 30 

C.F.R. 75.400 for an excessive accumulation of a combustible material, 

hydraulic oil. Doll found that the alleged violation was S&S. At the 

hearing, he testified that the hazard was the accumulation of hydraulic oil, 

coupled with the presence of electrical wires, motors, and cables as 

ignition sources. Doll indicated that the oil was flammable and that some 

ignition sources were nearby, pointing out that the cables for the motor on 

the hydraulic tub and the motor on the car spotter were within inches of the 

oil. He indicated that a short-out, arc, or spark could start a fire and 

stated that ignition of the oil was "highly likely" if the "situation was 

not taken care of." Doll further testified that in the event of a fire, 

serious burn or smoke inhalation injury was quite likely. Tr. 152-54. 

2 The car spotter motor moves the coal cars on the track as they are 

loaded so that the cars are loaded evenly. 

179 
Doll found Eastern's negligence to be high and that the violation 

resulted from Eastern's unwarrantable failure to comply with the standard 

because the condition had been reported to Eastern by Merchant, the tipple 

operator, on January 31, 1989, a week prior to the date the violation was 

cited. Doll testified that the quantity of accumulated oil was also a 

factor. Doll further stated that the track was fire bossed daily and that 

the condition should have been noticed. Doll indicated that, while he had 

been informed that Eastern had sent mechanics to work on the leaks during 

the prior weekend, considering the way the system was leaking, he did not 

believe that any effective work had been done. Tr. 156-58. 

Merchant testified that on and off for the two to three years prior to 

the citation there had been problems keeping a sufficient reservoir of oil 

in the tipple. Tr. 197. He indicated that on some days he would be 

required to add some 20 to 25 gallons of oil per shift. Tr. 198. Merchant 

stated that he had told his foreman, John Kucish, and Roger Boggess, a 

maintenance foreman, of the oil leak problems at the tipple. Tr. 117, 200-

03, 260. He testified that about a week before February 8, he had reported 

the condition to Kucish and that Boggess subsequently told him that the 

problem was supposed to have been fixed, but that the person assigned did 

not get to it. Merchant also testified that on February 6 and 7 the tipple 

was not leaking any less, because he still needed to add 15 to 25 gallons of 

oil each shift. According to Merchant, he would have had to add oil under 

normal conditions only once each month. Tr. 203-07. 

To abate the violation, Kucish, Boggess, and David Tennant, 

underground maintenance superintendent, went to the site. The area was 

cleaned and the car spotter unit was run to determine what, if anything, was 

leaking. According to Kucish, drips were located at some of the fittings. 

In his view, those drips were insufficient to accumulate during one shift 

into the quantity of oil present when the order was issued. Tr. 242, 246-

47. Boggess testified that on February 8 he worked on the abatement of the 

violation, and that only one slight "dripper" on the car spotter 

unit/hydraulic power unit remained. Tr. 249-50. To correct that one 

dripper, some plumbing was eliminated on the system. Tr. 250. Boggess 

opined that the one leak in question was not of sufficient size to have 

caused the accumulation. Tr. 250. Tennant essentially confirmed Boggess' 

testimony. Tr. 260-61. All three felt that the unit may have been 

overfilled, causing oil to come back out of the bre)lthers, or that oil was 

spilled when it was put into the hydraulic tub. Tr. 242, 250, 261-62, 264-

65. In terminating the withdrawal order, Doll indicated "[t]he area was 

cleaned and some oil leaks were fixed." G. Exh. 1. 

Before the judge, Eastern conceded the violation. In addressing the 

S&S question, Eastern argued that there was no likelihood of any injury as a 

result of the accumulation. Boggess and Tennant testified that a spark or 

short from the electrical equipment in the area would be incapable of 

igniting the oil. Tr. 255, 264. Kucish further testified that the area was 

adequately rock dusted. Tr. 239. Boggess and Kucish testified that there 

was a fire suppression system over the car spotter motor. Tr. 240-41, 253-

54. Boggess also testified that there were fire fighting materials and 

equipment in the area, including water hoses, rock dust, and fire 

180 
extinguishers. Tr. 240. 

In contesting the inspector's unwarrantable failure finding, Eastern 

argued that it had performed maintenance on the tipple equipment, including 

dealing with oil leaks, on January 31 and February 4, 1989. Kucish 

testified that when he observed the area on February 5, 1989, after the 

second maintenance operation, there were no observable oil leaks. Tr. 231-

32. Eastern asserted that it was unaware of the oil situation at the tipple 

on February 8, 1989, and further suggested that the accumulation could have 

resulted from either spillage or overfilling of the hydraulic tub that day. 

In his aecision, the judge found a violation of 30 C.F.R. 75.400, as 

conceded by Eastern. However, the judge vacated the S&S and unwarrantable 

failure findings. With respect to the S&S finding, the judge held that 

"[a]lthough, based on [Inspector] Doll's testimony, it can be concluded that 

ignition of the oil could have resulted, I find that it has not been 

established that such an event was reasonably likely to occur." 12 FMSHRC 

at 240. The judge discounted the fact that various ignition sources, 

including a motor, wires and cables, were present because "there is nothing 

in the record to indicate that this equipment was in such a condition as to 

make sparking or arcing an event reasonably likely to occur." Id. Relying 

on Eastern's witnesses' testimony, the judge stated: 

[D]ue to Roger Boggess' experience as a maintenance 

foreman, I place some weight on his opinion that a 

spark would not ignite the oil, and that a sustained 

fire would be needed. Further, John Kucish, who was 

the production foreman in charge of the section on 

February 8, indicated that the area in question was 

adequately rock-dusted. Also, he and Boggess 

indicated that there was a fire suppression system 

over the top of the power unit of the car spotter, 

and that there were various items to extinguish 

fires in the area. 

12 FMSHRC at 240. Taking all of the above factors intq account, the judge 

concluded that it had not been established that the ~iolation was S&S. 

The judge also determined that the violation was not unwarrantable. 

He found that the leak had existed on and off for two to three years and had 

been reported to Eastern several times, including one week prior to the 

issuance of the instant order. 12 FMSHRC at 242. However, the judge noted: 

I accept the testimony of Respondent's witnesses 

that twice within 8 days prior to February 8, 

maintenance work had been performed on the equipment 

in question. I accept the testimony of Kucish that 

when he observed the area on the day after the work 

had been performed on February 4, there were no 

"visual leaks" .... Although Merchant indicated 

that on February 6-7, 1989, the equipment was not 

leaking less, there is no evidence that the 

181 
condition was reported to management on these days. 

I thus conclude, taking the above into account, that 

Respondent herein did not exhibit any aggravated 

conduct, and hence the violation herein did not 

result from its unwarrantable failure. 

12 FMSHRC at 242. 

In assessing the civil penalty for the violation, the judge found that 

Eastern was highly negligent for not ensuring that its work on February 4 

was successful and that there was no longer any accumulation of oil. The 

judge relied on Merchant's testimony that the leakage problem had existed 

intermittently for two to three years and had been reported to Kucish 

numerous times. The judge additionally noted the large quantity of oil 

observed on February 8. 12 FMSHRC at 242. The judge assessed a civil 

penalty of $900. Finally, the judge modified the withdrawal order to a 

citation issued pursuant to section 104(a) of the Mine Act, 30 U.S.C. 

§ 814(a). 

II. 

Disposition of Issues 

A. Whether the violation was S&S 

A violation is properly designated as being S&S "if, based on the 

particular facts surrounding the violation, there exists a reasonable 

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

illness of a reasonably serious nature." 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: 

In order to establish that a violation of a 

mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: 

(1) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard -- that is, a 

measure of danger to safety -- contrib~ted to by the 

violation; (3) a reasonable 1-ikelihood 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. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff'g, 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies criteria). The 

question of whether any specific violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 

500-01 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 

(December 1987). In determining whether the judge's S&S finding is 

supported by substantial evidence, as with other substantial evidence 

questions, the record as a whole must be considered, including evidence that 

"fairly detracts" from the finding. .E....g_,_, Universal Camera Corp. v. NLRB, 

182 
340 U.S. 474, 488 (1951); see also~. Florence Mining Co., 11 FMSHRC 747, 

753, 755-57 (May 1989). The term "substantial evidence," as this Commission 

has consistently recognized, means "such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion." Harry Ramsey v. 

Industrial Constructors Corp., 12 FMSHRC 1587, 1592 (August 1990), and cases 

cited. 

As to the first S&S element, the violation of section 75.400 has been 

established. Concerning the second element, there is no serious question on 

review that a discrete hazard of a potential fire existed. There was an 

undisputed accumulation of a combustible substance, hydraulic oil, combined 

with the presence of possible ignition sources. The crucial question on 

review is the third S&S element - whether there was a "reasonable 

likelihood that the hazard contributed to will result in an injury." The 

third element of the Mathies formula "requires that the hazard contributed 

to will result in an event in which there is an injury" (U.S. Steel Mining 

Co., 6 FMSHRC 1834, 1836 (August 1984)), and the violation itself must be 

evaluated in terms of continued normal mining operations. (U.S. Steel 

Mining Co .. Inc., 6 FMSHRC 1573, 1574 (July 1984); see also Halfway, Inc., 

8 FMSHRC 8, 12 (January 1986)). The relevant time frame for determining 

whether a reasonable likelihood of injury exists includes both the time that 

a violative condition existed prior to the citation and the time that it 

would have existed if normal mining operations had continued. Halfway, 

Inc., 8 FMSHRC at 12; U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 

1985). 

As a threshold contention, the Secretary submits that the judge 

erroneously equated the reasonable likelihood element with the presence of 

an "imminent danger." (See 30 U.S.C. § 817 (dealing with procedures to 

counteract imminent dangers); see also 30 U.S.C. § 802(j) (definition of 

"imminent danger").) If this were, in fact, what the judge had done, the 

Secretary's point would be well taken. Section 104(d)(l) of the Mine Act, 

in which the S&S terminology is initially set forth, makes clear that the 

conditions created by an S&S violation need not necessarily be so impending 

as to constitute an imminent danger. 3 We find no indication in the 

3 Section 104(d)(l) of the Act provides: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause 

imminent danger, such violation is of such nature as 

could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or 

health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, 

he shall include such finding in any citation given to 

the operator. under this [Act] .... 

. 183 
judge's decision, however, that he actually required the Secretary to 

demonstrate a reasonable likelihood of injury so pressing as to be 

"imminent." Further, we are satisfied that the judge applied the correct 

reasonable likelihood test consistent with Commission precedent. The 

question is whether his findings in that regard are supported by the 

evidence. 

In Texasgulf, supra, the Commission developed an analytical approach 

useful for determining the reasonable likelihood of a combustion hazard 

resulting in an ignition or explosion. The Commission established that 

there must be a "confluence of factors" to create a likelihood of ignition. 

10 FMSHRC at 501. The evidence relied on by the judge in the present 

proceeding provides adequate support for a finding that there was not a 

"confluence of factors" pointing to a reasonable likelihood of a fire 

involving the accumulation of hydraulic oil. 

The judge relied on Boggess' testimony that a spark would not ignite 

the oil, and that a sustained fire would be needed for ignition. 12 FMSHRC 

at 240; Tr. 253. Tennant, who has State electrical certification, also 

testified that a spark would not be a sufficient ignition source for 

hydraulic oil. Tr. 264. Boggess testified that the hydraulic oil would not 

burn easily. Tr. 252. On review, the Secretary has not addressed 

substantively Boggess' or Tennant's testimony, or otherwise discussed the 

actual ignitability of hydraulic oil. Although Inspector Doll testified 

that the oil was not fire-resistant (Tr. 147), he conceded that he did not 

perform any combustibility tests (Tr. 161). The Secretary had the burden of 

proof on this point, but only very limited evidence concerning the 

combustibility of hydraulic oil was presented. 

As the judge also found, there was nothing in the record to indicate 

that the mining equipment nearby was in such a condition as to make sparking 

or arcing an event reasonably likely to occur. 12 FMSHRC at 1240. Boggess 

testified that there were no shorts or other problems with the electrical 

circuits at the time. Tr. 253. Tennant testified that it was unlikely for 

a fire to start because the power unit's electrical system was protected by 

electrical devices that would deenergize power if there were any 

abnormalities in the electrical circuits. Tr. 263. Boggess stated that the 

electrical equipment was protected by electric circuLts. Tr. 253. 

Inspector Doll conceded that the system overloads, breakers, and similar 

devices were working. Tr. 164. There is no evidence in the record 

indicating the likelihood of these safety features breaking down under 

normal continued mining operations. 

The evidence of record suggests that even if there were to be an 

ignition, it would be of a limited nature and readily contained. The judge 

assigned weight to the testimony of. Kucish and Boggess that there was a fire 

suppression system, including a water dilute system, over the top of the 

hydraulic tank itself, and readily accessible firefighting equipment, 

including water hoses, rock dust, and fire extinguishers. 12 FMSHRC at 240; 

30 U.S.C. § 814(d)(l)(emphasis added). 

184 
Tr. 240-41, 253-54, 263. Boggess also testified that the systems were in 

working order. Tr. 253. MSHA inspector Doll conceded that these fire 

suppression systems were working. Tr. 164. Kucish also testified that the 

area was adequately rock-dusted and that, as a general rule, the area was 

damp. Tr. 239-40. Merchant conceded that the area was adequately dusted. 

Tr. 164. Additionally, Merchant acknowledged that he installed a belt to 

function like a trough to drain the oil away from the electrical motors and 

added rock dust to muck the oil in the ditch. Tr. 197-98, 199, 216. See 

also Tr. 183-84. A miner is also posted at all times at the loading station 

just a few feet away. Tr. 240, 263. The testimony also suggests that there 

has never been a fire on a power unit at the tipple. Tr. 264. 

The Commission's task is not a de novo reweighing of somewhat 

conflicting evidence but a determination of whether there is substantial 

evidence in the record to support the judge's conclusions. As explained 

above, we conclude that substantial evidence does support the judge's 

conclusion that the hazard was not reasonably likely to cause an injury and, 

consequently, that the violation was not S&S. 4 

B. Whether the violation was unwarrantable failure 

The Commission has held that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence by a mine operator in 

relation to a violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 

(December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 

1987). This determination was derived, in part, from the ordinary meaning 

of the term "unwarrantable failure" ("not justifiable" or "inexcusable"), 

"failure" ("neglect of an assigned, expected or appropriate action"), and 

"negligence" ("the failure to use such care as a reasonably prudent and 

careful person would use, characterized by "inadvertence," "thoughtlessness," and ••inattention"). Emery, supra, 9 FMSHRC at 2001. This 

determination was also based on the purpose of unwarrantable failure 

sanctions in the Mine Act, the Act's legislative history, and judicial 

precedent. Id. 

4 The three Commission decisions relied on by the Secretary on review are 

distinguishable from the present case. U.S. Steel Mining Co., 7 FMSHRC 327 

(March 1985), affirming a judge's S&S finding, involved a water pump with 

power wires that were not protected with a required bushing. The pump 

vibrated when in operation. The vibration could cause a cut in the wires' 

insulation and, if the circuit protection failed, a person touching the pump 

frame could be shocked or electrocuted. The vibrating defect is more akin 

here to the presence of a more flammable substance or more certain evidence of 

sparking or arcing. Youghiogheny & Ohio Coal Co., 9 FMSHRC 673 (April 1987) 

and U, S. Steel Mining Co., 6 FMSHRC 1866 (August 1984), also affirming judges' 

S&S findings, involved hazards concerning potential methane ignitions. 

Methane is ignitable by a spark and is much more flammable and explosive than 

hydraulic oil. Further, the mines in both those proceedings were gassy mines, 

as defined by the Mine Act. In all three of these cases, we perceive the kind 

of showing of a "confluence of factors" that was not made here. 

185 
In finding that the violation was not the result of Eastern's 

unwarrantable failure, the judge accepted testimony of Eastern's witnesses 

that twice within eight days prior to February 8, maintenance work had been 

performed on the equipment in question. 12 FMSHRC at 242. Boggess and 

Tennant testified that a leak had been reported on January 31, 1989, and 

that corrective maintenance was performed that day. Boggess and Tennant 

also testified that on February 4, maintenance at the tipple and the track 

unit was performed and that adjacent hydraulic jacks were repacked or 

replaced because of possible leaks. Tennant stated that any leaks that 

could be found were addressed that day. The judge accepted the testimony of 

Kucish that, when he inspected the area on February 5, there were no 

apparent leaks. Id. Kucish additionally testified that "the area had been 

cleaned up and had been dusted." Tr. 231. The judge also concluded that 

aggravated conduct was lacking because the leakage on February 6-7 was not 

reported to Eastern. 12 FMSHRC at 242. 

Notwithstanding these findings, the judge also found that Eastern was 

"highly negligent" with respect to the violation: 

[T]aking into account Merchant's testimony, that I 

accept, that the leak had existed on and off for 2 

to 3 years, and was reported by him to Kucish on 

numerous times, and taking into account the large 

quantity of oil that was observed on February 8, I 

conclude that the Respondent was highly negligent in 

not having taken steps to ensure that an 

accumulation would no longer occur. Although 

maintenance work was performed on February 4, and 

examined one day later by Kucish, and observed not 

to have any visible leaks, there is no evidence that 

Respondent examined the area on February 6-7, to 

ensure that its work on February 4 was successful, 

and there was no longer any accumulation of oil. 

For these reasons, I conclude that Respondent was 

highly negligent herein. 

12 FMSHRC at 242 (emphasis added). 

The terms "unwarrantable failure" and "negligenc:en are distinguished 

in the Mine Act. A finding by an inspector that a violation has been caused 

by an operator's unwarrantable failure to comply with a mandatory health or 

safety standard may trigger the increasingly severe enforcement sanctions of 

section 104(d). 30 U.S.C. § 814(d). Negligence, on the other hand, is one 

of the criteria that the Secretary and the Commission must consider in 

proposing and assessing, respectively, a civil penalty for a violation of 

the Act or of a mandatory health or safety standard. 30 U.S.C. §§ 815(b) 

(l)(B) & 820(i). Although the same or similar factual circumstances may be 

included in the Commission's consideration of unwarrantable failure and 

negligence, the concepts are distinct. See Quinland Coals, Inc., 7 FMSHRC 

1117, 1122 (August 1985); Black Diamond Coal Co., 9 FMSHRC 1614, 1622 

(September 1987). Nevertheless, as explained in Emery, and Youghiogheny & 

Ohio, aggravated conduct constitutes more than ordinary negligence for 

186 
purposes of a special finding of unwarrantable failure. "Highly negligent" 

conduct involves more than ordinary negligence and would appear, on its 

face, to suggest an unwarrantable failure. Thus, if an operator has acted 

in a highly negligent manner with respect to a violation, that suggests an 

aggravated lack of care that is more than ordinary negligence. 

Evidence seemingly unaddressed by the judge in his analysis is 

relevant in considering the question of unwarrantable failure. The judge 

appears to have found that a leak was the source of the problem. See 12 

FMSHRC at 242. Thus, he apparently rejected the testimony of Eastern's 

witnesses that the most plausible explanation for what occurred was either a 

spill or overfill. The judge, however, made no finding concerning how long 

the leak had continued unabated. If the leak had actually continued 

unabated from February 6, as Merchant testified, a lack of care on Eastern's 

part would appear to be present. Tr. 205-06. The area was fire-bossed 

daily and involved at least 12 to 15 inspections (preshift and onshift) by 

four or five different people over the period February 6-8. Tr. 209, 233, 

235; R. Exh. 6. 

A lack of actual knowledge by Eastern's management of the apparently 

continuing leak does not necessarily bar an unwarrantable failure finding. 

In Pocahontas Fuel Co., 8 IBMA 136, 148-49 (1977), aff'd sub nom. Pocahontas 

Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979), failure of a rank-and-file 

preshift examiner to detect a violation was found to be imputable to the 

operator for unwarrantable failure purposes. Even assuming that Eastern's 

preshift and onshift examiners did not record any continuing problem, that 

consideration does not necessarily preclude an unwarrantable failure 

finding. Emer:y makes clear that unwarrantable failure may stem from what an 

operator "had reason to know" or "should have known." 9 FMSHRC at 2003 . 

. we further note the judge's finding that "leakage off and on" had been 

a problem for two to three years. 12 FMSHRC at 242. Arguably, this 

continuing problem placed on Eastern the need for heightened scrutiny to 

assure compliance with section 75.400. See Youghiogheny & Ohio, 9 FMSHRC at 

2011 (history of roof falls at mine placed operator on notice that 

heightened scrutiny was vital). (We also note that in the Y&O case, the 

Commission recognized that preshift examinations of the affected area had 

been conducted but that the violative condition had not been reported. 

9 FMSHRC at 2010-11.) 

We do not reach an ultimate resolution of.this issue. The fact that 

the judge did not reconcile his findings with respect to negligence and 

unwarrantable failure requires that we vacate his conclusion that no 

unwarrantable failure existed and remand this proceeding to the judge for 

further analysis and consideration. 

187 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's determination that 

Eastern's violation of section 75.400 was not S&S, vacate his determination 

that the violation did not result from unwarrantable failure, and remand the 

question of unwarrantability for reanalysis and further consideration 

consistent with this opinion. If the judge determines on remand that the 

violation did result from unwarrantable failure, the citation should be 

converted to the original section 104(d)(2) withdrawal order. 

Distribution 

Thomas L. Clarke, 

Eastern Associated Coal Coruoration 

P.O. Box 1233 

Charleston, West Virginia 25324 

Colleen A. Gera?hty, Esq. 

Office of the Solicitor 

U.S. Deryartnent of Labor 

4015 Wilson Blvd. 

ArlinP.tOn, VA 22203 

· oyce . Doyle, 

f2 I L 'k< 

Arlene Holen, 7commissioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram ~!eisberger 

Federal ::1ine Safety and Health Review Commission 

5203 LeesburR Pike, Suite 1000 

Valls Church, Virginia 22041 

188 
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) 

v. 

ROCHESTER & PITTSBURGH COAL 

COMPANY 

February 5, 1991 

Docket Nos. PENN 88-284-R 

PENN 88,.285-R 

PENN 89-72 

BEFORE: Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding involves the 

issue of whether two violations by Rochester and Pittsburgh Coal Company 

("R&P") of 30 C.F.R. § 75.305, a mandatory underground coal mine safety 

standard requiring weekly examinations for hazardous conditions in 

specified areas of mines, were the result of R&P's "unwarrantable failure" 

to comply with the standard. 1 Commission Administrative Law Judge Roy J. 

1 Section 75.305, which repeats the statutory standard at section 303(f) 

of the Mine Act, 30 U.S.C. § 863(f), states: 

In addition to the., preshif£ and daily 

examinations required by this Subpart D, examinations 

for hazardous conditions, including tests for methane, 

and for compliance with the mandatory health or 

standards, shall be made at least once each week by a 

certified person designated by the operator in the 

return of each split of air where it enters the main 

return, on pillar falls, at seals, in the main return, 

at least one entry of each intake and return aircourse 

in its entirety, idle workings, and insofar as safety 

considerations permit, abandoned areas. Such weekly 

examinations need not be made during any week in which 

the mine is idle for the entire week, except that such 

examination shall be made before any other miner 

returns to the mine. The person making such 

examinations and tests shall place his initials and 

the date and time at the places examined, and if any 

hazardous condition is found, such condition shall be 

189 
Maurer concluded that R&P had violated 30 C.F.R. § 75.305 and that the 

violations were of a "significant and substantial" nature ("S&S") but 

determined that the violations were not the result of R&P's unwarrantable 

failure. 11 FMSHRC 1978 (October 1989)(ALJ). Judge Maurer concluded that 

the conduct of the mine examiner responsible for the weekly examinations 

was not imputable to the operator for unwarrantable failure purposes 

because the examiner was a rank-and-file miner and the violation resulted 

from that employee's intentional misconduct. 11 FMSHRC at 1982-83. For 

the reasons set forth below, we reverse and remand this matter for further 

proceedings consistent with this opinion. 

I. 

Factual and Procedural Background 

The facts are essentially undisputed. Before the judge, R&F 

stipulated that the mine examiner had failed to place his initials and the 

date and time of examination at the places subject to examination, thus 

conceding the two violations. (The mine in question provides date boards 

on which examiners are to place the date and their initials as they pass an 

area.) While of the opinion that the examinations in question were not 

done, R&P was unwilling to so stipulate. R&P conceded that the examiner 

had entered the examinations in the record book as though completed. 

On July 13, 1988, John Daisley, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), conducted an 

inspection at R&P's Greenwich Collieries No. 2 Mine, an underground coal 

mine located in Pennsylvania. Daisley traveled with United Mine Workers of 

America ("UMWA") mine examiner John Urgolites to the P-9 area of the mine. 

Daisley did not find any dates, times or initials to indicate that R&P had 

conducted a weekly examination in the area for the week ending July 6, 

1988, or any day thereafter. Daisley found some dates, times and initials 

for the week prior to July 6, 1988, made by Joseph Mantini, indicating that 

he had conducted an examination of the P-9 area at that time. 

reported to the operator promptly. Any hazardous 

condition shall be corrected immediately. If such 

condition creates an imminent danger, the operator 

shall withdraw all persons from the area affected by 

such condition to a safe area, except those persons 

referred to in section 104(d) of the Act, until such 

danger is abated. A record of these examinations 

tests, and actio.ns taken shall be recorded in ink or 

indelible pencil in a book approved by the Secretary 

kept for such purpose in an area on the surface of the 

mine chosen by the mine operator to minimize the 

danger of destruction by fire or other hazard, and the 

record shall be open for inspection by interested 

persons. 

190 
After Daisley reached the surface, he examined R&P's record book 

entitled "Weekly Reports of Air Measurements and Conditions of 

Aircourse .... " The record book indicated that an examination of the P-9 

area had been made on July 6, 1988. The entry in the book was signed by 

Mantini, the miner responsible for the examination. At that time, Daisley 

did not take any enforcement action with respect to the P-9 area because he 

"actually couldn't believe" that there could be such a discrepancy and he 

intended to re-inspect the area. Tr. 23-24. The record book indicated 

that on Thursday, July 7, 1988, an examination of the main S return had 

also been conducted by Mantini. Tr. 63-64; Exh. R-4. 

On July 14, 1988, Daisley entered the mine and went to the S and T 

areas of the mine, accompanied by Urgolites, mine examiner Rich Rummell, 

and Joe DeSalvo, R&P safety inspector. Daisley did not find any dates, 

times or initials indicating that an examination had been conducted in the 

Sand T areas for the week ending July 7, 1988, or any day thereafter until 

July 13, 1988. However, Daisley found dates, times, and initials 

indicating that examinations had been conducted by Mantini in some of the 

areas for the week prior to July 7, 1988. In some locations, the last date 

Daisley found entered on the applicable date board was June 23, 1990. Exh. 

G-3. 

On July 14, 1988, Daisley issued R&P two withdrawal orders, pursuant 

to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2), alleging violations 

of section 75.305. The orders stated that the required weekly examinations 

in the inspected areas had not been made although the mine examiner, 

Mantini, had recorded the examinations as having been conducted. Daisley 

marked both orders "S&S" and "high" for negligence. Daisley noted that no 

area was affected by withdrawal because appropriate examinations were made 

during the course of his inspections. 

Mantini was not the regular examiner for the areas involved in this 

proceeding. The period June 26 through July 10, 1988, was the regularly 

scheduled two-week vacation period for most of the miners who worked at the 

mine. Although production was discontinued during the vacation period, 

so~e miners performed various tasks in the mine. Normally Mantini, a rankand-file miner, was a belt person. However, during the miners' vacation 

period, he had the right, due to his qualifications and seniority, to work 

and to serve as the examiner charged with conducting the weekly 

examinations required under 30 C.F.R. § 75_305. Mantini is certified by 

the State of Pennsylvania as a mine examiner and, as such, meets MSHA's 

requirements for serving as a certified mine examiner. See 30 C.F.R. 

§ 75.2(a). 2 

2 In order to be certified by Pennsylvania, a miner needs three years of 

underground experience and must pass an oral and written examination. Tr. 20-

21, 47, 51. For purposes of section 75.305's weekly examinations, a certified 

person is a "person who [is] certified as a mine foreman (mine manager), an 

assistant mine foreman (section foreman), or a preshift examiner (mine 

examiner)." 30 C.F.R. § 75.lOO(a). 

191 
After the vacation period ended all the miners returned to work. In 

Daisley's view, examinations were required to be made on July 6 and 7, 

1988, before the miners returned underground. 3 

Daisley testified that, apart from Mantini, no other R&P employee was 

negligent in connection with the violations and no member of mine 

management was aware of any violative conduct prior to July 13, 1988. The 

Secretary proposed civil penalties of $1,100 for each violation. MSHA also 

conducted an investigation of Mantini's role in the incident pursuant to 

section llO(c) of the Mine Act, 30 U.S.C. § 820(c). MSHA apparently 

concluded that Mantini had falsified the examination records. Tr. 64. 

However, MSHA did not take any enforcement action against Mantini 

individually. Tr. 55. The record suggests that R&P may have suspended 

Mantini for misconduct. Tr. 35-36. 

At the hearing, R&P did not challenge the proposition that the Mine 

Act imposes liability without regard to fault for violations of the Act. 

As noted at the outset, R&P also conceded at least a recording violation in 

both instances. R&P did challenge, however, the inspector's findings of 

high negligence and unwarrantable failure as well as the penalties proposed 

by the Secretary. R&P argued that a rank-and-file miner's negligent or 

willful conduct may not be imputed to an operator for the purpose of making 

unwarrantable failure findings. R&P asserted that, in light of its own 

lack of negligence, the unwarrantable failure finding could not be 

supported and urged modification of the section 104(d)(2) orders to 

citations issued pursuant to section 104(a) of the Mine Act, 30 U.S.C. 

§ 814(a). 

The Secretary contended that Mantini was an agent of the operator, 

not merely a rank-and-file employee, when he was acting as mine examiner. 

The Secretary argued that Mantini's willful and aggravated conduct was, 

therefore, properly imputable to the operator. 

In his decision, the judge found that the required examinations were 

not in fact made and affirmed the violations of section 75.305. 11 FMSHRC 

at 1981. He also found that the violations were S&S. Id. However, the 

judge vacated the unwarrantable failure findings associated with the 

inspector's orders, concluding that the record established R&P's negligence 

to be "nil." 11 FMSHRC at 1983. He determined that a rank-and-file 

miner's intentional misconduct is not per"se imputable to the operator 

simply because the operator had appointed him as mine examiner. He further 

concluded that for unwarrantable findings, the requisite "aggravated 

conduct" must be the operator's own conduct. 11 FMSHRC at 1981-83. The 

judge reasoned: 

3 Under section 75. 305, "weekly examinations need not be made during any 

week in which the mine is idle for the entire week except that such 

eYamination shall be made before any other miner returns to the mine." R&P 

does not dispute that the examinations on July 6 and 7, 1988, were required to 

be made. 

192 
In this case, Mantini's misconduct was 

willful and intentional. He did not perform the 

required examinations, he knew he did not, and yet 

he certified in the operator's official records 

that he had performed them. I have a lot of 

trouble with the idea that a rank-and-file 

employee's intentional misconduct is imputable to 

management as their own "aggravated conduct" when 

there is absolutely no evidence in the record that 

any member of mine management actually knew or even 

should have known that the examinations were not 

done .... 

11 FMSHRC at 1982. 

The judge modified the section 104(d)(2) orders to section 104(a) 

citations. 11 FMSHRC at 1983. Citing Southern Ohio Coal Co., 4 FMSHRC 

1459, 1463-65 (August 1982) ("SOCCO"), the judge found that, for penalty 

assessment purposes, rank-and-file employee negligence was not imputable to 

the operator, that the operator's negligence was to be determined by an 

examination of the operator's own conduct, and, as noted, that the 

operator's negligence was "nil. 11 Id. The judge reduced the penalties from 

the $1,100 proposed by the Secretary for each violation to $450 for each 

violation. Id. 

The Commission granted the Secretary's subsequent petition for 

discretionary review, which challenged only the judge's determination that 

there was no unwarrantable failure on the part of the operator. We heard 

oral argument in the matter, and now reverse. 

II. 

Disposition of Issues 

On review, there is no dispute that Mantini engaged in intentional 

misconduct in failing to perform the required weekly examinations. The 

question before us is whether the judge erred in not imputing that 

misconduct to R&P in assessing whether it had unwarra,ntably failed to 

comply with 30 C.F.R. § 75.305. addre~sing this question, three issues 

are presented: (A) whether intentional misconduct is within the scope of 

unwarrantable failure under the Mine Act; (B) whether Mantini, a rank-andfile employee acting as a mine examiner, was an agent of R&P in that 

capacity; and (C) if so, whether his misconduct was within the scope of his 

authority and, hence, imputable to R&F as principal. 

