FEBRUARY 1993 

COMMISSION DECISIONS AND ORDERS 

02-01-93 C G & G Trucking, Inc. 

02-04-93 Sec. Labor on behalf of Donald Bowling v. 

Perry Transport, et al. 

02-22-93 Little Rock Quarry Company, Inc. 

02-25-93 Brown Brothers Sand company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-04-93 

02-08-93 

02-08-93 

02-10-93 

02-12-93 

02-16-93 

02-16-93 

02-18-93 

02-19-93 

02-19-93 

02-19-93 

02-19-93 

02-19-93 

02-19-93 

02-22-93 

02-23-93 

02-23-93 

02-23-93 

02-23-93 

02-23-93 

02-23-93 

02-2'-1-93 

02-24-93 

02-24-93 

02-26-93 

Costain Coal, Inc. 

Consolidation Coal COmpany 

GFD construction Company,'Inc. 

Island Creek Coal Company 

Sec. Labor on behalf of Clayton Nantz 

v. Nally & Hamilton Enterprises 

Donald Porter v. North Star Contractors 

Denver Collins v. Andalex Resources, Inc. 

Consolidation Coal Company 

Harlan-KYVA Coal, Inc. 

Basin Asphalt Company 

Basin Asphalt Company 

Montana Resources 

Kern Rock Company 

K Y V Coal Company, Inc. 

Costain Coal Incorporated 

Sec. Labor on behalf of Robert Teaney 

v. Black Mountain coal Mining Inc. 

James Kosiba employed by Rensselaer 

Stone Company, Inc. 

,j-efferson !Vlaterials Company 

Irene Toney v. IMC Fertilizer 

Baxter R. Neece 

Western Sand & Gravel 

stephen D. Jungers v. U.S. Borax 

Western Sand & Gravel 

Consolidation coal Company 

Conn Pest Control Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

02-05-93 

02-12-93 

02-17-93 

02-18-93 

UMWA, Local 1588 v. Consolidation Coal 

Virginia Crews Coal Company 

Maple Meadow Mining Company 

Concrete Materials 

KENT 92-574 

KENT 92-1052-D 

CENT 92-202-M 

SE 92-84-M 

KENT 

WEVA 

SE 

VA 

KENT 

KENT 

KENT 

PENN 

KENT 

WEST 

WEST 

WEST 

WEST 

WEVA 

KENT 

92-332-R 

92-816 

92-61-M 

92-138 

92-259-D 

93-60-D 

92-877-D 

92-445 

92-226 

92-586-M 

92-587-M 

92-686-M 

93-9-M 

92-1103 

92-452 

KENT 92-867-D 

LAKE 

LAKE 

SE 

VA 

WEST 

WEST 

WEST 

WEVA 

WEST 

92-454-M 

93-40-M 

92-318-DM 

92-187 

92-524-M 

92-226-DM 

92-511-M 

93-29-R 

92-563 

WEVA 92-1006-C 

WEVA 92-714 

WEVA 92-1025 

CENT 92-358-M 

Pg. 193 

Pg. 196 

Pg. 201 

Pg. 203 

Pg. 205 

Pg. 214 

Pg. 223 

Pg. 236 

Pg. 237 

Pg. 254 

Pg. 257 

Pg. 263 

Pg. 273 

Pg. 275 

Pg. 276 

Pg. 277 

Pg. 278 

Pg. 279 

Pg. 280 

Pg. 282 

Pg. 286 

Pg. 287 

Pg. 288 

Pg. 296 

Pg. 298 

Pg. 300 

Pg. 312 

Pg. 313 

Pg. 329 

Pg. 331 

Pg. 333 

Pg. 335 

Pg. 337 

FEBRUARY 1993 

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

Secretary of Labor, MSHA v. c G & G Trucking, Docket No. KENT 92-574. 

Judge Merlin, Default Order of November 19, 1992 - unpublished) 

(Chief 

Secretary of Labor, MSHA v. Pittsburg & Midway Coal Mining Company, Docket Nos. 

CENT 91-196, CENT 91-197, CENT 91-202. (Judge Morris, November 27, 1992) 

Secretary of Labor, MSHA v. Allan Goode, Docket No. WEVA 91-2096. (Judge Fauver, 

December 29, 1992) 

Secretary of Labor, MSHA v. Rhone-Poulenc of Wyoming Company, Docket No. 

WEST 92-519-M. (Judge Morris, December 28, 1992) 

Secretary of Labor, MSHA v. Davis ~~oulders, employed by Pyro Mining Company, 

Docket No. KENT 92-17. (Judge Barbour, December 29, 1992) 

Secretary of Labor, MSHA v. American Mining Services, Inc., Docket Nos. 

WEST 91-563, WEST 91-624. (Judge Morris, December 30, 1992) 

Secretary of Labor, MSHA v. Little Rock Quarry Company, Inc., Docket Nos. 

CENT 92-202-M, CENT 92-204-M, CENT 92-205-M. (Judge Lasher, January 15, 1993) 

Review was not granted in the following case during the month of February: 

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. SE 92-84-M. 

(Judge Barbour, December 11, 1992) 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CG&G TRUCKING, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

1, 1993 

Docket No. KENT 92-574 

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

ORDER 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"). Chief Administrative 

Law Judge Paul Merlin issued an Order of Default on November 19, 1992 to CG&G 

Trucking, Inc. ("CG&G") for failure to answer the Secretary of Labor's 

proposal for penalty and the judge's subsequent order to show cause. The 

judge assessed a civil of $400 as proposed by the Secretary. On 

December 28, 1992, the Commission received a letter from CG&G dated December 

19, reques that the Commission vacate the default order. In support of 

its request, CG&G states that, in response to the Secretary's notification of 

proposed penalty, it filed a "Blue Card" request for a hearing but heard 

nothing further about the matter until it received the default order. For the 

reasons that follow, we reopen this proceeding, vacate the default order, and 

remand this case for further proceedings. 

It appears from the record that CG&G, a small operator acting without 

counsel, filed a Blue Card request for a hearing in this matter in response to 

the Secretary's notification of proposed assessment of penalty. However, CG&G 

did not file an answer to the Secretary's subsequent proposal for penalty as 

was required in order to contest that penalty proposal. See 29 C.F.R. § 

2700.28. Accordingly, on September 10, 1992, Judge Merlin issued an Order to 

Respondent to Show Cause, directing CG&G to file an answer or be found in 

default. CG&G did not respond to the show cause order, which was returned to 

the Commission unclaimed. 

Under the Mine Act and the Commission's procedural rules, relief from a 

judge's decision may be sought within 30 days of its issuance by filing a 

petition for discretionary review with the Commission. 30 U.S.C. 

§ 823(d)(2)(A); 29 C.F.R. § 2700.70(a). CG&G did not file a timely petition 

for discretionary review within the 30-day period, nor did the Commission 

193 
direct review on its own motion. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's 

order became a final decision of the Commission 40 days after its issuance. 

30 u.s.c. § 823(d)(l). 

Under these circumstances, we deem CG&G's letter of December 19 to be a 

request for relief from a final Commission decision and to incorporate a latefiled petition for discretionary review. See J.R. Thompson, Inc., 12 FMSHRC 

1194, 1195-96 (June 1990). Relief from a final Commission judgment or order 

on the basis of mistake, inadvertence, surprise or excusable neglect is 

available to a party under Fed. R. Civ. P. 60(b)(l). See 29 C.P.R. 

§ 2700.l(b)(Federal Rules of Civil Procedure apply, "so far as practicable" 

and "as appropriate," in absence of applicable Commission rules). See,~. 

Danny Johnson v. Lamar Mining Co., 10 FMSHRC 506, 508 (April 1989). See also 

Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991). 

The Commission has indicated that "under appropriate circumstances, a 

genuine problem in communication or with the mail may justify relief from 

default." Middle States Resources, Inc., 10 FMSHRC 1130, 1131 (September 

1988), quoting Con-Ag, Inc., 9 FMSHRCH989, 990 (June 1987). See also Ten-ACoal Company, 10 FMSHRC 1132, 1133 (September 1988). The record does not 

contain sufficient information to permit us to rule with respect to CG&G's 

claim. CG&G has, however, offered a cognizable explanation of its failure to 

respond to the judge's show cause order. In the interest of justice, we will 

permit CG&G the opportunity to present its position to the judge, who shall 

determine whether final relief from default is appropriate under the 

circumstances presented. Cf. Perry Drilling Co., 9 FMSHRC 379, 380 (March 

1987). 

Accordingly, we reopen this matter, vacate the judge's default order, 

and remand this matter for proceedings consistent with this order. CG&G is 

reminded to serve counsel for the Secretary with copies of its filings in this 

proceeding. 29 C.F.R. § 2700.7(a). 

Arlene Holen, Chairman 

tf~/</[~{_·/\dc, , 

Richard V. Backley, CommissioneF 

194 
Distribution 

Curtis Gayheart 

C G & G Trucking, Inc. 

HCR 60, Box 1810 

Pine Top, Kf 41843 

Darren L. Courtney, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

Chief Administrative Law Judge Paul Merlin 

Federal Hine Safety & Health Review Co!Tli!lission 

1730 K Street, N.J., Suite 600 ·· 

Washington, D.C. 20006 

195 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N. W., SIXTH FLOOR 

WASHINGTON, D.C. 20006 

February 4, 1993 

SECRETARY OF LABOR, on behalf 

of DONALD BOWLING, 

Complainant 

and 

DONALD BOWLING, 

Intervenor 

v. 

PERRY TRANSPORT, INC., a 

corporation; STEVIE CALDWELL 

TRUCKING, INC., a corporation; and 

STEVIE CALDWELL, an Individual, 

Respondents 

lllECISION 

Docket No. KENT 92-1052-D 

in this discrimination proceeding ansmg under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. Sec. 801 et seq. (1988) (

11 the Mine Act11 ), respondents Perry 

Transport, inc., Stevie Caldwell Trucking, line., and Stevie Caldwell have filed a petition 

fr'or review of Administrative JLaw Judge William Fauver's December 28, 1992, order of 

ttemporary reinstatement issued pursuant to Commission Procedural Rule 44, 29 C.F.R. 

Sec. 2700.44 (1986). We grant respondents' petition for review and, for the reasons that 

follow, affirm the judge1s order requiring the temporary reinstatement of Donald Bowling. 

Complainant Donald Bowling was employed by Stevie Caldwell Trucking, Inc., as 

a truck driver from February 1990 to February 7, 1992, when his employment terminated. 

196 
On April 13, 1992, Bowling filed a discrimination complaint with the Secretary of 

Labor (Secretary) pursuant to Sec. 105(c)(2) of the Mine Act.l/ Following an investigation, 

the Secretary determined that the discrimination complaint filed by Bowling was not 

frivolous. On September 15, 1992, the Secretary filed an application for temporary 

reinstatement. On October 20, 1992, an evidentiary hearing on the application for 

temporary reinstatement was held. Sixty-nine days later, 'Z_/ on December 28, 1992, the 

judge issued his decision concluding that the complaint was not frivolous. 

The Secretary and intervenor Donald Bowling allege that Bowling was discharged 

from his job in retaliation for reporting safety violations to the Mine Safety and Health 

Administration (MSHA) on two separate occasions. Respondents contend that Bowling 

was not discharged and that he voluntarily terminated his employment. 

As we have previously stated, "the scope of a temporary reinstatement hearing is 

narrow, being limited to a determination by the judge as to whether a miner's 

discrimination complaint is frivolously brought." Secretary of Labor o.b.o. Price and 

Vacha v .. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987), aff'd, Jim 

Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). 

11 Respondents seek now to challenge Bowling's discrimination complaint on the 

additional ground that it is time barred. This issue was not raised before the judge. The 

typewritten discrimination complaint attached to the Secretary's application for temporary 

!reinstatement is signed by Donald Bowling and dated April 13, 1992. Thus, the complaint 

wouid appear ~o have been filed six days beyond the sixty day statutory time period for 

such filing. However~ in response to this challenge, the Secretary has furnished a copy of 

&wiing 1s handwritten discrimination complaint, signed by Donald Bowling and dated 

April 2, 1992, which the Secretary maintains was submitted timely. (Exhibit B, Response 

nn Opposition to Petition for Review) Because the judge has not had an opportunity to 

]!»ass on this issue~ we decline to ruie on 

21 While we recognize that each case is unique, we perceive no basis in this record for 

the protracted delay and failure to adhere to Rule 44(d), which requires that "Within 5 

days following the dose of a hearing on an application for temporary reinstatement the 

JJudge shaH issue an order granting or denying the application." 

197 
After conducting an evidentiary hearing and considering the testimony of the 

complainant and two witnesses for the respondents, the judge concluded: 

Slip op. at 3. 

The hearing evidence shows a sharp dispute of the facts 

concerning the termination of Mr. Bowling's employment . 

. . . I do not find that Mr. Bowling's testimony is so 

incredible or unworthy of belief as to amount to a 

"frivolous" complaint. 

I therefore conclude that the special concern Congress has 

shown to require temporary reinstatement of a miner 

unless his claim is frivolous requires temporary reinstatement 

in this case. 

After careful review of the evidence and pleadings, we conclude that the judge's 

determination that the complaint is not frivolous is supported by the record and is 

consistent with applicable law. The only issue before us is whether Bowling's 

discrimination complaint was frivolously brought. We intimate no view as to the ultimate 

merits of this case. J./ 

Respondents have additionally requested that we "stay the effect of the decision of 

the Administrative Law Judge pendente lite." Petition at 4. To the extent that 

respondents sought relief pending our consideration of the instant matter, their motion 

was considered and is denied. To the extent that respondents seek a stay of the temporary 

reinstatement order pending a final determination of whether a violation of Section 

JWS(c)(l) l[)llf lthe Mine Ad has occurred, their motiorn us denied. Absent some 

extraordinary drcumstance, yet ~o be advancec:ll, ~he granting olf such a motion would 

eviscerate the temporary reinstatement provision of the Mine AcL 

'!1_1 No other issues raised by respondents, including the judge's back-pay order 9 are 

lfnnal and 1 thus, they are not before the Commission at this time. 

198 
Accordingly, the judge's order requiring the temporary reinstatement of Donald 

Bowling is affirmed. 

199 
Distribution: 

Sara Walter Combs, Esq. 

P.O. Box 828 

Stanton, KY 40380 

C.A. Noble, III, Esq. 

3231 Combs Ferry Road 

Lexington, KY 40509 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

630 Maxwelton Court 

Lexington, KY 40508 

Stanley R. Geary, Esq. 

Buchanan Ingersoll 

58th Floor 

600 Grant St. 

Pittsburgh, PA 15219 

Stephen D. Turow, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

falls Church, VA 22041 

200 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

LITTLE ROCK QUARRY COMPANY, 

INCORPORATED 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 22, 1993 

Docket Nos. CENT 92-202 M 

CENT 92-204-M 

CENT 92-205-M 

BEFORE; Holen, Chairman; Backley, Doyle; andNelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine Safety and 

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

Law Judge Michael A. Lasher, Jr., issued a Decision and Order of Dismissal on 

January 15, 1993, (the "Dismissal Order") as a result of the Secretary's failure 

to show good cause why he failed to comply with the judge's Prehearing Order of 

September 14, 1992. 

On January 27, 1993, the Secretary filed with the judge a motion for 

reconsideration, which was forwarded to the Commission by the judge and received 

on February 4, 1993. As grounds for reconsideration of the Dismissal Order, the 

Secretary stated that the parties had "informally settled" the case on January 

12, 1993, three days prior to the Dismissal Order. 

The judge's jurisdiction over this matter terminated with the issuance of 

the Dismissal Order. 29 CFR § 2700.65(c). The judge therefore could not have 

entertained a motion for reconsideration. Under the Mine Act and the 

Commission's procedural rules, relief from a judge's decision may be sought by 

a petition for discretionary review with the Commission within thirty days 

of the judge's decision. 30 U.S.C § 823 (d)(2); 29 CFR § 2700.70(a). The 

Secretary's motion for reconsideration seeks relief from the judge's dismissal 

of the case. We will, accordingly, treat it as a timely petition for 

discretionary review of the judge's Dismissal Order. ~. Middle States 

Resources, 10 FMSHRC 1130 (September 1988). 

We are unable to evaluate the merits of the Secretary's pleading on the 

basis of the present record. Therefore, we will afford the Secretary the 

201 
opportunity to present his position to the judge, who will take such action as 

he deems appropriate. 

Accordingly, we grant the Secretary's petition for discretionary review, 

vacate the Dismissal Order, and remand the matter for proceedings consistent with 

this order. 

Distribution 

Michael H. Olvera 

Office of the Solicitor 

U.S. Department of Labor 

525 Griffin St., Suite 501 

Dallas, TX 75202 

Mr. Ike Carter, Jr., President 

Little Rock Quarry 

P.O. Box 548 

Benton, AR 72015 

Arlene Holen, Chairman 

y~ec:::~~ 

~air Nelson, Commissioner 

Administrative Law Judge Michael A. Lasher, Jr. 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Boulevard 

Denver, CO 80204 

202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 25, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BROWN BROTHERS SAND COMPANY 

BY THE COMMISSION: 

Docket No. SE 92-84M 

ORDER 

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 December 11, 1992, Administrative Law Judge David 

F. Barbour issued a decision finding two violations of the Mine 

Act. On February 1, 1993, the Commission received a letter from 

Brown Brothers Sand Company ("Brown 11 ) challenging the judge's 

findings of violations. The Mine Act, 30 u.s.c. § 823 (d) (2) (A) 

(i), and Commission Procedural Rule 70, 29 C.F.R. 2700.70, require 

that petitions for discretionary review be filed within 30 days 

after issuance of the judge 1 s decision, in this instance by January 

lp 1993. The letter from Brown states that the writer, Carl 

Brown, was aware the 30-day ·time limit to appeal but that he 

"deliberately waited past this deadline." 