A. Scope of unwarrantable failure 

The special finding of unwarrantable failure, as set forth in section 

104(d) of the Mine Act, 30 U.S.C. § 814(d), may be made by authorized 

Secretarial representatives in issuing citations and withdrawal orders 

pursuant to section 104. In Emery Mining Corp., 9 FMSHRC 1997, 2004 

(December 1987), and Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010 

193 
(December 1987), the Commission defined unwarrantable failure as 

"aggravated conduct constituting more than ordinary negligence by a mine 

operator in relation to a violation of the Act." Emery examined the 

meaning of unwarrantable failure and referred to it in such terms as 

"indifference," "willful intent," "serious lack of reasonable care," and 

"knowing violation." 9 FMSHRC at 2003. In Eme:r:y, the Commission also 

pointed out that in Eastern Associated Coal Co., 3 IBMA 331 (1974), the 

Interior Board of Mine Operations Appeals ("Board") had defined 

unwarrantable failure as "intentional or knowing failure to comply or 

reckless disregard for the health and safety of miners." 9 FMSHRC 2003, 

citing Eastern, 3 IBMA at 356 n.5 (emphasis added). 

Intent~onal misconduct, whether by commission or omission, is similar 

in terms of culpability to the kinds of indifferent, willful, or knowing 

behavior adverted to in Emery. From the perspective of plain meaning, 

intentional misconduct is "aggravated conduct." Eastern, cited in Emery, 

includes intentional failure to comply within the scope of unwarrantable 

failure. Accordingly, we conclude that intentional misconduct is a form 

of unwarrantable failure for purposes of the Mine Act. 

B. Mantini's status as R&P's agent 

In SOCCO, the Commission held, in relevant part, that the negligence 

of an operator's agents may be imputed to the operator for civil penalty 

purposes. 4 FMSHRC at 1463-64. Similarly, an agent's conduct may be 

imputed to the operator for unwarrantable failure purposes. 

On review, R&P states that Mantini, notwithstanding his status as a 

rank-and-file miner, was "arguably" charged with responsibility for the 

operation of part of a mine and, hence, was R&P's agent within the meaning 

of the Mine Act's definition of "agent" (see below). R&P Br. at 6. See 

also Tr. Oral Arg. 17. However, in R&P's view, the determinative question 

in this case is "when does an agent cease to be an agent." R&P Br. at 6. 

R&P argues that because Mantini's intentional misconduct in failing to 

carry out the weekly examinations was outside the "scope of his authority" 

as an agent, his actions were not imputable to R&P. While the scope of 

authority issue is the focus of the parties' arguments on review, we deem 

it advisable to clarify the principal-agent relation9hip between an 

operator and those miners it charges with., the resp6nsibility of carrying 

out the examinations required under the Mine Act. Based on the language of 

the Mine Act and settled principles of the common law of agency, we have no 

difficulty concluding that a rank-and-file employee like Mantini is the 

agent of an operator when carrying out the required examinations entrusted 

to him by the operator. 

Section 3(e) of the Min~ Act provides in relevant part that "'agent' 

means any person charged with responsibility for the operation of all or a 

part of a coal or other mine .... " We concur with R&P (R&P Br. at 6) that, 

in carrying out such required examination duties for an operator, an 

examiner like Mantini may appropriately be viewed as being "charged with 

responsibility for the operation of ... part of a mine," and, therefore, 

the examiner constitutes the operator's agent for that purpose. 

194 
Further, while the common law meaning of agent may be distinguished 

technically from the Mine Act's definition of the term, there is no 

substantive inconsistency between the two. The Commission has previously 

employed both the Act's definition and common law principles in resolving 

agency problems (see, ~' Wilfred Bryant v. Dingess Mine Service, 10 

FMSHRC 1173, 1178-80 (September 1988), aff'd sub nom. Winchester Coals v. 

FMSHRC, No. 89-334 (4th Cir. May 10, 1990)), and we find it appropriate to 

do so here as well. Generally, an agent is one who is authorized by 

another, the principal, to act on the other's behalf. See, ~' Black's 

Law Dictionary 59 (5th ed. 1979)("Black's"); Johnson v. Bechtel Associates 

Profes'l Corp., 717 F.2d 574, 579 (D.C. Cir. 1983). The Restatement 

(Second) of Agency (1958)("Restatement") indicates that the essential 

feature of the principal-agent relationship is that the agent has authority 

to represent his principal with third parties in dealings that affect the 

principal's legal rights and obligations. Restatement, § 10. Within the 

plain meaning of these common law concepts, we conclude that when R&P 

assigned Mantini the statutorily mandated responsibility of an operator to 

conduct and record the weekly mine examination required under section 

75.305, Mantini became an agent of R&P for that purpose. 

In this regard, Pocahontas Fuel Co., 8 IBMA 136, 146-48 (1977), aff'd 

sub nom. Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979), is 

instructive. There, the Board concluded that a rank-and-file miner, who 

was responsible for conducting a required preshift examination, was an 

agent of the operator, and that the miner's failure to detect a violative 

condition could properly be imputed to the operator for unwarrantable 

failure purposes. 4 In Pocahontas, the operator argued that its 

designated preshift examiner was a rank-and-file employee and member of the 

UMWA and, hence, not a "management employee," nor "the company," and that, 

accordingly, the examiner's failure ought not be attributed to the 

operator. In concluding that the preshift examiner was an agent of the 

operator, the Board emphasized that the preshift examination was a 

statutorily mandated duty of the operator and had been delegated by the 

operator to the rank-and-file employee. 8 IBMA at 147-49. The Board 

stated that the statute made clear that Congress had recognized that the 

preshift examination was a most important function in the operation of a 

coal mine. The Board noted that the Act went into lengthy detail regarding 

the areas required to be inspected and the procedures to be followed as 

part of the preshift examination and that the statute' further required the 

operator to "designat[e]" a "certified person" to conduct the examination. 

8 IBMA at 147. The Board observed that although the duties delegated to 

the preshift examiner were the kind of duties "that one might expect an 

employer more normally to delegate to management personnel," it was 

4 Pocahontas arose under the Federal Coal Mine Health and Safety Act of 

1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). The preshift 

examination involved in Pocahontas was required by section 303(d)(l) of the 

Coal Act (30 U.S.C. § 823(d)(l) (1976) and the parallel standard at 30 C.F.R. 

§ 75.303(a)(l975). Both section 303(d)(l) of the Coal Act and 30 C.F.R. 

§ 75.303(a) have been carried over unchanged as section 303(d)(l) of the Mine 

Act and 30 C.F.R. § 75.303(a)(l990). 

195 
undisputed that the operator had delegated those duties to a rank-and-file 

miner. 8 IBMA at 148. The Board clearly recognized that whether a person 

is an agent does not necessarily depend on the individual's status as a 

supervisor but, rather, on his authority to act on behalf of the principal. 

We find that all of the foregoing considerations relied on by the Board in 

Pocahontas with respect to preshift examinations by a rank-and-file miner 

apply with equal force to the weekly shift examinations involved in the 

present case. 

Accordingly, we hold that Mantini, although a rank-and-file miner, 

was an agent of R&P for the purpose of conducting the weekly .examination. 

See generally Pocahontas, 8 IBMA at 146-49; cf. SOCCO, 4 FMSHRC at 1464. 

C. Scope of Mantini's authority 

If Mantini's violative conduct was within the "scope" of his 

employment or authority as an agent, then it may be imputed to R&P for 

purposes of an unwarrantable failure finding. 

A leading commentary on the law of torts makes clear that "scope of 

employment" is both a broad and flexible concept: 

It is ... a bare formula to cover the 

unordered and unauthorized acts of the servant for 

which it is found to be expedient to charge the 

master with liability, as well as to exclude other 

acts for which it is not. It refers to those acts 

which are so closely connected with what the 

servant is employed to do, and so fairly and 

reasonably incidental to it, that they may be 

regarded as methods, even though quite improper 

ones, of carrying out the objectives of the 

employment. 

* * * 

The fact that the servant's act is expressly 

forbidden by the master, or is done in a manner 

which he has prohibited, is to be consi.dered in 

determining what the servant has been hired to do, 

but it is usually not conclusive, and does not in 

itself prevent the act from being within the scope 

of employment. A master cannot escape liability 

merely by ordering his servant to act carefully. 

If he could, no doubt few employers would ever be 

held liable .... 

Prosser & Keeton, Torts, § 70 (p. 502)(5th ed. 1984). 

Restatement, § 228. 

Under common law concepts of agency, generally it is not necessary to 

show that the principal (master) authorized or permitted the agent's 

196 
(servant's) particular injury-causing conduct in order for that conduct to 

be viewed as lying within the scope of the agent's duties and employment. 

See, ~, Restatement § 232. Unauthorized acts of misconduct, including 

the failure to act, may be within the agent's scope of employment. The 

principal's express prohibition of an agent's act does not necessarily bar 

a finding that the misconduct was within the agent's scope of employment. 

A principal is liable even for the deceit of its agent, if that deceit was 

committed in the business that the agent was appointed to carry out. This 

holds even when the agent's specific conduct is carried out without the 

knowledge of the principal . .!L_g_._, CFTC v. Premex. Inc., 655 F.2d 779, 784 

n.10 (7th Cir. 1981). The fraud of an agent may also be imputed to the 

principal when an agent is executing a transaction within the scope of his 

authority. In re Nelson, 761F.2d1320, 1322 (9th Cir. 1985). See also 

Restatement, §§ 257, 282. 

Applying these principles, we conclude that Mantini's intentional 

misconduct was within the scope of his employment and, accordingly, was 

imputable to R&P for unwarrantable failure purposes. There is no question 

that Mantini was delegated the duty and was entrusted with the responsibility of the section 75.305 weekly examinations and recordings. Mantini s 

authority to perform those tasks is undisputed. As noted above, even if 

Mantini's conduct is characterized as deceit or fraud, that in itself would 

not necessarily bar its imputation to R&P. His actions were taken in 

relation to that duty: they were not separate actions unrelated to his 

entrusted responsibility. Moreover, we must not lose sight of the fact 

that statutorily mandated operator safety examinations are involved here. 

R&F, as the operator, had the absolute duty to ensure that these examinations were made, and Mantini must be considered R&F's agent acting within 

the scope of his authority with respect to that duty, since he was the 

individual assigned by R&P to discharge that duty. See Restatement, 

§ 214; 53 Am. Jur. 2d, Master and Servant, §§ 313, 322, 323. 

Thus, we reject R&P's contentions that Mantini's intentional 

misconduct was outside the scope of his authority. Under settled 

principles of agency law and in the context of the Mine Act, we hold that 

Mantini was R&P's agent for purposes of the examinations and that the 

manner in which he transacted that delegated statutory duty was within the 

scope of his authority. Accordingly, his misconduct is properly imputable 

to R&F for unwarrantable failure purposes. 

D. Other contentions 

We also reject R&F's other contentions. R&F argues that the 

Commission should apply the doctrine first enunciated in SOCCO, 4 FMSHRC at 

1464; that the negligence of a rank-and-file miner is not imputed to an 

operator for penalty purposes if, among other things, the operator has 

taken reasonable steps to prevent the rank-and-file miner's violative 

conduct. Accord: A.H. Smith Stone Co., 5 FMSHRC 13, 15 (January 1983). 

However, as already discussed, the Commission also stated in SOCCO that the 

negligence of an operator's agents may be imputed to the operator. 

4 FMSHRC at 1464. Even though Mantini was a rank-and-file miner, he was an 

agent of R&P for examination purposes and, as we have held, his unwarran197 
table conduct is properly imputable. 

R&P also points to the Commission's decision in Nacco Mining Co., 

3 FMSHRC 848, 850 (April 1981), in which the Commission declined to impute 

the negligence of a supervisor to the operator if two general conditions 

were met: (1) the operator had taken reasonable steps to avoid the kind of 

accident in question; and (2) no other miners were put at risk by the 

supervisor's conduct. Here, the judge found, and R&P does not contest on 

review, that both of the violations put other miners at serious risk. 

11 FMSHRC at 1981. Thus, the Nacco exception does not apply in this case. 

R&P has not advanced, nor do we perceive under the facts of this case, any 

convincing reasons why Nacco should be expanded to include unwarrantable 

failure. As we have emphasized, weekly mine examinations are critical to 

mine safety and the failure to conduct such examinations may put many 

miners at risk. 

R&P argues further that imputation of intentional misconduct to the 

operator frustrates the purposes of the Mine Act. However, the Act has 

been construed to contain a deliberate scheme of vicarious liability of 

operators for violations committed by their employees. Western Fuels-Utah, 

Inc., 10 FMSHRC 256 (March 1988), aff'd, 870 F.2d 711 (D.C. Cir. 1989). 

The goal of this liability scheme is "to promote the highest degree of 

operator care." Western Fuels-Utah, 10 FMSHRC at 261. Although it may be 

extremely difficult to prevent intentional misconduct on the part of 

employees, R&P's argument that "Mr. Mantini's intentional misconduct is of 

a nature that is impossible to prevent" is not pJausible. The liability 

scheme of the Mine Act is designed to give employers the strongest 

incentives to select, train, monitor, and discipline their employees in 

ways that will result in enhanced mine health and safety. The Act furthers 

that goal in addition by providing civil and criminal penalties against 

individuals for knowing violations (section llO(c), 30 U.S.C. § 820(c)) or 

false statements (section llO(f), 30 U.S.C. § 820(f)). Any appeal to 

change that scheme must be directed, not to the Commission, but to 

Congress. 

Finally, as noted above, an agent's violative conduct is imputable to 

the operator for negligence purposes. SOCCO, 4 FMSijRC at 1463-65. In view 

of our finding that Mantini' s misconduct .. was impufable to R&P for 

unwarrantable failure purposes, the judge's failure to consider Mantini's 

violative conduct for negligence purposes was error. Although the terms 

"unwarrantable failure" and "negligence" are not used synonymously in the 

Mine Act, the same or similar factual circumstances may be included in the 

Commission's consideration of both. See,~. Quinland Coals, Inc., 9 

FMSHRC 1614, 1622 (September 1987). 

198 
III. 

Conclusion 

For the foregoing reasons, we reverse the judge's determination that 

the violation did not result from R&P's unwarrantable failure. In view of 

our finding that Mantini was R&P's agent, acting within the scope of his 

authority, the judge's failure to consider Mantini' s vio.lative conduct in 

determining negligence was also erroneous. Accordingly, we remand this 

matter for reconsideration of the appropriate civil penalty. In light of 

our conclusions, the section 104(a) citations should be converted to the 

originally issued section 104(d)(2) withdrawal orders. 

Richard V. Backley, Acting 

~&vie Chairman ~ 

Distribution 

Joseph A. Yuhas, Esq. 

Greenwich Collieries 

P.O. Box 367 

Ebensburg, Pennsylvania 15931 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

L. Clair Nelson, Commissioner 

Administrative Law Judge Roy Haurer 

Federal i1ine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

199 
200 
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 

FEB 7 ·1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 90-45-M 

A.C. No. 16-01064-05513 

v. 

Petty Pit A 

B & B GRAVEL COMPANY, INC., 

Respondent 

Appearances~ 

Before: 

DECISION 

Sara D. Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for the 

Petitioner; 

Wallace Heck, Jr., Vice-President, B & B Gravel 

Company, Inc., Baton Rouge, Louisiana, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns 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 

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for 

three alleged violations of certain mandatory-s'afety standards 

found in Part 56, Title 30, Code of Federal Regulations. The 

respondent filed an answer contesting the alleged violations, and 

pursuant to notice, a hepring was convened in Baton Rouge, 

Louisiana, and the parties appeared for trial. However, after a 

brief pretrial conference, the parties informed me that they 

reached a proposed settlement of the case. The citations, 

initial proposed civil penalty assessments, and the proposed 

settlement amounts are as follows: 

30 C.F.R. 

citation No. Date Section Assessment Settlement 

3270896 11/03/89 56.12008 $213 $ 86 

3270897 11/03/89 56.12008 $ 20 $ 20 

3270898 11/03/89 56.4101 $ 20 $ 20 

201 
Discussion 

Section 104(a) "S&S" Citation No. 3270896, November 3, 1989, 

cites a violation of 30 C.F.R. § 56.12008, and the cited condition or practice states as follows: "The electrical conductors 

to the water pump did.not have proper fittings where the conductors entered the switch box." 

Section 104(a) non-"S&S" Citation No. 3270897, November 3, 

1989, cites a violation of 30 C.F.R. § 56.12008, and the cited 

condition or practice states as follows: "The electrical conductors to the sizing screen motor did not have the proper fittings 

and bushings wJ.1ere the conductors enter the motor splice box.vu 

Section 104(a) non-"S&S" Citation Nao 3270898, November 3u 

1989, cites a violation of 30 C.F.R. § 56.4101, and the cited 

condition or practice states as follows: "The fuel storage tank 

aboard the dredge does not have visible signs prohibiting smoking 

or open flames in the area. 11 

The inspector established an abatement time of 8:00 a.m., 

November 17, 1989, for each of the citations. However, he 

subsequently terminated the citations on November 27 1 1989, and 

the termination notices state as follows: "The dredging operation was shut down on 11-14-89, and the operator is moving the 

equipment to a different location for storageo Citation 

No. 3270896 is terminated by this action. 11 

The parties agreed that the respondent is a large sand and 

gravel mine operator, with an annual production of 250,000 tons, 

and 12 employees. With regard to the particular pit operation 

where the citations were issued, the parties agreed that it was a 

small operation with approximately three employees. The evidence 

establishes that the pit was subsequently clo~ed shortly after 

the citations were issued (Tr. 11-12). 

In support of the proposed settlement of this matter, the 

Solicitor asserted that at the time the citations were issued on 

November 3, 1989, the respondent was in the process of closing 

down its pit operations and moving to a new location. The 

Solicitor stated that since its move to a new location, the 

respondent has shown an improvement in its electrical equipment 

and has attempted to stay in compliance with the requirements of 

the electrical standards. 

MSHA Inspector James Bu~sell, stated that at the time of his 

inspection of November 3, 1989, the respondent was in the process 

of closing the pit and moving its equipment to another location. 

He further stated that the old pit was in fact closed on 

November 14, 1989, and that he subsequently terminated the 

citations on November 27, 1989. He confirmed that when he issued 

the citations he was aware of the fact that the respondent was in 

202 
the process of closing its .old pit and was moving its equipment 

to another location. He further confirmed that he scheduled the 

abatement time of November 17, 1989, in order to allow the 

respondent sufficient time to complete its move. 

With regard to Citation No. 3270896, concerning the water 

pump fittings, Inspector Bussell stated that the cited pump in 

question was located in the plant operator•·s compartment and the 

operator would have been exposed to a potential hazard. He 

identified photographic exhibits G-1 and G-2 as the switch box in 

question (Tr. 15-16). 

With regard to citation No. 3270897, Inspector Bussell 

stated that he issued it as a non-S&S citation because the motor 

in question was· installed at an elevated location out of reach of 

anyone and there was no hazard exposure (exhibit G-4)o 

With regard to Citation No9 3270898u concerning the absence 

of a visible sign prohibiting smoking and open flamesg the 

inspector stated that he observed some diesel fuel spillage on 

the dredge dock and issued the citation to alert the respondent 

to this condition. He confirmed that no visible sign was posted 

on the diesel fuel storage tank. 

The respondent 1 s representativeu Wallace Heck, Jrou company 

Vice-President, stated that the respondent has always tried to 

comply with the applicable mandatory standards but has experi= 

enced some difficulty in communicating with the inspectors with 

respect to precisely what is required of him for compliance. 

With regard to the absence of the cited sign, Mr. Heck asserted 

that a warning sign had originally been painted on the fuel 

storage tank but that it was obscured over time by diesel fuel. 

He also asserted that the fuel tank was not physically located on 

the dredge, but was installed on a rack at the rear of the dredge 

which placed the tank over the water and not the dredge. He 

further indicated that the dredge operator's compartment was 

located at the other end of the dredge (Tr. 19-20). 

Mr. Heck further stated that t~~ cited water pump was 

installed 5-years prior to the citation issued by Mr. Bussell, 

and that the dredging operation had previously been inspected 

numerous times prior to the inspection in question. I take note 

of Mr. Heck's answer of July 9, 1990, in this case, in which he 

states that no accident was likely because he was in the process 

of disconnecting and moving the equipment, and that no accidents 

have ever occurred at this ·operation. 

Inspector Bussell confirmed that the inspection which he 

conducted on November 3, 1989, was his first inspection at the 

dredging operation in question. He further confirmed his "moderate" negligence findings with respect to each of the cited 

conditions (Tr. 17). 

203 
The pleadings filed by the petitioner include a copy of 

MSHA's Proposed Assessment Form 1000-179, which reflects that 27 

prior citations were issued to the respondent during the course 

of 14 inspections which took place over a 24-month period prior 

to November 3, 1989. However,.there is no evidence that any of 

these prior violations were for violations of sections 56.12008 

or 56.4101. 

Conclusion 

After careful consideration of the arguments presented in 

support of the proposed settlement disposition of this matter, 

and pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, the 

proposed settlement was approved from the bench. My bench 

decision approving the settlement is herein reaffirmed, and I 

conclude and find that it is reasonable and in the public 

interest. 

ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the settlement amounts shown above in satisfaction of the 

citations in question. Payment is to be made to MSHA within 

thirty (30) days of the date of this decision and order" Upon 

receipt of payment, this matter is dismissed. 

kKfltr~ Administrative Law Judge 

Distribution: 

Sara D. Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Wallace Heck, Jr., Mr. Raymond .. E. Heck~ B & B Gravel Company, 

Inc., 5415 Choctaw Drive, Baton Rouge, LA 70805 (Certified Mail) 

/fb 

204 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 7 1991 

BETHENERGY MINES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BETHENERGY MINES, INC., 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. PENN 90-206-R 

Citation No. 3099370; 

6/15/90 

Docket No. PENN 90-207-R 

Citation No. 3099371t 

6/15/90 

Somerset Portal/84 complex 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 91-52 

A.C. No. 36-00958-03847 

Mine No. 84 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, 

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

for the Secretary of Labor {Secretary) ; 

R. Henry Moore, Esq., sμchanan Ingersoll, 

Pittsburgh, ~ennsylvania, for Bethenergy Mines, 

Inc. (Bethenergy) 

Before: Judge Broderick 

The above cases were consolidated because the citations 

contested in the contest proceedings were included in the 

citations for which the Secretary seeks penalties in the civil 

penalty proceeding. Pursuant to notice, the cases were called 

for hearing on January 29, 1991, in Pittsburgh, Pennsylvania. 

The two contested citations, 3099370 and 3099371, charge 

violations of 30 C.F.R. § 75.305 because return aircourses could 

not be examined in their entirety as a result of roof falls 

rendering the travelways impassible. At the hearing counsel for 

the Secretary stated that further examination convinced the 

Secretary that the cited areas were not return aircourses, and 

205 
therefore there were no violations of the standard as charged. 

The Secretary moved to vacate the citations and to withdraw the 

penalty petition with respect to these two citations. 

Citation 3092556 charges a violation of 30 C.F.R. § 75.316 

because co sensors were more than 1200 feet apart on the belt 

entry in violation of the approved ventilation plan. The 

violation was designated as significant and substantial. Further 

investigation disclosed that co sensors were also located in the 

parallel track entry. The track entry sensor was within 500 feet 

of either sensor in the belt entry. For these reasons, the 

Secretary moved to delete the significant and substantial 

designation and to reduce the penalty from $275 to $175 which 

Bethenergy has agreed to pay. 

Based on the representations of counsel and considering the 

criteria in section llO(i) of the Act, IT IS ORDERED~ 

1. Citations 3099370 and 3099371 are VACATED. The Notices 

of Contest filed in Docket Nos. PENN 90-206-R and PENN 90-207-R 

are GRANTED, and the proceedings are DISMISSED. The penalty 

petition with respect to these citations is DENIED. 

2o Citation 3092556 is MODIFIED to delete the significant 

and substantial designation andp as modifiedv is AFFIRMED" 

3. Bethenergy shall, within 30 days of the date of this 

decision pay the sum-of $175 for the violation charged in 

citation 3092556. 

..,, .' '" 

I i JA' i /., / fv l· ,:j// ~· 'r~ 0.:...; 7 (; './!;(_ 

//' James A. Broderick 

.:/ Administrative Law Judge 

Distribution: 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 58th Floor, 600 

Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

Anita Eve, Esq., Joseph Crawford, Esq., U.S. Department of Labor, 

Office of the Solicitor, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

slk 

206 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

f EB 7 1991 

Ronny Boswell, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. SE 90-112-DM 

National Cement Company, 

Respondent 

SE MD 90-04 

Appearances: 

Before: 

Ragland Plant 

DECISION 

Mr. Larry G. Myers, Union Representative, 

Independent Workers of North America, Birmingham, 

Alabama, for the Complainant~ 

Harry L. Hopkins, Esq., Lange, Simpson, Robinson & 

Somerville, Birmingham, Alabama, for the 

Respondent. 

Judge Maurer 

STATEMENT OF THE CASE 

This case is before me based on a complaint filed by Ronny 

Boswell, alleging a violation of section 105(c) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c) (the Act). 

Respondent filed an answer, and pursuant to notice, the case was 

heard on September 5, 1990, in Birmingham, Alabama. At that 

hearing, Boswell himself, as well as Gerald W. Bowman, James E. 

Noah, and Gary R. Meads testified for the complainant. James 

Allen and Cedric Phillips testified for the respondent. 

Mr. Hopkins filed a post-trial brief on behalf of the respondent 

which I have considered in making this decision; none was filed 

by the complainant. 

DISCUSSION 

At all times relevant .to the complaint, Ronny Boswell worked 

for respondent as a utility laborer, until the company 

disqualified him from being such on January 11, 1990. Boswell 

had held this position on three different occasions during his 

fourteen years of employment with National Cement. He had been a 

utility laborer this latest time since approximately 1982 and has 

been a utility laborer for approximately ten of the fourteen 

years of his tenure there. 

207 
Boswell became a payloader operator by some convoluted 

process unimportant to the merits Qf this case upon his 

disqualification as a utility laborer on January 11, 1990, and 

has remained so to this day. 

Complainant seeks the difference in pay between what he 

would have received and what he did in fact receive as a result 

of and since the disqualification. Additionally, he seeks reinstatement to the position of utility laborer. 

The respondent stated five specific grounds for the 

disqualification of Mr. Boswell from his position as a utility 

laborer. (Tr. :t.61, Resp. Ex. No. 1) Q 

The Kiln Incident of August 8, 1989 

The incident began with two other men already inside the 

kiln, tearing brick and coating down from overhead using fiberglass pry bars to pull it down, This was normal procedure for 

two men at a time to go inside and pull the brick downo When it 

gets too hot, they come out and two different men go in. There 

are always two men at a time pulling down the brick, which comes 

down in chunks weighing a hundred pounds and upwards. At the 

same time, there were eight men, including the complainant and 

Mr. Noah standing around out in front of the kilna 

At this particular point in time, one of the new French 

managers came upon this scene and inquired of their supervisor 

why more men were not working inside the kiln. The men had never 

before been asked to throw ·brick back up the kiln while people 

were still pulling brick and coating down from overhead. But, on 

this occasion, their supervisor, James Allen, prodded by the new 

manager, wanted three more men, including complainant, to go in 

there and throw brick that had already been pulled down back up 

the hill while two other men continued to pull brick and coating 

down around their heads. 

The complainant refused and exercising his union contract 

rights, called for a safety review •. However, he didn't get one. 

The union safety representative came when called, but the company 

man never showed up. The issue was resolved when the company 

just let it go. The supervisor simply continued the work with 

the usual procedure of having just the two men inside the kiln 

while the brick was being pulled down. Only after all the brick 

and coating was pulled down did they start cleaning it out, which 

is the next phase of the job •. 

Mr. Noah, who was on the scene at the time, concurred with 

and corroborated the testimony of the complainant. He testified 

that he informed Mr. Phillips, the Safety Director at the plant, 

that if Boswell hadn't called for a safety review, he would have, 

because it was unsafe to do what they were asked to do. 

208 
In any event, at the time, Boswell had an eye infection that 

had been "acting-up" for the previous two or three weeks, and he 

went home after four hours because his eye was hurting him and he 

didn't want to get dust in it. His supervisor, Mr. Allen, gave 

him permission to leave. Boswell also testified, unrebutted, 

that they had plenty of men to do the job; they didn't have to 

replace him. 

Mr. Allen also testified about this incident. However, he 

misidentifies it as occurring on December 22, 1989 (Tr. 92) and 

states a widely differing version of the facts. For example, he 

states that only one man was working inside the kiln, not two and 

that they had already finished the pulling down phase of the work 

at the time he asked Boswell and a couple more men to throw loose 

brick up the kiln. 

I make the necessary credibility finding in favor of the 

complainant. His testimony is corroborated by Mr. Noah and to 

some extent by Respondent's Exhibit No. lo Mr. Allen apparently 

has some other incident in mind; perhaps the kiln incident of 

December 22, 1989. 

Mr. Allen did go on to concede, however, that if the 

incident was as described by complainant and Noahv that would be 

"totally unsafe 11 o 

I therefore find that complainant did engage in protected 

activity by refusing to perform work and asking for a "safety 

review" related to the kiln incident of August 8, 1989. I also 

find that the adverse action taken by the company (i.e., 

disqualification) was predicated at least in part on this 

protected activity. 

The Clay Shredder Incident of October l, 1989 

Mr. Boswell was charged with refusing to operate the clay 

shredder on October 1, 1989. He says because he had no knowledge 

of how it worked nor had he ever had any trai~ing to operate it. 

Initially, that strikes me as being a fairly reasonable 

proposition. But, it turns out he didn't really refuse to 

operate it, he refused to be responsible for it. When James 

Allen asked him to operate it, he replied he didn't know how. 

Allen offered to show him. They then got into some repartee back 

and forth about who would be responsible if anything untoward 

happened, etc. The upshot of the whole thing was Allen decided 

it didn't need to be run after all and simply assigned Boswell to 

do something else. 

The next night, the same issue arose again. This time Allen 

started the machine up for Boswell and he agreed to simply watch 

209 
it while it ran. This he did and Allen seemed satisfied with 

that, at least at the time. 

The complainant feels the .clay shredder is a dangerous piece 

of equipment for which adequate training is essential to operate 

it. Besides, he believes that operation of the clay shredder was 

not a part of his job. 

Basically, with regard to the entire clay shredder incident, 

I don't find much in it for either side. Boswell performed, 

albeit reluctantly, the task assigned by Allen to Allen's 

satisfaction. Accordingly, I do not find any protected activity 

herein related to this incident. Nor do I find any unprotected 

justification for Boswell's disqualification. 

The Radio Incident of October 22, 1989 

This is another non-issue. Everybody at this point agrees 

nothing happened on this date. Boswell was off work on this 

particular date. Furthermore, Boswell testified that nothing 

like this ever happened. 

On the other hand, Supervisor Allen testified that whatever 

date it was, it happened. When he tried to call Boswell on the 

radio, he got no answer and so he went looking for him. When he 

found him, he asked if he heard him calling on the radio. 

Boswell said "no". Mr. Allen thereupon checked the radio and it 

seemed to be working fine. The intimation being I suppose that 

Boswell was "goofing off" and didn't want to answer the radio to 

get assigned to some work detail. 

Once again, I don't think this issue is going to do the 

company any good. The only possible purpose its proof might 

serve is to establish a legitimate cause for Boswell's 

disqualification. However, the closest Mr. Allen was able to pin 

this date down was "sometime in 198911 and then he didn't report 

it to the company until January 11, 1990, when the company was 

gathering ammunition to take action against Boswell. Therefore, 

I find the proof that the incident p.appened~at all to be 

extremely weak. 

The Kiln Incident of December 22, 1989 

On the day in question, Mr. Boswell had arrived on the job 

four hours early and worked outside in the cold for the entire 

time, including four hours of his regular shift, for a total of 

eight hours. He testified it was very cold that particular day 

and he had been having ear problems for a month or longer. His 

ears had been bleeding. After eight hours outside, his ears were 

hurting worse. He told Supervisor Allen that and was excused for 

the day. That was the sum and substance of the entire episode 

210 
and I find this also to be a neutral situation. It neither helps 

nor hinders either side of the case. 

The Bobcat and Wheelbarrow Incident of January 1. 1990 

Supervisor Allen needed to get about three Bobcat1

/ buckets 

full of 3-inch diameter alloy steel mill grinding balls out of 

the mill basement, which area was accessed by a 20-30 degree 

inclined ramp, strewn with loose clinker. 

He first went out to talk to the first shift Bobcat 

operator who was getting ready to leave. Allen asked him if he 

could stay over and finish cleaning the balls up as he (Allen) 

stated he needed it finished by morning. The man couldn't stay 

for personal reasons and so Allen next turned to Boswello He 

wanted Boswell to operate the Bobcat and finish cleaning up the 

balls. Boswell objected-said he was afraid to and also stated 

that it was unsafe for him to attempt to do so as he had no 

training on the machine. He claims to have only operated this 

Bobcat about 8 hours total time during his fourteen years with 

the company and never up and down this ramp. Boswell 

acknowledges that other people do run the Bobcat down there to 

clean-up the balls, but he states that they are trained and 

qualified and they do it every dayo 

Next, Allen told him that if he wouldn't run the Bobcatu 

then take a wheelbarrow and go down there in the bottom of the 

mill room and load these balls in it and push it up the inclined 

ramp. Boswell states you can't even walk up and down that ramp 

without holding onto the side, much the less push a wheelbarrow 

up it. In any event, he refused to do it and instead, for the 

second time in five months, called for a safety review. Once 

again, he got no safety review. Supervisor Allen said "no, let 

it go." He told Boswell to go get the bulldozer and push rock 

and so he did for the balance of that shift. 

DISCUSSION AND CONCLUSIONS 

Respondent is of the view that-Boswell did not have a 

reasonable, good faith belief that using the wheelbarrow in this 

instance was unsafe. At the heart of the inquiry then is whether 

this work refusal and request for a "safety review" rose to the 

status of "protected activity" as that term is used in this 

context. 

1 A Bobcat is a relatively small machine with a scoop bucket 

on the front that allows you to pick up material. It doesn't have 

a steering wheel, but rather is steered with f oat and hand 

controls. It requires good coordination and some getting used to 

in order to properly operate it. 

211 
In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act a complaining miner bears 

the burden of production and proof to establish (1) that he 

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

complained of was motivated in ·any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 2 

FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation 

coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary 

on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC 

803 (1981); Secretary on behalf of Jenkins v. Hecla-Day Mines 

Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon 

v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511, (November 1981), 

rev'd on other·grounds sub nom. Donovan v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 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 way motivated by protected 

activity. If an operator cannot rebut the prima facie case in 

this manner it may nevertheless affirmatively defend by proving 

that it was also motivated by the miner 9 s unprotected activities 

alone. The operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 

(1982). The ultimate burden of persuasion does not shift from 

the complainant. Robinette, supra. See also Baich v. FMSHRCv 

719 F.2d 194 (6th Cir. 1983; and Donovan v. Stafford Construction 

Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specifically 

approving the Commission 1 s Fasula-Robinette test}. See also NLRB 

v. Transportation Management Corporation, 462 U.S. 393, 76 

L.Ed.2d 667 (1983), where the Supreme Court approved the NLRB 1 s 

virtually identical analysis for discrimination cases arising 

under the National Labor Relations Act. 

Generally, refusal to work cases turn on the miner's belief 

that a hazard exists, so long as that belief is held in good 

faith and is a reasonable one. Secretary ex rel. Bush v. Union 

Carbide Corp., 5 FMSHRC 993, 997 (1983); Miller v. FMSHRC, 687 

F.2d 1984 (7th Cir. 1982). · 

In analyzing whether a miner's belief is reasonable, the 

hazardous condition must be viewed f,rom the -miner 1 s perspective 

at the time of the work refusal, and the miner need not 

objectively prove that an actual hazard existed. Secretary ex 

rel. Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-98 (June 

1983); Secretary ex rel. Pratt v. River Hurricane Coal Co. 5 

FMSHRC 1529, 1533-34 (September 1983); Haro v. Magma Copper Co., 

4 FMSHRC 1935, 1944 (November 1982); Robinette, supra , 3 FMSHRC 

at 810. The Commission has also explained that "[g]ood faith 

belief simply means honest belief that a hazard exists." 

Robinette, supra at 810. 

Thus, the principal question for decision here is did 

Boswell reasonably and in good faith believe that he was going to 

212 
be required to operate a piece of equipment or perform some job 

which was deleterious to his personal safety. 

With regard to the kiln incident of August 8, 1989, there 

can be no doubt that Boswell's ·refusal to work as directed and 

his request for a "safety review" were both made in good faith 

and eminently reasonable. The work he was requested to perform 

was patently unsafe. 

The Bobcat and wheelbarrow,incident is a closer call, but I 

find his refusal to work in this instance and his request for a 

safety review to be protected activity also. He had very limited 

experience operating the Bobcat and none operating it on a twenty 

degree slope. He therefore felt it would be unsafe for him to do 

so in this instance and I cannot fault him for that. It would 

seem to me that if the company needs trained and experienced 

Bobcat operators on each shift that it would be more prudent to 

train sufficient personnel to meet their needs rather then 

attempt to press untrained and inexperienced operators into 

service as a stop-gap measure. As for the wheelbarrow 

alternative Boswell was presented with, although respondent 

claims it is possible, and in fact Mr. Allen claims to have 

personally run a wheelbarrow up and down that particular inclinep 

Boswell didn't think it could be done safely and he called for a 

safety review. We don't know what would have happened had a 

safety review been accomplished because, as is the usual 

practice, the supervisor simply sent the requester off somewhere 

else to perform some other task. This Boswell apparently did to 

the operator's satisfaction. 

Mr. Boswell was not made aware that any of these incidents 

involving he and James Allen were going to result in disciplinary 

action until January 11, 1990, when they told him they were 

disqualifying him off his job for going home sick twice, calling 

the two safety reviews and not answering the radio once (as it 

turns out on a day he wasn't even at work). 

Accordingly, I conclude that the complainant engaged in 

protected activity on August 8, 1989,, and again on January 1, 

1990. Furthermore, the disqualification from his position as a 

utility laborer was motivated at least in major part by that 

protected activity. Therefore, I find and conclude that Boswell 

was discriminated against in violation of section 105(c) of the 

Mine Act. 

In resolving the issues herein presented I was also guided 

in part by the Legislative History of the Act which embodies 

Congress' intent in enacting the Mine Act. The Senate Report, on 

the Senate version of the bill that became the Act, (S. Rep. No. 

95-181, 95th Cong. 2d Sess. 1977, reprinted in the Legislative 

History of the Federal Mine Safety and Health Act of 1977 at 623 

213 
("Legislative History"), contains the following language relating 

to the protection of miners against discrimination: 

If our national mine safety and health program is to be 

truly effective, mine~s will have to play an active 

part in the enforcement of the Act. The Committee is 

cognizant that if miners are to be encouraged to be 

active in matters of safety and health, they must be 

protected against any possible discrimination which 

they might suffer as a result of their participation. 

I also found instructive the following language from the 

Senate Report, supra, (Legislative History at 623)g 

The committee intends that the scope of the 

protected activities be broadly interpreted by the 

Secretary, and intends it to include not only the 

filing of complaints seeking inspection under Section 

l04(f) or the participation in mine inspections under 

Section 104(e), but also the refusal to work in 

conditions which are believed to be unsafe or 

unhealthful and the refusal to comply with orders which 

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 Senate Report, supra, (Legislative History at 624) 

explicitly indicates that Section 105(c), was intended by the 

committee: 

(T]o be construed expansively to assure that miners 

will not be inhibited in any way in exercising any 

rights afforded by the legislation. This section is 

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. 

REMEDIES 

Turning now to the complainant's remedies, I find that for 

1990 as of August 29, 1990, complainant was financially better 

off in the job he was sent into on January 11 then he would have 

been had he remained in the job he was disqualified from. 

Boswell, as of August 29, 1990, has earned $28,640.26 for 1552 

hours worked as a payloader operator. The man who took over his 

job as a utility laborer, Meads, earned $27,720.72 for 1496 hours 

during the same time period. In other words, Boswell earned 

$919.54 more as a payloader operator then he would have earned as 

a utility laborer for 56 more hours of work. Therefore, I find 

214 
that Mr. Boswell is not due and owing any back pay from 

respondent as a result of his discriminatory disqualification 

from his utility laborer position. 

He is, however, entitled to be reinstated to the position of 

utility laborer and to have his personnel file purged of any 

derogatory information pertaining to that disqualification. It 

will be so ordered. 

ORDER 

WHEREFORE IT IS ORDERED THAT: 

1. Respondent shall, within 30 days of this decision, 

reinstate Complainant to the same position, pay, assignmentv 

and with all other conditions and benefits of employment 

that he would have had if he had not been disqualified from 

his previous position as a utility laborer on January llff 

1990, with no break in service concerning any employment 

benefit or purpose. 

2. The personnel records maintained in Mr. Boswell's 

file shall be completely expunged of all information 

relating to the January 11, 1990 disqualification" 

Law Judge 

Distribution: 

Mr. Ronny Boswell, P.O. Box 177, Wattsville~ AL 35182 

(Certified Mail) 

Harry L. Hopkins, Esq., Lange, Simpson, Robinson & Somerville, 

1700 First Alabama Bank Building, Birmingham, AL 35203 

(Certified Mail) 

Mr. Larry G. Myers, Administrative Vice President, Independent 

Workers of North America, 229 Roebuck Plaza, Suite 203, 

Birmingham, AL 35206 (Certified Mail) 

/ml 

215 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 7 1991 

LOCAL UNION 9909, DISTRICT 31, COMPENSATION PROCEEDING 

UNITED MINE WORKERS 

OF AMERICA, (UMWA), Docket No. WEVA 90-74-C 

Complainants 

v. Loveridge No. 22 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Koutras 

The complainants have filed a motion to dismiss this 

proceeding on the ground that the complaining miners have been 

paid the compensation due in accordance with a settlement reached 

by the parties. Under the circumstances, the motion IS GRANTED, 

and this matter IS DISMISSED. 

4.K&~ Administrative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine Workers of America, (UMWA), 

900 15th Street, N.W., Washington, DC 20005 (Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 

(Certified Mail) 

/fb 

216 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 7 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 91-5 

Petitioner A.C. No. 46-07204-03514 

v. 

BENTLEY COAL COMPANY, 

Respondent 

Flatbush No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

On January 30 1 1991, the Secretary of Labor, on behalf of 

the parties to this action, filed a motion to approve the 

settlement negotiated between them. At issue in this case are 

three citations, originally assessed at $10,500 in the aggregate. 

Settlement is proposed at $8,750. 

citation No. 3110495 was issued for a violation of 30 C.F.R. 

§ 77.1605(1) on November 14, 1989. A fatal accident had occurred 

on November 9, 1989, when a rock truck backed off an elevated 

roadway and fell fifty {50) feet into a water-filled pit. 

Immediately before the accident occurred, the driver ha~ been 

attempting to dump a load of overburden at a location where none 

of the protective measures described in the cited mandatory 

standard had been provided. The Solicitor repr,esents that the 

operator's negligence was moderate an,~ the gravity very serious. 

The Secretary proposed a penalty of $5,000 for this violation and 

the respondent has agreed to pay this amount in full. 

citation No. 3110496 was issued for a violation of 30 C.F.R. 

§ 77.1605(k), which requires berms or guards to be provided on 

the outer banks of elevated roadways. It was originally thought 

that this violation also contributed to the fatal accident herein 

before described, but it now appears to the Secretary that the 

failure to have berms or guards along the roadway did not 

contribute to the accident. Nevertheless, the Solicitor again 

represents that the operator's negligence was moderate and the 

violation serious. The Secretary originally proposed a penalty 

of $4000 for this violation, but the parties now wish to settle 

for the payment of $2,750. 

citation No. 3110497 was issued for a violation of 30 C.F.R. 

§ 77.1713 which relates to an inadequate preshift/onshift 

217 
examination for the hazardous conditions alluded to above. The 

Solicitor asserts that the mine operator's negligence was again 

moderate and the gravity serious. The parties seek a reduction 

in the proposed penalty from $1500 to $1000. 

In support of the proposed settlement, the Solicitor states 

that the parties have discussed the alleged violations and the 

six statutory criteria stated in section llO(i) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(i), and that 

the circumstances presented warrant the reduction in the original 

civil penalty assessments for the violations in question. 

Further, he has submitted a detailed discussion and disclosure as 

to the facts and circumstances surrounding the issuance of the 

citations as well as a full explanation and justification for the 

proposed reductions. 

I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in section 

llO(i) of the Act. 

WHEREFORE, the hearing scheduled for Wednesday, February 20, 

1991, in Elkins, West Virginia, is CANCELLED, the motion for 

approval of settlement is GRANTED, and it is ORDERED that 

respondent pay a penalty of $8,750 within 30 days of this 

decision. 

urer 

ative Law Judge 

Distribution: 

Ronald E. Gurka, Esq., Office of the Solicitqr, U.S. Department 

of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) , 

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O. 

Box 553, Charleston, WV 25322 (Certified Mail) 

/ml 

218 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 7· · 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HERBA SAND & GRAVEL, 

Respondent 

DECISION 

Docket No. YORK 90-9-M 

A. C. No. 30-02184-05502 

Mayfield & Plant 

Appearances: William Go Staton, Esq., Office of the Solicitor, 

u. s. Department of Labor, New York, New York, for 

the Secretary; 

Mr. Ed Herba, Jr., owner, Herba Sand & Gravel, 

Gloversville, New York, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this Civil Penalty Proceeding, the Secretary 

(Petitioner), seeks the imposition of a civil penalty for an 

alleged violation by the Operator (Respondent) of 30 C.F.R. 

§ 56.1410l(a)(3). Pursuant to notice, a hearing was held in this 

matter on January 23, 1991, in Albany, New York. John Montgomery 

II testified for Petitioner, and Edward F. Herba, Jr. testified 

for Respondent. 

Findings of Fact and Discussion 

I. 

On October 5, 1989, John Montgomery, an inspector employed 

by the Mine Safety and Health Administration, while inspecting 

Respondent 1 s operation, observed a Euclid haul truck while it was 

backing up to a dump point. Montgomery testified that it 

appeared that the truck did not have adequate brakes. He said 

that he spoke to the driver, Art Thompson, who told him that the 

parking brakes would not hold the truck. Montgomery testified, 

in essence, that Thompson further told him that the only way he 

is able to hold the truck on a hill, is to place two feet on the 

brakes, and keep the truck in gear. 

219 
According to Montgomery, he walked alongside the truck while 

it was going up a grade that he estimated to be between 8 to 10 

percent. Montgomery told Thompson to hit the brakes and, because 

he had Thompson leave the door of the truck open, he observed 

that Thompson placed both feet on the brakes, but the truck still 

rolled backwards. Montgomery thereupon issued an imminent danger 

order as well as a citation alleging a violation of Section 

56.14101(a)(3), supra, which provides as follows: "All braking 

systems installed on the equipment shall be maintained in 

functional condition." 

Respondent did not off er any evidence to contradict the 

testimony of Montgomery with regard to the functioning of the 

brakes on October 5. Edward F. Herba, Jr. testified that the 

following day the back brakes did work, and he made just a little 

adjustment on them. However, he indicated that the front brakes 

were not holding and they had to be adjusted. He opined 7 

essentially, that on the day of Montgomery's inspection the 

brakes were functioning at 80 percent. 

Based on Montgomery's testimony that he observed that the 

Euclid haul truck rolled backwards after the brakes had been 

applied, and considering Herba's testimony that the front brakes 

were not holding and had to be adjusted, I conclude that the 

evidence establishes that Respondent herein did violate 

Section 56.14101, supra. 

II. 

According to Montgomery, based upon his observations, 

experience, and information he obtained from reviewing accident 

reports, he concluded that, if the brakes in question were not 

corrected, it was reasonably likely that an operator could lose 

control and either go over an embankment injuring himself or run 

over an outside vendor who could have come onto the premises. 

He thus concluded that the violation was significant and 

substantial. 

The site in question was described by_Herba as being hilly 

and Montgomery testified that at one point the terrain was at a 

grade of approximately 8 to 10 percent. Given these conditions 

and the condition of the brakes, certainly an accident could have 

occurred as a result of the operator of the truck not being able 

to stop it properly. However, the evidence fails to establish 

that an injury of a reasonably serious nature was reasonably 

likely to have occurred. (See, Mathies Coal Co., 6 FMSHRC 1 

(January 1984)). Essentially, according to Montgomery, the haul 

truck operator could have been injured if the truck rolled over 

as a consequence of going over an embankment by virtue of the 

brakes not functioning properly. However, no proof was adduced 

as to the existence of embankments and their specific locations, 

particularly in reference to the areas where the haul truck 

220 
operated. Also, the evidence is lacking with regard to whether 

persons other than the operator are frequently present in the 

area where the truck operates. Although, according to Montgomery 

outside vendors could enter the premises, the record does not 

establish how frequently, if it all, vendors enter the area in 

question. Hence, I conclude that it has not been established 

that the violation herein is significant and substantial (See, 

Mathies Coal Co., supra). 

III. 

I accept Herba's testimony that the back brakes needed only 

a small adjustment, but that the front brakes needed adjustmento 

Additionally, taking into account the hilly terrain in question, 

I conclude that the violation was of a moderately serious level 

of gravity. Montgomery testified that Thompson had told him that 

he had reported to Herba the problem concerning the brakes, 

However? Thompson did not testify. Herba testified that prior to 

October 5, 1989, Thompson did not tell him that there were any 

problems with the brakes. I thus conclude that Respondent was 

negligent to only a low degree. Considering these factors, as 

well as the size of Respondent's operation, as stipulated to by 

the Parties at the hearing, and the fact, as stipulated to at the 

hearing, that no violations were cited by MSHA in the 24-month 

period prior to the inspection at issue, I conclude that a 

penalty of $150 is appropriate for the violation found hereino 

ORDER 

It is ORDERED that, within 30 days of this Decision, 

Respondent pay $150 as a civil penalty for the violation found 

herein. 

g~ Administrative Law Judge 

Distribution: 

William G. Staton, Esq, Office of the Solicitor, U. s. Department 

of Labor, 201 Varick Street, Room 707, New York, NY 10014 

(Certified Mail) 

Mr. Ed Herba, Jr., owner, Herba Sand & Gravel, RD #2, 

Gloversville, NY 12078 (Certified Mail) 

dcp 

221 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 111991. 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

RB M ENTERPRISES, INC., 

Respondent 

Docket No. KENT 90-410 

A.C. No. 15-16316-03515 

No. 1 Mine 

Docket No. KENT 90-418 

A.C. No. 15-16735-03506 

No. 2 Mine 

DECISION 

Appearances: Grooms, Esq., Office of the Solicitor, 

Department of Labor, Nashville, Tennessee, for 

Before: 

R. ' Shelton, Esq., Baird, Baird, Baird and 

Jones, P.s.c., Pikeville, Kentucky, for the 

Respondent. 

Judge Melick 

These cases are before me pursuant to section 105(d) of the 

Federal Mine and Health Act of 1977, 30 U.S.C. § 801 

et seq., the "Act," in which the Secretary of Labor has proposed 

civil pena s alleged violations by FS. B M Enterprises, 

Inc., IRBMI of regulatory standards. The general issues before 

me are whether RBM committed the violations as alleged and, if 

so, the amount of civil penalty to be assessed. 

Docket No. KENT 90-410 

At hearings the parties submitted a proposal for settlement 

of the one citation at issue in the amount of $20. The motion 

was granted at hearing on the basis of the Secretary's 

representation that she has agreed to alternate means of 

achieving the .purpose of the cited standard and that the operator 

0as complied with that alternate method i.e. providing a f 

proofing agent to be sprayed on the coal ribs at the battery 

station cited in this case. Under the circumstances the proposal 

for settlement approved and the corresponding penalty will be 

incorporated in the order following this decision. 

Citation No. 3535703 issued pursuant to section 104(d) (1) of 

222 
the Act1 / 2; charges a "significant and substantial" violation 

of the standard at 30 C.F.R. § 75.400 and charges as follows: 

Combustible material in form of float coal dust from 

grey to black was allowed to accumulate along under the 

No. 2 belt conveyor line and the connecting cross cuts 

and in the No. 3 [illegible] the left side the belt 

going toward the 001 section with loose wet coal and 

coal dust from one-inch to approximately 14 inches in 

various locations, starting at head drive and extending 

inby for 600 feet in length. This condition has 

existed for sometime due to the coal that was left 

along ribs from when the belt line had been moved up. 

The standard at 30 C.F.R. § 75.400 provides as follows: 

1 Section 104(d)(l) of the Act provides as follows: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause 

imminent danger, such vio ion is of such nature as 

could significant and substantially contribute ~o the 

cause and effect of a coal or other mien safety or health 

hazard, and if ·he finds such violation to be caused by an 

unwarrantable failure of such operator to comply with 

such mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this Act. If, during the same inspection 

or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authori 

representative of the Secretary finds another violation 

of any mandatory health or safety standard and finds such 

violation to be also caused by an unwar~antable failure 

of such operator to so comply ,,,he shal'l forthwith issue 

an order requiring the operator to cause all persons in 

the area affected by such violation, except those persons 

referred to in subsection (c) to be withdrawn from,a nd 

to be prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such violation has been abated. 

2 The Citation herein was modified at hearing from 

Section 104(d)(2) order to a Section 104(d)(l) citation 

since there had in fact been an intervening cleaning 

inspection following the precedential Section 104(d)(l) 

order. 

223 

a 
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

MSHA Supervisory Inspector Kellis Fields testified that on 

March 6, 1990, he was performing a general inspection of the 

cited No. 2 Mine accompanied by Mine Superintendent Ellis Adkins. 

It is not disputed that at the time of this inspection there were 

8 to 10 miners working on the sections but that the mine was not 

then producing coal because the motor on the coal feeder had 

earlier broken down. According to Inspector Fields the belts 

were nevertheless still running for the clean-up of loose coal. 

According to Fields, he and Superintendent Adkins entered along 

the No. 1 belt and turned right along the No. 2 belt (see 

Government Exhibit No. 3). The areas marked in green on that 

exhibit comport with the description in the citation that there 

was float coal dust under the No. 2 belt conveyor and the 

connecting crosscuts. In addition, according to Inspector Fields 

there was loose wet coal and coal dust from one inch to 

approximately to 14 inches deep in various locations starting at 

the head drives and extending inby for 600 feet. He found the 

larger accumulations (up to 14 inches) in locations were the coal 

feeder had previously been situated. Based on estimated mining 

progress, Fields concluded that the feeder had been moved from 14 

to 16 days before his inspection. He observed that spillage 

normally occurs at feeder locations as a result of overflowing. 

According to Inspector Fields, Superintendent Adkins 

admitted to him several days after the inspection that he had 

been aware of the coal spillage, but had not had time to have it 

cleaned up. The coal spillage had apparently been left at the 

feeder locations after the belt had been moved. 

Inspector Fields believed that there was a serious potential 

for ignition from various electrical components including the 

112-volt belt control line, the 440-volt "A_cu belt control box 

and the 4160 "AC" power center. Fields noted in particular that 

the belt control box was a "nonpermissible" box and that one 

quarter inch of coal dust lay inside the box and on the 

components inside. He further noted that the coal dust within 

the control box was dry and that it could have been ignited by a 

spark inside the box resulting in fire or explosion. He opined 

that the belt rollers themselves could also become stuck causing 

friction with the belt resulting in the drying and ignition of 

adjacent coal dust. The 112-volt control line could also become 

damaged causing an arc and triggering an explosion. 

The record shows that additional citations were also issued 

at this time for other extant conditions, namely for coal dust 

within the belt control box, for an inadequate water spray (fire 

224 
suppression) system on the belt line, for failure to provide a 

fire hose where a 500-foot hose was required, for the absence of 

water outlets onto which fire hoses could be attached, and for 

the absence of fire sensors to automatically activate the belt 

water deluge system in the event of fire. These citations were 

not challenged and were issued for violations occurring 

concomitantly with the violation at issue herein. This evidence 

provides a basis for finding highly aggravating circumstances. 

Accordingly, within this framework, Inspector Fields' 

conclusion that it was highly likely that all of the miners 

(estimated to be 8 to 10 working at the face alone) would be 

killed by explosion or fire is clearly supported by credible 

evidence. I find the inspector's testimony sufficient to support 

the "significant and substantial" violation charged herein. See 

Mathies Coal Co., 6 FMSHRC 1 (1984). 

In reaching these conclusions, I have not disregarded the 

testimony of RBM witnesses Ted Robinson, a certified electrician, 

Ronny Dean Smith, a miner helper, and Elmo Green, a mine 

inspector for the Kentucky Department of Mines and Minerals, that 

the mine at issue was so wet that the "coal dust" consisted of 

nothing more than soupy mud. Inspector Green opined that with 

the amount of water in the subject mine there would not be an 

explosion or fire hazard from coal dust. He observed that mud 

from 1 to 4 inches deep existed on the bottom of the mine. 

Indeed there appears to be no dispute t~at the subject mine 

was an extremely wet mine and that much of the coal dust cited 

was in fact wet and muddy. However, those factors do not 

preclude a violation of the standard at 30 C.F.R. § 75.400. See 

Secretary v. Black Diamond Coal Mining Company, 7 FMSHRC 1117 at 

p.1120-1121 (1985); Utah Power light company Mining Division v. 

Secretary of Labor, 12 FMSHRC 965 (1990). The Commission 

observed in those decisions that even though such accumulations 

may be damp or wet they are still combustible and noted that in 

the case of a fire starting elsewhere in the mine the resulting 

heat may be so intense that wet coal can dry_.out and propagate a 

fire. 

Moreover, in light of the many other aggravating conditions, 

noted above, considered in the context of continued normal mining 

operations, there was a confluence of factors present in this 

case to constitute a reasonable likelihood of a combustion hazard 

resulting in an ignition or explosion is spite of the wetness. 

See U.S. Steel Mining Co. Inc., 6 FMSHRC 1573 (1984) and 

Texas Gulf, Inc., 10 FMSHRC 498 (1988). 

It is clear that the violation was also the result of 

"unwarrantable failure" and high negligence. The testimony of 

Inspector Fields that larger accumulations were located where the 

coal feeders had previously been located some 14 to 16 days 

225 
before his inspection, is credible. Indeed Superintendent Adkins 

admitted to Fields that he had been aware of such coal spillage, 

but had not had time to clean it up. Thus even assuming, 

arguendo, that miners were beginning to clean along the No. 2 

belt line at the time of the inspection, it is clear that the 

existence of the accumulations for two weeks or more constituted 

such an aggravated omission and gross negligence that it was the 

result of unwarrantable failure. Emery Mining Company, 9 FMSHRC 

1997 (1987). Accordingly, the section 104(d)(l) citation at bar 

must be affirmed. Moreover, considering the criteria under 

section llO(i) of the Act it is clear that the proposed civil 

penalty of $800 is indeed appropriate. 

ORDER 

R B M Enterprises, Inc. is directed to pay civil penalties 

of $820 within 30 days of the date of th's decision" 