The Commission has entertained late-filed petitions for 

discretionary review in appropriate circumstances. Such relief is 

evaluated on a case-by-case basis. We have looked to the Federal 

Rules of Civil Procedure for guidance in such matters. 29 C.F.R. 

§ 2700.l(b). Federal Rule 60(b) (1) provides relief from a final 

judgment on the basis of inadvertence, mistake, surprise, or 

excusable neglect. M.M. Sundt Constr. co., 8 FMSHRC 1269, 

1270-71 (September 1986}; Kelley Trucking Company, 8 FMSHRC 1867 

(December 1986); A.H. Smith Stone Company, 11 FMSHRC 796 (May 

1989). 

1.1 If the last day for filing falls on a Saturday, Sunday or 

holiday, the filing date is extended to the following non-holiday 

weekday. See Gravely v. Ranger Fuel Corp., 4 FMSHRC 799 (April 

1984) • 

203 
Brown's admittedly deliberate late filing does not meet the 

criteria of Rule 60(b) (1). Accordingly, we deny Brown's petition. 

Distribution 

Carl Brown 

Brown Brothers Sand Company 

P.O. Box 22 

Howard, Georgia 31039 

Michael Hagan, 

Office of the Solicitor 

U.S. Department of Labor 

1371 Peachtree St., NE 

Room 339 

Atlanta, GA 30367 

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

J~¥t:tfay& ~er 

L. 

~~/ Clair Nelson, Commissioner 

Administrative Law Judge David Barbour 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

204 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

COSTAIN COAL, INC., 

Contestant 

v. 

SECRETARY OF LABOR1 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)v 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COSTAIN COALu INC.v 

Respondent 

)i)ECISION 

CONTEST PROCEEDING 

Docket No. KENT 92-332-R 

Citation No. 3550973; 

2/11/92 

Baker Mine 

Mine ID 15-14492 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 92-412 

A. C. No. 15-13920-03736 

Docket No. KENT 92-450 

A. C. No. 15-13920-03730 

Docket No. KENT 92-451 

A. C. No. 15-13920-03731 

Pyro No. 9 Wheatcroft Mine 

Docket No. KENT 92-413 

No. -14492-03602 

Baker Mine 

Appearances~ ::arl • Boyd g JTr. • r Henderson 9 Kent:ucky v for 

·the Operator 'Q 

Mary Sue Taylor 9 Esq. Office of the Solicitor~ 

s. Department of Labor, Nashvi , Tennesseeu 

t:he Secretary. 

Before~ Judge Maurer 

STATEMENT OF THE CASE 

Contestant, Costain Coal, Inc. (Costain}, filed a Notice of 

Contest challenging the issuance of citation No. 3550973 at its 

Baker Mine (Docket No. KENT 92-332-R). The Secretary of Labor 

205 
(Secretary) subsequently filed a petition seeking a civil penalty 

of $50 for the violation charged in that contested citation 

(Docket No. KENT 92-413). 

Pursuant to a notice of hearing, these two cases were 

consolidated for hearing and decision with three other costain 

civil penalty cases from a different mine and were heard on 

October 14, 1992, in Owensboro, Kentucky. 

At that hearing, the parties proposed to settle the majority 

of the citations pertaining to the Pyro No. 9 Wheatcroft Mine. 

In Docket No. KENT 92-412, there was a single section 104{a) 

citation; citation No. 3553122 charged a violation of 30 C.F.R. 

§ 75.316 and the Secretary originally proposed a $276 penalty. 

The parties now propose to settle this case with the payment of a 

$50 civil penalty. In Docket·No. KENT 92-450, the parties 

propose to settle 9 out of the 10 section 104(a) citations 

included: 

CITATION NO. 30 C. F. R. SECTION ASSESSED PROPOSED 

3549963 75.1725 $178 $ 50 

3549764 75.316 276 276 

3549765 75.316 276 50 

3549767 75.316 20 20 

3549961 75.1403-5(g) 178 50 

3550236 75.1403-5(g) 63 50 

3546406 75.220 311 50 

3546407 75.316 213 213 

3549768 77o408 178 178 

In Docket No. KENT 92-451ff The parties propose to settle all four 

of the included citations on the following basis: 

CITATION NO. 3\0 C.F.R. SECTION ASSESSED PROPOSED 

3549771 75.400 $192 $135 

3549964 75.316 178 178 

3546409 75.220 178 50 

3549973 75.316 311 311 

Based on the representations of the parties and the trial 

testimony, I conclude that the proffered settlement is 

appropriate under the criteria contained in section 110(i) of the 

Mine Act. The financial terms of this settlement agreement will 

be factored into my order at the end of this decision. 

206 
There remained for my decision at the conclusion of the 

hearing, two section 104(a) citations: Citation No. 3550973; 

contested in Docket No. KENT 92-332-R and assessed in Docket No. 

KENT 92-413, and Citation No. 3549766, assessed in Docket No. 

KENT 92-450. 

Both parties subsequently briefed the issues concerning the 

aforementioned two citations and I have considered those along 

with the entire record herein. I make the following decision. 

DISCUSSION AND FINDINGS 

I. Docket No. KENT 92-332-R: KENT 92-413: Citation 

No. 3550973 

Citation No. 3550973, issued pursuant to section 104(a) 

of the Act, alleges a violation of the mandatory standard at 

30 C.F.R. § 75.316 and charges as follows: 

A review of the currently approved Methane and 

Dust Control Plan for this mine dated October 21, 1992 

(sic) and a resubmittal dated January 15 9 1992 revealed 

some deficient provisions. Letters dated December 19, 

1991 and January 16, 1992 were mailed to and received 

by the operator requesting that these deficiencies be 

corrected and to include them in an amended plan. In 

the letter to the operator dated January 16, 1992 the 

operator was advised that failure to comply with the 

requests would result in revocation of the Methane and 

Dust Control Plan in present form. As of this date 

the requested corrections have not been included in an 

amended plan. mine is now operating without an 

approved Methane and Dust Control Plan. 

In a nutshellif Costain is charged with operating without an 

approved methane and dust control plan for the Baker Mine at 

least as 0715 9 February 11u 1992. Of courseu it not quite 

that simple. Costain had submitted a plan for the Baker Mine for 

approval back on July 2u 1991. The company was notified by the 

District Manager on October 2lu 1991u that the submitted plan had 

been reviewed and had met review criteria. Tentative approval of 

the plan was granted at that time until such later time as an onsite plan review could be conducted by MSHA. The operator was 

also notified at this time that: "Should any significant 

deficiencies be detected in the Methane and Dust control Plan 

during an inspection or investigation, this approval may be 

revoked and a revised plan shall be required." 

207 
The on-site plan review was completed by MSHA on December 9, 

1991. On December 19, 1991, the District Manager notified the 

company that the plan submitted by them on July 2, 1991, no 

longer met review criteria. The letter further advised that the 

plan needed to be revised by the inclusion of three items that 

were unrelated to dust control (and thus to the case at bar) • 

Costain submitted a revised plan dated January 15, 1992 that 

created a new problem which became the focus of this case, and 

approval of the revised plan was deniedo The letter to Costain 

from the District Manager dated January 16, 1992, stated in 

pertinent part as follows: 

Your statements under (active working sections) P. 3/4 

item (h) "calcium chloride or water with wetting agent 

shall be applied as neeciedto haulage roads and supply 

roads to maintain respirable dust at 2 MG/M3 or less 

except for roadways in intake airways within 200 feet 

outby the working faces which will be treated as needed 

to maintain respirable dust to 1 MG/M3 or less" and 

under (areas other than active working sections), 

Page 2 item 4, "water with wetting agent or calcium 

chloride shall be applied as needed to maintain 

respirable dust to 2 MG/M3 or less except for haulage 

ways in intake airways within 200 feet outby the 

working faces which will be treated as needed to 

maintain respirable dust to 1 MG/M3 or less", are 

unacceptable because they cannot be routinely checked 

during t:he s :month reviev.r" 

District Manager further advised by that January 16, 

1992 letter that Costain had 10 days after receipt of this latest 

disapproval within which to submit a plan suitable for approval. 

He further emphasized to the company that failing to submit such 

an approvable plan would result in the revocation of their 

present plan and would place them the position of operating 

without an approved Methane and Dust Control Plan. He warned that~ Qijoperating after the revocation date is a violation of the 

standard requiring an approved plano oc 

Costain 5 for its partv admits that at the moment the 

citation was issued on February 11, 1992, it was, in fact 1 

operating without an approved plan. But, Costain disputes that a 

violation occurred, in any event, because they argue the plan 

which had been submitted to the District Manager was a valid and 

acceptable plan which should have been approved. Costain urges 

that the District Manager 1 s refusal to approve the plan was an 

abuse of discretion and the citation should therefore be vacated. 

208 
MSHA personnel had several discussions with Costain 

management between January 16, 1992, and February 11, 1992, 

concerning plan language that the District Manager would approve. 

In fact, Costain was expecting and perhaps welcomed the citation 

when it finally came on February 11. A plan which contained 

acceptable language was submitted within 30 minutes after the 

citation at bar was issued. It was given final approval by the 

District Manager on February 12, 1992. This plan, as finally 

revised and approved, simply stated that: "Water with wetting 

agent or calcium chloride shall be applied as needed to control 

the dust." This simple provision replaced the unacceptable 

language in both of the two virtually identical paragraphs quoted 

above from the District Manager's January 16 letter. 

The Secretary justifies her insistence on this substituted 

language on the principle that MSHA policy requires that all plan 

language be enforceable using current technology. For 

enforcement purposes, MSHA cannot at this time take an 

instantaneous or "snapshot" measurement of the dust level in a 

specific area. The substituted provision, on the other hand, 

does not require a dust sample (which could take a one to five 

day period to obtain) before a violation of the provision could 

be issued. And, of course, once the sampling process was 

underway, the operator would be aware and could easily take 

extraordinary steps, such as constant watering of the roadway 

being tested, to skew the result. 

Howeverv it is also true, as the operator complains, that 

of provision is totally subjectivev without any 

standards or bench marks to measure the inspector 0 s 

againsto At what point does the roadway become too 

dusty? what point is the dust not under control? Howeverv 

having said this, I would note that the regulatory standards in 

the mining industry are replete with examples of subjective 

prescriptions and proscriptions and I believe that experienced 

coal mine inspectors as well as certified coal mine examiners and 

foremen can adequately and fairly evaluate the condition of 

roadways based on their many years of experience to determine 

the roadways are sufficiently treated to control the dust. 

Citation No. 3550973 was issued only after a long process of 

negotiation concerning the dust control plan at this mine. I am 

satisfied that MSHA and Costain had an adequate opportunity to 

discuss the various provisions of the plan and propose language 

that might be acceptable to both parties. The failure of Costain 

to incorporate a dust control provision acceptable to the 

District Manager into their proposed plan within a reasonable 

amount of time inevitably led to the citation which was issued in 

this case. I understand the operator's concern, but, in the end, 

209 
I concur with the Secretary that public policy requires that any 

provision included in an MSHA-approved plan be enforceable. If 

it is not, it is worse than useless. 

The plan language finally approved by MSHA simply requires 

the mine operator to take steps to allay the dust which is 

created on dry underground roadways. It is relatively easy to 

comply with or to enforce, if necessary. Therefore, I find 

MSHA's District 10 Manager to have operated well within the 

bounds of his discretionary authority to approve/disapprove dust 

control plans in this instance. 

Accordingly; since Costain was admittedly operating without 

an approved plan, Citation No. 3550973 IS AFFIRMED, the 

operator~s contest of the same IS DENIED and a civil penalty of 

$50 will be ordered, as originally proposed by the Secretary. 

II. Docket No. KENT 92-450: Citation No. 3549766 

Citation No. 3549766 1 issued pursuant to section 104(a) of 

the Mine Actu alleges a violation of 30 C.F.R. § 75.316 and 

charges as follows: 

Water or calcium chloride has not been applied to 

the supply road to the #4 unit ID-004 1st East off 2nd 

M. North for a distance of 1,000 ft. Roadway dust was 

observed in suspension creating a hazy condition 

against a lighted background. 

The approved Methane and Dust. Plan for the Pyro 

Wheatcroft Mine at the \::.irne instant citation was issued 

contained a provision substantially similar to that finally 

approved in the plan discussed in Section I of this decision. 

Essentially" costain charged with having failed to 

sufficiently wet down or otherwise suppress dust along a supply 

road in violation of dust control plan. Inspector Whitfield, 

who issued this citation was traveling in a golf cart on a mine 

supply road at the time he observed the violationo He saw dust 

being raised on the road from a scoop and another golf cart which 

created a hazy condition against a lighted background. The 

inspector testified that the dust involved was uroadway dust, 

rock dust, probably clay. ~~ He further opined that " ( i] t is not 

coal dust. There may be some coal dust mixed in, but it is 

basically rock dust and fire clay. 10 

Costain does not dispute the fact of violation of the cited 

standard. Rather, they contest only the "significant and 

substantial" special finding that was made. 

210 
A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial 11 as follows: 

In order to establishthat a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety--

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc.u 7 FMSHRC 1125u 

1129 {August 1985) 0 the Commission stated further as follows~ 

We have explained further that the third element of the 

Mathies formula ij1 requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury. 11 

U.S. Steel Mining Co.u 6 FMSHRC 1834 0 1836 (August 

1984). We have emphasized that 0 in accordance with the 

language of section 104(d) (1) 0 it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. u.s. Steel Mining 

Company, Inc.u 6 FMSHRC 1866u 1868 (August 1984); 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

In this case, the violation is a given and the discrete 

safety hazard identified is an indisputable health hazard to some 

degree for the miners who must breathe in this dusty environment. 

However, after that the Secretary's burden of proof becomes more 

difficult because of the very subjective nature of the cited plan 

provision that she insists is necessary to make it enforceable as 

211 
a practical matter by her inspectors on the scene. By including 

a provision that can be cited on the spot (and get the dust 

abated) on purely subjective grounds, she is giving up the more 

rigorous collection of evidence that could perhaps easily 

establish the third element of the Mathies formula. 

The Secretary carries the burden of proof to show by a 

preponderance of the competent evidence in the record that 

breathing the dust observed in the roadway by Inspector Whitfield 

will result in an injury or illness of a reasonably serious 

nature. The record evidence, however, is to the effect that the 

major health concern with dust is with respirable dust, and there 

has been no definitive showing that there was any respirable dust 

involved with the observed dust being "kicked-up" by the 

equipment which the inspector cited. We do have the general 

opinion testimony of two of the Secretary's witnesses that 

wherever you have dust in suspension, you have respirable dust. 

But I note that neither of these gentlemen observed the cited 

condition and in any event their opinion is not quantifiable. It 

must be remembered that some concentration of respirable dust is 

allowable under the applicable regulatory standards. Whether or 

not the dust observed in suspension by Inspector Whitfield 

contained respirable dust in excess of the allowable 

concentration is unknown by anyone, even if we assume that "some" 

respirable dust was in suspension. 

Accordingly: I find and conclude that there are insufficient 

facts 1.r:~ to support an S&S special finding 

Therefore; No. 3549766 ~S AFFIRMED as a non s&s 

violation of o C.F.R. § 75.316 and a civil penalty of $100 will 

be assessed as appropriate under the criteria contained in 

section 110 i) of the Mine Act" 

Coal IuC.p shall within 30 days of the date of this 

pay the sum of 1811 as a l penalty for the 

found herein" Upon payment of the civil penaltyv 

these proceedings are DISMISSED" 

aurer 

rative Law Judge 

212 
Distribution: 

Carl B. Boyd, Jr., Esq., 223 First Street, Henderson, KY 42420 

(Certified Mail) 

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) 

dcp 

213 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 8 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 92-816 

A.C. No. 46-01455-03882 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY 8 

Respondent 

: 

. 

. 

. 

0 

.. 

0 

Docket No. WEVA 92-821 

A.C. No. 46-01968-03989 

~ Blacksville No. 2 Mine 

: Docket No. WEVA 92-758 

A.C. No. 46-01455-03874 

Osage No. 3 Mine 

DECISION 

Appearances: Robert Wilson, Esq., u.s. Department of Labor, 

Office of the Solicitoru Arlington, Virginia 

for Petitioner; 

Before: 

Daniel E. Rogers, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Feldman 

In these three proceedings, the Secretary seeks to impose 

civil penalties on the respondentc Consolidation Coal Company, 

under Section 105 of the Federal Mine Safety and Health Act of 

1977c 30 u.s.c. § 801. et seg.u for three alleged violations of 

the mandatory health and safety standards found in 30 C.F.R. 