I ' I \ 

'-

elick 

~~~~v~ strati.e Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicit-:Jr, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Billy R. Shelton, Esq., Baird, Baird, Baird and Jones, P.S.C., 

415 Second Street, P.O. Box 351, Pikeville, KY 41502 (Certified 

Mail) 

nb 

226 
DANNY 

VP-5 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SPARKS 

Vo 

MINTNG 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB it 1991 

AND OTHERS, COMPENSATION PROCEEDING 

Complainants Docket No. 

COMPANY, VP-5 Mine 

Respondent 

ORDER APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

VA 90-56-C 

Before: Judge Broderick 

Applicants filed for compensation under section 111 of the 

Act for workers on the second shift at the subject mine following 

the issuance of an order of withdrawal under section 107(a) at 

6:30 p.m., June 7, 1990. The withdrawal order was issued because 

of an excessive amount of methane in the bleeder system of the 

six development longwall. the application stated that the 

withdrawn miners we~e paid for 4 hours on June 7, 1990. 

On January 28, 1991, Applicant Sparks, as Chairman of the 

Safety Committee at the mine, submitted a proposed settlement 

agreement in which the Respondent would pay an additional 2 hours 

pay to the withdrawn miners. 

In a conference call on February 8, 1991, Mr. Sparks stated 

that the excessive methane was discovered by t~e company at about 

6:00 p.m. on June 7, and the company ordered-the men withdrawn 

before the Federal inspector issued hls order. Some were out of 

the mine prior to the order and others were on their way out. 

Some of those withdrawn from underground continued working on the 

surface and were paid or will be paid for the time actually 

worked. Those who did not will be paid 2 hours in addition to 

the 4 hours pay they received under the union contract. 

I have considered the settlement proposal and conclude that 

it effectuates the purposes of the Act. 

227 
Accordingly, the settiement proposal is APPROVED, and, 

subject to the payment of the agreed to 2 hours additional pay to 

the miners withdrawn on the second shift, June 7, 1990, this 

proceeding is DISMISSED. 

Distribution: 

_,:/dtitL~ dvvc&/~;et{ 

!l James A. Broderick · Administrative Law Judge 

Mr. Danny Sparks, Chairman, Safety Committee, Local Union 2232, 

Rt. 1, Box 287p Cedar Bluff, VA 24609 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail) 

Mr. Calvin Ward, VP-5 Mining Company, P.O. Drawer L, Oakwood, VA 

24631 (Certified Mail) 

slk 

228 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

WENDELL COOK, 

v. 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

f tB 13 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 90-351-D 

MSHA Case No. BARB CD 90-16 

SOUTH EAST COAL COMPANY, 

Respondent Mine No. 411 

Appearances: 

Before~ 

DECISION 

Wendell Cook, Whitesburg, Kentucky, pro se, for 

the Complainant; 

James W. Craft, Esq., Whitesburg, Kentucky, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

the complainant, Wendell Cook, against the respondent South East 

Coal Company, pursuant to section 105(c) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c). The complainant filed his initial complaint with the Mine Safety and Health 

Administration (MSHA), and after completion of an investigation 

of the complaint, MSHA advised the complainant by letter dated 

June 1, 1990, that the information received during the investigation did not establish any violation of section 105(c) of the 

Act. Thereafter, on July 5, 1990,· the complainant filed a 

complaint with the Commission. A hearing was held in Hazard, 

Kentucky, and the parties waived the filing of posthearing 

briefs. However, I have considered the oral arguments made by 

the parties during the course of the hearing, and I have also 

considered a posthearing letter of December 16, 1990, submitted 

by the complainant on his behalf, and a copy was furnished to the 

respondent's counsel. 

The complainant, who was employed by the respondent as a 

bolting-machine helper, alleges that he was harassed by the 

respondent and then discharged on or about April 20, 1990, in 

retaliation for filing a prior discrimination complaint against 

the respondent in August, 1989. 

229 
The respondent denies that it discriminated against the 

complainant, and asserts that the.complainant was discharged for 

cause for fighting on mine property with another miner. The 

respondent further asserts that fighting on mine property is a 

violation of company policy and state law, and that both miners 

who engaged in the fight on April 16, 1990, were discharged. 

Issues 

The critical question in this case is whether Mr. Cook's 

discharge was prompted in any way by his engaging in protected 

activity, or whether it was the result of his engaging in a fight 

on mine property in violation of company policy. Additional 

issues raised by the parties are identified and disposed of in 

the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977 

30 U.S.C. § 301 et seq. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1), (2) and 

( 3) • 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Complainant's Testimony and Evidence 

Alisha Cook, the complainant's wife, testified that on 

several occasions her husband came home from the mine upset "over 

things that had happened at work." She stated that her husband 

wanted to insure safe working conditions at the mine but that 

when he mentioned any unsafe conditions at the mine the supervisors and his fellow miners would become upset when production 

decreased. She asserted that the miners were upset because she 

also worked, and she felt that management discriminated against 

her husband by not offering him opportunities for advancement. 

She discussed her husband's work situation_w~th company official 

Danny Quillen on April 6, 1990, and.that Mr. Quillen stated "why 

doesn't he just quit?" (Tr. 16). She further stated that she 

was surprised by this statement because the company had been good 

to her husband and he wanted to benefit the company. 

With regard to her husband's discharge for allegedly fighting with Mr. Jesse Gibson, Mrs. Cook stated that the respondent 

believed that her husband had a vendetta against Mr. Gibson 

because he had co-signed a bank loan for Mr. Gibson and 

Mr. Gibson was delinquent in his payments. She stated that since 

her husband's discharge, they have attempted to speak with 

Mr. Gibson about the matter, and that during a visit to 

Mr. Gibson's home on August 2, 1990, her husband asked Mr. Gibson 

230 
about his delinquent payments. Mr. Gibson accused her husband of 

getting him fired and pulled a pistol on her husband and shot 

over their vehicle as they were leaving. She then swore out a 

warrant for Mr. Gibson's arrest (Tr. 18; exhibit C-3). 

Mrs. Cook stated that her husband had been shoved many times 

at work and had dirt put in his lunch bucket (Tr. 19). In 

response to further questions concerning the alleged fight with 

Mr. Gibson, Mrs. Cook stated that her husband came home upset and 

stated that Mr. Gibson had shoved him down in the parking lot 

while her husband was walking to his truck. She stated that her 

husband was upset because "all the men, including their supervisor and their foreman were present to witness that yet nothing 

was done" (Tr. 21). She was aware that her husband was fired by 

the respondent for fighting with Mr. Gibson, but as far she knew, 

-there was no fight and her husband only told her that he had been 

shoved on his way to his truck (Tr. 21). 

On cross-examination, Mrs. Cook stated that her husband was 

upset ''because of the safety situation at the mines and the 

equipment" (Tr. 22). She stated that she learned that her 

husband had been fired 2 days following the alleged fight with 

Mr. Gibson, and did not know that Mr. Gibson had also been fired 

at the same time as her husband (Tr. 22). 

Wendell Cook, the complainant, stated that it was not 

uncommon for fighting to go on at the mine, and he identified one 

miner (Greg Horn) who was transferred to another mine for fighting. Mr. Cook also stated that management provided moonshine for 

miners after they came out of the mine, and that "it was nothing 

uncommon for management to have women at the mines" (Tr. 24). 

With regard to the alleged April 16, 1990, fight with Mr. Gibson, 

Mr. Cook stated as follows (Tr. 26-27): 

MR. COOK: And the night that they are talking about 

there, that was on April 16th. When I come out of the 

mines--he had been calling me names all night inside 

the mine. 

THE COURT: Who is that, Mr. Gibson? 

MR. COOK: Mr. Gibson. And as I come up the bank 

there, he shoved me backwards. I had my dinner bucket 

in my left hand and my self-rescuer in my right hand 

and I am right-handed. If I was going to hit anybody, 

I think I would hit them with my right hand. 

He shoved me backwards and as I was falling backwards, trying to catch my balance, I may have thrown my 

hand. If I hit him, he done it himself, you know. I 

will say that he did have a scratch on the top of his 

231 
nose, now. But it was not from a punch or nothing that 

I throwed. 

Mr. Cook stated that Mr. Gibson was a roof-bolting machine 

operator and that he had been bickering with other miners on the 

section and the mine foreman for a month or so prior to the 

incident of April 16. He stated that Mr. Gibson was complaining 

that he had to do most of the bolting, and on March 24, 1990, 

shoved him because he was angry about having to bolt so much and 

about some of the bolting practices. Mr. Cook stated that 

Mr. Gibson had words with another miner that evening about the 

bolting, and that as a result of all of this bickering, he (Cook) 

asked Mr. Quillen to transfer him off the section. 

Mr. Cook stated that on April 21, 1990, the day following 

his discharge, another miner, Tommy Gibson, informed him that he 

(Gibson) "knew that they were going to set me up,H but that 

Mr. Gibson could not admit to this if the matter were to go to 

court "because he had to have his job" (Tr. 31). 

Mr. Cook produced a copy of his termination letter and a 

copy of a Kentucky Department for Employment Services determination concerning his unemployment claim which he filed after his 

discharge (exhibits C-1 and C-2). He pointed out that the 

unemployment examiner found that there was insuff evidence 

available to substantiate the fight in question, and that his 

separation was not disqualifying under state law (Tr. 34-35). 

Mr. Cook stated that after he received his termination 

letter from the respondent, he spoke to Mr. Steve LaViers, a 

company official, and Mr. LaViers confirmed that he had discussed 

the matter with Mr. Danny Quillen, and understood that the 

alleged fight with Mr. Jesse Gibson was over the bank note which 

Mr. Cook had co-signed (Tr. 41). Mr. Cook produced a copy of a 

letter dated April 17, 1990, addressed to him and Mr. Gibson, 

from the Bank of Whitesburg, Kentucky, reminding them that the 

loan payment was overdue (exhibit C-4). Mr. Cook stated that he 

received the letter on Wednesday (April 18, 1990), and that 

Mr. Quillen told him that Mr. Jesse Gibson-told him that he 

(Cook) hit him because he was not paying the note (Tr. 42). 

Mr. Cook stated that he spoke to Mr. Quillen on Wednesday, 

April 18, 1990, and that Mr. Quillen told him to take the day off 

until he could check into the matter. He then telephoned 

Mr. Quillen on Thursday, April 19, 1990, and Mr. Quillen informed 

him that he would have to let him go, but gave him no reason (Tr. 

43). Mr. Cook then went to see Mr. Quillen and Mr. Quillen 

informed him that he knew that he had hit Mr. Gibson on April 16 

(Tr. 43). Mr. Cook stated that he visited Mr. Gibson at his home 

on the evening of April 16, and that there was nothing wrong with 

him and he did not file any accident report that evening. 

Mr. Gibson reported for work the next day, April 17, and Mr. Cook 

232 
saw that he had "a little scratch across the top of his nose" 

(Tr. 44) • 

Mr. Cook confirmed that he has reviewed the hospital reports 

concerning Mr. Gibson's injuries (exhibits R-1 through R-6), and 

when asked how he could account for the extent of Mr. Gibson's 

injuries, Mr. Cook replied as follows (Tr. 45-46): 

MR. COOK: Well, I know I didn't hit the man. 

THE COURT: But I am talking about the injuries. The 

guy had his nose broken in two places and all those 

contusions and the things that those doctors said that 

he had, wouldn't you think that he would have more than 

just a little old scratch on his nose? 

MR. COOK: Well, he went to the doctor, what, 

Wednesday? 

THE COURT~ You said that you didn't hit him, but you 

said early on you said that you may have, you may have 

swung your lunch bucket or something" 

MR. COOK~ Well, if I did, it was--I mean 1 he walked 

into it, you know, me a falling. 

THE COURT: While you were swinging the bucket he 

walked into it? 

MR. COOK: Just falling backwards, naturally, you know, 

you are going to try to balance yourself. You know, I 

didn't hit the man. But now, he did have a scratch on 

his--I know that night--

Mr. Cook produced a receipt in the amount of $20 from the 

Daniel Boone Clinic, for services rendered by a doctor on 

April 20, 1990 (exhibit C-5). He explained that he went to see 

the doctor that day because he had been shove9 by Mr. Gibson on 

April 16, 1990, and hit his head when he hit the ground (Tr. 49). 

He further stated that he spoke wit~·Mr. Quillen about the bill 

on April 21, and Mr. Quillen informed him that his regular 

insurance, rather than workmen's compensation, should pay the 

bill (Tr. 49-50). Mr. Cook confirmed that the doctor's certification reflecting that he was under the doctor's care from 

April 20 to April 24, 1990, was an excuse to cover that week (Tr. 

48) • 

Mr. cook stated that he and Mr. Gibson had been the best of 

friends, but that on April 16, Mr. Gibson had called him some 

names, and when asked for an explanation as to what may have 

prompted the name calling, Mr. Cook stated as follows (Tr. 

51-53) : 

233 
MR. COOK: The only thing I can assume, which you know, 

you can't go on assumptions, but I just assumed that he 

didn't want to work with me and wanted to--he knew that 

he wasn't going to pay the bank note, which he didn't. 

I had to pay it, right at $1,000.00. I just assumed 

that he didn't want to work with me and just didn't--

THE COURT: But now, in your complaint, you said that 

Mr. Gibson was harassing you and you say that you 

believe this harassment was a direct result of management. What did you mean by that? Somebody reading 

that would think that the management put Mr. Gibson up 

to harassing you to give you an excuse to hit him to 

get rid of him. 

MR. COOK: Well, you know, I wouldn't have no--

THE COURT: You think that is what happened? You think 

that the company told Mr. Gibson, "hey, start harassing 

Mr. Cook, and get him to do something to you; get him 

to hit you in the nose and fracture it so that we can 

set him up to fire him." You think that is what 

happened in this case? 

MR. COOK: 

THE COURT: 

company to 

extreme on 

all this? 

I think it is a very good possibility. 

That just seems like an extreme thing for a 

do to get rid of somebody, and particularly 

Mr. Gibson's part. What did he get out of 

He got fired, too, didn't he? 

MR. COOK: I assume he did. He said he did. I don't 

know. 

THE COURT: Is he working at this company, Mr. Cook? 

MR. COOK: No. 

Mr. Cook stated that there were fights- at the mine "all of 

the time, 11 and he confirmed that rlo one ever reported them (Tr. 

55). He further confirmed that at the time he filed his MSHA 

complaint on April 24, 1990, he did not allege that he made any 

safety complaints or was fired for making such complaints. 

Mr. Cook stated that he told MSHA special investigator Mullins 

"about the violations," and when asked whether he is suggesting 

that the respondent fired him for reporting safety violations, 

Mr. Cook responded "I am not sure why they fired me. I know it 

was not for fighting" (Tr. 58). 

Mr. Cook confirmed that he had filed an earlier discrimination complaint against the respondent in August, 1989, but 

withdrew it after reaching an agreement with Mr. Quillen who 

234 
assured him that he would be reinstated to his original job. 

Mr. Cook explained that after he returned to work he was put on 

another crew, and after complaining to Mr. Quillen, he was 

eventually returned to his old job and crew within 2 months (Tr. 

58-63). In response to questions concerning his allegations that 

the respondent harassed him and retaliated against him for filing 

his earlier complaint, Mr. Cook alluded to the "bickering" which 

continued on his shift, his request to be transferred, management's refusal to transfer him, and the "hard feelings" which 

existed between him and mine superintendent Earl Duncil. 

Mr. Cook also believed that he was not given the same opportunities as others to change to less boring jobs, and he cited one 

instance in which he was denied an opportunity by Mr. Duncil to 

perform some clean up work rather than working as a roof-bolting 

assistant (Tr. 66-72). 

On cross-examination, Mr. Cook stated that he was aware that 

Mr. Gibson left the mine at 6:00 p.m., on April 17, 1990, prior 

to the end of his shift, and that his replacement told him that 

Mr. Gibson was sick and had to leave (Tr. 73-74). Mr. Cook 

stated that he went to Mr. Gibson 1 s home that evening at approximately 10:30 p.m., to see what was wrong with him and to ask him 

why he "acted in the manner that he did 11 when he pushed him down 

the prior evening. He stated that during his discussion with 

Mr. Gibson, he (Gibson) mentioned the bank note and told him that 

"he would fix me up that night" and ordered him to leave (Tr. 

73-77). 

With regard to a bank delinquency notice letter of April 13, 

1990, addressed to him, (exhibit R-12), Mr. Cook stated that he 

received it the following Wednesday, April 18, 1990, and that he 

gave the post-marked envelope and original bank letters to 

Mr. Quillen when he spoke with him at the mine, but that when he 

retrieved the correspondence, the envelopes were gone. Mr. Cook 

admitted that he told Mr. Quillen that Mr. Gibson had shoved him, 

but denied telling him that nothing happened (Tr. 78-81). 

Mr. Cook confirmed that when he spoke with Mr. Quillen on 

April 18, Mr. Quillen knew about the bank note which he had 

signed, but he (Cook) denied that he knew anything about the bank 

delinquency letter of April 13, or that Mr. Gibson was not paying 

the note when the incident of April 16, occurred (Tr. 82-84). 

Mr. Cook stated further that he gave the bank correspondence to 

Mr. Quillen because Mr. Quillen told him that the incident with 

Mr. Gibson occurred because of the bank note, and that he (Cook) 

was trying to show Mr. Quillen that he knew nothing about the 

delinquent bank note payment on April 16 (Tr. 84-85). 

Mr. Cook stated that miners smoked underground, would drink 

on the surface after they were off duty, and would engage in 

target shooting on the parking lot. He stated that he complained 

to Mr. Quillen and the mine superintendent, but did not complain 

to any mine inspectors. Mr. Cook confirmed that he did not tell 

235 
the mine foreman or superintendent that Mr. Gibson had shoved him 

to the ground on April 16, and that when he spoke with 

Mr. Quillen on April 18, Mr. Quillen said nothing about firing 

Mr. Gibson, and only indicated that he "was on compensation" (Tr. 

96-97). 

Respondent's Testimony and Evidence 

Daniel Quillen, Jr., stated that he is employed by the 

respondent as Vice-President for operations, and that his duties 

include assisting in the management of the mines, hiring and 

firing, and the supervision of payroll and office records. He 

confirmed that the Brinkley Mine has been closed since 

October 10, 1990, that production has ceased, and that eight 

people are at the site removing the equipment. Mr. Quillen 

confirmed that Mr. Cook and Mr. Gibson worked on the second ft 

at the mine, from 2:00 p.m. to 10:00 p.m., and that they were 

both classified as "clean-ups, 11 which including helping on the 

roof-bolting machine and attending or maintaining a belt conveyor 

(Tr. 98-101) . 

Mr. Quillen stated that the altercation of Monday, April 16, 

between Mr. Cook and Mr. Gibson first came to his attention on 

Wednesday morning, April 18, when Mr. Gibson walked into his 

office and it was obvious that he had been hit with something 

hard because his eye was black and "his nose was crooked like a 

dog 1 s hind leg'' (Tr. 102). Mr. Gibson told him that Mr. Cook hit 

him in the nose and eye with his dinner bucket Monday evening 

after leaving the mantrip and as they were proceeding to the 

parking area. Mr. Quillen stated that Mr. Gibson told him that 

he did not know why Mr. Cook struck him. He then instructed 

Mr. Gibson to go to the hospital emergency facility in Hazard to 

see a doctor, and either called, or had his secretary call 

Mr. Cook to come to the mine to speak with him (Tr. 102). 

Mr. Quillen stated that he told Mr. Cook about Mr. Gibson's 

statement that he (Cook) had struck him, but that Mr. Cook denied 

that it ever happened and stated that "nothing happened" and 

"that if the man got hurt, it was after he-1eft the mine because 

he didn't get hurt at the mines" (Tr. 103). Mr. Quillen confirmed that he advised Mr. Cook that he could not work until he 

found out what happened. Mr. Quillen further stated that 

Mr. Gibson had reported for work on Tuesday, April 17, but had to 

come out of the mine during his lunch hour at 6:00 p.m., after 

telling him that "he was hurting so bad and got sick in the 

mines" as a result of the injuries he had received on April 16 

(Tr. 104). 

Mr. Quillen stated that after investigating the matter, he 

fired Mr. Cook and Mr. Gibson for fighting on company property 

and that "it was just a disciplinary action that had to be taken 

to tell the people that works at South East Coal Company you 

236 
can't go around doing this on South East Coal Company's property" 

(Tr. 104). Mr. Quillen denied that his decision to discharge 

Mr. Cook had anything to do with the previous complaint filed by 

Mr. cook, and that his decision to fire him was based on what he 

(Quillen) believed happened Monday evening, April 16 (Tr. 105). 

Mr. Quillen stated that no one ever complained to him about 

drinking, women, or shooting on company property until he 

received Mr. Cook's letter of August 10, 1990, appealing MSHA's 

determination in connection with his discrimination complaint. 

Mr. Quillen stated that he has fired a miner for smoking in 

another mine, but that this was not brought to his attention by 

Mr. Cook. He confirmed that no one at the Brinkley Mine has been 

fired for smoking underground, and although he has heard several 

complaints about smoking, he stated that he needed definite proof 

in order to fire anyone (Tr. 107). 

On cross-examination, Mr. Quillen stated that he did not 

believe that Mr. Gibson received his injuries somewhere else 

other than at the mine. He confirmed that Mr. Cook told him that 

nothing had happened, and if it did, it happened after Mr. Gibson 

left the mine. Mr. Quillen stated that he found out that 

Mr. Gibson rode home with another miner, Benny campbellf Monday 

evening, April 16, and that when he contacted Mr. Campbell, 

Mr. Campbell told him that when he arrived at Mr. Gibson's truck, 

Mr. Gibson was already in it and that his nose was bleeding and 

that it bled all the way from the mine to his home (Tr. 107-110). 

Mr. Quillen stated that he was unaware of any other fights 

at the mine, and could not recall Mr. Cook telling him about a 

fight between Larry Collins and Tommy Gibson (Tr. 114). Mr. Cook 

asserted that he told Mr. Quillen about this fight before he was 

discharged, when he had requested to transfer off the section, 

and that the fight was "over two men wanting a belt drive" (Tr. 

115) • 

In response to further questions, Mr. Quillen confirmed that 

the termination letter of April 20, 1990, d~es not include a 

statement that Mr. Cook was discharged for fighting. Mr. Quillen 

explained that Mr. Cook knew why he was being fired and that he 

verbally informed him of the discharge on April 19, either by 

telephone, or personally at the mine office, and that they "had 

been talking about it for two days" (Tr. 118). Mr. Quillen 

confirmed that Mr. Cook gave him the two bank delinquency notices 

either on Wednesday, April 18, or a couple of days later, but 

that Mr. Gibson never said anything about any late payments. 

Mr. Quillen believed that Mr. Cook gave him the notices in order 

to show that "this was Jesse's fault, not my fault because Jesse 

hadn't made the payments" (Tr. 120). 

Mr. Quillen could not recall the exact date of Mr. Gibson's 

discharge, but confirmed that it was before the doctor would have 

237 
permitted him to come back to work. Mr. Quillen was of the 

opinion that the argument was over the delinquent note payments, 

and he believed that "one of them was as much at fault as the 

other. So they should both be fired" (Tr. 121). Mr. Quillen 

confirmed that the company policy prohibiting fighting on company 

property is not in writing, and that the employees know about it 

through "common sense" (Tr. 123). He further confirmed that 

fighting at a mine is a violation of Kentucky Mine Law (Tr. 124). 

He stated that he had never previously fired or disciplined any 

other employees for fighting, and had no knowledge that anyone 

else had ever fought on mine property (Tr. 125-127). Mr. Quillen 

acknowledged that there were "hard feelings" at the mine and a 

conflict between Mr. Cook and management which resulted in his 

prior discharge. Mr. Quillen stated that the conflict concerned 

Mr. Cook's desire to be transferred from one job to another (Tr. 

130) . 

Mr. Cook stated that at the time of his discharge, he was 

employed as a bolting-machine helper at an hourly rate of $11.25, 

and that he worked "maybe eight hours a month" overtime. He was 

covered by a hospitalization plan, but had no retirement benefits. He was also covered by a company vacation plan. His last 

day of work was April 17, 1990, and he was paid through April 20, 

by using his vacation time. He stated that he has been unemployed since his termination, and has sought employment at three 

mines but has not been successful. He has not looked for any 

non-mining jobs and has been receiving unemployment benefit 

payments since his discharge, and the respondent has not prevented him from receiving these payments (Tr. 134-135). 

Mr. Quillen could not recall whether he contested Mr. Cook's 

unemployment compensation claim, and stated that "it is awful 

hard to prevent a person from getting unemployment in Kentucky" 

(Tr. 137). 

Findings and Conclusions 

In order to establish a prima f acie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

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

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds nom. 

consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

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

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

238 
motivated by protected activity. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

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

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent< 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983) ~ 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984)0 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965): 

It would indeed be the unusual case in which the 

link between the discharge and the (protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory~intent by a mine 

operator against a complaining miner ... include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

In Bradley v. Belva coal company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

As we emphasized in Pasula, and recently 

re-emphasized in Chacon, the operator must prove that 

it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

239 
can attempt to demonstrate this by showing, for example, past discipline consistent with that meted to the 

alleged discriminatee, the miner's unsatisfactory past 

work record, prior warnings to the miner, or personnel 

rules or practices forbidding the conduct in question. 

our function is not to pass on the wisdom or fairness 

of such asserted business justifications, but rather 

only to determine whether they are credible and, if so, 

whether they would have motivated the particular operator as claimed. 

Mr. Cook's Protected Activity 

Section 105(c) (1) of the Mine Act provides in pertinent 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 * * * 

because such miner * * * has filed or made a complaint 

under or related to this Act * * * 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 proceed~ 

ing, or because of the exercise by such miner * * * of 

any statutory right afforded by this Act. 

It is clear that Mr. Cook enjoys a statutory right to voice 

his concern about safety matters, to make safety complaints, or 

to file a discrimination complaint without fear of retribution or 

harassment by mine management. Management is prohibited from 

harassing Mr. Cook, or intimidating or otherwise interfering with 

Mr. Cook's rights to engage in these kinds of activities. 

In order to establish a prima facie violation of section 

105(c) (1) of the Act, Mr. Cook must prove by a preponderance of 

the evidence that he engaged in protected aetivity and that his 

discharge was motivated in any pal:t 'by the protected activity. 

In order to rebut a prima facie case, the respondent must show 

either that no protected activity occurred, or that the discharge 

was in no way motivated by Mr. Cook's protected activity. 

Mr. Cook's Discharge 

The record reflects that Mr. Cook was discharged on two 

occasions by the respondent. The first discharge occurred in 

August, 1989, and Mr. Cook confirmed that Mr. Quillen fired him 

and sent him a letter identical to the discharge letter 

Mr. Quillen sent him on April 20, 1990, when he fired him a 

second time. Mr. Cook testified that when Mr. Quillen called him 

to inform him of the first discharge, he asked Mr. Quillen for a 

240 
reason for the discharge and that Mr. Quillen responded "for no 

particular reason" and "slammed the phone down" (Tr. 131). 

Mr. Quillen could not recall why Mr. Cook was discharged the 

first time, but denied that it had anything to do with any safety 

complaints (Tr. 130-131). · 

The record further reflects that as a result of the first 

discharge in August, 1989, Mr. Cook filed a discrimination 

complaint against the respondent but voluntarily withdrew it. 

Mr. Cook confirmed that he withdrew the complaint because "I 

thought everything was going to be okay" and that he needed the 

work (Tr. 132). Mr. Cook further explained that he withdrew the 

complaint after Mr. Quillen assured him that he would be reinstated to his original job, and he confirmed that upon his return 

to work after his reinstatement, he was assigned work with 

another crew, but after complaining to Mr. Quillen, he was 

eventually returned to his old job and crew within 2 months of 

his reinstatement. 

With regard to the second discharge which prompted the 

instant discrimination complaint, the discharge letter signed by 

Mr. Quillen informing Mr. Cook of the discharge is dated 

April 20, 1990, and it states that Mr. Cook's employment with the 

respondent "is terminated this date, April 20, 1990 (exhibit 

C-1). Mr. Cook testified that he was not sure why he was fired 

but insisted that it was not for fighting. His wife testified 

that she learned that her husband had been fired 2 days after the 

alleged fight with Mr. Gibson. Although the discharge letter 

does not state the reason for the discharge, Mr. Quillen testified that he and Mr. Cook had discussed the fighting incident for 

2 days after it happened, and after Mr. Quillen had observed 

Mr. Gibson's condition and instructed him to seek medical attention. Mr. Quillen further testified that he verbally informed 

Mr. Cook of the reason for his discharge when he spoke with him 

by telephone or in his office on April 19, 1990. 

Mr. Cook confirmed that he telephoned Mr. Quillen on the 

morning of April 19, and that Mr. Quillen informed him that "he 

was going to have to let me go," but· gave him no reason (Tr. 

42-43). Mr. Cook confirmed that he then went to the mine and 

spoke with Mr. Quillen and that Mr. Quillen informed him that he 

(Quillen) knew that he (Cook) had struck Mr. Gibson on April 16. 

Mr. Cook further confirmed that on the evening of April 16, he 

went to Mr. Gibson's home and found that nothing was wrong with 

him (Tr. 43}. He later testified on cross-examination that he 

visited Mr. Gibson at his home on the evening of April 17, "to 

see what was wrong with him" (Tr. 75}. Thus, Mr. Cook's testimony corroborates Mr. Quillen's testimony that he personally spoke 

with Mr. Cook, by telephone, and in person about the fight with 

Mr. Gibson. Having viewed Mr. Quillen in the course of his 

testimony, I find him to be a credible witness. Further, since 

it would appear from his own testimony that Mr. Cook went to 

241 
Mr. Gibson's home to inquire as to his condition, this raises a 

strong inference that Mr. Cook was aware of the possibility that 

Mr. Quillen would possibly hold him accountable for the altercation with Mr. Gibson. Under all of these circumstances, I 

believe Mr. Quillen's testimony that he informed Mr. Cook that he 

was being discharged for fighting with Mr. Gibson, and I conclude 

and find that Mr. Cook was informed of the reason for his discharge and that he knew he was being discharged by Mr. Quillen 

for fighting with Mr. Gibson. 

The Alleged Discrimination 

Safety Complaints 

In his initial complaint letter received by the Commission 

on July 5, 1990, Mr. Cook makes reference to his prior discrimination complaint, and he asserted that he was discharged in 

August, 1989, "for refusing to work in unsafe conditions, 11 and 

that he was terminated the day following his notifying state and 

federal authorities "about the conditions. ig In the letter, 

Mr. Cook took issue with the manner in which his first complaint 

was investigated by MSHA, and he suggested that the investigating 

inspector was related to the mine superintendent, Earl Duncil, 

and that this was a conflict of interest. With regard to his 

instant complaint, Mr. Cook also took issue with the manner in 

which it was investigated by the same inspector who investigated 

his first complaint, and his letter states that when he spoke 

with the inspector, the inspector purportedly informed him that 

he had no case, tried to get him to sign some unspecified form, 

which he refused to sign, and that the inspector informed him 

that he "would not write the case up because there was no protected act." 

In a subsequent letter of August 10, 1990, addressed to 

Mr. Quillen, and which I consider part of his complaint, Mr. Cook 

asserts that his discharge was out of retaliation for his first 

complaint. He further alleges that after his reinstatement 

following the first discharge, he was subjec~ed to harassment 

which he attributed to "hard feelings" against him by superintendent Duncil because of his first complaint, and he accused 

Mr. Duncil of supplying intoxicating beverages to miners on mine 

property after their work shifts, allowing miners to bring women 

onto mine property, allowing miners to remain on mine property 

after they were intoxicated, which resulted "in people being shot 

at while in the parking lot," and allowing miners to miss as much 

as a week's work "after drinking moonshine" supplied to them by 

Mr. Duncil. Mr. Quillen testified that such complaints were 

never previously brought to his attention by Mr. Cook, and that 

he first learned about them when he received the letter of 

August 10, 1990, in connection with Mr. Cook's complaint. 

242 
I take note of the fact that when Mr. Cook filed his complaint with MSHA on April 24, 1990, shortly after his discharge, 

and executed the usual complaint form, he made no mention of any 

safety complaints as the basis for his discharge. At that time, 

he claimed that Mr. Gibson began harassing him at the end of his 

work shift on April 16, 1990, and that he (Cook) "believed that 

this harassment was a direct result of management. I had previously filed a complaint against the company and had been 

reinstated." 

In his complaint letter of July 5, 1990, Mr. Cook alleges 

that the respondent "forced him to work under unsafe conditions. 11 

I conclude and find that these allegations were in connection 

with Mr. Cook's prior discrimination complaint which he withdrew, 

and I find no credible evidence in connection with his present 

complaint to support any such claim. In his letter of August 10, 

1990, Mr. Cook makes reference to a conversation of April 6, 

1990, between his wife and Mr. Quillen, and he asserts that his 

wife "mentioned the long cuts measuring as much as 52 feet, men 

smoking underground, and many other unsafe acts" during that 

conversation. Mrs. Cook confirmed that she spoke with 

Mr. Quillen on April 6, 1990, at the mine because she believed 

that he may not have been aware of her husband 1 s "work situation•u 

and his concern "about the safety situations 11 (Tr. 16). 

Mr. Cook confirmed that when he filed his complaint with 

MSHA he did not allege that his discharge was based on any safety 

complaints that he may have made. During the hearing, Mr. Cook 

mentioned one complaint when he claimed that he told the MSHA 

special investigator "about the violations." Mr. Cook also 

claimed that he had called an inspector "about the big cuts," and 

he explained that although the mine was on a 20-foot plan, it was 

common for 52-foot cuts to be made. He also claimed that he had 

mentioned the matter of "deep cuts" while attending a training 

class when a state mine inspector (Bobby Bentley) was present. 

However, Mr. Cook could not state when these complaints were 

made, and he asserted that "ninety-nine percent of the time they 

would -- the company would know it before an inspector got there" 

(Tr. 57). Mr. Cook makes no claim that he ever made any safety 

complaints to mine management. 

It has consistently been held that a miner has a duty and 

obligation to communicate any safety complaints to mine management in order to afford management with a reasonable opportunity 

to address them. See: Secretary ex rel. Paul Sedgmer et al. v. 

Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Miller v. 

FMSHRC, 687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy, 

Inc., 8 FMSHRC 1034, 1038-40 (July 1986); Dillard Smith v. Reco, 

Inc., 9 FMSHRC 992 (June 1987); Sammons v. Mine Services Co., 

6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal 

company, Inc., 11 FMSHRC 12 (January 1989), review dismissed Per 

243 
Curiam by agreement of the parties, July 12, 1989, U.S. Court of 

Appeals for the District of Columbia Circuit, No. 89-1097. 

As the complainant in this case, Mr. Cook has the burden of 

establishing by a preponderance of the evidence that he made and 

communicated any safety complaints to mine management or to an 

inspector, that management knew or had reason to know about the 

complaints, and that his discharge which followed was the result 

of the complaints and therefore discriminatory. In short, 

Mr. Cook must establish a connection between the complaints and 

his discharge. See: Sandra Cantrell v. Gilbert Industrial, 

4 FMSHRC 1164 (June 1982); Alvin Ritchie v. Kodak Mining Company, 

Inc., 9 FMSHRC 744 (April 1987); Eddie D. Johnson v. Scotts 

Branch Mine, 9 FMSHRC 1851 (November 1987); Robert L. Tarvin Vo 

Jim Walter Resources, Inc., 10 FMSHRC 305 (March 1988); Connie 

Mullins v. Clinchfield Coal Company, 11 FMSHRC 1948 

(October 1989). 

After careful review of all of the testimony and evidence in 

this case, I find no credible probative evidence to support any 

conclusion that Mr. Cook ever made any safety complaints to mine 

management after he was reinstated following his first dischargep 

and prior to his subsequent discharge of April 19, or 20p 19900 

With regard to Mro Cook 1 s asserted complaint to an inspector 

about 11 deep cuts, 11 I find his testimony to be somewhat contradic~ 

tory in that he first testified that he called an inspector about 

this matter, but later testified that he simply mentioned it 

during a safety class he was attending, during which the inspector was present. Mr. Cook could not state when this statement 

was made. Mr. Cook's purported complaint to an MSHA inspector 

"about the violations" were, by his own testimony, made after he 

filed his discrimination complaint and during the investigation 

of that complaint. Further, there is no evidence that mine 

management was ever aware of any such complaints, and I find 

credible Mr. Quillen's testimony that Mr. Cook never made any 

safety complaints to him, and that he first learned of the 

complaints concerning superintendent Duncil when he received 

Mr. Cook's letter of August 10, 1990, after-he had filed his 

complaint. Although Mr. Quillen acknowledge that he was aware of 

complaints about smoking, he indicated that he needed proof of 

any such incidents in order to fire anyone, and could not accept 

unsubstantial allegations. He did confirm that he has fired 

miners at other mines for smoking, but denied that he ever 

received any such complaints from Mr. Cook prior to his discharge 

(Tr. 105-106) . 

In view of the foregoing, I conclude and find that 

Mr. Cook's discharge was not the result of any safety complaints 

made to mine management or to any mine inspector. 

244 
The alleged Harassment 

As noted earlier, in his April 24, 1990, complaint to MSHA, 

Mr. Cook asserted that at the end of the work shift on April 16, 

1990, the evening of the alleged fight with Mr. Gibson, 

Mr. Gibson began harassing him, and Mr. Cook believed that the 

harassment "was a direct result of management." Mr. Cook testified that Mr. Gibson, who was a bolting-machine operator, "had 

been calling me names all night inside the mine" (Tr. 26). He 

explained that Mr. Gibson "had been bickering" for at least a 

month prior to April 16, and that Mr. Gibson was upset and mad 

about having to do so much bolting work and had words with the 

mine foreman and another bolting crew "several times" (Tro 28). 

Mr. cook stated that on one occasion, on March 24, 1990, 

Mr. Gibson 11 gave me a big shove" because "he was mad over having 

to bolt so much, 11 and that "it was just bickering within the 

whole crew" over the roof bolting work (Tro 28-29). Mr. Cook 

stated further that "I wanted to get away from the bickering, 

quarrellingo And Mr. Quillen knew that this was going on amongst 

all the men, not just me. Really, I wasn 1 t even involved in it 1v 

(Tr. 30) • 

Mr. Cook did not recall that Mr. Quillen was at the mine 

when the bickering and quarrelling went on (Tr. 63), but that he 

had spoken to Mr. Quillen about the situation, and although 

Mr. Quillen assured him that he would take him away from the 

section, he did no do so (Tr. 29). Mr. Cook stated that the mine 

foreman {Wood stone) was "right in the middle" of the bickering 

among the work crew, and that Mr. Quillen knew that Mr. Duncil 

had "hard feelings" against him. He also stated that on one 

occasion Mr. Duncil "made his brags" about his (Cook's) refusal 

to ride a mantrip, and that when he went to the office to explain 

why he had not ridden the mantrip, Mr. Duncil instructed him to 

go back and that someone would come get him, and he heard 

Mr. Duncil comment "there comes the little S.O.B., I can fire him 

now" (Tr. 67). On another occasion, after asking foreman Stone 

for permission to trade shifts with another miner, the foreman 

advised him that Mr. Duncil would not approve" it. on yet another 

occasion when he was offered ah opportunity by another foreman to 

operate a scoop as a "clean up man," Mr. Duncil would not approve 

the change (Tr. 68-71). 

Mr. Quillen confirmed that after his reinstatement, Mr. Cook 

informed him that "there were hard feelings" on his working 

shift, but that he had no way of knowing whether or not the other 

miners were jealous of Mr. Cook because his wife worked. 

Mr. Quillen denied that he harbored any grudge against Mr. Cook 

because he filed the prior discrimination complaint, and he 

confirmed that the complaint was withdrawn after they settled 

their differences. He explained that after Mr. Cook was reinstated, Mr. Cook came to his office and advised him that he 

wanted to go back to work and "really didn't want any arguments" 

245 
(Tr. 128). Mr. Quillen confirmed that he put Mr. Cook back to 

work, and although it may have taken a couple months, he eventually got his old job back (Tr. 129). 

Mr. Quillen further confirmed that "there was a conflict 

between Wendell and the management over there that caused Wendell 

to be fired the first time" (Tr. 129). He explained that part of 

the 11 conflict 11 concerned Mr. Cook's desire to be transferred from 

one job to another, and his dissatisfaction with staying on one 

job for a long period of time (Tr. 130). 

I find no credible evidence in this case to support any 

conclusion that mine management harassed Mr. Cook because of his 

prior complaint. The only direct evidence of any harassment 

found in Mr. Cook's testimony which clearly points to Mr. Gibson 

as the culprit. Mr. Gibson was employed as a roof bolter and 

there is no evidence that he had any connections with management. 

Mr. Cook suggested that there was a "strong possibilityH that 

management induced Mr. Gibson to start harassing him in order to 

provoke a fight so that it could have an excuse to fire him. I 

find this to be rather far-fetched, particularly since Mr. Gibson 

sustained rather serious injuries and was himself fired by the 

company. 

Upon review of all of the testimony in this case, I conclude 

and find that the "bickering and quarrelling 11 alluded to by 

Mr. Cook was the result of dissatisfaction among Mr. Cook 1 s 

fellow working crew members themselves and had nothing to do with 

any harassment by any foreman or other members of management. 

Based on Mr. Cook's own testimony, it seems obvious to me that 

Mr. Gibson was the principal cause of these encounters among the 

crew, and at one point during his testimony, Mr. Cook stated that 

he (Cook) was not involved in the quarrelling. 

With regard to Mr. Cook's harassment by Mr. Gibson, I 

conclude and find that it was the result of personal differences 

between them, and not withstanding Mr. Cook's denials to the 

contrary, I believe that part of their differences concerned a 

dispute over the failure by Mr. Gibson to make payments on a loan 

note co-signed by Mr. Gibson. Although Mr. Cook asserted that he 

and Mr. Gibson had been the best of friends prior to the fighting 

incident of April 16, he confirmed that Mr. Gibson shoved him on 

March 24, and nearly caused him to fall in front of a mantrip. 

Although Mr. Cook stated that he was not angry at Mr. Gibson over 

that incident, he believed that there was no excuse for 

Mr. Gibson's conduct (Tr. 28~. 

Mr. Cook also confirmed that on the evening of April 16, 

Mr. Gibson began calling him names and continued his harassment. 

When asked for an explanation of Mr. Gibson's conduct that 

evening, Mr. Cook "assumed" that Mr. Gibson did not want to work 

with him. However, Mr. Cook alluded to the fact that Mr. Gibson 

246 
knew that he was not going to pay the bank note, and that he 

(Cook) had to pay the $1,000 note (Tr. 10). M~. Cook further 

confirmed that when he went to Mr. Gibson's home on the evening 

of April 17, Mr. Gibson "mentioned the bank note" and ordered him 

off his property. A subsequent visit to Mr. Gibson's home by 

Mr. Cook and his wife after the discharge resulted in a confrontation over the bank note which was culminated by Mr. Gibson 

displaying a weapon and shooting over Mr. Cook's vehicle. As a 

result of that incident, Mrs. Cook obtained a warrant for 

Mr. Gibson's arrest. 

It seems obvious to me after viewing Mr. Cook during his 

testimony at the hearing that he was dissatisfied with his 

working environment after he was reinstated. Mr. Cook apparently 

expected to be immediately put back on his former job and working 

·shift upon his reinstatement, and he voiced his displeasure with 

Mr. Quillen for his failure to immediately return him to his old 

job. However, the fact remains that Mr. Quillen eventually put 

him back on his old job, albeit 2 months after the reinstatement. 

It seems to me that if Mr. Quillen harbored any ill will towards 

Mr. Cook over his prior complaint, Mr. Quillen would have left 

him where he was rather than ultimately putting him back on his 

old job. I take note of Mrs. Cook's testimony that when she 

spoke to Mr. Quillen on April 6, 1990, about her husband 1 s 11work 

station," Mrs. Cook told Mr. Quillen that the company °'had been 

good" to her husband (Tr. 16). 

With regard to Mr. Cook's displeasure after being rebuked in 

his attempts to shift to other job tasks after his reinstatement, 

and his belief that Mr. Duncil still "had it in for him" because 

of his first complaint, Mr. Cook conceded that as the mine 

superintendent, Mr. Duncil had the authority, within his managerial discretion, to regulate the work force and approve of all 

job assignments. Further, the record in this case establishes 

that on both occasions when he was discharged, it was 

Mr. Quillen, and not Mr. Duncil, who fired Mr. Cook, and there is 

no evidence of any involvement by Mr. Duncil in the discharge 

decisions. Under all of these circumstance$.,, I find no credible 

or probative evidence to support anycconclusion that mine management harassed Mr. Cook or retaliated against him because of his 

prior 1989 discrimination complaint. 

The Fighting Incident of April 16, 1990 

Mr. Quillen, the responsible company official for hiring and 

firing the work force, testified that he fired Mr. Cook for 

fighting with Mr. Gibson on mine property after the completion of 

their work shift on the evening of April 16, 1990, and he confirmed that such fighting was a violation of company policy, as 

well as the Kentucky mining laws. Mr. Quillen believed that the 

fight was the result of a personal dispute between Mr. Gibson and 

Mr. Cook over a personal bank loan note which Mr. Cook had 

247 
co-signed for Mr. Gibson, and he confirmed that after concluding 

that they were both equally at fault, he made the decision to 

discharge both of them for fighting. 

Mr. Quillen confirmed that he conducted an investigation of 

the fighting incident, which included conversations with 

Mr. Gibson and Mr. Cook, and a statement by another miner (Benny 

Campbell) who rode to work with Mr. Gibson. Mr. Quillen testified that Mr. Gibson left his work shift early on April 17, 

because he was reportedly "hurting so bad" as a result of his 

injuries, and that when Mr. Gibson came to his office on 

April 18, Mr. Quillen observed that his eyes were black and his 

nose was crooked. Mr. Quillen stated that "it was obvious 11 that 

Mr. Gibson had been hit "with something hard, 11 and that 

Mr. Gibson told him that Mr. Cook hit him in the eye and nose 

with his dinner bucket on Monday evening (April 16}; after 

leaving the mantrip and while they were proceeding to the area 

where their vehicles were parked. · Mr. Quillen instructed 

Mr. Gibson to seek medical attention, and after Mr. Gibson left 

to go to the hospital, Mr. Quillen summoned Mr. Cook to the mine 

to speak with him about the incident. 

Mr. Quillen stated that when he spoke with Mr" Cook 7 and 

told him what Mr. Gibson had related to him, Mro Cook told him 

that "nothing happened, 11 and that if Mr. Gibson was hurt e

1 it 

happened after he left the mine. 11 Mr. Quillen confirmed that he 

also spoke to miner Benny Campbell, who rode to work with 

Mr. Gibson, and that Mr. Campbell informed him that when he got 

into Mr. Gibson's truck before leaving the mine, Mr. Gibson's 

nose was bleeding that it and bled all the way home. 

Mr. Cook testified that prior to leaving the mine at the end 

of their work shift on April 16, 1990, Mr. Gibson had been 

calling him names all evening in the mine. Mr. Cook stated that 

after exiting the mine, and as he was walking up the bank, he had 

his dinner bucket in his left hand, and that Mr. Gibson shoved 

him backwards. Mr. Cook stated that as he was trying to catch 

his balance, "I may have thrown my hand." He confirmed that 

Mr. Gibson "did have a scratch on top of his nose," but denied 

that he struck Mr. Gibson with his fist or with a punch (Tr. 

26-27). Mr. Cook testified further that if he indeed swung his 

bucket, it was because he was falling backwards, and was trying 

to balance himself, and that if it struck Mr. Gibson "he walked 

into it" (Tr. 45) and that "if he got hit, if I hit him," the 

only way it could have happened is that his bucket inadvertently 

struck Mr. Gibson on the nose (Tr. 76). 

Mr. Cook testified that when Mr. Quillen spoke with him 

after summoning him to the mine on Wednesday, April 18, after he 

had spoken with Mr. Gibson, he (Cook) told Mr. Quillen that 

Mr. Gibson had shoved him backwards. Mr. Cook denied that he 

told Mr. Quillen that nothing had happened (Tr. 81). However, in 

248 
response to later bench questions, Mr. Cook stated that "nothing 

happened," and that Mr. Quillen may have said something about the 

incident. Mr. Cook further stated that he did not ask 

Mr. Quillen to fire Mr. Gibson.and that he said nothing to 

Mr. Quillen about Mr. Gibson (Tr. 96). Mr. Cook stated that he 

said nothing to management about Mr. Gibson shoving him to the 

ground, and he "guessed" that both he and Mr. Gibson said nothing 

about this (Tr. 97). 

Mr. Cook confirmed that when he spoke to Mr. Quillen following the April 16, incident, Mr. Quillen said nothing about firing 

Mr. Gibson, and simply told him that he was on compensation. At 

that point in time, and in light of Mr. Cook's testimony that he 

did not want to see Mr. Gibson fired, I believe it is reasonable 

to conclude that Mr. Cook would have said nothing to jeopardize 

Mr. Gibson's job. Coupled with his rather contradictory testimony concerning the shoving incident, I believe that Mr. Quillen 

testified truthfully that Mro Cook said nothing to him about 

Mr. Gibson 1 s shoving him to the ground, and that Mr. Cook made 

the statement that "nothing happened. 10 

In a posthearing letter filed by Mr. Cook in support of his 

case, he questions the severity of Mr. Gibson's injuries, and the 

fact that there is no evidence that Mr. Gibson ever had surgery 

for his injuries. Mr. Cook suggests that it was possible that 

the x-ray reports may have related to previous injuries suffered 

by Mr. Gibson, and that the respondent "handpicked" and selected 

the medical records to support its case. Mr. Cook further 

asserts that all of Mr. Gibson's past and future medical records 

should have been produced so that he could have an opportunity to 

review them and verify that the injuries sustained by Mr. Gibson 

were in fact the result of the incident of April 16, 1990. 

Mr. Cook also takes issue with the documentary evidence 

produced by the respondent with respect to Mr. Gibson's state 

workers' compensation claim (exhibits R-7 through R-10). The 

documents reflect that Mr. Gibson filed a claim against the 

respondent and its insurer, and that it was _contested by the 

respondent. Mr. Gibson executed an-affidavit on May 4, 1990, in 

connection with his claim, and in the space provided on the claim 

form for an explanation of the "accident," the following typed 

statement appears: 

Prior to the date of the injury, there had been a 

"switching" of job's at Southeast's Brinkley mine site. 

Claimant had been operating a roof bolter and had 

Wendell Combs as a helper. After the switch, Wendell 

was operating the bolting machine claimant had operated. Wendell was dissatisfied with his roof bolting 

position and blamed claimant. As they were leaving the 

man trip on April 16, 1990, Wendell called out Jesse's 

name and when Jesse turned around, Wendell hit him in 

249 
the face with his lunch bucket, and told him "It's all 

your fault" (emphasis added) . 

Mr. Cook argues that Mr. Gibson's affidavit is erroneous in 

two respects, namely, (1) that.his last name is "Cook" and not 

"Combs," and (2) that he (Cook) was not operating the roof bolt 

machine. Mr. Cook makes reference to his last pay check stub 

which shows that he was not paid the wage earned by a roof bolter 

operator, and that this is proof of the fact that he was not 

operating the roof bolt machine. 

During the course of the hearing, Mr. Cook produced a copy 

of the findings of a state unemployment examiner made in connection with his unemployment claim (exhibit C-2). The examiner 

found that Mr. Cook was not disqualified from receiving benefits, 

and his finding in this regard is as follows: 

The claimant was discharged for allegedly engaging in 

fighting while on company property. He has denied this 

allegation and there is insufficient evidence available 

to substantiate the charge. Therefore, it concluded 

the separation was for reasons non-disqualifying under 

the law. 

Mr. Cook suggested that since fighting would be an admission 

of misconduct, and since the unemployment examiner found that he 

was not guilty of misconduct, the alleged fight in question never 

occurred (Tr. 39). Mr. Cook further asserted that it was possible that Mr. Gibson lied when he executed the affidavit in 

connection with his compensation claim, or that someone "had to 

put him up to lying" (Tr. 90-91). Mr. Cook also suggested that 

if he had been fired for "misconduct," the respondent would have 

contested the unemployment examiner's finding (Tr. 136). 

Mr. Quillan's conclusion that Mr. Gibson and Mr. Cook 

engaged in a fight was based on the results of Mr. Quillen's 

inquiry into the incident, including his interviews with the two 

principals, and another miner, and his persgnal observation of 

Mr. Gibson after the incident. Mr.· ,Gibson and the other miner 

did not testify in this case, and neither party made any attempt 

to subpoena them for testimony. Mr. Cook acted pro se, and prior 

to the day of the hearing, the respondent, through Mr. Quillen, 

was acting pro se and retained counsel shortly before the commencement of the hearing. The documentary evidence presented by 

the respondent was obviousiy obtained and introduced at the 

hearing to support its contention that Mr. Gibson was injured in 

a fight with Mr. Cook. 

Mr. Quillen's testimony regarding Mr. Gibson's purported 

statements that Mr. Cook struck him with his dinner bucket 

without provocation is hearsay. With respect to the hospital 

records concerning Mr. Gibson's injuries, they appear to be 

250 
genuine and ordinary business records maintained by the hospitals 

and attending physicians. Ordinarily, such records are admissible pursuant to the recognized "business records" hearsay exception rule when a foundation for their admissibility is established through testimony or affidavit of the custodian of the 

records or other qualifying witness. Absent these prerequisites 

for admissibility, the records are still hearsay. However, I 

have no reason to question their reliability or authenticity, and 

there is no evidence to rebut the presumption that they were 

obtained by the respondent from the hospital and Mr. Cook raised 

no objections (Tr. 99). In any event, I consider the hearsay 

statement attributed to Mr. Gibson and the hospital records in 

question to be relevant and material, and the Commission has held 

that such evidence is admissible in Mine Act proceedings. See~ 

Secretary of Labor v. Kenny Richardson, 3 FMSHRC 8, 12 no 7 

(January 1981), aff'd 689 F.2d 632 (6th Cir. 1982), cert. denied, 

77 L.Ed.2d 299 (1983); Mid-Continent Resources, Inco, 6 FMSHRC 

1132, 1135-1137 (May 1984). The weight of such evidence is 

within the sound discretion of the presiding judgeo 

A hospital record from the Hazard Regional Medical Center 

(exhibit R-1), reflects that Mr. Gibson was x-rayed on April 18, 

1990, for injuries diagnosed as "closed fracture of nasal bones,q~ 

and that his employment was verified by Mro Quillen. Exhibit 

R-3, a copy of a hospital emergency room record, reflects that 

Mr. Gibson was seen by a doctor on April 18, 1990, for injuries 

diagnosed as "fractured nasal bones, contusions, and left orbit .. vu 

and on the space provided for writing in the patient's complaint, 

there is a notation which reads "states was hit in left eye with 

dinner bucket monday night." Another hospital form dated 

April 18, 1990, reflects the findings by a radiologist that 

Mr. Gibson had a "comminuted fracture involving the tip of his 

nasal spine" but "no evidence of any fractures of the left 

orbit." 

Exhibit R-6, is a clinic doctor's report dated April 20, 

1990, apparently made in connection with a workman's compensation 

claim filed by Mr. Gibson, and the results o.f- the examination 

conducted by the doctor, reflects that Mr. Gibson had black eyes, 

a deviated nasal septum, external nose deviation to the right, 

and fractured nasal bones. The space provided on the report form 

for the "history of accident" contains the following typewritten 

statement: 11 32 year old man was hit on the nose on April 16 at 

work, 10:00 p.m. Having nasal bleeding, which has stopped. Also 

having nasal obstruction and headaches, some numbness over left 

check." The report reflects that Mr. Gibson was employed by the 

respondent at the time of his examination, that the doctor 

scheduled him for "closed reduction of nasal bones" on April 27, 

and that he would be out of work from April 16 to April 27, 

inclusive. 

251 
Mr. Cook's assertion that the injuries sustained by 

Mr. Gibson, as reflected in the aforesaid hospital reports, may 

have been incurred at a time earlier than April 16, and may have 

been injuries unrelated to that incident, are rejected. I find 

the information contained in these reports to be consistent and 

reliable, both as to the injuries sustained by Mr. Gibson, and 

the time frames shown in the reports, as well as to the information obtained by Mr. Quillen in the course of his inquiry. 

Mr. Cook's arguments concerning the accuracy of the information contained in the workers' compensation application filed by 

Mr. Gibson are well taken and I have given this information 

little weight. However, Mr. Cook's suggestion that the findings 

of the examiner in connection with his own unemployment claim 

that he was not discharged for ''misconduct" establishes that no 

fight ever occurred rejected. Mr. Cook confirmed that he 

provided some information in connection with his claim, and that 

the respondent had apparently filed a reply indicating that he 

was discharged for fighting (Tr. l39). Mr. Quillen could not 

recall whether he protested the claim and he indicated that it is 

difficult to prevent anyone from receiving unemployment in 

Kentucky (Tr. 137). Respondent's counsel pointed out that 

unemployment benefits are paid out of a trust fund 1 that 99 

cent of the cases go uncontested, that it is a costly process 1 

and that it would have been easier for Mr. Quillen not to protest 

the claim (Tr. 138). -

The examiner's conclusion that Mr. Cook was not disqualified 

from receiving unemployment was based on his finding that there 

was insufficient available evidence to support the allegation 

that Mr. Cook was discharged for fighting. In the absence of any 

further information as to what evidence was available to the 

examiner at the time he made that finding, it would appear that 

his finding was based on Mr. Cook's denial that he was discharged 

for fighting, and the respondent's assertion that he was. It 

would further appear that the respondent did not pursue the claim 

further, and that the examiner gave Mr. Cook.the benefit of the 

doubt. In any event, I am not .bound by th~ examiner's finding, 

which was made in the abstract, and., I have given it no weight. 

The issue before me is whether Mr. Cook's discharge was in any 

way connected with or prompted by, the exercise of any protected 

rights on his part. Albert Vigne v. Gall Silica Mining 

Company, 6 FMSHRC 2625 (November 1984). 

In his discrimination complaint letters, Mr. Cook insisted 

that nothing had happened on the evening of April 16, 1990, and 

he suggested that the respondent fabricated the fighting incident 

out of retaliation for his prior discrimination complaint. 

However, after careful consideration of all of the evidence and 

testimony in this case, including Mr. Cook's belated admissions 

concerning his encounter with Mr. Gibson, I conclude and find 

that something did in fact happen on the evening in question. I 

252 
further conclude and find that what happened was that after 

leaving the mine at the end of the work shift on Monday evening, 

April 16, 1990, and after an evening of name calling by 

Mr. Gibson, Mr. Gibson and Mr. Cook engaged in an altercation. 

During that altercation, Mr. Cook was shoved to the ground 

sustaining an injury to his head which required medical attention 

(exhibit C-5), and Mr. Gibson was struck in the face with the 

dinner bucket that Mr. Cook was holding in his hand, sustaining 

rather severe injuries to his nose and face. I find it difficult 

to believe that the injuries sustained by Mr. Gibson were the 

result of an "inadvertent swing of the bucket" while Mr. Cook was 

falling after he was shoved by Mr. Gibson, and I believe that 

Mr. Cook retaliated by consciously striking Mr. Gibson in the 

face with his dinner bucket. Under all of these circumstances, I 

conclude and find that Mr. Cook did in fact engage in a fight 

with Mr. Gibson on mine property on the evening in question. 

Disparate Treatment 

In his complaint, as well as at the hearingp Mr. Cook 

maintained that arguments and fighting, both underground, and on 

the surface, were common occurrences at the mine, that nothing 

was ever done about it, and he questioned why he should be 

"singled out" and fired (Tr. 23, 26, 54). He identified miner 

Greg Horn as one individual who engaged in a fight and who 00was 

fired and transferred to another mine" (Tr. 24). During his 

cross-examination of Mr. Quillen, Mr. Cook identified two other 

miners (Larry Collins and Tommy Gibson), as two individuals who 

purportedly engaged in a fight over a dispute concerning 11 a belt 

drive" prior to his discharge (Tr. 114). 

Mr. Cook stated that he informed Mr. Quillen about the 

Collins-Gibson fight prior to his discharge, and Mr. Quillen 

denied that anyone had ever reported that alleged incident {Tr. 

114-115). Mr. Quillen confirmed that he was not aware of any 

prior fights on mine property, and he reiterated that "it is 

common sense you don't fight on mine property" and that "it is 

also Kentucky mine law that you don't hurt anybody around a coal 

mine" (Tr. 124). Mr. Quillen confirmed that prior to the discharge of Mr. Cook and Mr. Gibson, he had not previously fired or 

disciplined other miners for fighting on mine property (Tr. 126). 

Contrary to his testimony that he informed Mr. Quillen about one 

of the purported prior fights, and in response to an earlier 

bench question as to whether or not anyone ever said anything 

"about the fighting and all this carrying on" at the mine, 

Mr. Cook responded "No" (Tr. 55). 

I find no credible or probative evidence to support any 

conclusion that Mr. Quillen was aware of any prior fights at the 

mine. Mr. Cook confirmed that Mr. Quillen was never underground 

when any of the "quarreling and bickering" was going on, and 

absent any evidence to the contrary, I cannot conclude that 

253 
Mr. Quillen knew of any prior fights and failed to act. I find 

Mr. Cook's earlier denials that anyone ever said anything about 

these incidents, and his later assertion that he told Mr. Quillen 

about at least one purported fight to be contradictory and not 

credible. Further, Mr. Cook himself confirmed that at least one 

miner who engaged in a purported prior fight (Greg Horn) was 

either fired or transferred for fighting. More to the point 

however, is the fact that both Mr. Gibson and Mr. Cook were 

discharged for the fight which occurred on April 16, 1990. Under 

all of these circumstances, I conclude and find that both of 

these individuals were treated equally, and Mr. Cook's inference 

of any disparate treatment by the respondent with respect to his 

discharge are.rejected. 

Respondent's Motivation for the Discharge of Mr. Cook 

In view of the foregoing findings and conclusions, I conclude and find that Mr. Cook has failed to establish a prima 

facie case of discrimination. Based on a preponderance of all of 

the credible and probative evidence presented in this caseF I 

conclude and find that Mr. Quillen 1 s determination that Mr. Cook 

had engaged in a fight on mine property with Mr. Gibson on 

April 16, 1990, was based on all of the evidence then available 

to him. I further conclude and find that Mr. Quillen made a 

reasonable 1 credible 1 and plausible determination, and that the 

discharge which followed was justified. David Hollis v. 

Consolidation Coal Company, 6 FMSHRC 21 (January 9, 1984); Bruno 

v. Cyprus Plateau Mining Corp., 10 FMSHRC 1649 (November 19, 

1988), aff'd, No. 89-9509 (10th Cir., June 5, 1989) (unpublished); James W. Dickey v. United States Steel Mining Co., Inc., 

5 FMSHRC 519 (March 1983), Commission review denied, 5 FMSHRC 

(May 1983), aff'd, Dickey v. FMSHRC, 727 F.2d 1099 (3d Cir. 1984) 

(upholding the discharge of miners for fighting) . 

I further conclude and find that Mr. Quillen's decision to 

discharge Mr. Cook was motivated by the fight, rather than any 

intention by Mr. Quillen to retaliate against Mr. Cook for his 

prior discrimination complaint. In this regard, I take particular note of the Commission's decision in Bradley v. Belva Coal 

Company, 4 FMSHRC 982 (June 1gs2). Citing its Pasula and Chacon 

decisions, the Commission stated in part as follows at 4 FMSHRC 

993: "* * * Our function is not to pass on the wisdom or fairness of such asserted business justifications, but rather only to 

determine whether they are credible and, if so, whether they 

would have motivated the particular operator as claimed." On the 

facts presented in Mr. Cook's case, I conclude and find that the 

respondent's stated reason for the discharge of Mr. Cook is both 

credible and reasonable in the circumstances presented. 

254 
ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony and 

evidence adduced in this case,· I conclude and find that the 

complainant has failed to establish a violation of section 105(c) 

of the Act. Accordingly, his complaint IS DISMISSED, and his 

claims for relief ARE DENIED. 

~~1o~ Administrative Law Judge 

Distribution: 

Wendell Cook, HC 85, Box 652, Whitesburg, KY 41858 

(Certified Mail) 

Daniel V. Quillen, Jr., Vice President, South East Coal Company, 

P.O. Box 219, Isom, KY 41824 (Certified Mail) 

James w. Craft, Esq., P.O. Box 786, Whitesburg, KY 41858 

(Certified Mail) 

/fL 

255 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 19 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WARREN STEEN CONSTRUCTION, 

INC. 1 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WARREN STEEN, Employed by 

WARREN STEEN CONSTRUCTION, 

INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket Noo LAKE 89-68-M 

A.C. Noo 21-02942-05504 

Steens Pit Mine 

CIVIL PENALTY PROCEEDING 

Docket Noo LAKE 89-93-M 

A.C. No. 21-02942-05505-A 

Steens Pit Mine 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

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

for the Secretary of Labor (Secretary); 

Robert E. Mathias, Esq., Dulut~, Minnesota for 

Warren Steen Construction, Irie. (Steen 

Construction) and for Warren Steen, individually. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties from Steen Construction 

for two alleged violations of the mandatory standard in 30 C.F.R. 

§ 56.12071. In a separate proceeding, the Secretary seeks a 

penalty under section llO(c) of the Mine Act from Warren Steen 

individually on the ground thatas the agent of a corporate 

operator, he knowingly authorized, ordered or carried out the 

violations committed by Steen Construction. The cases were 

consolidated for the purposes of hearing and decision. Pursuant 

to notice, the cases were called for hearing in Duluth, Minnesota 

on November 14, 1990. James King, Jack Hufford, Mark Belich and 

Larry Aubuchon testified on behalf of the Secretary. Warren 

256 
Steen and Tom Duesler testified on behalf of 

and Warren Steen. Counsel for the Secretary 

respondents have filed post-hearing briefs. 

the entire record and the contentions of the 

this decision. 

FINDINGS OF FACT 

Steen Construction 

and for the 

I have considered 

parties in making 

1. At all times pertinent to these proceedings, Steen 

Construction was the owner and operator of a sand and gravel pit 

in Carlton County, Minnesota known as Steen's Pit. Respondents 

stipulate that the mine produces products which enter interstate 

commerce or its operations effect interstate commerce. The 

business was sold on May 1, 1989, but is still operated under the 

name Steen's Pit. 

2. Steen 1 s Pit actually included three pits. The main pit 

covered a total area of about 54 acres. It produced wash gravel" 

It included a crushing operation and a washing plant" Steen 

Construction had operated the pit for about 20 years" 

3. There was a drive-in theater adjacent to the pit, and 

Steen Construction's three phase power came through the theater 

property" Steen Construction purchased the property in about May 

19880 

4. In July 1988, approximately nine persons were employed 

at Steen's Pit, including truck drivers. Three or four persons 

worked on the pit. Steen Construction is a small operator. 

5. Between July 6, 1986 and July 5, 1988, Steen 

Construction was cited for one violation of a mandatory health or 

safety standard. This history is not such that a penalty 

otherwise appropriate should be increased because of it. 

6. Power was supplied to Steen's Pit by the Minnesota Power 

and Light (MPL). It constructed a 12,000 volt line on to the 

Steen Pit property. 

7. Some months prior to July 1, 1988, MPL representatives 

observed that there were piles of gravel encroaching on the right 

of way of the power line. The pit was not being operated at the 

time. MPL cautioned Steen that he was working too close to the 

power wire. Steen replied that he needed some time to relocate 

the pile. There also was some discussion about relocating the 