Part 70 and Part 75. The respondent filed timely answers 

contesting the alleged violations and these cases were docketed 

for hearing. Pursuant to noticeg an evidentiary hearing was held 

Morgantown, West Virginia 0 at which Lynn Arthur Workley 

testified on behalf of the petitioner and Jeffrey Todd Moore 

testified for the respondent. The partiesi stipulations 

concerning the pertinent jurisdictional issues and the relevant 

civil penalty criteria found in Section llO(i) of the Act are of 

recorde The parties filed post-hearing briefs which I have 

considered in my resolution of this matter. 

At the hearing the petitioner moved to settle Docket Nos. 

WEVA 92-816, and WEVA 92-758. These dockets each involve single 

citations for alleged violations of Section 70.510(b) (2) 

concerning the respondent's hearing conservation plan and its 

responsibility to provide periodic audiograms for selected 

employees. The proposed settlement agreement involves the 

respondent's acceptance of liability for the $1,100 assessed 

214 
penalty associated with 104(d) (2) Order No. 3716164 which is the 

subject of Docket No. WEVA 92-816. This order concerns the 

respondent's failure to provide audiograms for stopper operators. 

In addition, the Secretary moves to vacate the 104(d)(2) Order 

No. 3716165 in Docket No. WEVA 92-758 because of an inability to 

establish a violation of the respondent's hearing conservation 

plan with respect to its longwall operators. Arguments in 

support of the settlement agreement were provided at the hearing 

at which time I issued a bench decision approving the subject 

motion. The terms of the settlement agreement will be 

incorporated as part of this decision. 

Remaining Docket No. WEVA 92-821 concerns a citation and an 

associated imminent danger withdrawal order involving a roof 

condition in the tailgate entry of the respondent's Blacksville 

No. 2 Mine. 

PRELIMINARY FINDINGS OF FACT 

Lynn A. Workley has been employed as an inspector with the 

Department of Labor's Mine Safety and Health Administration for 

approximately 10 years. He is certified as an underground mine 

foreman in the State of Ohio. On June 13, 1991, during the 

course of an inspection of the respondent's Blacksville No. 2 

Mine, Inspector Workley issued 104(a) Citation No. 3715953 for an 

alleged significant and substantial violation of the mandatory 

safety standard found in 30 C.F.R. § 75.202{a) . 1 Citation No. 

3715953 charged as follows: 

The mine roof in the 13 M longwall tailgate 

entry between 4+15 and 4+80 is brokenu 

cracked and sagged 9 between the existing 

supports and is not adequately supported or 

controlled to prevent the roof from falling 

in this area and weekly examination of this 

airway is required. This condition is the 

contributing factor to issuance of Imminent 

Danger Order Noo 3715952 dated 6/13/91u 

thereforeu no abatement time is set. 

Contemporaneous 107(a) Order No. 3715952 provided a further 

description of Inspector Workleyws observationso This Order stated~ 

1 Section 75.202(a) provides: "The roof, face and ribs of 

areas where persons work or travel shall be supported or 

otherwise controlled to protect persons from hazards related to 

falls of the roof, face or ribs and coal or rock bursts (emphasis 

added)." 

215 
The tailgate entry off of the 13 M longwall 

section is unsafe to travel between 4+15 and 

4+80. The installed roof support (bolts and 

double row of cribs) has failed to adequately 

support the roof. The mine roof is cracked, 

broken, and sagged between the cribs which 

are crushing badly. Some head coal and roof 

rock has already fallen and the roof was 

flaking and audibly cracking at this time. 

The underlaying (sic) cause of this imminent 

danger is management's failure to provide 

adequate support in the longwall tailgate 

entry. 

The above citation and order involve the tailgate entry of 

the 13 M longwall section. The tailgate entry is located between 

the active longwall panel and the gob area, where the longwall 

panels have already been mined. Each development section has 

four entries. on the tailgate side, only one entry is safe to 

travel. The tailgate entry is the alternative escapeway from the 

longwall in the event of a headgate roof failure or fire. 

Workley testified that he entered the tailgate entry on 

June 13, 1991, from the main entry with the respondent's Safety 

Escort Todd Moore, miner representative Jack Rinehart, and 

stephanie Bunn, an inexperienced miner trainee. They proceeded 

up the tailgate entry in the direction of the longwall face until 

the roof began to deteriorate. At that point, Workley and Moore 

left Rinehart and Bunn and proceeded to determine how far it was 

safe to travel. Workley testified that at approximately 415 feet 

into the tailgate entryu the roof conditions had deteriorated to 

such an extent that it became unsafe to continue. In describing 

the roof conditionu Workley testified that~ 

We started with approximately 7 feet of (height] 

where we entered the tailgate entry. As we 

proceeded forwardu the mine floor had squeezed up 0 

the mine roof had squeezed down. At 4+0 0 the 

mining height was approximately 4 feet high and 

ahead of us it got lower yet. The mine roof was 

broken. There was (sic) visible cracks in it. It 

was sagged between the cribs and the solid block. 

(Tr. 33-34). 

Workley testified that the respondent»s roof control plan 

requires the tailgate entry to be supported by roof bolts through 

a board or steel mat, a maximum of 5 feet across and 8 feet 

apart. The roof control plan also requires that cribs be 

installed the entire length of the tailgate entry for 

216 
supplementary roof support. The cribs are 5x7 inch timbers that 

are 30 inches in length. The cribs are placed on the ground 

parallel to each other approximately 30 inches apart. Alternating 

cribs are then placed upon each other at right angles until they 

support the tailgate entry from the mine floor to the roof. 

Wedges are driven into the corner of the cribs for additional support~ Workley described the condition of the cribs as 

follows: 

The wood was crushing into toothpicks. The 

5x7's were no longer 5x7•s. They started out 

at 7 [feet] high and were smashed to 4 [feet] 

high in places. They started out in vertical 

position from the floor to the roof, some 

were leaning as much as a 30 [degree] angle 

towards solid block. (Tr.37). 

Based on the above observ~~ions, Workley concluded that it 

was dangerous to continue down the tailgate entry toward the 

longwall. Therefore, he and Moore retreated up the tailgate 

entry back around to the headgate entry across the face and then 

back down the tailgate to determine the extent of the 

deteriorated area. Workley determined that approximately 65 feet 

of the tailgate entry was unsafe to travel. (Tr.38). In this 

65 foot area, pieces of roof had fallen and continued to fall, 

the cribs were squeezed and broken and the roof was making 

audible cracking noises. (Tr.39). Workley testified that the 

roof and floor were squeezed to such an extent in this 65 foot 

area that there were places where the vertical clearance was as 

little as 2 feet. (Tr.Sl). In short, Workley stated that the 

was ready l "iat any moment. 61 (Tr.40). He testified 

·that it. Has highly lii{ely, given the large quantity of roof 

material, that a collapse would result in serious or fatal 

uries. (Tr.40). 

Workley testified that mine personnel routinely traverse the 

tailgate entry. For exampleu he stated that section or longwall 

Jcoreman occasionally into the tailgate entry to adjust or 

a block to maximize ventilation of the longwall 

face. In addition~ stated that 30 C.F.R. § 75.305 requires 

weekly examination of the tailgate entry for hazardous 

conditions. Final p Workley testified that employees must ~raverse the area in order to drag or rock dust the tailgate 

floor in accordance with Section 75.403. (See Tr. 40-41 1 94). 

Consequently, Workley issued a 107(a) withdrawal order in 

addition to a 104(a) citation because of his concern for the 

safety of workers who would go into the affected area during the 

217 
course of normal mining operations. Howeveru the only effect of 

this withdrawal order was to prevent workers from entering this 

areao The 107(a) order did not require the cessation of any mine 

operations. (Tr. 4 7) • 2 . 

The respondent called Safety Escort Jeffrey T. Moore who 

accompanied Workley during the inspection. Moore essentially 

corroborated the observations of Workley. In this regarde Moore 

testified that: 

n[t)he roof had fallen outu the cribs were crushing. 

The top was working, you could here it audibly 

cracking. You could see flakes and pieces of roof 

material and rib falling to the floor.~~ (Tr.116). 

Moore 9 s testimony that he did not believe that the roof 

condition constituted an imminent danger is belied by his own 

characterizations of the roof condition. Significantly, Moore 

indicated that he would not feel very comfortable passing through 

the area and that he felt the area was 9isomewhat risky" & 

(Tr.llB). He also testified that avit seem[ed] to be hazardous, 

that I wouldn't want to have a picnic lunch in that area. 81 

(Tr.122). Although Moore also characterized the area as 

''somewhat questionable 90 and an area of u~ increased danger" he 

opined that the danger was not of an imminent nature. 

(Tr.115-117). Finally, Moore testified that n ••• I myself 

would readily pass through that area if we had a fire or 

something. n (Tr. 120) • 3 · 

Moore also testified that he and Workley inspected the same 

area the previous day on June 12, 1991, Moore conceded that the ~rea had deteriorated s ~he 

physically supported because H: 

anyone sent to alleviate the problem. .124). 

deteriorated roof condition Moore fied 

entry. 

was such that 

would endanger 

Despite the 

he believed 

not 

The respondent made a to dismiss presentation 

Secretary's direct case. The motion was denied because ~'Jorkley" s 'cestimony adequately est:ablished a nri ma facie case. 

(Tr. 108-111). 

3 The tailgate entry is the only alternative escapeway in 

the event of headgate roof collapse or fire. However, Moore's 

willingness to traverse the tailgate area in question as a last 

resort in order to escape from the longwall is not relevant to 

the issue of the fitness of this area as a working environment. 

218 
impassable. a! (Tr.l22). 4 Moore testified that the condition was 

ultimately abated approximately 2 to 4 days after Workley issued 

the citation and withdrawal order by mining past the area in 

question allowing the area to become part of the gob as the 

longwall retreated. 

FURTHER FINDINGS OF FACT AND CONCLUSIONS 

Fact of Occurrence 

The respondent, in its brief, heavily relies on the 

Commissionvs decision in Cyprus Empire Corporation, 12 FMSHRC 911 

(May 2 9 1990) which vacated a citation for an alleged violation 

of Section 75.202(a). The Commission's action in Cyprus was 

based on its findings that the Secretary had failed to 

demonstrate that the compromised roof section in that case was an 

area "where persons work or travel." In cyprus, the Commission 

noted eli. o • that as soon as cyprus encountered the poor roof 

conditions it dangered-off the area to prevent miners from 

entering& In doing so, Cyprus acted in accordance with accepted 

safe-mining practice." 12 FMSHRC at 917. 

respondent 0 s reliance on Cyprus is misplaced. Unlike 

Cyprus, in this case the Secretary has established that mine 

personnel periodically traverse the area in question to adjust or 

repair block stoppings, to conduct weekly examinations for 

hazardous conditions and to drag or rock dust the tailgate 

floor. 5 Moreover, unlike the Cyprus case, the respondent failed 

to act 99 in accordance with accepted safe-mining practice" in that 

to danger-off this roof area despite the apparent 

manifested by audible cracking and crushing of the 

Significantlyc Moore testified that he did not danger-off 

·t-he area he Ioel ieved t:he area to be passable. Thus, the 

4 Section 303 ( (1) of the Mine Act provides: "If [a mine 

condition which constitutes a violation of a 

mandat:o::ry or safety standard or any condition which is 

hazardous persons who may enter or be in such areaq he shall 

indicate such hazardous place by posting a 11 DANGER11 sign 

conspicuously at all points which persons entering such hazardous 

place would be required to pass. • • No person, other than an 

authorized representative of the Secretary or a State mine 

inspector or persons authorized by the operator to enter such 

place for the purpose of eliminating the hazardous condition therein~ shall enter such place while such sign is so posted." 

(Emphasis added). 30 u.s.c. § 863(d) (1}. 

5 Workley estimated that a section foreman enters this area 

once each shift and that each day consists of three shifts. He 

also testified that personnel drag or rock dust the area 

approximately twice weekly (Tr.58}. 

219 
respondent has neither alleged nor shown that took any measure 

to dissuade personnel from passing under the area. I find, 

therefore, that the evidence strongly establishes a violation of 

Section 75.202(a) in that this area was situated in a place where 

persons work or travel and the respondent failed to take adequate 

measures to protect such persons from hazards related to roof 

collapse. 

THE ISSUES OF SIGNIFICANT AND SUBSTANTIAL 

AND l:MMINEN'l' DANGER 

The respondent maintains that the cited roof condition does 

not constitute a significant and substantial violation or an 

imminent danger because no one was required to work or travel in 

the tailgate entry. In this regard, the respondent argues that 

it was unlikely that a roof collapse would occur at the very 

moment that a miner was in this area. As noted above~ I credit 

the testimony of Workley, which was not rebutted by Moore, that 

employees did have reason to periodically enter this area. This 

conclusion is consistent with Moore 8 s testimony that the area was 

"passable" and, therefore 8 not dangered-offo 

Having concluded that employees were exposed to this hazard, 

I turn to whether the facts in this instance support a 

designation of "significant and substantial n and ou imminent 

danger". A violation is properly designated as "significant and 

substantial 11 if there is "a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a 

reasonably serious nature o 09 U.S. Steel Mining Co. e Inc. u 

7 FMSHRC 327 9 328 (1985) Cement Division, National Gypsum Co. 8 

JFMSHRC 322 1.\ilathies Coal Co. , FMSHRC , 3-4, 

made in ·terms normal 

6 F~iSHRC 1573 r 

157 t.~ { 1984} o The of ·t,rhether a violation is 

significant and substantial must be based on the particular facts 

surrounding Texasgulf, Inc.u 10 JFMSHRC 498 

( 1988) ~ Youghioghenv &. Ohio Coal Company, 9 JFl'!l:SHRC 1007 ( 1987) 0 

condition designsrteOI as an ou imminent dangerYu 

as defined by Section 3 of Mine J.i.>ct: condition 0

' could :reasonably be expected ·to cause death or serious 

physical harm before or practice can be abated" na 

0 UoSoCo 802(j)o In Utah Power and Light Companvv 13 FMSHRC 

1617 3 1622 (Octo 1991}, the Commission reviewed the legislative 

history of this definition and concluded 'chat an imminent danger 

exists if the inspector determines that the condition presents an 

impending threat to life and limb without considering the 

percentage of probability that an accident will happen. Thus, to 

220 
support a finding of imminent dangeru the inspector must conclude 

that the hazardous condition has a reasonable potential to cause 

death or serious harm within a short period of time. 13 FMSHRC 

at 1622. 

In its defense of Workley's citations, the respondent 

apparently relies on a series of cases which question the 

propriety of presuming the occurrence of an emergency in order to 

establish a violation as significant and substantial. See 

Consolidation Coal Company, 15 FMSHRC ___ (January 1993); 

Shamrock Coal Company, Inc. 6 14 FMSHRC 1300 (August 1992); 

Shamrock Coal Companyn Inc. 6 14 FMSHRC 1306 (August 1992); and 

Beech Fork Processing. Inc., 14 FMSHRC 1316 (August 1992). 

Consequently, the respondent argues that a significant and 

substantial or imminent danger finding in this instance requires 

the impermissible presumption of the presence of mine personnel 

at the moment of a roof fall. 

I find this argument unpersuasive. In this case, the 

discrete safety hazard, i.e., an unstable roof, created a real 

and present danger rather than a presumed threat. The fact that 

miners were not exposed to this roof hazard at the time of 

inspection is not dispositive of the S&S or imminent danger 

issues as long as a miner could be at risk during the course of 

continued mining operations. See Halfway Incorporated, 8 FMSHRC 

8, 12 (January 1986) citing National Gypsum Co., FMSHRC 822, 825 

(April 1981) and U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 

(July 1984). 

In the current case this area was considered gupassable 11 and 

thus accessible to mine personnel for periodic examination, 

stopping maintenance and rock dusting. Thus, miners would be 

exposed 'to a potential roof fall which, given the observations of 

Workley and Moore" was reasonably likely to occur at any moment. 

In the event of such an occurrence, it is reasonable to conclude 

that the exposed miners would sustain serious or fatal injuries. 

Thus, the significant. and substantial designation was appropriate 

under these circumstances and. JJ..s affirmecL 

With respect 'to t.he issue of imminent dangerv it is 

significant that the condition could not be abated before it 

could cause death or serious injury during continued mining 

operations because abatement was accomplished only after further 

retreat of the longwall past the area in questionp which took 

approximately 2 to 4 days. During this interim period, absent 

danger boards, personnel continued to be in jeopardy. In fact, 

Moore 1 s testimony reflects that it was not until Workley issued 

the imminent danger withdrawal order that Moore advised the 

longwall personnel not to traverse the area. (Tr.119). Therefore, 

the imminent danger order was warranted and shall be affirmed. 

221 
CONCLUSIONS 

Having affirmed the citation and withdrawal order, I find 

that the gravity associated with this violative roof condition 

was serious and that the respondent 8 s underlying negligence was 

moderately high given the fact that it failed to danger-off the 

area despite obvious manifestations of an unstable roof. 

Consequentlyu I conclude that the $1,300 assessment proposed by 

the Secretary is appropriate and consistent with the criteria in 

section llO(i} of the Act. 

I am also incorporating the previously noted settlement 

agreement in this decisionv which requires the respondent to pay 

a penalty $lvl00 for Order No" 3716164 and which vacates Order 

No. 3716165. 

'ORDER 

Based upon the above findings of fact and conclusions of 

law, it IS ORDERED that 

Nco 715953 !~ AFFIRMED. 

2. Imminent Danger Withdrawal Order No. 3715952 IS 

UFIR.MED. 

3. The proposed settlement agreement concerning Order 

No. 3716164 I~ APPROVED. 

~H.ii' .. L:t:, lP~~ penal'cy of c 400 

the date of this decision. 

/'1 l /1 

~-='i+'~, ~ ,Jift=aP -..,.., ,.,if 

/' 

/;::::~•) ' ~--- ~ 

'\~-~f;:::.">' Feldman 

Administrative Law Judge 

JRober:c EL il o r Off ice of the Solicitor, U.S Q Department 

of Labor" 4015 ~iiilson Boulevardu Room 516, Arlington, VA 22203 

(Certified !11ai1} 

Daniel Eo Rogers~ Esqo, Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

vmy 

222 
OFF~CE OF ADMINISTR,\\1T1Jl: lfc..W JUDGES 

.!: S:<VUNE, 'i Oth FlOOR 

5203 LEESBURG PiKE 

FALlS CHURCH, VIRGINIA 22041 

)~· ·.. :' . (: ,, __ .. 

SECRETARY OF LABORu 

MINE SAFETY ~TD HEALTH 

ADMINISTRATION (MSHP_) 0 

Petitioner 

Vo 

GFD CONSTRUCTION CO!Y!Pl:v-r,~·, 

INCORPORATED, 

Responderrc 

CIVIL PENALTY PROCEEDING 

Doc~cet No o SE 92-61-M 

AoCo NOo 08-01046-05511 

Appearances~ William LOi.'I:V'SOli1 0 ··Esqa r ··Office of the Solicitor 0 

UoSo Department of Labor, Birminghamv Alabama, 

for Petitioner; 

Anthony Greeno GFD Construction Company, 

Incorporatedr Pensacola 0 Florida, for Respondent. 

Before~ Judge Barbou:c 

In this proceeding arising under Sections 105(d) and llO(a), , of the Federal Mine Safety and 

Health Act n~ ~C7~ :;c;~ :;:~·:; 'seq, ~uul\1/.ine Actuu), the 

~eh2~: ~f the Mine Safety il .. :•c 

assessmen·::.r::: ":'c~: c~;.~~;·c ·,co.:. ... r . ·-· ~·· 2 ·::::· ~,;anda:t.or:r safety 

standards fo:-.:· su:.:~:·c'lcc=;: ::oh2.c>>.~ .. c.T,:. w.:;;n~me\:r?."~- :;ai;nes found in Part 56 

of 'the Code of Fede:ca:. :;;.e9:n:.a:c:Lons ( 0°CaF.Ro 01 )a The Secretary 

further assert:s ·::l: . .:::~. :~(~y;:c· "" · .:?&} :.:._eorec1 ";?iola·i:ions constitute 

safetv hazards ·~:~~e :cnat:ter 1.'\i'as 

~~· order ~c es~2~~~s2 ~2G ~a~u~e G~ ~he operation at issue 

and IVline l~l.ct: :iur ..... · ·· ::'.rs·:.: called Anthony 

Green. Green stated that ~ i980 he has been the owner of GFD 

Construction Company ( 0'GFD 0" c \1!.1.ich arc H:.s Green's Pitv conducts 

primarily a masonry sand extraction operationa 1 According to 

In addition to the extraction of sand, Green stated that GFD also 

extracts some clay and is involved in providing fill dirt and top soil to 

buyers, as well as in land clearingo Tro lOo 

223 
Green, sand is dredged from ponds at the pit, is separated from 

foreign material and is trucked from the pit to purchasers. 

Approximately eighty-five percent of the sand is sold to home 

builders, but GFO also sells to county and federal institutions, 

such as Eglin Air Force Base. Tr. 11. At the pit, GFD operates 

heavy equipment such as a dragline, front end loaders, back hoes 

and trucks. Approximately, ninety percent of the trucks are 

purchased outside the state of Florida, in Alabama. The trucks 

transport sand to purchasersv job sites over public highways. 

Tr. 11-12. In addition, the last front-end loader purchased by 

GFD was manufactured in Japan. Tr. llo 

Section 4 of the Mine Actg 30 u.s.c. § 814, makes subject to 

the Act, "[e]ach coal or other mineu the products of which enter 

commerce, or the operations or products of which affect commerce, 

and each operator of such mine. u~ Given Green ° s testimony, I 

conclude that GFDgs business affects interstate commerce, that 

GFD is an operator subject to the provisions of the Mine Act in 

the operation of Green's pit'and that 1 as a result, the 

Commission has jurisdiction over this proceeding. 

In order to establish the existence of each alleged 

violation, and, where applicable the violation's S&S nature, the 

Secretary called to testify Shubert., a MSF..A inspector with 

approximately 6 years of inspection experience. Shubert, who 

issued all seven of the alleged violations, also testified 

regarding the gravity of each alleged violation and GFD's 

negligence in allowing the violations to exist. GFD's case was 

presented through the direct testimony of Green and through 

Green's cross-examination of Shuberto 

The citation states~ 

The 500A front-end loader 

02119 1:1a.s no': 

seat belt.so 

Exh. P-2 o In addition t:c a violation existed 

Shubert found that the violation constituted a S&S violation. 

Shubert stated that on October 15u 1991u he conducted an 

inspection of Greenss Pit. Upon arriving at the mine, he stopped 

at the mine office to advise Green of the nature of his visit. 

Green did not accompany him during the inspection. Tr. 14-15 

224 
At the pit, Shubert observed a Kobelco front-end loader 

("loadern) dumping sand into a trucl<. Upon inspecting the 

loader, he noticed that lacked a seat belt. Tr. 16. Shubert 

considered this to be a violation Section 56.14130(a) (3). 

Explaining why he regarded the violation to be S&S, Shubert 

stated that the loaderQs operator compartment had rollover 

protection but not a closed cab. Although the loader was being 

operated on level ground.u Shubert nonetheless feared that it 

could turn over and throw the operator from the compartment, 

subjecting him to crushing injuries or death should the rollover 

protection structure strike him" Shubert stated that if the 

bucket were not loaded evenly and \'>Tere raisedu the loader could 

become unstable and overturn" Shubert mentioned an incident at a 

Mississippi operation where this had happened. Tr. 17-20. 

Shubert also explained his understanding that GFD did not 

own the loader, that the loader had been rented by GFD from 

Pensacola Ford Tractor Co., and thatt.he rented loader had been 

at the pit for approximately two weeks. Nonetheless, Shubert 

believed that GFD, as the operator, was responsible for assuring 

that the loader complied with all applicable federal mine safety 

regulations when it was operated at the pit. Tr. 57. 

Green agreed that. the front-end loader was rented. Tr. 81. 

THE VIOLATION 

Section 56.14130(a) (3) requires that seat belts be installed 

on wheel loaders. There is no dispute that the cited loader was 

a wheel loader and that jJ::. lacked a seat belt. Moreover, there 

is no dispute 'chat GFD v:ras ·the of t:he and that the 

loader, al rented was under GFD 1 a control and 

direction at 14s Shubert s·tated f whether or 

not an operator owns a piece equipmentv the operator is 

responsible for assuring regulatory compliance while the 

equipment at mine. Thereforev I find that 

has been 

In E/la·thies Coal Co. v FxJ.!SHRC 

Commission set forth t.he elements ox 

substantial 9

' violation as follm¥s ~ 

January 1984) 0 The 

''significant and 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the 

Secretary of Labor must prove: {1) the 

underlying violation of a mandatory safety 

225 
standard; 

isv a measure 

contributed to bv 

reasonable likelihood 

contributed to 11 result 

(4) a reasonable likel~u~~~ 

in question 

natureo (6 

zard=-that 

andv 

In United States Steel Minincr Comnany, Inc.u 7 FMSHRC 1125, 

1129 (August 1985) the Co!t'.rnission stat.ed further as follows~ 

·vve 

element of tl1e 

the Secretarv establ 

likelihood that the hazard 

t'li'ill rasul·;: 

uryov Q 

1834\.g 1836o 

There was a violation of the 

Shubertus testimony establ 

·to by 

t.o danger of 

loader overturn" 

established that 

reasonably 1 

being opera·ted 

referenced the 

filled lbuclcets 

sureiy r"muld 

even death" In 

S&S 

throvm forv.Jardu he agrreect ·c.nz:c·i: 

operator from being 'i:h.rm·m 

226 

that. 

an 

standardo In addition, 

of danger contributed 

contributed 

should the 

Shubert 0 s testimony 

and injured was 

front-end loader was 

Shubert specifically 

due to unevenly 

an accident had 

~o:mpartment 

s:t:ructure 

serious injury--

that. this was a 

,_cr ·::est:ifiedp 

·the fron:t -end 

ug Tr o 19 o 

fron'c: of the 

a 

i:rom being 

'tvou.ld prevent the 

sideways" Tr" 83-84. 
Furtheru I conclude that GFD was negligent in allowing the 

violation to exist. The seat belt was missing. It is the 

operator's duty to ensure that the seat belt was in place and was 

functional. GFD did not meet its duty in this regard. 

Section 104Cal Citation No. 3596822. 11/15/91, 30 C.F.R. 

§ 56.14132Ca). 

EVIDENCE 

The citation states: 

Exh. P-3. 

The back-up alarm on the Kobelco 

600A front-end loader 02119 was 

not being maintained in working 

condition. 

Shubert stated that while·inspecting the same loader; he 

observed the machine backing up and did not hear the back-up 

alarm sound. Upon closer inspection, he found that the alarm was 

in place but was not working. He was not sure why the alarm 

failed to sound. 

Green did not dispute this testimony. 

THE VIOLATION 

Section 56.14132{a) requires that back-up alarms be provided 

on self-propelled mobile equipment and be maintained in 

ional condition. The inspectorgs testimony regarding the 

state the was not L 

a.s 

GRAVITY ~ ~EGLIGENC~ 

The violation was not serious. The inspector indicated that 

he ieved that the injury ~::c. miner o 

Furtherc for reasons 

of Section 56.14130(a) ( 

conclude GFD was negligent 

Section 104(a) Citation No. 3872700, 10/15/91, 

§ 56.1410(a) {2). 

227 

regard. ·tc the 

discussedv I 

exist, 
EVIDENCE 

The citation states: 

Exh. P-4. 

The parking brakes on the Kobelco 600A frontend loader[,] Serial Number 02119[,] would 

not hold the load on level ground with [an] 

empty bucket, in that the loader rolled 

freely when [the parking] brakes was [sic] 

applied. 

Shubert stated that during the course of his inspection of 

the previously discussed loader he asked that the parking brakes 

be engagedu and he observed that the loaderu nonetheless, 

continued to roll. Tr. 23. 

THE-VIOLATION 

Section 56.1410(a) (2) requires that if self-propelled mobile 

equipment is equipped with parking brakes, the brakes shall be 

capable of holding the equipment, with its typical loaded on the 

maximum grade it travels. Shubertis testimony regarding the lack 

of effect of the loader 0 s parking brakes was not disputed, and I 

conclude that the violation existed. 

GRAVITY AD NEGLIGENCE 

The violation was not serious. As with the lack of a 

working back-up alarmu Shubert found the non-operational ~arking brakes unlikely to cause injury. Exh. P-4. Furtheru 

and for t:.he reasons stated regard the violations of 

Sections 56.1~130(a) (3) and 56.1~132(a r I conclude that GFD was 

negligent allowing the violation to exist. 

Section 104(a) Citation No. 38728411a 10/15/91, 30 C.F.R. ~ 56.14132(a). 

ln"IDENCE 

The citation states~ 

Exh. P-5. 

The front-end loader was not being 

maintained in functional condition; 

in that when the horn button was 

depresses the horn didnvt sound an 

alarm on the Kobelco 600A front-end 

loader[,] Serial Number 02119. 

There was no fast traffic in the 

area. 

228 
Shubert testified without contradiction that when he asked 

the loader operator blow the horn on the loader, the horn 

would not sound. Tro 24. 

THE VIOLATION 

Section 56.14132(a) requires that horns provided on 

self-propelled mobile equipment be maintained in functional 

condition. Shubert 0 s testimony established that the horn would 

not function. I find that the violation existed as charged. 

GRAVITY AND NEGLIGENCE 

Shubert stated on the citation form that there was no fast 

traffic in the areav and he further indicated that it was 

unlikely an ury would result from the violation. Exh. P-3. 

I therefore conclude that the violation was not serious. 

Furtheru and for the reasons stated with regard to 

the violations of Sections 56.14130(a)(3), 56.14132(a) 

and 56.1410(a} (2) 9 I conclude that GFD was negligent in allowing 

the violation to exist. 

Section 104(a) Citation No. 3596823. 11/15/91. 30 C.F.R. 

§ 56.14107 (aL 

EVIDENCE 

The citation statesg 

The shaft located 

provided 1rd th 

from 

shaft:o The 

operator stands beside the drive 

shaft to operated the dredge. 

violation was S&So 

Shubert:. stated inspecting t.he loader he went to 

t.h.e where dredge tvas located. Shubert went 

by inspect the dredge. The dredge was not pumping at the 

·,.cune Shuber'c r but Shubert. stated 'chat the dredge 

operatoru ll Smallu told him that it had been pumping earlier 

tha·t morning and that the dredge 1tJas not then operating because 

the pump had lost its prime. Tr. 24=25o Small was trying to 

reprime the pump. Tr. 25o 

Shubert described the dredge as having a diesel powered main 

pump, along with a smaller primer pump. According to Shubert, 

the main pump sucks sand up through a long snout. The snout is 

lowered into the water and down to the sand floor of the pond by 

229 
a winch. The sand is then sucked up to the snout, through the 

pump and is piped to another area of the pit where it is 

discharged. Tr. 26. 

Shubert stated that the drive shaft on the main pump is 8 

feet long and 3 inches in diameter. The shaft rotates very 

rapidly. The drive shaft turns the main pump. Shubert testified 

that the dredge operator may sit 10 to 12 inches from the shaft 

during the course of his duties while operating the dredge. Tr. 

27-28. Because, in Shubert's experience, all dredges are subject 

to oil leaks and water spills on the their decks, Shubert feared 

the dredge operator could slip or fall in the immediate vicinity 

of the turning shaft, and the operator's clothing could become 

caught in the shaft and the operator could be pulled into the 

shaft. If such were to happen, Shubert feared that a broken limb 

or even a lost limb could result, as well as possible cuts. Tr. 

30. 

During cross-examination, Green asked Shubert if he had been 

told that the dredge was sabotaged shortly before the inspection 

and Shubert stated that he had not. Tr. 48. Green explained 

during his testimony that the dredge had been sunk in 35 feet of 

water, that it had completely turned over and that when Shubert 

saw the dredge it had recently been refloated but that the pump 

mechanism was gone and the main pump did not work. According to 

Green, on October 15, GFD was trying to get the pump fixed. Tr. 

68-69. 

THE VIOLATION 

Section 56.14107(a} requires that moving machine parts that 

can cause ury shall be guarded to protect persons from 

contacting such parts. In additionu the regulations enumerates 

several parts that must be guarded~ and shafts are among 

parts listed. As commissionis Administrative Law Judge George 

Koutras has stated, n[t]he language .•• found in (Section] 

56.14107(a) specifically and unequivocally requires guarding for 

any of the enumerated moving parts that can cause injury 

contacted. The obvious intent of the standard is to prevent 

contac·t 1.11ith a "moving part 0 • ou Highland County Board- of 

Commissionersv 14 FMSHRC 270.291 (February 1991) (ALJ Koutras}" 

I conclude that the violation existed as charged" While 

Green maintained that the pump was not working on October 15, he 

did not go to the pit with Shubert and was not there to hear 

Shubertvs conversation with Small. Nor did Green mention the 

sabotage to Shubert when Shubert came to his office on the 

morning of the inspection. Tr.75-76. Shubert was adamant that 

Small told him the pump had been in operation that morning, and I 

credit Shubert's testimony. It seems logical that if the dredge 

had still been out of operation due to the sabotage, Green would 

have told Shubert. Moreover, Shubert stated that before 

230 
reaching the dredge had seen sand at the end of the dredge 

pipeline. Shubert believed the sand had been dredged that 

morning. Tro 103. Thus, I conclude that the pump had been in 

operation on October 15. 

The main pump drive shaft was a long and rapidly rotating 

part. Shubert 0 s fear that the dredge operator could become 

entangled on the shaft should he slip or fall in its vicinity was 

reasonable, and it reasonable to credit his belief that an 

injury could result. Therefore, I conclude that the main pump 

drive shaft could cause injury if contacted. It was not guarded, 

and I therefore find that the violation existed as charged. 

The evidence shows a violation of the underlying guarding 

standard. There was a measure danger contributed to by the 

violation. The unguarded drive shaft, in conjunction with the 

proximity of the dredge operatorand the usual presence of oil 

and water on the deck of the dredge, was reasonably likely to 

result in an injury. Further, becoming entangled with the shaft 

could have resulted in a reasonably serious injury. In sum, I 

agree with Shubert that this was a S&S violation. 