power line. 

8. on July 1, 1988, Gary Jobe, 23 years of age, was 

employed by Steen Construction as a crusher helper. He had 

worked for Steen for about 2 months. He was not given any formal 

safety training. 

257 
9. At about 9:30 a.m., on July 1, 1988, Jack Hufford, 

front-end loader operator, began making a new row of gravel 

piles. The loader was hooked by a chain to the 80 foot Nordberg 

stacker-conveyor. Hufford pulled the conveyor to the area where 

a new row was to be made. Jobe walked alongside the conveyor and 

signalled Hufford to stop. Jobe then threw a plank on the ground 

to stop the conveyor. However the conveyor rolled over the plank 

and continued for about 5 feet. Jobe pushed against the frame of 

the conveyor in an attempt to stop it when the conveyor came in 

contact with the overhead 12,000 volt power line. Job was 

jolted, ran and fell to the ground. CPR was administered; he was 

taken to the hospital by ambulance. He was pronounced dead by 

electrocution at 10:20 a.m., July 1, 1988. 

10. On July 6, 1988, Federal Mine Inspector James King 

conducted an investigation of the July 1 fatal accident. The 

plant started up while King was on the premises and the stacker 

conveyor was still below the energized 12,000 volt power lineo 

It was approximately 8 feet directly below the line. 

11. On July 6, 1988, at about 10:00 a.m., Inspector King 

told Mr. Steen that he was issuing a 104(d) (1) citation for the 

violation of 30 C.F.R. § 56.12071 which occurred on July 1. 

12. When Inspector King discovered that the plant was 

starting up with the conveyor still under the power line, he 

obtained permission to conduct a regular inspection (he had been 

authorized only to conduct an investigation of the fatality). He 

told Warren Steen that the equipment would have to be moved. 

Steen asked to be allowed to operate for two or three weeks 

before moving the conveyor. The'top of the head pulley of the 

conveyor was approximately 8 to 8-1/2 feet from the energized 

main conductor lines. The ground line was about 3 feet from the 

head pulley. 

13. Inspector King issued a 104(d) (1) withdrawal order at 

about 10:30 a.m., forbidding operation of the conveyor in the 

location where it was placed. The order all~ged a violation of 

30 C.F.R. § 56.12071 on July 6, 19~~· -

14. The citation and order were terminated the same day 

when the equipment was shut down and the conveyor moved away from 

the power line. 

15. warren Steen Construction, Inc., is a Minnesota 

Corporation. It was formed on April 9, 1976. Its president and 

incorporator was Warren Steen. 

16. Warren Steen operated at Steen's pit for almost 20 

years. 

258 
17. Warren Steen personally directed the operation at 

Steen's pit. When he was away "I guess everybody--like Jack 

Hufford has worked two years, he was probably more in charge than 

the other fellow." (Tr. 72.) At the time of the fatal injury to 

Mr. Jobe, Steen was not on the.property but was getting fuel. He 

returned just after the accident occurred. 

18. Steen stated that he was not aware of a federal 

regulation requiring machinery to be 10 feet or more from an 

overhead power line. He also testified that the stacker-conveyor 

was in the same location in September 1987, and no citation or 

order was issued during an MSHA inspection. 

19. Steen construction had been inspected by federal 

inspectors, most recently in September 19870 Steen had requested 

a book of safety regulations, but had not received oneo 

20. The stacker conveyor had chock blocks on them which 

were designed to stop the conveyor when it is moving and to keep 

it secure. They were not used on July lv 19880 

STATUTORY PROVISION 

Section llO(c) of the Act provides in part as follows~ 

Whenever a corporate operator violates a 

mandatory health or safety standard o o • 1 

any director, officer, or agent of such 

corporation who knowingly authorized, 

ordered, or carried out such violation • • • 

shall be subject to the same civil penalties 

• • • that may be imposed upon a person under 

subsections (a) .••• 

REGULATORY PROVISION 

ISSUES 

30 C.F.R. § 56.12071 provides as follows: 

When equipment must be moved or operated near 

energized high-voltage powerlines (other than 

trolley lines) and the clearance is less than 

ten feet, the lines shall be deenergized or 

other precautionary measures shall be taken. 

1. Whether Steen Construction violated 30 C.F.R. § 56.12071 

on July 1 and on July 6, 1988? 

2. If so, whether the violations were significant and 

substantial and resulted from Steen Construction's unwarrantable 

failure to comply with the mandatory standard? 

259 
3. If so, what are the appropriate penalties therefor? 

4. If a violation or violations are established for Steen 

Construction, whether Warren Steen knowingly authorized, ordered 

or carried out such violation? 

5. If so, what is the appropriate penalty therefor? 

CONCLUSIONS OF LAW 

1. Steen Construction was subject to the provisions of the 

Mine Act in the operation of Steen's Pit. Warren Steen was an 

officer and agent of Steen Construction. I have jurisdiction 

over the parties and subject matter of these proceedings. 

2. On July 1, 1988, Steen Construction operated an 80 foot 

Nordberg Stacker conveyor within 10 feet of an energized high 

voltage power line, so that the conveyor came in contact with the 

power line. The line was not deenergized and other precautionary 

measures were not taken. This is a violation of 30 C.F.R. § 

56.12071. 

3. A miner who was in contact with the conveyor was 

electrocuted. The electrocution resulted from the violation 

referred to in Conclusion 2. The violation was extremely 

serious. It was properly designated as significant and -

substantial. 

4. Steen Construction had been cautioned by MPL about 

working too close to the power line prior to the fatal accident. 

The operation of a large metal machine under a high voltage line 

is inherently dangerous, and should be recognized as such by a 

mine operator. The violation resulted from the operator's 

reckless disregard for the safety of the miners. It was properly 

designated as an unwarranteble failure to comply with the safety 

standard involved. 

5. Based on the criteria in section llO(i) of the Act, I 

conclude that a penalty of $8000 is appropriate for the violation 

on July 1,1988 (Citation 3262564) :· 

6. On July 6, 1988, Steen Construction commenced operation 

with the conveyor being between 8 and 8-1/2 feet directly below 

the energized high voltage _line. This is a second discrete 

violation of 30 C.F.R. § 56.12071 (Citation 3262565). 

7. The violation was extremely serious and was likely to 

result in serious injury if mining had been allowed to continue. 

It was properly designated as significant and substantial. 

8. The operator had experienced a fatal accident five days 

previously as a result of the same condition. This violation 

260 
(July 5, 1988) resulted from the operator's reckless disregard 

for the safety of the miners, and was therefore an unwarrantable 

failure violation. 

9. Based on the criteria in section 110(e) of the Act, I 

conclude that a penalty of $8000 is appropriate for the violation 

on July 5, 1988 (Order 3262565). 

10. Warren Steen was an experienced operator of a sand and 

gravel mine. He knew that his company was subject to the Mine 

Act and its regulations. As the 10th Circuit Court of Appeals 

stated in Emery Mining Corp. v. Secretary of Labor (a case under 

section 110(a)) 744 F.2d 1411, (10th Cir. 1984) at 1416~ 

. . . as a general rule those who deal with the 

Government are expected to know the law and may not 

rely on the conduct of government agents contrary to 

law . . . 

* * * Particularly where mandatory safety standards are 

concerned, a mine operator must be charged with 

knowledge of the Act's provisions and has a duty to 

comply with those provisions. 

In any event, whether Mr. Steen knew of the specific regulation 

regarding the minimum clearance between metallic equipment and 

high voltage lines, he certainly knew or had reason to know that 

operating such equipment close to high voltage line was unsafe. 

Cf. Kenny Richardson, 3 FMSHRC 8 (1981); Roy Glenn, 6 FMSHRC 1583 

(1984). I conclude that Warren Steen knowingly authorized, 

ordered or carried out the violations of the corporate operator. 

Warren Steen's violation was serious and resulted from reckless 

disregard for safety. I conclude that an appropriate penalty for 

the violation is $5000. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. citation 3262564 and order 3262565 are AFFIRMED. 

2. Steen Construction shall, within 30 days of the date of 

this decision, pay to the secretary $16,000 for the violations 

found herein. 

261 
3. Warren Steen shall, within 30 days of the date of this 

decision, pay to the Secretary $5000 for the violation found 

herein. 

Distribution: 

~i'vtL5 ft;l3tt;d:A/z6~ ::J ~ames A. Broderick 

Administrative Law Judge 

Jo Philip Smith, Esqo, U.S. Department of Laborv Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Robert E. Mathias, Esq., 1217 East First Street, Duluthu MN 55805 

(Certified Mail) 

slk 

262 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

FEB 19 199t 

WYOMING FUEL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. WEST 90-217-R 

Order No. 3241309~ 5/5/90 

Golden Eagle Mine 

Mine I.D. 05-02820 

Appearances: Lawrence J. Corte, Esq., Wyoming Fuel Company, 

Lakewood, Colorado, for the Contestant; 

Margaret A. Miller, Esq., U.S. Department of 

Labor, Office of the Solicitor, Denver, Colorado, 

for the Respondent. 

Before: Judge Morris 

This contest case is before me pursuant to Section 107(e) (1) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801, et seg. (the "Act"). Contestant Wyoming Fuel Company 

("WFC") seeks to invalidate Order No. 3241309 issued on 

263 
May 5, 1990, under § 107(a) 1 of the Act. WFC further seeks to 

invalidate modifications of the order. 2 

ISSUES 

The issues presented are whether a condition of imminent 

danger existed so as to justify the § 107(a) order. If the order 

was properly issued, did MSHA abuse its discretion in the 

subsequent modifications and in keeping the § 107(a) order in 

effect. 

Order Noo 3241309 closed the No. 7 Entry South Mains from 

Crosscut No. 5 to Crosscut No. 13. This area was adjacent to the 

longwall face ·Shield system at the Golden Eagle Mine. All 

personnel were withdrawn from this portion of the mine because of 

the alleged imminent danger. The order reads as lows; 

The following conditions collectively 

constitute an imminent danger were observed 

in entry #7 third south mains longwall 

recovery room, and longwall face, roof 

conditions have deterioratedp causing 

(header?) cribbing to and crush, 

cribbing crushed. 

The cited portion of the Act provides as follows~ 

Procedures to Counteract Dangerous Conditions 

Sec. 107. (a) If, upon any inspection or 

investigation of a coal or other mine which is 

subject to this Act, an authorized 

representative of the Secretary finds that an 

imminent danger exists, such representative 

shall determine the extent of the area of such 

mine throughout which the danger exists, and 

issue an order requiring.the operator of such 

mine to cause .all persons, except those 

referred to in section 104(c), to be withdrawn 

from, and to be prohibited from entering, such 

area until an authorized representative of the 

Secretary determines that such imminent danger 

and the conditions or practices which caused 

such imminent danger no longer exist. The 

issuance of an order under this subsection 

shall not preclude the issuance of a citation 

under section 104 or the proposing of a 

penalty under section 110. 

2 The contest filed by WFC places modifications 1 through 6 

in contest. However, the evidence indicates there were 9 

modifications to the original order. (See Judge's Exhibit 1). 

264 
Order No. 3241309 was modified six times during the period 

from May 5 through May 9, 1990. 

The first of these modifications was Order No. 3241309-01 

which reads: 

Wooden cribbing material was installed from 

#5 Crosscut to #13 crosscut #7 entry South 

Mains Recovery room, and outby areas. 

Therefore, Order #3241309 in [sic] modified 

to allow personnel to enter the longwall 

recovery area, under the following condition 

in longwall recovery plan dated 5/5/90 (MSHA 

Order No. 3241309-0lu "Subsequent Actionn at 

section II, uJustification for Action"). 

The second modification was Order No. 3241309-02~ 

Order #3241309 is modified to add additional 

information. Item #8 Condition or Practice~ 

The cribbing over a total of 11 persons were 

observed installing wooden cribs in area of 

deteriorated roof conditions due to forward 

abutment pressure. (MSHA Order No. 3241309-

02 u "Subsequent Action" at section IIP 

"Justification for Action"). 

Subsequent modifications permitted only those persons 

necessary to work underground as specified in the longwall 

recovery plan, item 2. (MSHA Order No. 3241309-03, "Subsequent 

Action" at section II, "Justification for Action"). 

Later on May 8, 1990, the § 107(a) Order was modified again 

to allow workers to install additional roof support to the 

location of the shield face support system. 

Finally, in modifications number five and six to the MSHA 

Order, WFC was allowed to move the longwall. -

The fifth modification was Order No. 3241309-05, issued at 

7:20 p.m. the evening of May 8, 1990. It stated the specific 

methods that WFC must employ to continue its full recovery effort 

of the longwall. It provides as follows: 

Order #3241309 in modified to allow recovery 

of longwall system under the following 

conditions: 

Item #1 Steel I Beam used as support; 

Item #2 Maximum 10 foot advance cuts; 

Item #3 Maximum 10 foot width of fact entry; 

Item #4 all cutting and welding must comply; 

CFR 30 Part 75.11106. 

265 
Item #5 Air reaching headgate face 38,000 CFM; 

Item #6 Double row of cribbing in headgate 

roadway; 

Item #7 Replace damaged fibercrete cribbing with 

wooden cribs prior to recovery; 

Item #8 13 foot wide roadway approach and 10 foot 

wide roadway on face line; 

Item #9 8 foot resin bolt are to be used except 

where hand held drill must be used with 6 foot 

resin bolts for roof support. When EIMCO roof 

bolt is used 8 foot resin bolt must be used; 

Item #10 Resupport removal shields with wooden 

cribbing material. (MSHA Order No. 3241309-0Sr 

"Subsequent Action11 at section II u 01 Justification 

for Action"). 

An expedited hearing was held in Denveru Colorado 9 on 

September 21u 19900 The Secretary objected the expedition of 

the hearing for an imminent danger order; howeveru prior rulings 

involving the parties were .held applicable. (Tr. 4-6). 

The Commission has been invited to consider the issue of 

whether WFC is entitled to an expedited hearing.~ Accordingly, it 

is unnecessary to again review the issues here. ~ See Wyomino 

Fuel Company, 12 FMSHRC 1604 (August 1990)u (Review Granted, 

September 1990)' see also, Wyoming Fuel Companyu WEST 90-112-R 

WEST 90-116-R (Decision issued October 22, 1990) 

SUMMARY OF THE CASE 

This case involves a credibility determination concerning 

the conditions in the Golden Eagle Mine in May 1990. 

By way of background: at the time the § 107(a) order was 

issued the Company's mining procedure consisted of a longwall 

operation of 110 shields. 

The initial stage of a longwalJ operation involves its 

installation. This takes place in a "start-up room." Once the 

coal has been extracted the longwall equipment is removed in what 

is called a "recovery room." In that location the purpose is to 

safely support and protect .the recovery room so the longwall 

assembly can be fully and safely extracted in a minimum amount of 

time (Tr. 15). 

The Golden Eagle Mine uses a retreating longwall process. 

such a process is the easiest because once you begin to mine the 

3 In the case at bar, the contested order, No. 3241309, was 

not terminated (Tr. 147, 156, 209). 

266 
coal you leave any problems you encounter behind you 4 (Tr. 24, 

25). (The arrows on Ex. S-1 show the direction of advance of the. 

longwall). 

Barrier pillars are generally located in a position adjacent 

to the main entries. (They are shown in green on Ex. S-1). The 

200 foot barrier pillars at Golden Eagle provides protection for 

the entries. (Seven entries are shown in Exhibit S-1). 

The longwall mining system advances when the shields are 

lowered and pulled against the armored face conveyor (AFC). The 

cutting shear is above the AFC. As the shear cuts into the face 

the coal falls into the AFC. (Tr. 34 9 37) (Exhibit S-2 

illustrates some of the testimony.) 

As the longwall advances toward the barrier pillar puts 

stress on the coal in front of it (Tro 26 9 30). The coal barrier 

protects the entries from ground movement which generally results 

in floor heave or rib sloughage (Tr. 27 . 

Once the longwall assembly reaches the barrier all coal 

extraction activ'ity stops and the longwall equipment is removed. 

(Tr. 28). . 

The height of the coal seam extracted is about six feet: o 

During the longwall process, with the shields placeu is 

normal for miners to stand up inside and travel the aprono In 

the Golden Eagle Mine the face was 550 feet long. (Tr. 44)o 

This is a typical width in the western United States. (Tro 45). 

FINDINGS OF FACT 

1. Melvin Shively, an MSHA inspector and a person 

experienced in mining, received a telephone call from Rick 

Caller, WFC's health and safety manager. Mr. Callar stated the 

company was experiencing a problem in their recovery area of the 

longwall section (Tr. 129, 131). 

2. Upon arriving at the mine, Mr. Shively and the company 

safety supervisor, Frank Perko, went directly to the No. 7 entry. 

(Tr. 132). 

3. In the entry the inspector observed miners installing 

wooden cribbing. He also saw massive cracking in the fiber 

cribbing. There was a lot ·of pressure on the cribbing (Tr. 133). 

4 Left behind can be a combination of fallen roof material, 

floor heave, etc. It is commonly called "gob" (Tr. 25u 34). 

267 
(Exhibits S-7I, S-7G, S-7H and S-7L are photographs 5 showing 

the condition of the fiber cribbing.) 

4. The fiber cribbing was broken and the roof was working a 

little bit and taking pressure. The roof was in the mold where 

pressure was being transferred over the top of the area (Tr. 

134) . 

5. Bolts were popping, the roof was moving and timbers were 

cracking. Fiber cribbing was also breaking, cracking and 

crumbling off to the side (Tr. 135). 

The wooden cribbing was as shown in Exhibits S-7B and S-7No 

Exhibit S-7A shows a fiber crib that had broken and crushed awayo 

A wooden cribbing had been installed behind it in an effort to 

maintain support (Tr. 136) •. 

6. The wooden cribbing was moving and taking a lot of 

weight (Tro 136). 

There was a rib cutter in the roof. (A rib cutter is a 

crack in the roof that runs the length of the entry.) There was 

also a lot of "rash". That is~ an area where you lose a lot of 

coal top. The top moves and falls out. Rocks, roof and coal 

laying on the mine floor indicated some of the roof had fal 

(Tr. 137) • 

7. Sap or moisture was leaking from the wooden cribbing 

(Tr. 137, 138). 

The inspector had to crawl into the tailgate area. There 

were 111 shields and "a bunch" were down (Tr. 139). 

8. At 1315 hours Inspector Shively issued an imminent 

danger order to protect employees from the hazardous roof 

conditions he had observed. The inspector believed a roof fall 

could cause a fatality in the area (Tr. 140, 141). The roof was 

still moving. Continual movement causes additional cracks and 

fractures in a roof. (Tr. ·144). 

5 Some of the photographs in this case were presented on a 

single cardboard panel. The Secretary explained that a 

presentation had been made involving the photographs. At that time 

the photographs were grouped by circled numbers 1, 2, 3, 4, 5 and 

6. The same presentation was made at the hearing. Each photograph 

was identified with its identifying number adjacent to it. Each 

photograph was also identified on the back by the same number that 

appears adjacent to it. 

268 
9. The imminent danger order affected No. 6 to No. 13 entry 

as well as No. 6 to No. 13 crosscut of the No. 7 entry of the 

third south main (Tr. 141, 142). 

10. The § l07(a) order was modified to allow cribbing to be 

done from a safe location. In other words, "crib your way" into 

the area (Tr. 142). The inspector said seven miners, monitored 

by a certified person, could work from a safe location (Tr. 143). 

11. The second modification to the Order allowed eleven 

miners in a cribbing crew (Tr. 144). 

12. The third modification resulted from the company 9 s plan 

as to how they were going to continue cribbing and recover this 

area (Tr. 144) • 

13. The company proposed to come into the headgate area and 

install bridge planking and rock-lock (Tro 145)0 The third 

modification allowed the company time for the work to be done as 

shown in the equipment recovery plan. The plan had been 

submitted by management's Rick Caller (Tr. 145). 

14. Modification No. 5 contains the conditions WFC had 

comply with to work in the area. The ten items were based on 

information received from tech support people and Mr. Smith [Lee 

Smith] (Tr. 146). 

15. The order has not been terminated (Tr. 147). In 

Inspector Shively's opinion the installation of additional 

support in the No. 7 entry should only be done while protecting 

the personnel doing the work (Tr. 148, 151). 

16. The order was directed to the miners to require them to 

work from a safe location, and make a safe travelway into the 

area (Tr. 149). Without necessary support, the biggest part of 

the entry would have been lost (Tr. 149). 

17. Mr. Shively agreed the operator complied in good faith 

with the modifications. 

18. 

collapse 

still in 

the area 

In Inspector Shively's opinion danger of a roof 

is still present. As a result the § 107(a) order is 

effect because of the possibility of roof failure within 

at any given time. (Tr. 156). 

19. A lot of the cribs were failing (Tr. 158). Without the 

cribs the entry would have been lost (Tr. 159). The cribbing was 

squeezing and bending. (Tr. 160). 

20. In Inspector Shively's opinion the removal of the 

intermediate pillar caused the No. 7 entry recovery room to fail. 

(Tr. 166). 

269 
21. The area subject to the order was about 700 feet in a 

straight line. (Tr. 168). The cracks indicated the roof had 

failed; it was cracked and .broken. (Tr. 169). 

22. The conditions observed by the inspector told him the 

miners needed protection. If the 200 foot barrier pillar had 

been in place the roof would not have been cracked or broken. 

(Tr. 170) . 

23. The inspector told management the miners had to work 

from a safe location. (Tr. 173). 

24. LEE SMITH, an MSHA field office supervisor, a roof 

control specialist (Tr. llv 12). At the direction of MSHA 0 s 

district manager Mr. Smith went to the Golden Eagle mine arriving 

there May 8~ 1990. (Tr. 45). 

25. Mr. Smith found the longwall system was experiencing 

unstable ground conditions. The. width of the barrier was 

zero (where the longwall had mined through) to 15 

26. The No. 7 entry, closest to the barrier, was in stages 

of failure. There was stress transference; where the roof and 

met the area was experiencing failure. (Tr. 46). There were 

large cavities in the mine roof. The cribs were a 

great deal of weight and they were beginning to 

away from the mine roof" (Tr" 47)o Cribs installed a unirorm 

fashion are depicted in Exhibit S-6B; the function of crib was 

described by the witness. (Tr. 48). 

27. Exhibits S-7A, B, c, D, E, and F show the cribs in 

Entry No. 7 were receiving great stress; pitch was flowing down 

the crib; they were attempting to roll out. They were in almost 

total failure. (Tr. 49, 50) o 

28. The wooden cribs were installed to replace the failed 

f ibercrete cribs and to preserve the longwall recovery room. But 

the cribs were not able to support the root (Tr. 50). The crib 

shown in Exhibit S-7C was in failure. It is not safe to travel 

in an area where a crib has failed. (See Exhibit S-7C). (Tr. 

51, 54). 

29. The roof had tension fractures, cracks and sloughage 

indicating it had failed (Tr. 51). 

The fibercrete cribs in Entry No. 7 had all failed. 

Exhibits S-7I, H, G, L and N show the failed cribs. (Tr. 52-

53). Roof and floor heaves were a problem here. (Tr. 54). 

30. The condition of the cribs indicated to Mr. Smith that 

the roof was already in failure. The cribs were rolling, a great 

270 
deal of $loughage, apparent cutters, and fallen away roof bolts 

indicated a roof fall was imminent. (Tr. 55). 

31. Popping and breaking sounds indicated the coal ribs 

were failing or attempting to move. (Tr. 56). 

32. The remnants of the barrier pillar between the base and 

the No. 7 entry had yielded and was turning to rubble. It had 

lost its load carrying capacity. (Tr. 56). The conditions found 

by Mr. Smith existed along the entire face of the longwall. 

33. The longwall shield assemblies from shield No. 70 to 

No. 90 had collapsed from the stress (Tr. 57; see Exhibits S-3G 

and S-3E). Further, the burst values in the hydraulic system 

were weeping. {Tr. 58). The shields were almost sitting on top 

of the spill plates. (Tr. 59). 

34. The company was resupporting the headgate area at the 

stage loader. The beams were to hold the roof in place until the 

longwall assembly could be extracted. (Tr. 61). 

35. It would be very difficult to safely and fully extract 

the longwall. (Tr. 61). The shields had lost their ability to 

move up and down and the jacks could not travel. (Tr. 62). In 

order to remove the shields the operator would probably remove 

under the coal the jack to have room to maneuver. 

36. The longwall had received abnormal stress. In 

Mr. Smith's opinion the longwall panel overrode the barrier 

pillar and was attempting to equalize itself on the coal pillars 

between No. 7 and No. 6 entries. (Tr. 64). 

37. The longwall was in danger of going solid. That is, 

there would be no possibility of travel between the longwall 

shield and the apron. (Tr. 64). (Exhibits S-3D and S-3F show 

miners crawling to the face). 

38. The wooden cribs shown in S-7B, c, D, and E are in an 

advanced stage of failure. Floor fractures~are evident in 

Exhibit S-7B. Roof fractures show fn Exhibit S-5A and S-5B 

indicate the roof is in failure. (Tr. 65). The roof failure 

indicate a roof fall is imminent: it provides a serious hazard to 

the miners (Tr. 65). 

39. On May 8th the roof in No. 7 entry was in mid-failure 

and it was going to fall. (Tr. 67). 

40. The roof can fail to the point where the operator may 

not be able to remove the shields. In such circumstances the 

operator may wait a year or two for the area to stabilize and 

then remove the equipment. However, the conditions may 

271 
deteriorate to the point where the longwall would be lost. (Tr. 

67, 68). 

41. on May 8th, the operator was not employing a normal 

method to recover the longwall. (Tr. 69). 

42. On May 8th, Mr. Smith did not consider the No. 7 entry 

to be a safe working place. (Tr. 71). He entered the middle 

entry of the tailgate and walked 1200 to 1400 feet looking for 

signs of unstable roof conditions. (Tr. 71). 

43. Mr. Smith was aware of the § 107(a) order and its 

modification to allow mines to work in the area. (Tr. 72). 

44. As a result of his visit to the mine Mr. Smith 1 s seven 

or eight recommendations were incorporated into Inspector 

Shively's order as modification No. 5. (Tr. 73). (Judge 0 s 

Exhibit 1). 

45. Based on his observations of May 8thf Mr. Smith 

believed the imminent danger order was properly in place. 

(Tr. 83). If the roof had failed a serious injury or death could 

have occurred. 

The immediate roof had separated from the ma 

(Tr. 84) • 

roof. 

46. Mr. Smith was not aware of any longwall recovery method 

that does not leave a barrier pillar between the longwall and the 

main entry development. (Tr. 86). 

RICK CALLOR testified for WFC. He serves as the operator's 

manager of health, safety and human resources. He is experienced 

in mining. (Tr. 199, 200). 

He has been involved in six or seven longwall removals. 

(Tr. 200). In a conventional longwall move he has observed 

adverse roof conditions. (Tr. 201). 

On May s, 1990, Mr. Callar advised MSHA that the shear of 

the longwall would no longer pass under the shields. This was 

due to the limited space. In view of this situation the company 

decided to use a different method of longwall recovery. 

Mr. Callar did not accompany the inspector underground. 

(Tr. 202). The previous night Mr. Callar did not feel there was 

a condition of imminent danger. However, he believed Inspector 

Shively sincerely felt such a condition existed. 

Mr. Callar and Inspector Shively discussed § 103(k) versus a 

§ 107{a) order. (Tr. 203). The inspector said he would issue a 

control order and no assessments would be involved. 

272 
The company brought in a continuous miner and set up an 

entirely new recovery room. This was necessary because they 

could not advance the longwall into the predriven recovery room. 

(Tr. 204). 

The original order was modified to allow the company to 

reenter that portion of the No. 7 entry that was the subject of 

the imminent danger order. (Tr. 205). No more than eleven 

miners could work in the area. (Tr. 207). 

While Mr. Caller did not feel there was a condition of 

imminent danger, he thought Inspector Shively immediately took 

care of his concerns by showing the men the method he wanted them 

to use in installing temporary supports. The work as required 

under the modifications was completed no later than 24 hours 

after the issuance of the order. (Tro 208, 211)" At the time of 

the hearing, WFC still remains under order No. 3241309. 

(Tr. 208). 

In his prior experience with § 107(a) orders Mr. Callor had 

seen modifications as specific as in modification number 5v but 

he did not believe it was common practice to use § 107(a) in this 

fashion. (Tro 216). 

The completion cf the roomv as far as being cribbed was 

completed in less than 24 hours. In Mr. Caller's opinion 

abated the§ 107(a) conditiono Tro 218). 

The company had decided to mine through the pillar but the 

shear stuck before it reached the recovery room. (Tr. 220). 

After the decision was made to go with the predriven recovery 

room the No. 7 entry was the company's choice as the recovery 

room. (Tr. 221). 

Some f ibercrete cribs had taken an enormous amount of 

weight. Mr. Callar also saw coal sloughage from the roof or 

ribs. The shields were weeping but they did not fail but kept 

the roof totally intact throughout the entire recovery of the 

longwall. (Tr. 222). 

The company began wooden cribbing after the failure of the 

fiber cribs. Mr. Callar did not see total failure of any of the 

wooden cribs. (Tr. 223). 

While Mr. Caller was there, the MSHA team and others went 

through the entire section after some cribbing had been done. 

(Tr. 224). The cribbing was installed as an additional 

precaution. (Tr. 225). 

In Mr. Caller's opinion the pressure from the gob overrode 

the shield system and the No. 7 entry. (Tr. 225). After 

overriding the system it sat down on the pillar between entries 

273 
number 5 and 6. As a result the company was able to remove the 

shields and longwall. However, the roof came down low enough 

that the shear could not be removed. (Tr. 226). 

Mr. Caller was upset because MSHA interfered with management 

decisions. (Tr. 227, 228). 

The use of an I-beam as required in MSHA's modification 

order causes more hazards (due to clearances) than conventional 

roof control methods. (Tr. 228, 229). Mr. Callar did not feel 

the company would lose the longwall before MSHA came in. (Tr. 

231) • . 

Mr. John DeMichiei, MSHA's District Manager, approved the 

recovery plan. (Tr. 237v Ex. P-2). 

On Page 4 of Exhibit P-3 Mr. Callar marked in red the area 

of the original citation. (Tr. 24lv 241 0 Ex. P-3). The company 

put in an additional 50 wooden cribs (Tr. 242). The cribs were 

about five feet apart for 550 feet. (Tr. 243). Prior to using 

the area as a recovery room the company installed 8 foot roof 

bolts between 6 foot bolts. Also chain link fence was installed 

as shown in Exhibit S-7a. (Tr. 244). The company also installed 

wood cribs between all of the fiber cribs. (Tr. 245). 

The No. 7 entry was not used to recover the longwall but the 

area adjacent to the No. 7 .entry was mined out for that purpose. 

(Tr . 2 4 5 , 2 4 6 ) • 

The entry is still standing but all the shields have been 

removed so the longwall face is now a part of the gob except at 

the very bottom of the headgate entry. (Tr. 248). 

MSHA modified the order to allow the company to apply mobay 

chemical. This was previously approved in the roof control plan. 

(Tr. 251) . 

CHARLES w. McGLOTHLIN, Vice-President and general manager of 

WFC, reports directly to Chuck Batt.:y, CEO of WFC. 6 

Mr. McGlothlin, a person experienced in mining and 

management, has been employed by Kaiser Coal, Atlantic Richfield, 

Beth.lehem Coal, and others. He holds a degree in mining 

engineering from West Virginia University. 

6 At the hearing a portion of Mr. McGlothlin's testimony was 

inadvertently taped over. However, the parties were able to 

reconstruct the lost testimony without requesting a reopening the 

hearing. (See Judge's orders of August 24, 1990 and January 18, 

1991.) 

274 
The witness explained in detail the type of rock formation 

in the mine, as well as the company's mining plan in relation to 

the predriven recovery room. 

Mr. McGlothlin was aware of the section 107(a) order issued 

in this case, as well as the condition in the mine. Mr. 

McGlothlin further examined the panel of photographs previously 

received in evidence, as well as Exhibits P-4 and P-12. 

In the witness's opinion, no condition of imminent danger 

existed. The cribbing, as demonstrated by the photographs, was 

contorted, bent, and twisted. Moreover, no wooden pillars had 

failed. The bent, twisted'· and contorted wooden pillars were 

basically performing their function of supporting the roofo One 

can anticipate pressure on the wooden pillars will produce some 

contortion in the pillars. 

Mr. McGlothlin agreed that some fibercrete pillars had 

failed. Further, the company had anticipated there would be 

pressure on the wooden pillars: however, underestimated the 

extent of the pressure that actually occurredo 

The witness described the engineering studies that had been 

done by the United States Bureau of Mines on the application of 

predriven recovery rooms for longwall equipment recovery at. the 

Golden Eagle mine. A copy of the Bureau of Mines study on the 

use of predriven recovery room for longwall recovery was received 

into evidence. It was the opinion of the witness, based on his 

experience as a mining engineer and the technical information he 

had reviewed, that use of a predriven recovery room was a safe 

and acceptable method for longwall recovery. 

Mr. McGlothlin explained the longwall mining equipment had 

to come out the headgate entry. Also maintenance and safety 

precautions were implemented in the headgate entry (Tr. 255). 

The company felt that the best alternative, with convergence 

at the longwall face, was to remove part o~.the barrier pillar, 

secure that area and reconstruct a suitable recovery room (Tr. 

257). 

Exhibit P-7 shows, in the background, a predriven and 

designated recovery area in No. 7 entry. The photograph was 

taken around May 15th (Tr. 258, 259). 

cribs and meshing material supported the roof in the 

recovery room (Tr. 260, Exs. P-8, P-9, P-10). 

Exhibit P-12 shows the first shield pulled out. Only two 

shields flushed in to the point were they did not put any crib 

blocks under it (Tr. 264). 

275 
The Secretary's photographs Exs. S-4A, S-4B, S-4C and S-4E 

are not in the area effected by the section 107(a) order (Tr. 

265) • 

Mr. McGlothlin believed Inspector Shively had a concern for 

the way the cribs were being built. That concern was satisfied 

in a matter of hours and from that time forward no imminent 

danger existed (Tr. 266). 

He did not see any reason for the continuance of the 

imminent danger order. (Tr. 267). 

Mr. McGlothlin agreed the section 107(a) order impacts the 

No. 7 entry and the longwall support shield system (Tro 268) o 

The No. 7 entry was originally the planned recovery room 

(Tr. 270)0 The company had mined into the barrier pillaro The 

barrier that remained varied from zero to a maximum of eight 

feet, or an average of four feet (Tro 27l)o To successful 

complete the longwall recovery the company planned to remove all 

of the barrier pillar and end up in the recovery room, i.e.f the 

No. 7 entry. The plan was not completely successful nor was it a 

complete failure (Tr. 272). This method has been used in four 

different mines 0 in West Virginia and Pennsylvania (Tro 273)" 

On May 5th there were cracks and cutters the roof" 

Because of the cracks the company set additional supplemental 

supports on May 5th (Tr. 274, 275). 

The cutters in the roof indicated the abatement pressure had 

completely traversed the No. 7 entry and had come to rest outby 

the pillar between No. 6 and No. 7 entry. The pillars are the 

primary roof support in a mine. 