GRAVITY AND NEGLIGENCE 

As indicated; Shubert stated that slipping or falling into 

the shaft and becoming entangled in it could lead to broken or 

lost limbs and to cuts. These are serious injuries. Further, 

the dredge operator at times had to work in close proximity to 

sabotaged. 

dredge 

'£AJas 

1reason 

Green 

been lost .. opera·tion a 

GFD failed 

operator. I 

allowing the 

Shubert observedr oil and water was 

to some degree. Tr. 29-30 

·the condi"cions under 

increased likelihood that he 

conclude ·that this was an serious 

Green"~. tes·timony that. the dredge recently had been 

!::01m>Jeve:::: Shubert:' s 'cestimonv that the 

inspection. Not only 

GFDus employeec he observed sand that he had 

before arrived at. the mine. 

of t.he dredger the guard had 

happenedv once the dredge resumed 

and in neglecting to provide 

standard of care required of it as an 

conclude that GFD was negligent in 

to exist. 

Section 104(a) Citation No. 3596825, 10/15/91, 30 C.F.R. 

§ 56.14107Ca). 

231 
EVIDENCE 

The citation states: 

The V-belt drive on the small 

primer pump located on the dredge 

was not provided with a guard to 

protect persons from contacting the 

V-belt. 

Exh. P-7. In addition, the inspector found the violation to be 

S&S. 

Shubert described the V-belt drive as consisting of a belt 

that sits in a pulley. As such, it is similar to a drive pulley. 

He also explained that the primer pump is the smaller of the two 

pumps on the dredge and that it pumps water into the main pump in 

order to get the main pump started. Tr. 31-32. Because the 

V-belt drive lacked a guard, Shubert believed that should the 

dredge operator slip or fall, he or his clothing could become 

caught in the drive. Tr. 32. The dredge deck was usually wet; 

and as previously noted, Shubert stated that small amounts of oil 

or diesel fuel and water were present on the deck. Tr. 33. In 

Shubertvs opinion this made it highly likely that the dredge 

operator would slip or fall into the belt drive. Tr. 33-34. 

Shubert described an incident in Mississippi where this had 

occurred and where a miner had lost a thumb. Tr. 32. He also 

stated that the dredge operator would walk within one or two 

inches of the V-belt drive during the normal course of a work 

day. Tr. 34. 

THE VIOLATION 

pulleys are among those enumerated moving machine 

parts that Section 56.14107(a) requires must be guarded if they 

can cause injury. I accept Shubert 9 s testimony that the V-belt 

drive lacked a guard. I also accept Shubert's testimony with 

regard to the possibility of injury should the dredge operator 

slip or fall into the V-belt drive. Although Green maintained 

that the dredge was not operable when the violation was cited, I 

have found to be credible Shubert 9 s testimony that the dredge had 

been operated on October 15. Thusu I conclude that the violation 

occurred as charged. 

The evidence shows a violation of the cited guarding 

regulation. There was a measure of danger contributed to by the 

violation. The unguarded V-belt drive, together with the 

possible proximity of the dredge operator to the unguarded part 

and the consistently slippery condition of the dredge deck, made 

232 
it reasonably likely that injury to the dredge operator would 

occur. Furtheru becoming entangled with the V-belt drive would 

be likely to cause a reasonably serious injury. In sum, I agree 

with Shubert that this was an S&S violation. 

GRAVITY AND NEGLIGENCE 

The violation was serious in that it subjected the dredge 

operator to the likelihood of loss or injury of a finger or 

thumb. Once the dredge resumed operation, a guard was required. 

In neglecting to provide it, GFD failed to meet the standard of 

care required by the regulation, and thus was negligent in 

allowing the violation to exist. 

Section 104(al Citation No. 3872742. 10/15/91. 30 C.F.R. 

§ 56.14107(a}, 

EVIDENCE 

The citation states: 

The "V"-belt for the winch that 

operates the suction pipe was not 

guarded to protect persons, the 

dredge operator was working in the 

area. 

Exh. P-8. In addition, the inspector found that the violation 

was S&S. 

As already indicated6 the standard requires V-belt drives 

t.hat: can cause ury to persons t.o be guarded o 2 Shubert 

described the function of t.he winch as pulling the cable that was 

attached 'bo the nozzle of t.he dredge and thus allowing the nozzle 

to be raised. When the winch was released the nozzle dropped 

into the water. The V-belt drive only ran when the winch was 

engagedo While the dredge operator was normally seated while the 

winch was engagedu he occasionally had to walk by the V-belt 

to inspect the nozzle and so doing he passed within 

inches of the V-be drive" Tro 36-39 9 51. If the dredge 

operator were to slip or fall into t.he V-belt driveu a 

possibility made likely loy the usual presence of water, and of 

lubricants or fuel on the dredge dec]{~ Shubert feared that the 

operator could loose fingers or even a limbo Tr. 37o 

2 Although the citation is written in terms of the belt, Shubert's 

testimony made clear that his concern was for the unguarded belt drive. 

Tr. 36-37. 

233 
THE VIOLATION 

As previously indicatedu I accept Shubert's testimony that 

the dredge had been operating earlier in the day. I also accept 

his testimony with regard to the lack of a guard and that a 

person could be injured if entangled in the V-belt drive. 3 

There was a violation of the cited regulation. 

For the same reasons as those stated with respect to the 

preceding violationu I agree with Shubert that this was an S&S 

violationo 

GRAVITY AND NEGLIGENCE 

For the same reasons as those stated with respect to the 

preceding violationu I conclw:J,e that the violation was serious 

and that GFD was negligent in allowing the violation to exist. 

CIVIL PENALTY CRITERIA 

The criteria that I must consider when assessing civil 

penalties is contained in Section llO(i) of the Mine Act, 

30 u.s.c. § 820(i). Gravity and negligence have been discussed. 

With regard to size of the business of the operator, it is clear 

from Greenvs testimony that GFD is a small operator. Further, 

there is no evidence that the size of the penalties assessed will 

adversely affect GFD 0 s ability to continue in business. The only 

evidence submitted regarding GFDus previous history of violations 

of one on 11v 1989 for a 

one issued on May 31v 1990 

5 o :~..:~:.. conclude from this that 

GFD history of previous violations. Finally, 

GFD abated the violations within the time set by Shubert, and 

Shubert had nothing but praise for the manner in which GFD 

complied once lhad been tedo I conclude therefore; 0C.hat 

GFD demonstrat.ed t.l:. at:tempting t.c achieve rapid 

compl 

Green testified that there "'1as no V-belt drive on the winch, 

rather that the winch was hydraulically operated. Tr. 65. However, Shubert 

was certain that when he observed the winch the V-belt drive mechanism was 

present. He stated that a hydraulic system had been installed for the winch 

but only after he issued the October 15 citation. Tr. 66-67. Green was not 

at the pond with the inspector on October 15, nor did he testify that he went 

to the pond that day. Since I have no reason to doubt Shubert's testimony 

with regard to what he observed on October 15, I conclude Shubert's 

description of the winch mechanism was accurate. 

234 
CIVIL PENALTIES 

Considering all of the statutory civil penalty criteria, I 

conclude the following penalties are appropriate: 

le Citation No. 3596821 - $40 

2. Citation No. 3596822 - $20 

:L Citation No. 3873700 - $20 

4. Citation NOo 3872841 - $20 

5. Citation No9 3596823 - $40 

6. citation No. 3596824 - $40 

1. Citation No. 3872842 - $40 

'oRDER. 

Based on the above it is ordered: 

L The citations at issue are AFFIRMED. 

2. GFD shall pay to the Secretary the assessed civil 

penalties within thirty (30) days of the date of this order and 

upon receipt of payment this proceeding is DISMISSED. 

Distribution~ 

~7) jf. /l L__ , v _/c.L/~c /,: ),~ 

David F. Barbour 

Administrative Law Judge 

(703) 756-5232 

William Lawsonu Esq.~ Office of the Solicitorv u.s. Department of 

Labor 9 2015 Second Avenue, No. 9 Suite 201u Birminghamv AL 35203 

(Certified Mail) 

Mr. Anthony Green, G F D Construction Company, Incorporated, 8777 

Ashland Avenue, Pensacola, FL 32534 (Certified Mail) 

/epy 

235 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

ISLAND CREEK COAL COMPANYu 

Respondent 

FEB 1 0 1993 

CIVIL PENALTY PROCEEDING 

Docket No. VA 92-138 

A. C. No. 44-00246-03687 

Virginia Pocahontas No. 1 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

On January 28, 1993, Respondent filed a statement asserting 

that, when Respondent received the December 16, 1992, Order of 

Default1 issued by Chief Judge Merlin in this matter, it decided 

to pay the $50 proposed penalty under the Order of Default, and 

to "drop&' the contest of the citation in this case. Respondent 

also asserts that petitioner is in agreement with Respondent that 

it is appropriate to dismiss this case. 

Accordinglyu based on the assertions in Respondent's 

statement this case is DISMISSED./{ 

J tA---"" Avram~Weisberger 

DistriJou·tion~ 

James 

Administrative Law Judge 

Office of the Solicitoru UaS. Department of 

Boulevardu Room 516. Arlingtonu VA 22203 

Marshalls. Peace, Esq.u Island Creek Coal Company; 201 W. Vine 

Street 7 Lexington 8 KY 40507 (Certified Mail) 

nio 

1

The default order was subsequently vacated and this case 

was assigned to me. 

236 
irED~RA.~ MINE SAfETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

fALLS CHURCH, VIRGINIA 22041 

fEB121993 

SECRETARY OF LABORu DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u g Docket No. KENT 92-259-D 

ON BEHALF OF CLAYTON NANTZ u 

Complainant ~ BARB CD 91-24 

'Vo 

Gray's Ridge Job 

NALLY & HAMILTON ENTERPRISESu 

INCORPORATEDu 

Respondent 

DECISION 

MaryBeth Bernuiu Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for the Complainant' 

David o. Smith, Esq., Marcia A. Smith, Esq., 

Corbinv Kentucky, for the Respondent. 

Judge Koutras 

Ste;:tement. o·:r- ·the Case 

~ xne ciet:ermine the relief due ·the 

Nantz based upon my decision of November 19, 

the respondent Nally & Hamilton Enterprises, 

discriminated against the complainant in violation ::;~: ):he Federal and Health Act of 

seg o c 1: ~7Iv1SHRC l858. 

afforded thirty 30) days after my decision 

t.o the rel due Mr. Nantz or to submit 

proposals supporting arguments. By 

2)ecember i~ {1 1992, t:he Secretary informed me that the 

·to reach an agreement concerning the amount 

of damages ~o be awarded to Mr. Nantz, and thereafter, on 

December 1992v the Secretary submitted a Post-Decision Brief 

in support her claim for money damages on behalf of Mr. Nantz. 

The Secretary stated that pursuant to an earlier stipulation, the 

medical expenses which would have been covered by Mr. Nantz's 

health insurance policy had he remained employed with the 

respondent amounted to $1,426.76, and that the total amount of 

money damages owed Mr. Nantz for 1991 and 1992, including back 

wages and medical expenses, through December 31, 1992, is 

237 
$33 8 194o60. The supporting documentation for the Secretary's 

claim includes the following~ 

lo Mr. Nantz 9 s pay stubs while employed by the respondent 

for the payroll weeks ending on August 11, 1990, through 

April 1991 (Exhibit PT 1)" 

2o Mr. Nantzus pay stubs while employed with Cloverfork 

Mining & Excavating1 Inc., for the payroll weeks ending 

September 8 8 1991, through December 29, 1991, including a 

stub for a production bonus for the payroll period ending 

January 5 0 1992a (Exhibit PT 5)o 

3o Mr. Nantz 1 s W-2 Wage and Tax Statement for 1991, in 

connection with his employment with Cloverfork Mining & 

Excavatingr Inc. (Exhibit PT 6)o 

4o A backpay computation calculated by MSHA Special 

Investigator Ronnie Brock, including Mr. Brock's notes and 

an affidavit explaining his computations (Exhibits PT 2, 

PT 4)" 

So A statement by C & L Logging Owner Karen Lewis 

confirming Mro Nantz~s employment from May 6, 1992, 

to June 30u 1992v with total earnings of $1,340 

(Exhibit PT 7). 

On December 21, 1992r the respondent filed a motion to 

compel the Secretary to provide under oath the tax returns of 

Mr. Nantz for the years 1990, 1991u and 1992, including all 

income tax W-2 and 1099 forms, and all information concerning ~Ex: Q it.s :t'le le not employed by ·~:i1.e 

December 2 1.992 9 t.he Secretary filed a response in 

opposition to respondentgs motion to compel and a request 

that Mr. Nantz be T.einstated no later than January 4r 1993o 

,Ja:rf<J.a:::~:· respondent filed a response to the 

Secretary' ·to ole issue ~vi t.h 1t.he Secretary g s 

'co t.h.e gross income earned by Mr. Nantz 

amount damages that Mr. Nantz 

methodology and computations used by the 

Secretary of her claim on behalf of Mr. Nantz. 

Follot1ingr of t.he respondent 0 s January 4 r 1993, 

responsev I held a telephone conference with the parties that 

same day, and they were afforded an opportunity to present 

further arguments in support of their respective positions in 

this matteru including the motion to compel, and the request for 

238 
Mr. Nantz's immediate reinstatement. Thereafteru on January 5, 

1993, I issued an order which included the following rulings and 

directives: 

lo The Secretary was ordered to produce a copy of 

Mr. Nantz's 1991 tax return, and the respondent 0 s motion to 

compel production of Mr. Nantzes 1990 and 1992 tax returns 

was denied. 

2. The Secretary was ordered to obtain a sworn affidavit 

from Mr. Nantz concerning any employments held or income 

received from the date of the hearing August 12 0 1992, to 

the present. 

3. The secretary was ordered to obtain an affidavit or a 

W-2 tax statement from c & L Logging Company; regarding 

Mr. Nantz 0 s 1992 income. 

4. The Secretary was ordered to obtain from Mr. Nantz 

statements concerning any unemployment compensation benefit 

payments received in 1991 and 1992. 

5. The Secretary 9 s request for Mr. Nantz 1 s i~mediate 

reinstatement was denied. 

The Secretary was afforded fifteen days to comply with my 

order, and the respondent was given an opportunity to respond to 

the Secretary 9 s submissions within fifteen days after the 

Secretaryws filing. 

letter on. 

compliance 

s .. 1-993, 

'c.ax re'curnJ an lvrr" emplovments 

since August 12v 1992r hearingf an affidavit from-the owner 

of C & L Logging Companyv and information regarding Mr. Nantz's 

unemployment compensation payment benefits 199 and 1992o 

Back Wages 

Based on weekly payroll stubs submitted Mro Nantz and 

the payroll records submitted by the respondent 7 covering a 32-

week period beginning with the pay ·period ending August llu 1990 5 

and ending with the week of April 14u 1991u the Secretary 

calculates that Mr. Nantz worked a total of 1,390.5 hours over 

this time period, and that his average work week was 43.45 hours. 

The evidence establishes that while he was employed with the 

respondent, Mr. Nantz earned $10.50 per hour for up tQ 40 hours 

per week, and $15.75 per hour for overtime hours worked in excess 

of 40 per week. The Secretary 9 s back wage calculations are based 

239 
on an average salary of 40 hours per week at $10.50 per hour, 

plus 3.5 hours of overtime at $15.75 per hour, for a total gross 

weekly salary of $475.12. The Secretary points out that there 

are several weeks in 1990 where the pay information submitted is 

listed as nunknown 9e because Mr~ Nantz did not have pay stubs in 

his possession for those weeksu and the respondent only submitted 

payroll information for 1991 at the hearing. These weeks were 

not included by the Secretary in calculating Mr. Nantz 9 s average 

weekly pay rate. Furtheru the Secretary did not use the week of 

April 20, 1991, in her calculations because this was the week 

Mr. Nantz was terminated prior to completing the work week. 

The Secretary has submitted a back wage computation 

calculated by Inspector Brock on a quarterly basis with interest 

computed in accordance with the Commission°s decision in 

Secretary v. Arkansas-Carbona, 5 FMSHRC 2043 (December 1983), and 

the submission includes Mr. BrockYs notes and an affidavit 

explaining his computations. The Secretary does not dispute the 

fact that the hourly employees at the subject mine were laid off 

from August 14 8 1991 1 throughSeptember 30u 1991. Under the 

circumstances, Mr. Brock did not calculate any back wages owed to 

Mr. Nantz during the layoff period. However, the Secretary 

points out that Mr. Nantz 9 s interim earnings of $2,565 8 from his 

employment at Cloverfork Mining Company during the layoff period 

were not counted against Mr. Nantzus back wages with the 

respondent since he would not have been employed by the 

respondent during that period. 

The record reflects that Mr. Nantz had interim work with 

Cloverfork Mining Company from September through December, 1991. 

He earned $11,150.53, through the pay period ending 

December 22 v 1991 v $186 for the pay period ending December 29 ,. 

bonus of ~~ pay 

186 ~o Mr. Nantz ~ 

2n~erim earningsu and included $115.15v as part of 

Mr. Nantz 0 s 1992 first-quarter interim earnings. 

The ::record ::ur-ther 

subtracted these 

~he second quarter of 1992o 

Broclt 

t'Jages owed 

!Mr. Nantz executed an affidavit on January 1993u stating 

':Chat he has been unemployed since t.he August 12 11 1992 u hearing 

and has not received any interim earnings during this period of 

time. Based on all of the evidence and information filed by the 

Secretary 0 including the calculations made by Inspector Brock, 

the Secretary concludes that the total back wages owed to 

240 
Mr. Nantz for 1991 through December 31, 1992, including overtime 

and interest, and subtracting all interim earnings, is 

$31.767.84. 

Medical Expenses 

It would appear that the parties are in agreement that'the 

amount of medical expenses that would have been covered under 

Mr. Nantz's health insurance policy had he remained employed with 

the respondent is $1,426.76. The Secretary has added this amount 

to the claimed back wages amount, for a total claim of 

$33.194.60. 

Unemployment Compensation Benefits 

The Secretary has submitted statements from the Kentucky 

Department for Unemployment servicesreflecting that Mr. Nantz 

received unemployment compensation benefits in 1992 amounting to 

$8,005, and 1991 payments amounting to $2,260. The parties agree 

that the question of whether or not Mr. Nantz's backpay 

compensation may be reduced by the amount of unemployment 

benefits paid to him is a matter within the discretion of the 

presiding judge, Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983). 

The respondent takes the position that had Mr. Nantz's employment 

not been terminated, he would not have received these benefits 

and he should not be allowed to reap a windfall by receiving 

backpay in addition to unemployment insurance benefits with no 

offset. Under the circumstances, the respondent believes that 

benefit payments received by Mr. Nantz should be subtracted 

any backpay award. The Secretary takes no position on this 

other than to stipulate that is within discretion 

presiding judge. 

Respondentvs Position 

Gross Income Lost 

response to the Secretaryws claims on behalf 

Mr. Nantzp the respondent first addresses the gross income that 

Mr. Nantz would have received had he continued to be employed by 

respondent. The respondent takes the position that any award 

backpay for Mr. Nantz should be computed on the basis of the 

evidence it submitted at the hearing which reflects that for the 

15-week period from January 5, 1991 through April 13, 1991, 

Mr. Nantz's average work week was only 39.6 hours. Since this 

was the tax year immediately preceding Mr. Nantz's termination, 

the respondent believes that it more accurately reflects its 

mining activity at the time of the termination as opposed to the 

Secretary's computation which includes the preceding year 

(8/11/90 through 4/13/91, for an average of 43.45 hours). 

241 
The respondent is in agreement with the Secretary's 

computation to the extent that the 6.5 weeks from August 14, 

1991, through September 30, 1991, should be omitted since no 

income was lost by Mr. Nantz during this period because of an 

undisputed layoff which would have affected him. 

The respondent asserts that the 13 weeks for the months of 

October through December 1991, that are totally discounted by the 

Secretary's computation is erroneous. The respondent disagrees 

with the Secretary's apparent position that since Mr. Nantz 

earned more at Cloverfork than he would have earned had he still 

been employed by the respondent during this period of time, that 

difference should not be counted in the backpay computation. The 

respondent believes that it is illogical and unreasonable not to 

include all income earned by Mr. Nantz from Cloverfork as part of 

the backpay computation. The respondent further submits that it 

is likewise not reasonable to disregard gross wages earned by 

Mr. Nantz at Cloverfork during August 14, 1991 through 

September 30, 1991, when he would have been laid off by the 

respondent. 

The respondent suggests that the gross income lost by 

Mr. Nantz can be computed simply as follows: 

1) Based on the respondent's 39.6 hour work week 

computation at $10.50 per hour, Mr. Nantz's gross weekly 

earnings with the respondent would have been $415.80. For 

the week of his termination ending April 21, 1991, Mr. Nantz 

would have had gross income of $315, with a loss of $100.80 

that week. The period from April 22, 1991 through 

December 31, 1992 0 consists of 88 weeks, and subtracting the 

.5 lay weeks would leave 81.5 work weeks at the weekly 

rate of 15.80, cr $33,887.70. Adding the $100.80 loss of 

income during the week of the termination would then result 

in a total gross income loss of $33,988.50, for the period 

April 16, 1991 through December 31, 1992. 

2) Based on the Secretary 0 s 43.45 hour work week 

computation, or gross wages of $475.12 per week; Mr. Nantz 

would have lost $105 for the week ending April 21, 1991, 

plus 81.5 weeks at $475.12 per week 8 or $38,722.28, for a 

total gross income lost for the period April 16 1 1991 

through December 31 8 1992 of $38,827.28. 

Based on the aforementioned arguments and computations, the 

respondent believes that Mr. Nantz's gross income loss for the 

relevant periods in question would be no more than $33,988.50 

rather than $38,827.28. 

242 
Gross Income Received 

The respondent agrees that the purpose of damages in this 

case is to make Mr. Nantz wholeQ Howeverv it takes the position 

that since MrQ Nantz had a duty to mitigate his damages by 

seeking employment, all of the gross income, including 

unemployment insurance income, that he received for the period 

April 16, 1991, through December 31, 1992u should be subtracted 

in determining his compensable damages. The respondent points 

out that had Mr. Nantz 9 s employment with the respondent not been 

terminated, he would not have had any of the income he 

subsequently received during the period April 16, 1991, 

through December 31u 1992, from the following sources~ 

Source of income 

Cloverfork Mining & Excavating 

c & L Logging 

Unemployment insurance 

Unemployment insurance 

TOTAL 

Amount 

$11v 45L 6B 

$ lv340.00 

$ 2v260 00 

$ 8,005.00 

$ 23.056.68 

Time period 

{9/91-1/5/92) 

(5/6/92-6/30/92) 

(1991) 

(1992) 

The respondent takes issue with the Secretaryvs discounting 

of any income earned by Mr. Nantz during the lay off period 

covering August 14, 1991 through September 30u 1991, simply 

because he would not have been employed with the respondent 

during that time. The respondent believes that whatever income 

Mr. Nantz earned following his termination should be deducted 

from the gross wages he would have earned with the respondent. 

The respondent points out what believes an error in 

t:he figures submit.ted by t.he Secretary respect ·to 

l:!J.r o Nantz employ:men1: '::'he :respondent 

asserts ··that Mr a Nantz 

earned $2,565, dur.:.ng :~, 1991 7 through 

September 30" 1991u the payroll checl<: stubs submitted by the 

Secretary {Exhibit PT 5)u the weeks during this period only 

"ectal $1 p 707 a 

The respondent: ieves ;c:.he ' s to 

subtract fference between Mro Nantz's fourth quarter 1991 

earnings with Cloverfor1c Mining ( , 77L53), ·the backpay he 

t':lould have earned in ·that cruarter $6 176 o 56) u computing 

backpay (Broc!c affidavitu ~ P 4: , on 'che ground that the 

interim earnings were greater the backpayu is unreasonable 

and unfairo The respondent argues that had Mr" Nantz continued 

in the respondentus employ, he would not have had this additional 

income and should therefore be subtracted full from any 

backpay award. 

The respondent asserts that although the W-2 payroll records 

submitted by Mro Nantz establish that he had gross income from 

243 
Cloverfork Mining of $11,451.68, the Secretary only subtracted a 

total of $6u291.71 for gross income from Cloverfork following his 

termination. The respondent concludes that this is clearly 

erroneous, and it believes that in determining any compensable 

damages due Mr. Nantz, the total gross income he received 

following his termination ($23,056.68), should simply be 

subtracted from the total gross income he lost. The respondent's 

calculations in this regard are as follows: 

$33,988.50 (39.6 hours) 

-$23.056.68 

$10£931.82 

$38~827.28 (43.45 hours) 

-$23,056.68 

$15.770.60 

Deductible Weeks 

Citing Metric Constructors, Inc., 3 FMSHRC 1260 (February 

1984) 1 aff'd, Brock v. Metric Constructors, Inc., 766 F.2d 469 

(11th Cir. 1985), the respondent argues that Mr. Nantz's backpay 

claim should be barred because of his admitted failure to 

immediately seek other employmentu oru in the alternative, that 

at least two weeks of backpay should be deducted in computing 

damages. 

The respondent maintains that any backpay award in this case 

should be reduced by a four-month or seventeen-week period 

because of the Secretary 1 s unreasonable delay in bringing this 

action within a 120-day period as provided by the Act and the 

Conu"niss Conceding t.hat: not attempt to prove 

t:.nesses tmavailable or its ~ 'the respondent points out 

never agreed delay should not be considered 

computing a backpay award" 

The respondent asserts foreman Farley 1 s 

:return t.o l'll'Ork e :::Y:.:' attempt to put him 

\:o Hork unless he was paid backpay fullv Mr. Nantz 

effect to mitigate damages by not pursuing this 

pending lH:igat.ion of claim for Jbackpay" Since the 

place sometime June or July 1991, the respondent 

argues Mro Nantz 1 s rejection of the Farley offer 

disqualifies him for any backpay weeks after June or July 1991. 

Giving Mro Nantz the benefit of assuming that the offer was made 

at the end of July 1991, the respondent concludes that Mr. Nantz 

should be entitled to backpay for no more than 15 weeks, from 

April 16, 1991, through July 3lf 1991v less the two (2) weeks he 

did not seek employmentv or a total of 13 weeks. 

244 
The respondent agrees that the medical damages are 

$1,426.76, and that they should be added to any backpay award. 

The respondent submits that the backpay award with interest and 

medical damages could range from $17,481.23, based upon a 43.45 

hour work week and without subtracting any weeks for the 

Secretary's delay, Mr. Nantz's delay in seeking employment, or 

his rejection of reemployment, but including unemployment 

insurance, to a low figure of $6,237, on the basis of a 39.6 hour 

work week for only the 13 weeks preceding Mr. Nantz's rejection 

of the offer of reemployment, but not deducting for any income 

received since the record fails to establish whether he received 

any income during that period of time, although he may have 

received some small amount of unemployment insurance benefits. 

The various possible calculations submitted by the respondent are 

included as an attachment to this decision. 

Findings and Conclusions 

In a discrimination case, -·the amount of backpay to be 

awarded as part of the remedial remedy is the difference between 

what the employee would have earned but for his wrongful 

termination and his actual interim earnings. OCAW v. NLRB, 547 

F.2d 598, 602 D.c. Cir. 1976); cert. denied, 429 u.s. 1078 

(1977), cited and followed by the Commission in Northern Coal 

Company, 4 FMSHRC 126 (February 1982), and Belva Coal Company, 

4 FMSHRC 982 (June 1982). Further, the employee must make a 

reasonably diligent effort to mitigate his loss of income or 

other damages, and his failure to do so may, in appropriate 

circumstances, result in a reduction of any backpay award, OCAW 

v. NLRB, supra; Northern Coal Company, supra. 

In the Belva Coal Company caseu supra, at 4 FMSHRC 994-995u 

Commission stated as follows~ 

In Northern Coal Co., 4 FMSHRC 126, 144 (1982), we 

followed precedent established under the National Labor 

Relations Act and defined back pay as the sum equal to the 

gross pay the miner would have earned but for the 

discrimination, less his "actual net interim earnings." 

ouNet interim earningsge is an accepted term of art which does 

not refer to net earnings in the usual sense (gross pay 

minus various withholdings}. Ratheru the term describes the 

employee 0 s gross interim earnings less those expenses, if 

anyu incurred in seeking and holding the interim employmentexpenses that the employee would not have incurred had he 

not suffered the discrimination. To remove any possible 

confusion, we will henceforth refer to the term as "actual 

interim earnings. 11 See OCAW v. NLRB, 547 F.2d 598, 602 

(D.C. Cir. 1976), cert. denied, 429 u.s. 1078 (1977). 

245 
In Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 

(December 1983), the Commission stated as follows: 

Back pay and interest shall be computed by the 

"quarterly" method. See Florida Steel Corn., 231 NLRB at 

652; F.W. Woolworth Co., 90 NLRB 289 (1950), approved NLRB 

v. Seven-Up Bottling Co., 344 u.s. 344 (1953). Under this 

method (referred to as the "Woolworth formula," after the 

NLRB's dec'ision in the case of the same name, supra), 

computations are made on a quarterly basis corresponding to 

the four quarters of the calendar year. Separate 

computations of back pay are made for each of the calendar 

quarters involved in the back pay periodo Thus, in each 

quarter, the gross back pay, the actual interim earnings, if 

any, and the net back pay are determined. 

Back Wages 

The Secretary's back wagecalculations are based on an 

average weekly salary based on a 40-hour week at $10.50 per hour, 

plus 3.5 weekly hours of overtime at $15.75 per hour, for a total 

gross weekly salary of $475.12. The Secretary's calculations are 

based on Mr. Nantz's wage and hour history covering a 32-week 

period prior to his termination on April 16, 1991, rather than 

the shorter 15-week period covering only the year 1991, as 

submitted by the respondent. I take note of the fact that in 

calculating Mr. Nantz's average weekly pay rate, the Secretary 

did not include several weeks in 1990 where the pay information 

was not known or documented, or the week of April 20, 1991, when 

Mr. Nantz was terminated and did not finish the week. 

After careful consideration of the arguments advanced by the 

partiesu I conclude and find that the Secretary~s computations 

are both reasonable and proper and provide a more accurate and 

realistic base for computing Mr. Nantzgs average weekly gross pay 

for purposes of calculating his damages. I accept and adopt the 

Secretaryvs calculation of $475.12u as a reasonably accurate 

reflection of Mro Nantz 9 s average gross weekly wagesu and I 

reject the respondent 1 s argument to the contraryo 

I take note of the fact that the interim employment 

information and calculations submitted by the parties basically 

cover the period beginning the week after Mro Nantz's termination 

on April 16 1 199lu through December 31, 1992. Any damages due 

Mro Nantz will have to be adjusted to account for the subsequent 

time period before his actual reinstatement or payment of 

damages. 

The parties are in agreement that the 6.5 week mine layoff 

from August 14, 1991, through September 30, 1991, which would 

have affected Mr. Nantz, should not be included in calculating 

the work weeks lost by Mr. Nantz as a result of his termination. 

246 
Utilizing the respondent 0 s calculations based on the Secretary's 

$475.12 weekly gross wage, which I have adopted, I conclude and 

find that Mr. Nantz would have lost $105 for the week ending 

April 21, 1991, plus 81.5 weeks at $475.12 per week, or 

$38,722.28, for a total gross income lost for the period 

April 16, 1991, through December 31, 1992, of $38,827.28. 

Back Wages Adjustments/Deductions 

Interim Earnings 

The record reflects that Mr. Nantz had gross earnings of 

$11,451.68, for employment with Cloverfork Mining & Excavating 

during September 0 1991 through February 5, 1992, and gross 

earnings of $1,340, for employment with c & L Logging during 

May 6, 1992, through June 30, 1992. I agree with the 

respondent's position that the--sum total of these interim 

earnings should be deducted from any backpay award to Mr. Nantz. 

However, I disagree with the respondent's position that the 

failure by the Secretary to offset $2,565 in Cloverfork Mining 

earnings by Mr. Nantz during the lay off period was unreasonable. 

The parties agree that Mr. Nantz would not have been employed 

during the layoff period, and they have taken this into account 

by not counting the layoff period as part of their back wage 

computation. By the same token, if Mr. Nantz had not been 

terminated, he would have been out of work during the layoff 

period and could have used that time to either work at another 

job or stay home. The fact that he worked another job during the 

time when he would have otherwise been laid off should not be 

held against him 7 and he should not be penalized by deducting any 

wages earned. during! the layoff from any Joackpay award. Under the 

circumstances" <:he respondent" s arguments are rejected u and I 

conclude and find that the Secretaryus discounting of the wages 

earned during the layoff period was reasonable and proper. 

As noted aarlierr the amount any backpay award a 

discrimination case is the difference between what the miner 

would have earned lbut for <the discrimination and his actual 

interim earnings. Except for my rejection of the respondent 1 s 

arguments that the $2u565 earned by Mr. Nantz from Cloverfork 

Mining during the August/September 1991 mine layoff, should be 

offset from any backpay awardu I otherwise agree with the 

respondentus position that the sum total of Mr. Nantz's interim 

earnings should be deducted from what he would have otherwise 

earned had he not been terminated. I reject the Secretary's 

failure to subtract the difference between Mr. Nantz's fourth 

quarter 1991 Cloverfork Mining earnings of $8,771.53, and the 

$6,176.56, backpay he would have earned in that quarter, from his 

overall backpay award. 

24 7 
I conclude and find that Mr. Nantz's interim earnings of 

$1,340 with C & L Logging should be deducted from the $38,827.28, 

income lost for the period April 16, 1991, through December 31, 

1992o I further conclude and find that $8,886.68, in interim 

earnings from Cloverfork Mining ($11,451.68 less $2,565.00) 

should be deducted from the income lost during this same time 

period. 

Mitigation of Damages 

An employee who has been discriminated against by his 

employer must make a reasonable effort to seek alternative 

employment following his unlawful termination. Ocaw v. NLRB, 

547 F.2d 598, 603 (D.C. Cir. 1976), cert. denied, 429 u.s. 1078 

(1977). Any determination as to what constitutes a "reasonable 

effort" is made on the peculiar facts of the case. NLRB v. 

Madison Courier Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972). 

In Metric Constructors'; :tnc. 1 6 FMSHRC 232 (February 1984) 1 

aff'd, Brock, ex rel Parker v. Metric Constructors Inc., 766 F.2d 

469, 473 (11th Cir. 1985), the commission affirmed a Commission 

Judge's denial of one week of back pay for an employee who failed 

to make a reasonable effort to seek employment during the week 

following his termination. The Commission also approved the 

Judge's following and applying NLRB cases under the National 

Labor Relations Act. 