On May 4th and 5th, Mr. McGlothlin noticed fiber cribbing 

failure but no wooden cribs had failed prematurely. 

The wooden cribs in photographs S-7B,_C and O had not 

failed. They could not have been knocked out with anything short 

of a 100 ton hydraulic jack (Tr. 276, 278). 

On May 3rd the roof was converging. After May 6th there was 

isolated roof movement (Tr. 277). In two instances when removing 

the shields the roof "crushed in". This was not a roof failure 

(Tr. 279). 

Mr. McGlothlin agrees that on May 5th the mechanically 

anchored roof bolt had lost complete effectiveness. However, the 

resin bolts had not lost full integrity (Tr. 280). 

276 
The crib in Exhibit P-4 was installed between May 3rd and 

May 6th (Tr. 280, 281). Exhibit P5 indicates a convergance of 

four and a half feet in the entry. 

It was Mr. McGlothlin's decision to mine this area using the 

new longwall method as opposed to the barrier pillar method (Tr. 

282). 

Page 4 of Exhibits P-1 states it is not possible to give the 

exact type and amount of supports required to insure recovery 

room stability. Mr. McGlothlin underestimated the amount of 

support needed to effectively transfer the roof pressure across 

the recovery entry (Tr. 284). 

The longwall was recovered in five and one half weeks? this 

is average time in the United States (Tr. 287u 288). 

The fiber cribbing appearing in Exhibit P-7 was present 

the area before the section 107(a) order was issuedo The wooden 

cribs to the right in Exhibit P-7 were put in place after the 

order was issued (Tr. 292). 

The wooden cribsu in Exhibit P-9, were installed after the 

section l07(a) was issued but they were not part of the order 

(Tr. 294). 

The recovery room shown in Exhibit P-8 did not exist when 

the section 107(a) order was issued (Tr. 295). 

FURTHER FINDINGS OF FACT 

47. BILLY OWENS, on MSHA mining engineer, is a person 

experienced in mining (Tr. 296-298). 

Mr. Owens is Chief of .the Ground Support Division. He 

visited the Golden Eagle Mine on May 8th {Tr. 298). 

48. The witness described the area subject to the order 

and, he marked the area on Exhibit P-3 (Tr. 300, 301). 

49. In the No. 7 entry fibercrete cribs had totally failed. 

They had blocking on top that was completely squeezed out. 

Wooden cribbing down the right side of the entry was in a state 

of failure. Many of the crib blocks had rolled. Timbers were 

barren. A cutter ran the entire right side of the entry. The 

main roof had suffered a shearing failure and was torn along the 

pillar line (Tr. 303). 

50. The failed fibercrete cribs are shown in Exhibits S-71, 

S-7H, S-7G. The failed timber is shown in Exhibit S-7J and the 

failed wooden cribbing is shown in Exhibits S-7B and S-7C (Tr. 

305) • 

277 
51. The wooden cribs in S-7B and S-7C are designed so the 

load will be parallel to the vertical axis of the cribbing. More 

loading, as on S-7C, can blow the crib out at any time (Tr. 306). 

52. on May 8th there were no large tension cracks in the 

roof. The roof had roof bolts and wire mesh in it (Tr. 306). 

53. There was evidence of severe roof movement. The mining 

height of the entry was 6-1/2 to 7-1/2 feet; or a resulting 3 

feet of convergence (Tr. 307). This is enough movement to 

destroy supports, cribs, posts and timbers (Tr. 309). 

54. There was also horizontal and vertical movement the 

roof which was in a state of failure. The roof was not 

stabilized (Tr. 308, 309). 

Management told MSHA that the shields, from No. 70 to 

No. 90, were down about 42 inches (Tr. 309). Over two or three 

days this is a large amount of convergence. 

55. The majority of the roof bolts appeared in good shape; 

however, along the cutter area the last row of bolts in the entry 

provided no support (Tr. 310). 

56. Exhibit s-11, a photograph, depicts an area ong the 

edge of the coal lar between entry No. 7 and No. 6. It shows 

the cutter raveling out of the roof (Tr. 311). The tearing of 

the roof and the formation of the roof cutter exposed the roof 

bolt (Tr. 314). 

57. cutters were beginning to migrate in the crosscuts from 

entry No. 7 to entry No. 6. In entry No. 6 there were no cutters 

or roof problems but the pillars were beginning to show weight 

and sloughage was starting (Tr. 316). 

58. The company told MSHA that shields No. 70 to No. 90 

were all the way down. This indicated a crushing out of the 

entire pillar (Tr. 318). 

59. When a cutter exists along the sides of an entry, such 

as in the Golden Eagle Mine, it essentially wipes out the support 

from one side of the entry to the other side. The entire roof 

support system can fail (Tr. 319, 320). 

60. The area between the tips of the longwall shields and 

the new cribs in No. 7 entry were in a state of failure (Tr. 

322). Given what he knew of the conditions on May 5th, Mr. Owens 

did not consider it safe to attempt the longwall recovery. 

However, additional supports and Mobay Chemical had improved the 

situation (Tr. 322). 

278 
61. If a portion of the roof fell it would be 10 to 12 feet 

thick. The majority of roof falls are 18 inches thick. (Tr. 

325). 

62. Photograph S-JF shows Mr. Pulse across the longwall 

face with the shields sitting down on the spill plate. The 

tensor mesh was trapped so tight that you could not move the mesh 

between the shield and the spill plate (Tr. 327). 

63. The roof bolts are exposed as shown in Exhibit S-4A 

(Tr. 329). The witness discussed Exhibits s-SA, S-5B, S-6 ands7 (Tr. 2 2 9 , 2 3 o) • 

64. Given the conditions shown in Exhibit S-7 you would 

expect a roof fall but you would not know when (Tr. 330). 

65. There were two meetings with management. The company 

brought up nine or ten points. MSHA's District Manager approved 

the points to be included in the modification of the 107(a) order 

(Tr. 333) . 

66. Modification No. 5 required, among other things, a 

steel I-beam from above the shields and over the cribbing (Tr. 

334) . 

67. The ten items in modification No. 5 were discussed 

management on May 8th. Recommendations were made by MSHA since 

this was the operator's plan for recovery (Tr. 335, 336). 

65. All of the items were proposed by WFC. MSHA made 

recommendations for four of the items (Tr. 336). There was no 

pressure and the matter was expedited (Tr. 337). 

68. Unexpected problems mandated that the situation be 

carefully watched (Tr. 339). 

69. The method of longwall recovery as shown in Exhibit P-1 

is experimental and needs to be treated as such (Tr. 340). It 

needs to be monitored (Tr. 341). 

DISCUSSION 

The Mine Act defines an imminent danger as "the existence of 

any condition or practice in a coal or other mine which could 

reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated." 30 u.s.c. 

§ 802(j). This definition is unchanged from the definition 

contained in the Federal Coal Mine Health and Safety Act of 1969, 

30 u.s.c. § 801 et seq. (1976) (amended 1977) (the "1969 Coal 

Act"). The Senate report on the Mine Act explains that the 

Secretary's authority to issue imminent danger orders "should be 

construed expansively by inspectors and the Commission." s. Rep. 

279 
No. 181, 95th Cong., 1st Sess. 38 (1977), 626. Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 626 

(1978) (Legis. Hist.). 

In discussing the concept of imminent danger the Commission 

recently stated: 

In analyzing [the] definition [of imminent 

danger], the U.S. Courts of Appeals have 

eschewed a narrow construction and have 

refused to limit the concept of imminent 

danger to hazards that pose an immediate 

danger. See, e.g., Freeman Coal Mining Co. 

v. Interior Bd. of Mine Op. APP·v 504 F.2d 

741 (7th Cir. 1974). Also 1 the Fourth 

Circuit has rejected the notion that a danger 

is imminent only if there is a reasonable 

likelihood that it will result in an injury 

before it can be abated. Eastern Associated 

Coal Corp. v. Interior Bd. of Mine Op. App. 7 

491 F.2d 277 7 278 (4th Cir. 1974). The court 

adopted the position of the Secretary that 

'an imminent danger exists when the condition 

or practice observed could reasonably be 

expected to cause death or serious physical 

harm to a miner if normal mining operations 

were permitted to proceed in the area before 

the dangerous condition is eliminated. Q 491 

F.2d at 278. (Emphasis in original.) The 

Seventh Circuit adopted this reasoning in Old 

Ben Coal Corp. v. Interior Bd. of Mine Op. ~, 523 F.2d 25, 33 (7th Cir. 1975). 

Rochester & Pittsburgh Coal Co.Q 11 FMSHRC 2159, 2163 (1989). 

Cyprus Empire Corporation, 12 FMSHRC 911v 918 (May 1990). 

The Seventh Circuit has further recognized the importance of 

the inspector's judgment in issuing an imminent danger order: 

Clearly, the inspector is- in a precarious 

position. He is entrusted with the safety or 

miners' lives, and he must ensure that the 

statute is enforced for the protection of 

these lives. His total concern is the safety 

of life and limb.· . • • We must support the 

findings and the decisions of the inspector 

unless there is evidence that he has abused 

his discretion or authority. (Emphasis 

added) 

Old Ben, supra, 523 F.2d at 31; Rochester & Pittsburgh, 11 FMSHRC 

at 2164. 

280 
The hazards of roof falls are well known. See, ~' UMWA 

v. Dole, 870 F.2d 662, 664 (D.C. Cir. 1989) (citing the preamble 

to the promulgation of MSHA's current roof support standards, 53 

Fed. Reg. 2354 (January 27, 1988)). 

Here, Inspector Shively observed miners installing wooden 

cribs in entry No. 7. The unstable condition of the roof 

(described in detail in Facts 3 through 7) caused him to believe 

that a roof fall would cause a fatality if the miners did not 

install the cribs from a safe location. In short, he directed 

them to "crib their way" into the entry. 

WFC's witnesses Callor and McGlothlin differed from 

Inspector Shively's views that a condition of imminent danger 

existed in the No. 7 entry. Howeverf they both conceded the 

inspector had a "concern" for the way the cribs were being built 

(McGlothlin at 266). Caller believes Inspector Shively sincerely 

felt a condition of imminent danger existed (Caller at 203)0 In 

any event, WFC's witnesses failed to testify as to any credible 

facts to rebut Inspector Shively~s testimony. 

For the above reasons, I conclude that imminent danger order 

Number 3241309 issued May 5, 1990, should be affirmed and the 

contest relating thereto should be dismissed. 

WFC contends the mere good faith belief of the inspector 

not enough to sustain the section 107(a) order for an extended 

period of time. There must in fact be an imminent danger and 

such determination must be based on an objective standard and a 

consideration of all of the facts (Brief, page 1). 

WFC's arguments require a review of the evidence as to the 

scope of the imminent danger when the modifications were issued. 

The situation in the Golden Eagle mine came about when the 

company tried an experimental longwall recovery procedure. 

Simply put, WFC attempted to mine through the 200 foot barrier 

pillar and use No. 7 entry a.s a predriven r~!=overy room. The 

effort was less than fully successful and the shears stuck 

leaving only a minimal barrier pillar, some zero to eight feet. 

Mining through the pillar caused massive damage and instability 

to the roof. The credible evidence established the conditions as 

found in the facts. (Shively, Facts 3-8; 18-22.) Inspector 

Shively described the area affected by the order to be No. 6 to 

No. 13 entry and No. 6 to No. 13 crosscuts (Fact 9). Compare 

with overview of Exhibit P-3, pg. 4). 

Two days later witness Lee Smith, a roof control specialist, 

described the unstable roof conditions (Facts 24-39). If 

anything, the roof conditions had deteriorated in the two days 

since Inspector Shively issued his order. Billy Owens, an MSHA 

engineer, also fully detailed the roof conditions (Facts 45-61). 

281 
I am not unmindful of the testimony of Mr. McGlothlin which 

runs contrary to MSHA's evidence. However, I do not find his 

testimony as to the condition of the roof and the cribs to be 

credible. The photographs clearly rebutt his views. For 

example, see Exhibits S-5A, S-5B, S-6B, S-7A, S-7B, S-7C, S-7D, 

S-7E, S-7J, S-7I, S-7H, S-7G, S-7L, S-7K. Further, see Exhibit 

s-ac showing a severely twisted I-beam. I-beams simply are not 

made to conform to such a configuration. 

Mr. McGlothlin also attempts to persuade the Judge that the 

Secretaryis exhibits S-4A, S-4B, S-4C and S-4E were not in the 

area affected by the order. (Tr. 265.) However, I reject that 

view. The Secretary 1 s agents were not shown to have been 

elsewhere in the mine. Further, the photographs were an 

evidentiary focus of the Secretaryvs case. 

Mr. McGlothlin 1 s testimony further conflicts with the 

company 0 s letter to MSHA issued the day the order was issued. 

The letter states 1 in partv 01 [t]he abdutment [sic] pressure has 

caused the shields to yield to the point where the shearer cannot 

continue cutting. The pressure has also caused the supplemental 

support (fibercrete and wooden cribs) in the recovery room to 

il. 00 (Exhibit P-3) . 

I credit MSHAus evidence that the condition of imminent 

danger due to roof fall continued to exist in the 700 foot area 

encompassing Entry No. 7, the remains of the barrier pillar and 

the shields of the longwall. 7 

In sum, a preponderance of the substantial, reliable and 

probative evidence establishes the facts as set forth in 

paragraphs 1 through 69 of .this decision. 

WFC contends that MSHA cannot impose mandatory obligations 

when it issues a section 107(a) order. 

Case law precedent supports WFC's position. In Eastern 

Associated Coal Corporation, 4 IBMA 1 (1975) the Interior Board 

of Mine Operations Appeals considered such an issue. 4 IBMA at 

21. 

However, MSHA falls within the exception as explained by the 

Board: 

Although we hold that section 104(a) allows 

only an order to withdraw persons and does 

not authorize the Secretary to issue any 

other kind of direct order, the Board 

7 The area affected by the order was identified on Exhibit P3, Page 4. 

282 
emphasizes that, in drafting a section 104{a) 

order, an inspector has the discretion and 

ought, after consultation with responsible 

mine officials, to include the terms upon 

which the withdrawal order will be 

terminated, that is to say, the actions which 

must be taken to remove at least the 

'imminence' of the subject hazard. While 

these terms would in no sense be mandatory or 

subject to enforqement in a federal district 

court, they would notify an operator as to 

what must be done if it wishes to resume 

operations rather than close down permanently 

the area described in the ordero 4 IBMA at 

250 

In the instant case Mro Callar was 01 upsetgu because he 

believed MSHA interfered with management decisions Tro 227-

228). Howeverv it is uncontroverted that WFC submitted the 

for recovery of the longwall. All items were proposed by the 

Company. There was no pressure and the matter was expedited (Tro 

335-337). 

The above facts indicate that WFC was complying 

conditions for withdrawal of the § 107(a} order. 

WFC further asserts that MSHA 1 s actions were inconsistent 

with the claim of imminent danger. Specifically, it is claimed 

MSHA permitted travel over the area for five weeks and also let 

the work force retrieve longwall equipment over a period of 

several weeks. 

Under section 107(a) MSHA may permit individuals in an area 

of imminent danger. These individuals are named in section 

104{c). 

It is true the longwall equipment was removed. However, 

considerable efforts had been made at abating the imminence of 

the danger. Accordingly, I am unable to conclude that MSHA 

permitted miners to work under the unstable roof. 

WFC also states that the mere existence of signs of 

dangerous conditions do not establish existence of an imminent 

danger. 

I disagree. The signs of dangerous conditions can and often 

do establish a basis for expert witnesses to reach their 

conclusions of the underlying hazard. 

WFC finally claims that MSHA abused its discretion in 

leaving the order in effect when an imminent danger no longer 

283 
existed. The facts concerning the unstable roof have been 

previously explored. 

For the foregoing reasons, WFC has not sustained it's burden 

of proof in this contest case. 

Accordingly, I enter the following: 

ORDER 

1. Order No. 3241309 and all modifications thereof are 

AFFIRMED. 

2a The contest of Order Noa 3241309 is DISMISSEDo 

Law Judge 

Distribution: 

Lawrence J. Corteu Esqou Wyoming Fuel Companyu PaOa Box 15265" 

Lakewoodu co 80215 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1585 Federal Office Building, 1961 Stout 

Street, Denver, co 80294 (Certified Mail) 

slk 

284 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 21 1991 

JOHN Ao GILBERT, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-49-D 

Vo 

MSHA Case No. BARB CD 85-61 

SANDY FORK MINING COMPANY, INC.,~ 

Respondent 

ORDER LIFTING STAY AND DISMISSING PROCEEDINGS 

Before~ Judge Melick 

Complainant John A. Gilbert requests approval to withdraw 

his Complaint the captioned case. Under the cir umstances 

herein, the request is granted. 29,C.F.R. § 270 .11. The stay 

Order previously issued is acc[rdin 1ly now lifte and thinase 

is therefore dismissed. I / 1i 

I , ;J / /!l/~~1 Vf ~ /~ , 

Distribution: 

Tony Oppegard, Esq., 

Kentucky, Inc., Mine 

Lexington, KY 40508 

/ Gary1Melick ! v~/ \ 

Adm(\istrativ Law Judge 

v "' Appalachian Research & Defense Fund of 

Safety Project, 630 Maxwelton Court, 

(Certified Mail) 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Ronald E. Meisburg, Esq., Smith, Heenan & Althen, 1110 Vermont 

Avenue, N.W., Suite 400, Washington, DC 20005 (Certified Mail) 

nb 

285 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 5 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GIANT CEMENT COMPANY, 

Respondent 

Docket No. SE 90-140-M 

A.C. No. 38-00007-05560 

Giant Mine 

DECISION 

Appearances~ Leslie John Rodriguez, Esq., U.S. Department of 

Labor, Office of the Solicitorr Atlanta Georgia, 

for the Petitioner~ 

Burton L. Ardis, Jr., Safety Director, Giant 

Cement Company, Harleyville, South Carolina, for 

the Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to Section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seg., the "Act", charging the Giant Cement Company (Giant) 

with two violations of mandatory standards and proposing civil 

penalties of $40 for those violations. The general issue before 

me is whether Giant violated the cited regulatory standards and, 

if so, the appropriate civil penalty to be assessed in accordance 

with section llO(i) of the Act. 

Citation No. 3612429 alleges a violation of the mandatory 

standard at 30 C.F.R. § 56.14100(b) and charges that "[t]he 

windshield wipers on the 125B Cat. F/E Loader, Company No. Qll 

were not in working condition". The cited standard provides that 

"[d]efects on any equipment, machinery, and tools that affect 

safety shall be corrected in a timely manner to prevent the 

creation of a hazard to persons." 

In its Answer filed in these proceedings Giant does not 

dispute the existence of the cited defect nor that it affected 

safety but maintains that such a defect would have ordinarily 

been discovered during pretest procedures and that a work order 

would subsequently have been written and the defect corrected 

before the cited equipment would have been placed in service. 

The evidence shows in this case that the cited loader was not 

286 
operating (though it was capable of being used) and had been 

parked and not operated for eight days before the citation at bar 

was issued on June 4, 1990. 

The cited manadatory standard requires that safety defects 

"shall be corrected in a timely manner to prevent the creation of 

a hazard to persons" (emphasis added). The term "timely" has 

been defined as "done or occurring at a suitable time". 

Webster's Third New International Dictionary of the English 

Language, Unabridged, 1986, Merriam-Webster, Inc. In order to 

determine whether the operator herein corrected the cited defects 

in a "timely" manner it should be determined when the defects 

were discovered or reasonably should have been discovered. On 

the credible record before me, it may reasonably be concluded 

that the cited loader was last operated eight days before the 

citation was issued. There is no evidence that when the loader 

was last operated the cited defect was observed or even existed. 

Since the required inspection of the equipment is done before the 

beginning of the shift the wipers could very well have become 

defective sometime during that last work shift. Moreover since 

the next preshif t inspection would not be expected to be made 

until just before the loader would again be operatedu it is also 

unlikely that the defect would have been or necessarily should 

have beenu discovered before such timeo 

Considering that corrections only need to be made under the 

cited standard in a "timely" manner I cannot find that a 

violation existed herein. Since the preshift examination had not 

yet been made nor was it required before the cited loader would 

next be operated it would be premature to find a violation under 

this standard. Citation No. 3612429 must accordingly be vacated. 

In reaching this conclusion I have not disregarded the 

Secretary's reference to the case of Secretary v. Mountain 

Parkway Stone, Inc., 12 FMSHRC 960 (1990) involving the 

interpretation of a different standard, 30 C.F.R. § 57.9002 

(1988), with language requiring that "[e]quipment defects 

affecting safety shall be corrected before th.e·equipment is 

used." It is not disputed in this case that the cited equipment 

was not tagged out and was capable of being used within the 

meaning of the Mountain Parkway decision. The result in this 

case depends however on the unique language of the standard at 30 

C.F.R. S 56.14100(b). 

Citation No. 3612430, as amended, charges a violation of the 

mandatory standard at 30 C.F.R. § 56.14132(a) and charges that 

"[t]he service horn was not in working condition on the 125B Cat. 

F/E Loader, Company No. Qll". The cited standard provides that 

"[m]anually-operated horns or other audible warning devices 

provided on self-propelled mobile equipment as a safety feature 

shall be maintained in functional condition. 11 

287 
This standard, unlike the standard at 30 C.F.R. § 

56.14100(b) previously considered, does not require consideration 

of timeliness. Indeed it is clear from the plain language of 

this standard that the operator is made a virtual guarantor that 

"manually operated horns ••• shall be maintained in functional 

condition". In this case again it is apparent that the operator 

does not dispute that the cited horn was not functioning on the 

cited loader as charged but maintains that during its pretest 

procedures it would have discovered that defect and a work order 

would have been written and the defect corrected before the 

equipment would be operated. 

The cited loader was admittedly not "tagged out 1

• of service 

and was therefore clearly available for usage at the mine site. 

Under the circumstances the violation is proven as chargedo 

is clearly immaterial in proving a violation of the cited 

standard that the operator may have in existence a 11 pre-test•u 

procedure that, if properly followed, might very well lead to 

discovery of such defects before the equipment is operatedo The 

existence of such a procedurev if proven effective in the pastr 

may very well reduce the negligence and gravity findings relating 

to a violation charged under the cited standard but it cannot 

negate a violation of the standard. 

The evidence this case of a significant number of 

equipment safety violations at this mine indeed suggests that the 

"pre-test" procedures have not been effectively implementedo 

Accordingly I can give but little weight to the claims that such 

procedures would likely result in detecting and correcting such a 

violation as charged herein. More significantly, however, 

Giant's mobile equipment repair foreman, Danny Westbury, 

testified that the discovery of a defect such as the inoperable 

horn cited herein nevertheless would not prevent the usage of the 

equipment if repair parts were not available and the equipment 

was needed. For this additional reason then it is clear that the 

mere existence of the alleged "pre-test" procedures is 

irrelevant and not a viable defense to the charges herein nor in 

mitigation of the penalty. Under the circumstances and 

considering all of the criteria unger Section llD(i) of the Act I 

find that a civil penalty of $100 is appropriate. 

288 
ORDER 

Citation No. 3612429 ls vacated. Citation No. 3612430 is 

affirmed and the Giant Cement Company is dire~ted to pay a civil 

penalty of $100 for the violation therein within 30 days of the 

date of this decision. / · /~ I μ • :~ /; * !.± 

r'.'·. \ .,\1\...-v \ ·,.\ f / {. L _,f I ,_, \ • V""I_..· V ""'\,,./ \ 

Gb.ry 7Melick 1 "-

Administrative Law Judge 

' . 

v 

Distribution: 

Leslie John Rodriguez, Esq., Office of the Solicitorp U~S. 

Department of Labor, Room 339, 1371 Peachtree Street, N.E., 

Atlanta, GA 30367 (Certified Mail) 

Mr. Burton L. Ardisp Jr., Safety Directoru Giant Cement Companyu 

P. o. 218, Harleyville, SC 29448 (Certified Mail) 

nb 

289 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 25, 1991 

DAVID H. BREWER, DISCRIMINATION PROCEEDING 

Complainant 

v. 

WEST M)RELAND COAL COMPANY, 

Respondent 

Docket No. VA 90-58-D 

NORT CD 90-11 

Wentz #: 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On September 18, 1990, you filed with this Commission a 

complaint of discrimination under section 105(c) of the 

Federal Mine Safety and Health Act of 19770 On November 14u 1990f 

a show cause order was issued directing you to provide information 

regarding your complaint or show good reason for your failure 

to do so. The show cause was mailed to you certified mailu 

return receipt requested and the file contains the receipt 

card indicating you received the show cause order. You 

have however, not responded and complied with the show cause 

order. 

Accordingly, this case is DISMISSED. 

Paul J.verl in~· 

Chie-f Administrative Law Judge 

Distribution: 

David H. Brewer, Roil'te 1, Box 200-A, Dryden, VA 24243 (Certified 

Mail) 

Susan E. Moore, Esq., Westmoreland Coal Company, Legal DeptJ, 

P.O. Drawer A & B, Big Stone Gap, VA 24219 (Certified M:!.il) 

SS 

290 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 6 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRAT!ON (MSHA), 

on behalf of 

JOHN A GILBERT, 

Complainant 

v. 

SANDY FORK MINING COMPANY, INC.,~ 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-76-D 

MSHA Case No. BARB CD 85-61 

No. 12 Mine 

DECISION AND ORDER 

Before: Judge Melick 

This case is before me on remand by the Commission on 

June 28, 1990, following the decision of the Federal Court of 

Appeals, District of Columbia Circuit, in Gilbert v. FMSHRC, 866 

F.2d 1433 (1989). By decision dated November 8, 1990, I 

subsequently held that, based upon the circuit Court's specific 

findings, I was constrained to find that Mr. Gilbert was 

discharged in violation of Section 105(c) (1) of the Federal Mine 

Safety and Health Act of 1977, the "Act." Mr. Gilbert 

subsequently agreed to a settlement of costs and damages in his 

individual complaint under Section 105(c) (3) of the Act and that 

case was thereafter dismissed. (See Docket No. KENT 86-49-D). 

The Secretary does not oppose that dispositioFl of Mr. Gilbert's 

section 105 (c) claim but seeks in thi·s case, in addition, a civil 

penalty of $2,000 from the Respondent for Gilbert's unlawful 

discharge. 

Evaluation of the relevant criteria under section llO(i) of 

the Act is necessary to determine an appropriate civil penalty. I 

do not find negligence in this case because Respondent had no 

notice that its conduct would constitute a violation of section 

105{c), and it took no direct adverse action against the 

Complainant. I am satisfied from the record herein that 

Respondent had no intent to act against Gilbert in violation of 

section 105(c) ·and indeed both myself as the trial judge and a 

unanimous Federal Mine Safety and Health Review Commission 

initially concluded that Respondent did not violate section 

105(c). It was not until the United States Court of Appeals for 

the District of Columbia circuit effectively expanded existing 

law that Respondent's actions were deemed subject to a finding of 

discrimination. Prior Commission decisions had established that 

291 
there was no legal obligation for· a mine operator to verbally 

articulate, or otherwise demonstrate in advance, what specific 

action was being taken to remedy hazardous conditions unless the 

operator intended to insist that a miner return to work under 

those conditions. See Secretary of Labor on behalf of Pratt v. 

River Hurricane Coal Co., Inc., 5 FMSHRC 1529, 1534 (1983); 

Secretary of Labor on behalf of Hogan & Ventura & UMWA v. Emerald 

Mines Corp., 8 FMSHRC 1066, 1074 (1986). Only now can it be said 

that there may exist a newly delineated legal obligation for mine 

operators to explain to employees in detail anticipated remedial 

actions no matter when asked. 

In addition, the evidence shows that Respondent never forced 

Gilbert to work under conditions which he believed to be 

hazardous. Essentially, according to the Court of Appeals, this 

case involves a failure of communication on the part of the 

company, and more particularly a failure to give adequate future 

assurances. Respondent also ceased operations in February of 

1988, no longer employs any miners, and produces no coalo There 

is no evidence of any prior violations of section 105(c) at this 

mine. 

Finally, it is not disputed that once the decision finding a 

violation of Section 105(c) was entered, the Respondent worked in 

good faith with the Complainant to negotiate a fair resolution of 

remaining issues, including compensation for costs and damages" 

Indeed these negotiations recently resulted in a settlement 

agreeable to Mr. Gilbert. 

ORDER 

The Stay Order issued February 7, 1991 is hereby lifted. 

Under the unique circumstances of this case I hereby order Sandy 

Fork Mining Company, Inc. to pay a token civil pena~ty of $1.00 

within 30 days of the date of this decision. This 1s the final 

disposition of these proceedings bep thl ,:u~:e·(n ) A 

Gar~ Mel K / ~._/ \ 

292 
Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., Mine Safety Prqject, 630 Maxwelton court, 

Lexington, KY 40508 (Certified Mail) 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN 

37215 (Certified Mail) 

Ronald E. Meisburg, Esq., Smith, Heenan & Althen, 1110 Vermont 

Avenue, N.W., Suite 400, Washington, DC 20005 (Certified Mail) 

nb 

293 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

FEB 2 6 1991 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-194-M 

A.C. No. 05-03985-05511 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Vo 

SKELTON INCORPORATED, 

Respondent 

El-Jay Mine 

DECISION 

Appearances: Susan J. Eckert, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner~ 

Ruth Gray 9 Secretaryu Skeltonu Incou Norwood" 

Colorado.I' 

for Respondent. 

Before: Judge Lasher 

In this matter the Secretary of Labor (Petitioner) seeks 

assessment of penalties for 10 alleged violations (described in 

10 Citations) pursuant to Section llOCa> of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 820(a) (1977). 

At the outset of hearing in Montrose, Colorado, on November 14, 1990, Respondent agreed to pay in full MSHA 1 s initially 

proposed penalties for Citation No. 3452866 ($74) and Citation 

No. 3450113 ($20) and, the Petitioner concu~ring, this disposition was APPROVED from the bench.· 

With regard to the remaining eight citations (3 citing electrical violations, 3 citing alleged "inadequate guard" situations, l "berm" matter, and 1 "failure to report" matter), the 

parties presented testimonial and documentary evidence at hearing 

and waived filing post-hearing briefs. Respondent concedes the 

occurrence of the 3 electrical violations but challenges the 

level of MSHA's penalties therefor. As to the remaining 5 

citations, both the "occurrence" and "amount of penalty" issues 

are viable and were litigated. 

GENERAL BACKGROUND 

Respondent established no economic defense in mitigation of 

penalty. 

294 
a. Stipulated Penalty Assessment Factors. 

Based on the written stipulation (Court Exhibit 1) submitted by the parties, it is found that Respondent is (1) a small 

sand and gravel operator with (2) a history of 17 violations during the two-year period (12/6/87 to 12/6/89) preceding the issuance of the first Citation involved in this proceeding, and (3) 

that Respondent, after notification of the alleged violations, 

proceeded in good faith to promptly abate such conditions. 

b. Respondent's Operation. 

Respondent operates a portable rock-crushing unit (which 

can be moved to different locations by tractor-trailer), with a 

primary jaw crusher, conveyance, and load, haul, and dump equipment. (Tr. 55-56, 145-149). 

PRELIMINARY MATTERS 

Respondent 1 as I understand its position 9 contends that it 

should not be assessed penalties since it was not afforded the 

right to request a CAV (Compliance Assistance Visit) and did not 

have prior electrical inspections prior to the subject inspection. (Tro 15u 136 9 165 9 166 9 167)0 

The CAV process is not provided for in the Mine Act and is 

not a mine operator 1 s absolute right. In this connection, it is 

noted that the record reflects that MSHA was not notified by 

Respondent as to the site at which it was operating prior to the 

time the inspectors discovered its operation, inspected it, and 

issued the subject citations. In any event, the mine in question 

is clearly subject to the Mine Act and inspections thereof are 

mandated by such Act, Section 103Ca), 30 u.s.c. § 815. Furtheru 

Sections 104(a) and llO(a) of the Mine Act require that a citation be issued and a penalty assessed when a violation occurs. 

See Old Ben Coal Co., 7 FMSHRC 205208 (1985). Accordingly, the 

various contentions of Respondent based on its failure to receive 

a prior CAV are found to lack merit and are_REJECTED. 

It is noted that Respondent in this matter was not represented by legal counsel. Thus it is appropriate that another 

aspect of the CAV issue be considered even though not specifically raised. That is, does the fact that a CAV was not conducted 

prior to the time the subject Citations were issued estop the 

government enforcement agency from citing violations? Quite 

simply, the answer to this question is that the Mine Safety and 

Health Review Commission has rejected the doctrine of equitable 

estoppel in Secretary of Labor v. King Knob Coal Company, Inc., 

3 FMSHRC 1417 (1981): . 

295 
The Supreme Court has held tha equitable estoppel generally does not apply against the federal 

government. Federal Crop Insurance Corp. v. 

Merrill, 332 U.S. 380, 243 U.S. 389, 408-411 

(1917). The Court has not expressly overruled 

these opinions, although in recent years lower 

federal courts have undermined the Merrill/Utah 

Power doctrine by permitting estoppel against 

government in some circumstances. See, for example, United States v. Georgia-PacIIIc Co., 421 

F.2d 92, 95-103 (9th Cir. 1970). Absent the Supreme Court's expressed approval of that decisional trend, we think that fidelity to precedent requires us to deal conservatively with 

this area of the law. This restrained approach 

is buttressed by the consideration that approving an estoppel defense would be inconsistent 

with the liability without fault structure of 

the 1977 Mine Act. See El Paso Rock Quarriesu 

Inc., 3 FMSHRC 35 1 38-39 (1981)0 Such a defense 

is really a claim that although a violation occurred, the operator was not to blame for ita 

Respondent also expresses concern about the 0 inconsistency• 

of the MSHA inspectorso (See Respondent 0 s tter dated June l8g 

1990; Tr. 34-35 8 154 8 155 8 294)0 Againu insofar as this position 

constitutes raising the defense of equitable estoppelu it is 

rejected. However, as the Commission in King Knob, supra, also 

noted, such factors as prior non-enforcement or confusion caused 

by MSHA enforcement policy, can, in the abstract, be considered 

in mitigation of otherwise appropriate penalties. Such has been 

done in this decision. 

THREE "ELECTRICAL" VIOLATIONS 

As above noted, Respondent concedes the occurrence of these 

three Section 104(a) violations cited March 6, 1990, in Citations 

numbered 3449865, 3449867, and 3449868. The Secretary seeks 

penalty assessment of $91 for each .. of the three which involve 

infractions of 30 C.F.R. § 56.12008. ~/ 

l/ 30 C.F.R. § 56.12008 provides: 

Insulation and fittings for power wires and cables. 

Power wires and cables shall be insulated adequately where 

they pass into or out of electrical compartments. Cables 

296 
The record shows that MSHA Inspector Ronald J. Renowden 

accompanied Inspector Michael T. Dennehy on a regular inspection 

of Respondent's operation near Blanding, Utah, from March 6 

through March 8, 1990. Inspector Renowden, an electrical specialist with impressive qualifications, performed the electrical 

part of the inspection. (Tr. 49-58, 59). 

Based on the preponderant reliable and substantive evidence, 

I make the following findings: 

A. Citation No. 3449865. 

Because there was an improper fitting, i.e., no fittingu on 

the power cable entering the motor terminal boxv i.e.u a metal 

enclosure (Tr. 64), the hazard of a shock, burn, or electrocution 

was created. The power cable (moving back and forth and flexing) 

could be damaged by the metal edge and energize the metal framework of the conveyor involved, whichwould, in turn, energize the 

framework of the crushing unit. (Tr. 65-69v ?Ou 82u 85)0 

Since it was reasonably likely that the hazard contributed 

to by the violation could result in an injury of a reasonably 

serious or fatal nature (Tr. 77>u the violation is found to be 

not only significant and substantial s & S) as charged by 

Inspector Renowden (Tr. 71-73u 14u 87)u but also very serious 

(Tr. 74, 76, 88)" 

Since the problem was visible to one observing the equipment, I find that the mine operator was negligent in allowing 

such violative condition to exist. (Tr. 77, 85, 141, 144, 155, 

158, 171, 176). 

B. Citation No. 3449867. 

This violation was cited because there was no fitting where 

the cable (cord) supplying power to a crossover conveyor entered 

the metal junction box (terminal housing) to secure the cable 

from strain and protect it from the sharp metal hole edges of the 

(continued from page 3) 

shall enter metal frames of motors, splice boxes, and electrical compartments only through proper fittings. When 

insulated wires, other than cables, pass through metal 

frames, the holes shall be substantially bushed with insulated bushings. 

297 
junction box. (Tr. 95-97, 98). The cord is referred to as "SO 

cord" in the Citation, which in turn means "hard surface oil 

resistant." (Tr. 110). 

A ground fault hazard was created because this condition 

could damage the cable "to a point that one of the energized 

phase conductors inside the cable could energize the metal casing 

of the motor ••• and energize the framework of the crusher" 

(Tr. 98, 110) similar to the violation described in Citation No. 

3449865, supra. Such hazard could easily come to fruition and 

result in injuries such as electrical shock and "arc~flash burns" 

as well as electrocution. (Tr. 99, 100). Because of the amount 

of vibration and flexing that occurs in the situation involved, 

it was reasonably likely Cl) that the hazard could occur to cause 

an injury, particularly since there was no other "strain relief~ 

support (Tr. 100-101, 102-107) and (2) that such would cause a 

reasonably serious injury. This is a serious violation and was 

charged to be a "significant and substantial" one as well. The 

violative condition was readily observable and the determination 

here that this violation resulted from negligence on the part of 

the mine operator is supported in the record. (Tr. 107, 108, 

141, 144, 170, 171, 176). Notably, Respondent's foreman who was 

responsible for electrical compliance (Tr. 135u 140, 144) testified as follows~ 

Q. Yesterday, the inspector mentioned there was some confusion when they arrived as to who was in charge. Can 

you tell us why there was some confusion? 

A. Because of stuff like this, having to do this, come to 

a hearing and things. Who would want to take responsibility, if you have to come to this kind of stuff all 

the time? 

Q. Well, who is the person--according to your management 

structure--who was the person that should take charge 

of this? 

A. Me. (Tr. 144) 

C. Citation No. 3449868. 

Here again, as in the prior two electrical violations, this 

Citation alleged a similar violation of 30 C.F.R. § 56.12008 and 

such was determined by the Inspector to be "Significant and Substantial." (Tr. 130). And again, there was no fitting for the 

cable (Tr. 124). Inspector Renowden credibly testified and explained that the hazard from the instant violation was "worse" 

than the previous two violations (Tr. 125), that the cord was 

298 
subject to vibration, flexing, and rubbing, and that severe electric shock resulting in electrocution of miners could easily 

result. (Tr. 125-126, 130, 131, 132). This is found to be a 

very serious violation. 

The mine operator is again found to have committed this 

violation as a result of a significant degree of negligence. 

(Tr. 131, 132, 141, 144, 158, 170, 176). 

In mitigation, Respondent established that it had had no 

prior electrical accidents CTr. 83), or injuries from electrical 

problems (Tr. 136). 

Perry Rowe, a foreman for Respondent mine operator, testified that he was responsible for the electrical equipmentv but 

that he had no electrical training and was not an electriciano 

(Tr. 135, 140, 149, 161). Mr. Rowe had 11 no ideaH why there were 

no fittings on the equipment involved in the three electrical 

violations (Tr. 141) and thought that 11whoever made the machine"" 

was responsible for not putting the fittings in place" 

(Tr. 141). 

CONTESTED CITATIONS 

The Respondent challenges the occurrence of the violation 

charged in the following five Citations. Based on the preponderant reliable and substantive evidence, the following findings are 

made with regard thereto. 

A. Citation No. 3450115. 

This 104(a) Citation issued by MSHA Inspector Michael T. 

Dennehy on March 6, 1990, alleges an infraction of 30 C.F.R. 

§ 56.14107 ~/ as follows: 

The guard for the head pulley on the undercone 

conveyor was not adequate to protect a person 

from contact with the fins on the~head pulley. 

The head pulley was approximately 63 inches from 

ground level. 

~/ 30 C.F.R. § 56.14107 provides: 

299 
Moving machine parts. 

(a) Movin3 machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, 

head, tail, and take-up pulleys, fly-wheels, couplings, 

shafts, fan blades, and similar moving parts that can 

cause injury. 

(b) Guards shall not be required where the exposed 

moving parts are at least seven feet away from walking 

or working surfaces. 

The self-cleaning (with fins) head pulley in question had 

only a "partial guard" which, while guarding the pinch point, did 

not cover moving machine parts, i.e., the metal finso (Tro 191, 

193, 204-205). The guard was thus inadequate. (Tr. 194, 199, 

201-204). The fins, being 63 inches from the ground, did not 

meet the "7-foot" exception contained in the standard. (Tr. 199)0 

The violation charged in the Citation is found to have occurred. 

The inadequacy of the guarding around the two-inch fins, 

which were susceptible to contact on one side of the pulley, 

created the hazard that a miner could be pulled into the pulley 

and lose a finger, hand, or armo (Tr. 195, 200, 201, 202, 207)0 

Such could be a permanent disabling injury. CTr. 207)0 Since 

there was no foot traffic in the area (Tr. 217, 226), and because 

of the 63-inch height of the fins off the ground, it was not 

likely that a person would come into contact with the fins and be 

injured by the hazard. The violation is thus found to be only 

moderately serious. (Tr. 199, 203, 207). 

The Respondent mine operator is not found to be negligent in 

the commission of this violation since Respondent showed that it 

received a Citation in 1987 for not having a guard on the pulley 

and that such was abated (and the Citation terminated) by the 

installation of the guard observed by and cited as inadequate by 

Inspector Dennehy in this matter. (Tr. 197, 198, 207-212, 217, 

225-226, 246, 247). It thus appears that MSHA at one time had in 

effect approved the guard set-up cited in the subject Citation. 

B. Citation No. 3450118. 

1. The condition cited by Inspector Dennehy on March 7, 

1990, as a violation of 30 C.F.R. § 56.14107 is as follows: 

The pinch point on the chain sprocket that drives 

the jaw crusher's feeder was not adequately guarded 

to prevent a person from contacting the sprocket or 

pinch point. This drive was near the front access 

area to the jaw crusher. 

300 
2. The violation occurred as· cited by the Inspector in the 

Citation. (Tr. 230, 231, 232, 235, 246). 

3. The partial guarding that was in place on March 7, 1990, 

was inadequate. (Tr. 230, 233, 234, 235, 240, 241, 257). There 

was no guard on the pinch point. (Tr. 235, 236, 241). 

4. The hazard was that a person could come into contact 

with the pinch point (Tr. 231), i.e., the moving machine part 

(sprocket and chain), and have a finger, hand, or arm severed. 

(Tr. 232, 233, 2?4>. 

5. The violation was not "significant and substantial.~ 

(Tr. 233-234). 

6. It was not "reasonably likely" that this hazard would 

come to fruition. (Tr. 234, 236-237, 239, 240). The violation 

is found to be serious. (Tr. 234u 236, 237v 239u 240v 241)0 

7. As in the case of the previous citationv Respondent is 

not found to be negligent in the commission of this violation 

since it established that it had received a prior citation in 

1986 from a different inspector for a guard violation and that 

such was abated and the citation terminated by the installation 

of the guarding cited as inadequate in the subject Citation. 

(Tr. 242, 245 6 246-247, 248-253u 255). 

c. Citation No. 3452863. 

1. The condition cited by Inspector Dennehy on March 6, 

1990, as a violation of 30 C.F.R. § 56.14107 is as follows: 

The guard for the under conveyor (jaw) was not 

adequate where the access ladder to the crusher 

post near the head pulley belt driven shaft was 

to protect a person from contact with the pinch 

point. This pinch point was next to the access 

landing of the jaw crusher's diesel_ engine. 

2. The record establishes that the pinch point in question 

was not adequately guarded. (Tr. 264-266, 271, 281). The violation occurred as cited by the Inspector in the Citation. <Tr. 

264-268, 290). 

3. The hazard, contact of a person with the pinchpoint, 

could result in loss of fingers and limbs, and there was a 

"slight chance" such could be fatal. (Tr. 268-269, 271). 

301 
4. This was a "significant and substantial" cs & S) violation since the area is traveled and one person is required to be 

in the area to gain access to the diesel engine which powers the 

conveyor in question. (Tr. 264, 265, 269, 276-277, 295). It was 

reasonably likely that the hazard would come to fruition. 

(Tr. 273, 276-277, 295, 299-300). 

5. Although the violative condition was out in the open and 

obvious (Tr. 274), the Respondent is not found to be negligent in 

the commission of this violation, since it established that it 

had received a prior citation from a different inspector for a 

guard violation and that such was abated and the citation terminated by the installation of the guarding cited as inadequate in 

the subject Citation. (Tr. 291-192, 297). 

D. Citation No. 3450117. 

1. The condition cited by Inspector Dennehy on March 7 

1990f as a violation of 30 C.F.R. § 56.9300 is as followsg 

The elevated roadway used to gain access to the 

jaw crusher's feed hopper was not provided with 

a berm to prevent the Kawasaki front end loader 

from dropping off the unprotected sides. The 

top of the roadway had a 5- to 6-foot drop-off o 

Berms or guardrails shall be at least mid-axle 

height of the large self-propelled mobile equipment which usually travels the roadway." 

2. 30 C.F.R. § 56.9300 provides: 

Berms or guardrails. 

Ca) Berms of guardrails shall be provided and 

maintained on the banks of roadways where a dropof f exists of sufficient grade or depth to cause 

a vehicle to overturn or endanger persons in 

equipment. 

Cb) Berms or guardrails shall be at least midaxle height of the largest self-propelled mobile 

equipment which usually travels the roadway. 

(c) Berms may have openings to the extent necessary for roadway drainage. 

(d) Where elevated roadways are infrequently 

traveled and used only by service or maintenance 

vehicles, berms or guardrails are not required 

when the following criteria are met: 

302 
(1) Locked gates are installed at the 

entrance points to the roadway. 

(2) Signs are posted warning that the 

roadway is not bermed. 

C3) Reflectors are installed at 25-foot 

intervals along the perimeter of the 

elevated roadway. 

(4) A maximum speed limit of 15 miles 

per hour is posted. 

(5) Road surface traction is not to be 

impaired by weather conditions, such as 

sleet and snow, unless corrective measures are taken to improve traction. 

(e) This standard is not applicable to rail bedso 

3. On the inspection day, Inspector Dennehy observed a 

12-foot wide Kawasaki rubber-tired front-end loader carrying 

material from the pit area to the crusher along a 16-foot wide 

"elevated roadway," i.e. I! at the crusher end of the roadway there 

was an elevated ramp running approximately 40 feet in lengtho 

For the top 10 to 12 feet of the ramp there was a drop-off of 5 

to 6 feet. The drop-off gradually tapered off to zero feet as 

the ramp dropped downward 40 feet from the top end at the crusher 

to the bottom level where the roadway was flat. There was no 

berm (or guardrails) along the entire length of the roadway. 

CTr. 305-309, 311, 316, 317, 340, 341). Toward the top of the 

ramp, the drop-off was sufficient to overturn the Kawasaki F.E.L. 

C Tr. 3 0 9) • 

4. Therefore, the violation occurred as cited by the 

Inspector. 

5. The hazard created by the violation was that the loader 

would drop over the edge of the ramp'and turn over. CTr. 

311-312). Such an accident could result in injuries ranging from 

minor "lost time" injuries to fatal (Tr. 312-313) to the operator 

of the F.E.L. (Tr. 315-316). Thus, this is found to be a 

serious violation. 

6. Since the violative condition was obvious (Tr. 319), the 

Respondent is found to be negligent in the its commission. 

7. The violation, however, is not found to be "significant 

and substantial": 

303 
a. Only the one piece of equipment uses the elevated 

portion of the roadway {ramp) at any given time. (Tr. 321). 

b. There was roll-over protection over the operator's 

cab on the F.E.L. (Tr. 314-315, 321, 341). 

c. There have been no prior accidents involving the 

F.E.L. (Tr. 332, 352). 

d. No vehicles have gone over the side of the ramp. 

(Tr. 333). 

e. It is not reasonably likely that the F.E.L. would 

go over the side of the ramp at the highest point where the 

drop-off is 5 to 6 feet. (Tr. 335; 337u 338u 339u 34lu 342u 

344, 346). 

It is concluded that it was unlikely that the hazard envisioned by the Inspector to result from the violation would come 

to fruition to cause injuries and that it is also unlikely thatu 

if the F.E.L. did go over the side of the ramp, it would result 

in any injuries of a serious nature. 

Accordinglyu the prerequisites for the determination of a 91 significant and substantial" violation 0 as set forth by the 

Federal Mine Safety and Health Review Commission in Mathies Coal 

Co., 6 FMSHRC 1, 3-4 (January 1984) were not established, and the 

""S& S" finding on the face of the Citation is vacated. The 

Citation in other respects, including the Inspector's determination of negligence, is affirmed. 

E. Citation No. 3450265. 

1. The condition cited by Inspector Leo E. Hotz on December 6, 1989, as a violation of 30 C.F.R. § 56.1000 is as follows: 

The operator has failed to notify the proper MSHA 

off ice of the recent commencement -0f operation 

and location of his port~ble crusher. 

2. 30 C.F.R. § 56.1000 provides: 

Notification of commencement of operations and 

closing of mines. 

The owner, operator, or person in charge of any 

metal and nonmetal mine shall notify the nearest 

Mine Safety and Health Administration and Metal 

and Nonmetal Mine Safety and Health Subdistrict 

304 
Office before starting operations, of the approximate or actual date mine operation will commence. 

The notification shall include the mine name, location, the company name, mailing address, person in 

charge, and whether operations will be continuous 

or intermittent. 

When any mine is closed, the person in charge 

shall notify the nearest subdistrict off ice as 

provide·d above and indicate whether the closure 

is temporary or permanent. 

3. The violation occurred as cited by the Inspector in the 

Citation. (Tro 360, 361). Specifically8 Respondent commenced 

its operation and failed to notify MSHA by letter or telephone 

(Tr. 362) that it was going to do so. (Tro 362-373v 383v 384u 

393, 396). When this Citation was written, MSHA did not know the 

location of Respondentws mining operationo (Tr. 366u 373)c 

4. The Inspector did not designate, nor is it foundv that 

this violation is significant and substantial. 

5. While the violation of this standard could not cause an 

accident--or directly cause an injury--(Tr. 364)u MSHA cannot 

fulfill its mandate to inspect without such notification and the 

resultant knowledge where mines are located, (Tr. 363-365). 

This is found to be a very serious violation. (Tr. 367-368). 

6. Since it was Respondent's third violation of this standard and, since Respondent has been in business a sufficient time 

to know of this requirement, it is found to have been guilty of a 

significant degree of negligence in the commission of this infraction. (Tr. 367, 370-371, 385-388). 

7. MSHA, on the basis of a "special assessment," sought a 

penalty of $300 at the administrative level. In view of the history of Respondent's non-compliance with this important regulation--vital to safety enforcement--it is fou.nd that the administrative level penalty, even though a, special assessment, is beiow 

the absolute minimum <$400) which should be assessed here. 

ASSESSMENT OF PENALTIES 

Based on the foregoing findings and conclusions, the 

following penalties are FOUND APPROPRIATE and ASSESSED: 

305 
Citation No. 

3450265 

3449865 

3449867 

3449868 

3450113 

3450115 

3450117 

3452863 

3452866 

3450118 

TOTAL 

ORDER 

Penalty 

$ 400 

125 

125 

125 

20 

50 

125 

125 

74 

50 

$1,219 

Respondent shall pay the Secretary of Labor within 40 days 

from the date of this decision the penalties above assessed 

totaling $1219.00. 

Distribution: 

?Jf~~~ca. ~4-t /t - Michael A. Lasher, Jr. 

Administrative Law Judge 

Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80194 (Certified Mail> 

Ms. Ruth Gray, Secretary, SKELTON INC., P.O. Box 124, Norwood, CO 

81423 (Certified Mail) 

/ek 

306 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER, CO 80204 

January 15, 1991 

SECRETARY OF LABOR, 

·on behalf of 

MARTIN L. RICHARDSON, 

Complainant 

v. 

F. K. c. , INC. I 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 91-143-DM 

MD 90-19 

Mine I.D. No. 26-02161 

ORDER OF TEMPORARY REINSTATEMENT 

The Secretary of Labor has applied for an order temporarily 

reinstating Applicant Martin L. Richardson to his former position 

with Respondent. 

The file reflects that on December 26, 1990, Respondent was 

served, by express mail, with a copy of the Secretary's application for temporary reinstatement. 

Respondent has not requested a hearing on the Secretary's 

application and more than 10 days has elapsed since Respondent 

received the application. 

Since no hearing has been requested, the Judge, pursuant to 

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

30 U.S.C. § 801, et ~, and Commission Rule 44, 28 C.F.R. 

§ 2700.44 as amended [51 F.R. 16033 <1986)] is required to immediately review the Secretary's application. -

On the basis of the contents of the file, if the Judge 

determines that the miner's complaint is not frivolously brought, 

he shall issue an order of temporary reinstatement. 

The file herein includes an Affidavit indicating Respondent 

did business and operated facilities in the production of sand 

and gravel and is, therefore, an operator within the meaning of 

Section 3Cd) of the Mine Act. 

The Affidavit further states as follows: 

At all times relevant, Applicant Martin L. Richardson was 

employed by F.K.C. as water haul truck operator at F.K.C. 's pit 

and was a miner, as defined by Section 3(g) of the Mine Act. 

30 7 
On August 8, 1990, an MSHA inspector was on the mine site to 

conduct a regular inspection. On that date, the inspector, after 

watching the truck in operation, questioned the Applicant about 

the condition of the brakes on the truck. The Applicant informed 

the inspector that the truck had no brakes, and he felt it was 

unsa to operate the truck without brakes. 

The operator was aware of the Applicant's protected activity 

because he was confronted by Richard Grant, a supervisor. Grant 

threatened the Applicant with discharge, if he spoke to an MSHA 

inspector again. 

The Applicant was laid f and ultimately fired after the 

truck he operated was removed from service for lack of brakeso 

Mine Management 1 s actions were motivated by the Applicant's 

protected activity. 

Discussion 

Based on the contents of the file, it is indicated that the 

Co~nission has jurisdiction to consider the request for temporary 

reinstatement. 

Further, talking to an MSHA inspector and informing him of 

the condition of the brakes on the truck was an activity protected under the Mine Act. 

In addition, Respondent took adverse action against Applicant in discharging him. 

Finally, the facts indicate Respondent's actions were motivated by Applicant's activity which was protected under the Mine 

Act. 

For the foregoing reasons, I conclude that the application 

filed herein was not frivolously brought. 

Accordingly, I.enter the following: 

ORDER 

The application for temporary reinstatement is GRANTED. 

2. Respondent is ORDERED to reinstate Applicant Martin L. 

Richardson to the position he held on August 8, 1990, at the same 

rate of pay and with the same equivalent duties that were 

assigned to him immediately prior to his discharge. 

308 
3. The undersigned Judge will retain jurisdiction of this 

case. 

4. The parties will be afforded an opportunity to be heard 

on the merits of any discrimination complaint hereafter filed 

herein. 

5. Correspondence was forwarded by the Judge's office to 

Martin L. Richardson at the address of 2316 Statz Street, North 

Las Vegas, Nevada 89030. The letter was returned indicating 

delivery had not been made. The envelope was marked "ATTEMPTED, 

NO'f KNOWN. 11 

An agent of Airborne Express also indicated to the Judge 

that they could not locate Mr. Richardson. 

Mr. Richardson also called the Judgevs office and stated 

that his telephone had been disconnected because he didnut have 

money to pay his telephone bill. 

In view of the above, a representative of the Secretary is 

directed to attempt personal service of this order to 

Mr. Richardson. 

ris 

ative Law Judge 

Distribution: 

Mr. Martin L. Richardson, 2316 Statz Street, North Las Vegas, NV 

89030 (Regular Mail) 

Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA ~2203 {Via Facsimile) 

Mr. Fred Knobel, President, F.K.C. INCORPORATED, 520 West Sunset 

Road No. 7, Henderson, NV 89015 (Airborne Express) 

/ek 

309 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 7 1991 

SECRETARY OF LABOR, CIVIL PENAL~Y PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 90-54 

Petitioner A.C. No. 44-00271-03571-A 

v. 

ROBERT V. SWINDALL, 

Employed by Clinchfield 

Coal Company, 

Respondent 

Moss No. 1 Prep Plant 

ORDER DENYING MOTION FOR SUMMARY DECISION 

PREHEARING ORDER 

On January 7, 1991, Respondent filed a motion for summary 

decision pursuant to 29 C.F.R. § 2700.64. Essentially, 

Respondent contends that the Secretary did not file a proposal 

for a penalty with the Commission within 45 days of the receipt 

by the Secretary of Respondent's notice of contest. The notice 

of contest was received by .the Secretary on August 31, 1990. 

On February 8, 1989, the Secretary issued a section 

104(d) (2) order to Clinchfield Coal Company alleging a violation 

of 30 C.F.R. § 75.200. In August 1990 (the letter is not dated), 

MSHA notified Respondent by mail that it determined that a civil 

penalty was warranted under Section llO(c) of the Act against 

Respondent on the ground that as an agent of Clinchfield Coal 

Company, he knowingly authorized,· ordered, or carried out the 

violation cited against Clinchfield. On August 18, 1990, 

Respondent signed a notice of contest and request for hearing 

with the Review Commission. This was received the Secretary on 

August 31, 1990. 

On October 3, 1990, the Secretary filed a Petition for 

Assessment of Civil Penalty entitled Secretary of Labor, Mine 

Safety and Health Administration v. Clinchfield Coal Company, 

Docket No. VA 90-54. Enclosed with the Petition was a notice of 

proposed assessment indicating a proposed penalty ~gainst 

Mr. Robert Vernon Sindell, employed by Clinchfield Coal Company. 

His address is given as P.O. Box 4100, Lebanon, Virginia 24266, 

which counsel for Respondent states is the Clinchfield corporate 

office address. A letter qated September 28, 1990 was also 

addressed to Mr. Robert Vernon Swindell at the Clinchfield 

corporate off ice informing him that a petition for a penalty has 

been filed and serving two copies on Mr. Swindell. 

310 
On November 5, 1990, Respondent filed a "conditional 

response" to the Petition. On November 5, 1990, Clinchfield Coal 

Company filed an Answer to the Petition in which it asserted that 

it was previously assessed a penalty for the alleged violation 

under section llO(a) of the Act, and that the proposed penalty 

was paid on April 21, 1989. On November 16, 1990, the case 

entitled Secretary of Labor, Mine Safety and Health 

Administration CMSHA) v. Robert Vernon Swindell, Employed by 

Clinchfield Coal Company, Docket No. VA 90-54 was assigned to me. 

A copy of the order of assignment was sent to Mr. Robert Swindell 

and to his attorney on the same date. 

On November 20, 1990, the Secretary filed a motion to amend 

her petition for assessment of civil penalty. In the motion, she 

stated that the petition "was sought in error against Clinchfield 

. • . (and) the Secretary intended to file against an individual 

pursuant to section llO(c) of the ••. Act. 11 The Secretary 

sought an amendment to the caption of the case to reflect that 

the Respondent is Robert v. Swindell, employed by Clinchfield 

Coal Company. The Secretary's amended petition seeks a civil 

penalty against Mr. Swindell because as an agent for the 

corporate mine operator (Clinchfield) he knowingly authorized, 

ordered, or carried out the violation for which Clinchfield was 

cited. 

On November 29, 1990, I granted the Secretary's motion to 

amend and granted Respondent 30 days from the date of service of 

the amended petition to file an answer. 

On December 2, 1990, Respondent filed a conditional Response 

to the motion to amend. on December 17, 1990, he filed copies of 

interrogatories which had been served by mail on the Solicitor 

December 14, 1990. on December 19, 1990, Respondent filed an 

answer to the amended Petition. On December 19, 1990, I issued a 

Prehearing Order, compliance with which was extended without date 

by order issued January 15, 1991. 

on January 7, 1991, Respondent (the corr~ct spelling of 

whose name is Robert Vernon Swindall) filed-his motion for 

summary decision, together with an affidavit of Robert Vernon 

Swindall and a memorandum in support of the motion. The 

Secretary filed a response to the motion on February 1, 1991. 

The motion for Summary Decision includes an affidavit from 

Mr. Swindall in which he contends that the delay in filing the 

petition prejudiced him in that (1) his attorney has been 

required to devote additional time to the legal issues involved; 

(2) the proceeding has been delayed, causing Swindall additional 

worry and concern; (3) bringing Clinchfield in the case 

heightened swindall's anxiety and concern; (4) Swindall has been 

having serious back trouble and has been off work on disability. 

311 
Respondent's memorandum states that the plant in which 

Swindall was employed (and in which the alleged violation 

occurred) has been shut down since April 5, 1989. It states that. 

the plant's work force was disbursed and "few, if any, of the 

plant's former workers are .now.employed by Clinchfield • . " It 

states that the steps involved in the citation have been 

physically deteriorating for approximately two years since the 

citation. These assertions were not controverted by the 

Secretary. 

The issues raised by the motion are multiple and complex: 

1. When was the section llO{c) proceeding before the Review 

Commission instituted against Respondent Swindall? 

2. When did Swindall receive.notice that a section llO(c) 

case was being filed against him? 

3o Was the case filed in time under Commission Rule 

20 C.F.R. § 2700.27(a)o 

4. If the case was not timely filed, did the Secretary show 

adequate cause for the late filing? 

5. If the case was not timely filedr was Swindall 

prejudiced by the date filing? 

I 

Obviously, when the Secretary commenced the proceeding 

entitled Secretary of Labor, Mine Safety and Health 

Administration v. Clinchfield Coal Company with a form petition 

not referring to Swindall or section llO(c), she did not 

institute a proceeding against Swindall, whatever her secret 

intention. I conclude that the case against Swindall was 

commenced when the secretary filed her Motion to Amend on 

November 20, 1990. 

II , 

Respondent was notified in August 1990, that the Secretary 

intended to file a Petition for penalty against him under section 

llO(c). He signed and submitted a notice of contest and request 

for hearing on August 18, 1990. Therefore, he was on notice of 

the Secretary's intention as of August 1990. 

III 

Section 105 of the Act covers the enforcement procedure for 

mine operator violations. ·rt gives the operator 30 days from the 

date of notification of a proposed penalty assessment to notify 

the Secretary that he wishes to contest the assessment. When 

312 
such a notice of contest is filed, the Secretary is required to 

"immediately advise the Commission of such notification ••• " 

Section llO(c) which provides for penalties against agents of 

corporate operators does not set out any procedures for its 

enforcement, but provides that an agent who knowingly authorized, 

ordered or carried out the violation of the corporate operator is 

subject to the same penalties as the operator. 29 C.F.R. 

§ 2700.27 requires that "within 45 days of receipt of a timely 

notice of contest (or] a notification of proposed assessment of 

penalty, the Secretary shall file a proposal for a penalty with 

the Commission." This procedural rule applies to "the operator 

or any other person against whom a penalty is proposed . 11 

§ 2700.25. 

The Secretary did not file a proposal for a penalty against 

Swindall within 45 days of the receipt of a timely notice of 

contest. In fact, it was not filed until more than 30 days after 

the expiration of the 45 day period. 

The Commission addressed the question of the Secretary s 

late filing of a penalty petition in Salt Lake County Road 

Department, 3 FMSHRC 1714 (1981). The Commission held, inter 

alia, that if the Secretary seeks permission to file late (under 

Rule 9), (she] must predicate (her] request upon adequate cause< ai 

Id., 1716. In this case the Secretary did not seek permission to 

file late, nor did she establish adequate cause~ she merely 

states that the original petition was filed in error and that she 

"moved to correct the error as soon as she became aware of the 

problem." Sloppiness in preparing pleadings hardly qualifies as 

adequate cause. 

In the Salt Lake County Road Department decision, supra, the 

Commission also held that 11 an operator may object to a late 

penalty proposal on the grounds of prejudice." This was said to 

be based on the administrative law principle that "substantive 

agency proceedings, and effectuation of a statute's purpose, are 

not to be overturned because of a procedural error, absent a 

showing of prejudice." Has Respondent Swindall shown prejudice 

in this case? 

The facts that the delay caused emotional distress to 

Respondent, and required additional legal work to address the 

legal issues related to the filing delay do not constitute 

prejudice in a legal sense. The assertions that the delay 

resulted in witnesses being "disbursed", memories fading and the 

deterioration of the physical condition of the area of the 

alleged violation, raise more substantial questions. The alleged 

violation occurred on February a, 1989. In August 1990, more 

than one and a half years later, the Secretary notified Swindall 

that she intended to proceed against him under section llO(c). 

No explanation has been advanced by the Secretary for such an 

extraordinary delay. The Secretary's argument that the lapse of 

313 
time prejudices the Secretary as much as it prejudices Respondent 

is disingenuous. The delay is the Secretary's, and one should 

not have to defend stale claims. However, the delay from 

February 1989 to August 1990 is not the delay for which the 

instant motion is filed, but rather the delay in filing a penalty 

petition with the Commission after the notice of contest was 

received by the Secretary. There is no evidence or any serious 

assertion that the delay from October 15, 1990 to 

November 20, 1990, in itself, caused prejudice to Respondent 

which would handicap him in presenting his defense. I conclude 

that the delay in filing the action before the Commission, i.e., 

more than 45 days after Respondent served his notice of contest 

is not shown to have prejudiced Respondent and does not "justify 

the drastic remedy of dismissal." Salt Lake county, supra, at 

p. 1717. 

ORDER 

Accordingly, the Motion Summary Decision is DENIEDo 

The parties are FURTHER ORDERED to comply with the 

prehearing order of December 19, 1990: Paragraph 1 on or before 

February 25, 1991; paragraph 2 on or before March 15, 1991, and 

inform me of inappropriate hearing dates in April or May 19910 

/) ' : . ; Ii I . 1

0{, 1i t...'. ~ /~1'J' o CI.:·.,:.~<~·~(:_, ' James A. Broderick 

· Administrative Law Judge 

Distribution: 

Lisa A. Gray, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

W. Challen Walling, Esq., Penn, Stuart, Es_kridge and Jones, 306 

Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203 (Certified 

Mail) 

314 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 20· 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TOLER CREEK ENERGY, 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-30 

A. C. No. 15-15509-03532 

No. 2 Mine 

ORDER DENYING MOTION TO DISMISS 

ORDER ACCEPTING LATE FILING 

ORDER OF ASSIGNMENT 

This case is pending before me on the operator's motion to 

dismiss. 

on October 25, 1990, the Commission received the operator 1 s 

blue card requesting a hearing. 

Thereafter, on December 3, 1990, the Solicitor fi~ed a 

motion to dismiss a penalty proposal in this docket number with 

respect to Elite Mining Company. The Solicitor advised that this 

petition had been filed on November 16, 1990. However, the 

Commission had no record of receiving a penalty proposal regarding Elite. At the request of my law clerk, the Solicitor forwarded that proposal which was received on January 14, 1991. on 

January 17, 1991, I entered an order dismissing this docket 

number with respect to Elite. 

Meanwhile on January 10, 1991, a penalty-proposal was filed 

under this docket number against Toler creek. on January 28, 

1991, the operator filed a motion to dismiss based upon the 

Solicitor's failure to file the proposal within the required 45 

days. 29 C.F.R. § 2700.27(a). on February 5, 1991, the Solicitor 

opposed dismissal and moved to have the late filed petition 

accepted. The Solicitor referred to the confusion arising from 

the initial involvement of an unrelated operator in this docket 

number and represented that the delay in filing the petition 

against Toler was due to clerical error and was not for dilatory 

purposes. By letter filed February 6, 1991, the operator again 

sought dismissal. 

There is no dispute that the Secretary's penalty proposal 

was filed 71 days late. However, the operator's motion is 

without merit. The Commission's decision in Salt Lake County 

Road Department, 3 FMSHRC 1714 (1981), relied upon by the operator does not support its position. In that case the Commission 

315 
found that clerical problems constituted good cause for the delay 

and noted that at that time the Secretary was engaged in voluminous litigation. In the instant matter, confusion with the two 

operators occurs at a time when cases filed with the commission 

are once again increasing. In FY 1987 there were 1,579 new 

filings; in FY 1988, 1,800; in FY 1989, l,889; in FY 1990, 2,029; 

and 873 for the first third of FY 1991. An increased case load 

is not a blanket excuse for not meeting filing deadlines, but it 

is a relevant factor that may be considered. Finally, and 

perhaps most importantly, the operator here has not shown any 

prejudice. Under the circumstances, I conclude that good cause 

existed to justify the late filing. 

In light of the foregoing, it is ORDERED that the operator 1 s 

motion to dismiss be and is hereby DENIED. 

It is further ORDERED the Solicitor 1 s motion to accept the 

late filing of the penalty proposal be and is hereby GRANTEDo 

It is further ORDERED that this case be and is hereby 

assigned to Administrative Law Judge James A. Broderick. 

All future communications regarding this case should be 

addressed to Judge Broderick at the following address~ 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6220 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Mary Sue Taylor, Esq., Office of the Solicitor, U. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P. o. 

Box 553, Charleston, WV 25322 (Certified Mail) 

/gl 

316