The respondent concludes that Mr. Nantz's failure to look 

for other work for two or three weeks after his employment 

termination waiting to see if the respondent would call him back 

to work was clearly nonsensical. Relying on the decision in 

Metric Constructors, Inc., supraf the respondent submits that at 

least three weeks of any back pay award should be deducted 

because Mro Nantz's failure to seek employment during the 

period immediately following his termination. 

Mr. Nantz confirmed that he waited two or three weeks after 

he was terminated before looking for other work waiting to see if 

the respondent would call him back to work (Tr. 27). Mr. Nantz 

explained that he heard nothing further from Mr. Farley after his 

termination of April 16 0 199lu regarding any offers of 

reemployment 8 and he stated that nr just kept waiting on him to 

call u and he never called10 (Tr. 82-83) . 

I take note of the fact that the Secretary did not use the 

week that Mr. Nantz was terminated in calculating his backpay. 

However, the Secretary does not address Mr. Nantz's admission 

that he waited for an additional two weeks before looking for 

other work, nor does the Secretary address the respondent's 

arguments with respect to this issue. 

248 
After careful consideration of the argument advanced by the 

respondent, I conclude and find that Mr. Nantz's failure to begin 

his search for work during the three or four days following his 

termination was not unreasonable. However, I further conclude 

and find that it was unreasonable for Mr. Nantz to wait an 

additional two weeks before looking for work. I find no credible 

evidence to support any conclusion that Mr. Nantz had any 

reasonable expectation of being rehired by the respondent 

following his termination, and he admitted that he made no effort 

to contact mine management to seek reemployment and stated that 

he "wouldn't work for a man who did not pay him". Under the 

circumstancesu I conclude and find that two-weeks should be 

deducted from Mr. Nantzis backpay award. Accordingly, I have 

deducted $950.24 ($475.12 x 2) from Mr. Nantz's backpay award. 

Unemployment Compensation Payments 

The parties are in agree~~nt that any reduction of backpay 

due for unemployment payments is a matter of discretion with the 

presiding Judge. Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983), 

affirming in part its prior decision on this issue in Boich v. 

FMSHRC, 704 F.2d 275 (6th Cir. 1983). 

The respondent maintains that all gross income received by 

Mr. Nantz subsequent to his termination, including unemployment 

compensation payments, should be subtracted from his compensable 

damages. The respondent concludes that if Mr. Nantz had not been 

terminated and remained in its employ, he would not have received 

any of the 1991 and 1992 income which has been documented in this 

case. 

pursuant. to the Act is an egui table remedy ~c make the victim of discrimination violation of 

105 ( c ;.~ct. ~;crhole and to restore him to his prior 

economic status absent the discrimination. I find no compelling 

reason for providing Mr. Nantz additional recovery for his lost 

wages over and above his backpay interest by not deducting 

unemployment compensation payments he has received. 

The respondent has been assessed a civil penalty of $1,000, 

i t.s discriminatory conduc'c resulted in Mr. Nantz v s 

employment termination on April 16p 1991. Since the penalty 

assessment a sanction intended to deter further 

discriminatory conduct by the respondentv I find no compelling 

reason or circumstances for imposing an additional sanction 

against the respondent by not crediting it with the unemployment 

payments received by Mro Nantz. Under the circumstances, I 

conclude and find that any unemployment benefit payments received 

by Mr. Nantz should be deducted from his compensable damages. 

Accordingly, I have deducted $10,265.00, in 1991 and 1992 

unemployment compensation payments received by Mr. Naritz from his 

249 
backpay award covering the period April 16, 1991, through 

December 31, 1992. 

Delay in Filing Complaint 

The respondent's contention that Mr. Nantz's backpay award 

should be reduced by a four-month or seventeen-week period 

because of the secretary's unreasonable delay in filing the 

complaint with the Commission IS REJECTED. The respondent has 

not proved that it has been prejudiced by any delay and in fact 

concedes that any delay did not make any of its witnesses 

unavailable, or that it had any adverse impact on its ability to 

defend the complaint. Furtheru in my decision of November 2, 

1992, I rejected the respondent~s arguments with respect to any 

unreasonable delay by the Secretary, 11 FMSHRC 1882-1883, and my 

findings and conclusions in this regard are herein incorporated 

by reference and they are REAFFIRMED. I conclude and find that 

Mr. Nantz's backpay award should not be reduced because of the 

asserted delay by the Secretary. 

Rejected Reemployment Offer 

The respondent 1 s assertion that Mr. Nantz should be 

disqualified for any backpay subsequent to July 31, 1991, because 

he failed to mitigate his damages by rejecting foreman William 

Farley's offer to put him back to work, or to "attempt" to put 

him back to work, IS REJECTED. This issue was previously raised 

by the respondent and I rejected its arguments and found no 

credible evidence to support any conclusion that Mr. Farley made 

any bona fide offer ~o rehire Mr. Nantz. Indeed, the evidence ~eflects that Mr. Nantzqs replacement was immediately hired by 

foreman Wayne Fisher when Mro Nantz was effectively terminated on 

April 16 0 1991 0 and that this was done with mine superintendent 

Louis HamiltonQs blessingo Under all of these circumstances, my 

previous findings and conclusions are herein adopted by reference 

and REAFFIRMED, and I conclude find that Mro NantzQs backpay 

award should not be reduced because purported offer by 

mine management reemploy Mr. Nantz~ or any rejection of this 

offer by Mr o Nantz, 

ORDER 

On the basis of the foregoing findings and conclusions, 

including the reductions made for Mr. Nantz's interim earnings 

with Cloverfork Mining and c & L Logging, his waiting two weeks 

after his termination to begin looking for work, and his 

unemployment compensation payments, I conclude and find that the 

gross backpay award for Mr. Nantz for the period April 16, 1991, 

through December 31, 1992, less interest, is $17,385.3~. I also 

conclude and find that Mr. Nantz is entitled to an additional sum 

250 
of $1.426.76, for medical expenses which the parties agree he 

would have been entitled to under the respondent's health 

insurance plan had he remained employed with the respondent. 

IT IS ORDERED THAT: 

1. My decision in this case, issued on November 19, 

1992, is now final. 

2. The respondent shall reinstate Mr. Nantz to his 

former position with full backpay and benefits, with 

interest, from April 16, 1991, the date of his 

terminationu and adjusted to the date of his 

reinstatement, at the same rate of pay, on the same 

shift, and with the same status and classification that 

he would now hold had he not been unlawfully 

terminated. The gross backpay award due Mr. Nantz 

pursuant to this decision· ·shall be subject to the usual 

and normal withholdings. Backpay and interest will 

continue to accrue until Mr. Nantz is reinstated and 

paid. 

The interest accrued with respect to Mr. Nantz 8 s 

backpay award shall be computed in accordance with the 

Commission's decision in Local Union 2274, UMWA v. 

Clinchfield Coal Co., 10 FMSHRC 1493 (November 1988), 

aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, 895 F.2d 

773 (D.C. Cir., 1990), and calculated in accordance 

with the formula in Secretary/Bailey v. Arkansas 

Carbona, 5 FMSHRC 2042 (December 1983}, and at the 

adjusted prime rate announced semi-annually by the 

Internal Revenue Service for the underpayment and 

overpayment of t.axeso 

J. The respondent shall reimburse and pay to Mr. Nantz 

$1,426.76, with interest, in medical expenses which would 

have been covered by his medical insurance had he not been 

terminated. 

4:. The respondent. shall expunge from Mr. Nantz~ s personnel 

file and/or company records all references to the 

circumstances surrounding his employment termination of 

April 16, 1991. 

5. The respondent shall pay to the Secretary (MSHA), a 

civil penalty assessment of $1,000, for the discriminatory 

violation which has been sustained. 

251 
The respondent shall comply with this Order within thirty 

(30} days of the date of this final decision. 

Judge 

Attachment 

Distribution: 

MaryBeth Bernui, Esq., Office of the Solicitor, u.s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

32715 (Certified Mail) 

David o. Smith, Marcia A. smith, Esqs., 100 West Center Street, 

P.O. Box 699, Corbin, KY 40702 (Certified Mail) 

jml 

252 
I 415.80/week (39.6 boura) 

(1) 

11.5 wka $10,931.82 backpay 

+ 100.80 f 196.77 interest 

-23,056.68 f 1,426.76 medical 

1.'otal $12,555.35 

KENT 92-259-D 

I $475.12/week (43.45 boura) 

81.5 wka $15,770.60 backpay 

+ 105.00 $ 283.87 interest 

-23,056.68 $ 1,426.76 .. dical 

Total $17,481.23 

(Leaa: 2 weeka for Rantz'• delay in ... king employment) 

(2) 

79.5 wka ·$10,100.22 backpay· 79.5 wks $14,820.36 backpay 

+ 100.80 f 181.80 intereat 

-23,056.68 f 1,426.76 .. dlcal 

+ 105.00 $ 266.77 intereat 

--23,056.68 $ 1,426.76 .. dica1 

1.'otal 

» 

4\i2.!S wka 

+ 100.80 

$11,708.78 "''otal 116,513.89 

(Leaat 17 1110re veeka for secretary'• delay but 

aubtracting only f18 6 445.34 for qroaa income raceived) 

§ 7q642.96 backpay 62.5 wka $11,354.66 backpay 

$ 137.57 interest + 105.00 • 204.38 intereat 

-18,445.34 ' 1,426.76 medical -18,445.34 f 1,426.76 .edical 

~-]. 

(4) 

13 wka 

1.'otal 

G \1,207.29 Total 112,985.80 

«OR& 15 weaka for period 4/16/91 - 7/31/91 only for 

Wantzva rejection of re-employmen~) 

LBSS: 2 weaka for Rantz' • delay 1n •eeking employment 

$ 5,405.40 backpay 

f 97.30 intereat 

$ 1,426.76 medical 

f 6,929.46 

13 vka $ 6,176.56 backpay 

f 111.18 intereat 

f 1,426.76 .. dical 

Total $ 7,714.50 

253 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DONALD PORTER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 lEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Ft.B 1 ti \993 

DISCRIMINATION PROCEEDING 

complainant 

Docket No. KENT 93-60-D 

PIKE CD 92-11 

NORTH STAR CONTRACTORS, INC., 

Respondent Mine No. 4 

Appearances: 

DEC:IS:ION 

Mr. Donald Porter, Deboard, Kentucky, pro se; 

Keith Bartley, Esq., Prestonsburg, Kentucky, for 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based on a Complaint filed by Donald 

Porter alleging that he was discriminated against by North Star 

Contractors, Inc., ("North Star"), in violation of Section 105(c) 

of the Federal Mine Safety and Health Act of 1977, ("the Act") 30 

U.s. c. § ·a15 (c) . Pursuant to Notice, the case was heard in 

Huntingtonu West Virginia on January 6u 1993 9 and the transcript 

of the hearing was filed February Bu 1993o At the hearing, 

Mr. Donald Porter appeared~~ and testified in his behalf. 

William Johnson also testified on behalf of the Complainant. At 

the conclusion of Complainantus case, Respondent made a Motion 

for summary decision. After listing to argument on the motion, 

I rendered a bench decision dismissing this case. The 

decision 9 with the exception of minor corrections not relating to 

matters of substance 9 set forth as follows~ 

1 have reached a decision in this matter and I 

wish to place the decision on the record at this time. 

The Complainant in this case 1 Donald Porteru on July 

27u 1992, was working as an operator of a miner for 

North Star Contractors, Inc. on that day, nothing 

unusual had occurred and all the operations were 

normal. Mr. Porter operated his continuous miner in 

the number five heading, entered a break in the number 

six heading and then proceeded to cut headings one and 

two in breaks off of the No. 6 heading. In cutting 

heading number two after taking a cut he noticed a hole 

in the middle of the break approximately two feet in 

diameter. 

254 
After making the cut in heading number two, he 

noticed his foreman, Eugene Williams, was hollering at 

him and he heard him say, "I'm really proud of you 

boys". After that Mr. Williams then turned to the 

helper of Donald Porter, Mr. Willy Johnson, and told 

him that the could not understand why Donald would do 

something like that. Mr Porter then said that he was 

going to the house, left the underground mine and went 

home. 

As I stated at the commencement of the hearing, in 

order to establish a case of discrimination under 

section 105(c) of the Act the Complainant, and I'm 

quoting at this point from Boswell v. National Cement 

Company, 14 FMSHRC 253 at 257, 

•.• bears the burden of persuasion that he 

engaged in protected activity and that the 

adverse action compl~!ned of was motivated in 

any part by that activity~··· The Secretary on 

behalf of Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786, 2797-2800 (October 

1980} rev'd on other grounds, sub nom 

Consolidation Coal Company v. Marshall, 663 

F.2d 1211; (3rd Cir. 1981); and Secretary on 

behalf of Robinette v. United Castle Coal 

Company 3 FMSHRC 803, 817-818 (April 1981). 

The operator may rebut the prima facie case 

by showing either that the protected activity 

occurred or that the adverse action was in no 

part motivated by the protected activity. If 

an operator cannot rebut the prima facie case 

matter" it may nevertheless defend 

affirmatively by provlng that would have 

·t.aken the adverse action v any event il on 

the basis of the minergs unprotected activity 

alone. Pasula, supra, Robinette, supra. See 

also Eastern Associated Coal Corporation v. 

FMSHRC 813 F. 2d 639 ~ 642 9 (4th Cir. 1987) u 

Donovan v. Stafford Constructionp 732 F.2d 

954g 958-959u .c. Cir. 1984)v Boich Vo 

FMSHRC 719 F.2d 194f 195-196f (6th Cir. 

1983) c specifically approving the 

Commissionas Pasula-Robinette test) o 

I note in this case first of all that the foreman 

did not expressly fire Mr. Porter and indeed did not 

make any complaints against him at this point. There 

is no evidence that the Company took any adverse action 

against Mr. Porter. There were no remarks that 

Mr. Williams made to Mr. Porter that could, in any way, 

be interpreted as indicating that Mr. Porter was fired 

255 
or that any other adverse action was being taken 

against him. Also, although the law provides that a 

work refusal could be considered as a protected 

activity, "the miner must have a good faith and 

reasonable belief that the work in question is 

hazardous, See generally Robinette supra, 3 FMSHRC at 

807-812". Boswell, supra at 258. In addition, 

Once it is determined that a miner has 

expressed a good faith and reasonable concern 

the analysis shifts to an evaluation of 

whether the operator has addressed the 

miner's concern in a way that his fears 

reasonably should have been quelled. In 

other words the management explained to (the 

miner) that the problem in his work area had 

been corrected. Boswell, supra, at 258. 

The evidence here qoes not established any work 

refusal. There is no evidence that Mr. Porter was 

required to perform any work that was in any way 

hazardous. Mr. Porter did not indicate that any work 

was assigned to him that he believed to be hazardous, 

nor did he communicate to management any safety 

concerns that he had. 

For all these reasons, I find that there is no 

basis under the law to sustain a case of discrimination 

under the Act and accordingly the Complaint must be 

DISMISSED. 

\QlRDERED 'chat 

ORDER thisAoxsz:: 

Avram Weisberger 

Administrative Law Judge Distribution~ 

Mr. Donald Porter General Delivery, Deboard, KY 41214 

{Certified Mail) 

Keith Bartleyu Esq.u 22 Court StreetQ PoOo Box 1378, 

Prestonsburg, KY 41653 (Certified Mail) 

nb 

256 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB l 61993 

DENVER COLLINS, 

Complainant 

. . 

. . DISCRIMINATION PROCEEDING 

v. Docket No. KENT 92-877-D 

MSHA Case No. BARB-CD-92-21 

ANDALEX RESOURCES, INC. , Respondent 

. 

c 

No. 23 Mine 

Appearances: 

Before: 

DECISION 

Phyllis L. Robinson, Esq., Hyden, Kentucky, 

for the Complainant; 

Philip c. Eschels, Esq.,Greenebaum, Doll 

and McDonald,,, Loui~ville, Kentucky; 

Marcus McGraw, Esq., Greenebaum, Doll 

and McDonald, Lexington, Kentucky, for 

Respondent 

Judge Melick 

This case is before me upon the Complaint by Denver 

Collins under section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. 801, et seg., the "Act" 

alleging unlawful discharge under Section 105(c)(1) of 

the Act by Andalex Resources, Inc. (Andalex). 1 In his 

Section 105(c)(l) of the Act provides as follows~ 

110No 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 mineru representative of miners 

or applicant for employment in a coal or other mine subject 

to this Act because such miner" representative of miners 

or applicant for employment has filed or made a complaint 

under or related to this Act 0 including a complaint notifying 

the operator or the operatorRs agentu or the representative 

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

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

because such mineru representative of miners or applicant 

for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners 

of applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or 

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

or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or 

others of any statutory right afforded by this Act." 

257 
original complaint filed with the Mine Safety and Health 

Administration (MSHA), Collins alleged that he was fired 

10 for keeping notes of unsafe acts at the underground mine." 

Mr. Collins' Complaint filed before this Commission on 

July 24, 1992, presents essentially the same allegation. 

Subsequently, in an amended complaint filed on October 29, 

1992, Collins further alleged that he had "voiced repeated 

safety complaints during the two years of his employment 

with Andalex Resources, and that management ignored said 

complaints to the point that the making of said complaints 

was futile.n 

The Commission has long held that a miner seeking 

to establish a prima facie violation of section 105(c)(1) 

of the Act bears the burden of persuasion that he engaged 

in an activity protected by that section and that the 

adverse action was motivated in any part by that activityo 

Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786 (1980) rev'd on other grounds ~ ngm. 

Consolidation Coal co. v;·Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary on behalf of Robinette v. United Castle 

coal Co., 3 FMSHRC 803 (1981). The operator may rebut 

the prima facia case by showing either that no protected 

activity occurred or that the adverse action was in no 

part motivated by the protected activity. Failing thatu 

the operator may defend affirmatively against the 

prima facia case by proving that it was also motivated 

by unprotected activity and would have taken the adverse 

action in any event for the unprotected activity alone. 

Pasula, supra; Robinette, supra (the so-called PasulaRobinette test). See also Donovan v. Stafford Constr. Co., 

732 F.2d 954g 958-59 (D.Co Cir. l984)u Boich v. FMSHRC, 

719 F.2d 194~ 195-96 6th o l983)o 

The credible evidence case clearly supports a 

finding that the Complainant engagea 1n protected activities 

in the two years preceding his discharge on January 21, 1992. 

Collins testified that over the course of his employment 

at the Andalex Noo 23 Mineu beginning on August 5 0 1991 9 he 

reported to Andalex management various safety and health 

problemsu including those involving coal dust in the mine 

atmosphere and the need for rubber gloves to handle a power 

cable. 

In the absence of evidence of contemporaneous 

adverse action against Collins in response to these 

alleged protected activities, however, and indeed in the 

absence of any retaliatory action against him even after 

a fatal roof fall incident to which company officials 

believe Collins himself contributed, I find it highly 

258 
unlikely that Andalex retaliated against him for any 

health or safety complaints reported before January 16, 

1992. It is further noted that these complaints by Collins were not extraordinary in nature, but rather the 

type of reports and requests to be expected from miners 

in the day-to-day operation of an under-ground coal mine. 

Indeed, even after these complaints had been made, it is 

undisputed that Collins was being considered for promotion 

to the position of foreman and was told of those plans. 

For the above reasons and because of the swift and severe 

action by Andalex officials on January 21, 1992, in clear 

response to Collins' activities on.January 16, 1992, I 

conclude that his discharge on the former date was solely 

the result of his activities on the latter date. 

In this regard Collins himself maintains that his 

discharge on January 21, 1992, was the direct result of 

the discovery by his foremqn on or after January 16, 1992, 

that he had entered written notations in his logbook of 

illegal deep cuts he had taken on that date. It is not 

disputed that on Thursday, January 16, 1992, Collins, 

while operating the continuous miner, knowingly took at 

least two illegal and admittedly dangerous deep cuts of 

55 feet each -- well in excess of the 30 foot cuts 

permitted under the applicable roof control plan. 

While Collins maintains that he took these deep cuts 

with at least the tacit approval of his foreman, Charles 

Smith (though not at Smith's specific order or direction) 

he admits that he would not take such illegal deep cuts in 

the presence of upper management including the "superintendents uu and Clifford Berryu Division Manager. In this 

regard Collins testified that su[w]hen you are breaking 

the law0 you know who you can run in front of and who you 

can't" (Tr. 34). It is clear, in any event, that the illegal 

practice of taking deep cuts with the continuous miner, as 

admitted by the Complainant, is not a protected activity. 

See Secretary of Labor on behalf of Bryan Pack v. Maynard 

Brunch Dredging Company and Roger Kirk, 11 FMSHRC 168 (1989). 

Collins has alleged, and it is undisputed, however, 

that his Foreman 0 Charles Smithg and Mine Superintendent 

Willie Sizemore (the person who notified Collins of his 

discharge) knew at the time of his discharge that he had 

been maintaining a daily log, including, among other 

things, a notation in that log of the illegal deep cuts 

he had taken on January 16. Whether or not these persons 

had actually seen this entry or any other log entry, it 

is clear that these persons had knowledge that he was 

259 
maintaining such a log. Under the particular circumstances 

of this case, I find that this was a protected activity. 

That Collins may not have intended the contents of his log 

be reported to MSHA or to Andalex officials or that the 

entry regarding the deep cuts on January 16 was only 

inadvertently disclosed to company officials is immaterial. 

Even a miner who has not actually engaged in a protected 

activity is nevertheless protected under Section 105(c) if 

the mine operator retaliates based only on the erroneous 

belief that the miner did engage in protected activity. 

see Elias Moses v. Whitley Development Corp., 4 FMSHRC 

1475 (1982). In addition, the mere threat of disclosure 

is sufficient to trigger the protections of Section 105(c). 

Serious allegations have been made in this case by a 

number of witnesses that while it was known that upper 

management would not tolerate deep cuts some foremen not 

only did not discourage q~ep cuts but actively encouraged 

and overlooked such practices at the Andalex Mine. These 

allegations were made too many times by too many credible 

witnesses to be without some merit. The fact that continuous miner operators other than Collins were also apparently 

regularly taking illegal cuts, but only Collins was 

discharged, suggests that the adverse action against Collins 

was in fact motivated not merely for taking the illegal deep 

cuts, but also at least in part for maintaining a written 

record of the practice. 

However, in light of the clear recognition, by even 

the Complainant himself, that the upper mine management 

would not tolerate deep cutting, I conclude that those ~~dalex officials who ultimately discharged Collins 0 i.e.u 

zemore and Berry 9 did in fact take that action based on 

his unprotected illegal activities alone -- whether or not 

low ranking management such as Foreman Smith may have 

also been motivated in reporting on Collins, by Collins' 

protected activity. Pasula, supra: Robinette, supra. I 

find credible Berryus testimony that he had no knowledge 

of Collins 0 log entry on the Sunday before the discharge 

when he directed Superintendent Sizemore to verify the 

facts and if they proved to be true that Collins did indeed 

take the deep cutsu then to fire Collins. In any event, 

even had he such knowledge, it is undisputed that Berry 

would not tolerate deep cutting and would no doubt fire 

anyone who did so. It may therefore reasonably be inferred 

that Berry would have directed Collins' discharge in any 

event based solely on his unprotected and illegal deep 

cutting alone. 

260 
While Sizemore had knowledge of Collins' log entry 

(regarding his deep cuts on January 16), I find credible 

his testimony that he declined to look at the log entry 

and indeed would have taken the same action against Collins regardless of his knowledge of any such log entry. 

The only suggestion that Sizemore may have ever approved 

of deep cutting was Collins' claim that Sizemore was once 

present near an entry that had been deep cut. Without 

additional evidence however I cannot infer that Sizemore 

therefore in fact condoned or encouraged deep cutting. 

Even if Collins' testimony was true in this regard, there 

are a multitude of reasons why Sizemore may not have had 

knowledge that he was near a deep cut. In addition, if 

Sizemore had in fact condoned the practice of deep cutting, 

as Collins seems to suggest, it would have been reasonable 

for Collins to have raised that in his defense when Sizemore 

told him he was being fired for that identical practice. 

The fact that Collins did riotraise that claim suggests that Sizemore did not in fact condone such a practice and 

Collins knew that. Collins, of course, also testified 

that he would not take illegal deep cuts in the presence of 

the mine superintendents -- apparently because he knew the 

practice would not be tolerated by any of the superintendents, 

including Sizemore. 

Finally, I find Sizemore to be a credible witness 

and find credible his testimony that he did not, and 

would not, tolerate deep cutting and had no knowledge, 

other than the fatality in 1990 and the instant case, 

where a deep cut had been takeno I therefore conclude 

that his decision to discharge Collins was based solely 

on Collins 0 unprotected illegal activity on January 16u 

l992v of taking deep cutso Thusu I conclude that the 

persons responsible for Collinsu discharge, namely Berry 

and Sizemore, were in no way motivated by his protected 

activitiesu but based their decision solely on his unlawful 

conduct on January 16v 1992 in taking illegal deep cuts 

with the continuous minero Under the circumstances Collins 

has failed to sustain his burden of proving that his 

discharge was in violation of the Act and the complaint 

must accordingly be dismissed. 

261 
ORDER 

Discrimination proceeding Docket No. KENT 92-877-D is 

hereby dismissed. 

Distribution: 

Phyllis L. Robinson, Esq., P.O. 

(Certified Mail) 

Hyden, KY 41749 

Marcus P. McGraw, Esq., Greenebaum, Doll and McDonald, 

333 West Vine Street, Suite 1400, Lexington, KY 40507 

(Certified Mail) 

Philip c. Eschels, Esq., Greenebaum, Doll and McDonald, 

3300 First National Tower, Louisville, KY 40202 (Certified 

Mail) 

/lh 

262 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 8 i993 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent . . 

Docket No. PENN 92-445 

A.C. No. 36-04175-03560 

Robena Prep Plant 

DECISION 

Appearances: John M. Strawn, Esq., u.s. Department of Labor, 

Office of the Solicitor, Arlington, Virginia 

for Petitioner; 

Before: 

Daniel E. Rogers, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Feldman 

This case is before me based upon a petition for assessment 

of civil penalty filed by the Secretary (petitioner) alleging a 

violation by the operator (respondent) of the surface mine 

mandatory safety standard that prohibits dangerous accumulation 

of coal dust. This matter was heard in Washington, Pennsylvania, 

at which time Robert G. Santee and Robert L. Campbell testified 

on behalf of the petitioner and William Geary testified for the 

respondento 

The issues for resolution are whether the respondent 

permitted a dangerous accumulation of coal dust at its Robena 

Preparation Plant and, if so, whether this accumulation was a u~significant and substantial 91 violation andjor the result of the 

respondent's "unwarrantable failure". Also for consideration is 

the amount of civil penalty, if any, that should be assessed. 

The parties have stipulated to my jurisdiction in this matter and 

to the pertinent civil penalty criteria found in Section 110(i) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §801 

et seq., (The Act). The parties' post-hearing briefs are of 

record. 

263 
FINDINGS OF FACT AND DISCUSSION 

At approximately 6:50a.m., on August 22, 1991, Mine Safety 

and Health Administration Inspector, Robert G. Santee arrived at 

the respondent's Robena Preparation Plant facility ~or the 

purpose of conducting an inspection. This facility consists of 

several buildings, that receive, transport and process coal from 

the respondent's Dilworth Mine. The coal is transported up the 

Monongahela River by barge to the preparation plant where it is 

processed and stored by means of a series of conveyor belts. 

Upon his arrival at the facility, Santee spoke to Mine 

superintendent, Pat Zungri who informed Santee that Company 

Representative, Joe Bailey and Miner Representative, Harry Churby 

would accompany him on his inspection. Santee proceeded to the 

foreman's office where he inspected the foreman's log. Santee 

observed that the last entry in the log occurred on the afternoon 

shift of August 21, 1991, by Mine Examiner, Ed Bodkin. Bodkin's 

log entry made no reference to any accumulations of coal dust in 

the transfer house. 

Sometime between 7:00a.m. and 7:35a.m., Santee, 

accompanied by Bailey and Churby, proceeded to the transfer house 

to conduct an inspection. The transfer house is a building used 

to transport coal by conveyor belt to and from the river from the 

preparation plant. Upon arriving on the first floor of the 

transfer building, Santee observed several areas of accumulation 

of float dust and loose coal. He noted that the more he looked 

around the transfer building, the more extensive the 

accumulations appeared to be. Therefore, Santee issued 104(d) {1) 

Order No. 3691990 to Joe Bailey for an alleged violation of 

Section 77o202 which Santee concluded had occurred as a result of 

the respondent 9 s unwarrantable failure. 1 The order was based on 

Santee's observations of dangerous amounts of coal dust 

accumulations at the following locations: 

1) Coal dust accumulations ranging from o to 1/2 inch 

deep on top of the electrical motors for the No. 1 

conveyor belt. 

2} Coal dust accumulations ranging from o to 1/2 inch deep 

on the electrical motors and structures for the river 

tipple conveyor belt. 

3) Coal dust accumulations ranging from o to 1/16 inch 

deep inside of the electrical control panel boxes on 

30 C.F.R. §77.202 provides: "Coal dust in the air of, or 

in, or on the surfaces of 1 structures, enclosures 1 or other 

facilities shall not be allowed to exist or accumulate in dangerous 

amounts." (Emphasis added). 

264 
the bottom floor of the transfer building where 

electrical motors for the No. 1 conveyor belt and river 

tipple conveyor belt are located. 

4) Coal dust accumulations ranging from o to ,1/2 inch deep 

on the steel beam structures on the bottom floor of the 

transfer building and continuing up to the first 

landing, including the first landing platform. 

5) Loose coal and wet coal and mud ranging from 2 to 24 

inches in depth at three different locations on the 

bottom floor of the transfer building including 

underneath the tail rollers for the No. 1 and river 

tipple conveyor belts. 

6) Coal dust accumulations from 0 to 1/2 inch deep on top 

of the drive units and structures for the No. 1 and 

river tipple conveyor belts and on the floor of the 

platform for the secondary drive for the river tipple 

conveyor belt. , · · 

Santeews citation noted that the No. 1 and river tipple 

conveyor belts were running at the time the citation was issued 

at 8~25 a.m. In addition, Santee testified that the electrical 

boxes were energized at the time he observed these accumulations. 

(Tr.21,25-26). Santee noted that the accumulations observed were 

black in color and were not combined with any non-combustible 

materials. (Tr.44,56,108). Finally, Santee stated that there 

were footprints in the accumulations which led him to believe 

that these accumulations should have been observed and were not 

of recent origin. (Tr.28). Santee estimated these accumulations 

existed a period of several shifts to approximately one week. 

0 52 0 

Upon issuing t:he 104 (d) 1 order v Santee informed Bailey to 

de-energize power from the electrical motors and boxes so as 

to avoid any potential for ignition. After the top surfaces of 

the drive units and structures for the No. 1 and river tipple 

conveyor belts were washed fu Santee modified Order No. 3691990 

include additional coal dust accumulations he observed ranging 

from 0 to 1/2 inch deep which were saturated with grease and oil 

a'c several locations near the conveyor belt drive units. (Gov. 

Ex.l). Santee attempted to continue his inspection but realized 

that plant personnel were assigned to clean other areas of the 

transfer building before he could inspect them. Therefore, 

Santee discontinued inspection at approximately 9:30 a.m. 

Santee returned to the field office and was contacted at 

approximately 4~00 p.m •• by zungri who advised santee that the 

condition had been abated. Santee returned to the preparation 

facility at approximately 5:15 p.m.p and reinspected the transfer 

house in the presence of Zungri and Robert L. Campbell, Chairman 

of the Union Safety Committee. 

265 
Robert Campbell testified on behalf of the Secretary. He 

stated that he also observed extensive amounts of float coal dust 

on top of the electrical panels, inside of the panels and on the 

floor. campbell, who is employed at this facility, ,estimated 

that the dust accumulations existing in and around these panels 

were present for at least 3 weeks. (Tr. 110-111). Campbell 

corroborated Santee's observations regarding an oil and grease 

leak near the No. 1 conveyor belt. Campbell estimated that this 

condition existed for more than one month. (Tr. 108). 

campbell further testified that the transfer house is 

considered to be a problem area in terms of coal dust 

accumulations. He stated that the safety committee had raised 

the issue with the respondent's management on several occasions. 

(Tr.112-l13). campbell related that regular maintenance of the 

transfer house is done on weekends. Consequently, he opined that 

dust conditions deteriorate as the week progresses. {Tr. 110, 

122-123). Thus, the nature Cl\.~d extent of the coal dust 

accumulations observed by santee and Campbell were consistent 

with this weekend cleaning policy in that the inspection occurred 

on a Thursday. (Tr.117). Campbell testified that the weekend 

cleaning did not include cleaning of the electrical boxes or 

motors. (Tr. 122-123). Campbell expressed concern about the 

accumulations and their explosive potential as welding is 

performed in the transfer house approximately two times per 

month. (Tr. 120-121}. 

The respondent called Plant Foreman, William Geary as its 

only witness. Geary worked the midnight shift on August 22, 

1991. This shift began on August 21, at 11:00 p.m., and ended at 

approximately 7~15 a.m.g on August 22. Geary testified that he 

inspected the transfer house at approximately 6:00a.m., on 

August 2 2 p 19 9 L Jchat t.ime" he reportedly noted coal dust 

that needed to be removed on the walkways around the No. 1 

conveyor belt. (Tr. 161). Geary testified that he went to the 

foreman's office at approximately 6:30 a.m. Geary stated that he 

made a notation in the inspection log at approximately 6:35 a.m.u 

to 6~40 a.m. (Tr.176). The subject notation states, "Transfer 

house area on both sides of river tipple belt need cleaned-up 

{sic) . 002 Geary testified that he did not know how this coal 

accumulation occurred. (Tr.l73). Geary stated that he observed 

Santee on the preparation facility premises on August 22, 1991, 

prior to his departure at the end of his shift. (Tr.203). 

2 The respondent did not introduce a certified copy of this 

log entry at trial. The record was kept open and it was received 

in evidence as Respondent's Ex. 1 on November 16, 1992. 

266 
FURTHER FINDINGS OF FACT AND CONCLUSIONS 

occurrence of Violation 

The respondent is cited for violation of the mandatory 

safety standard in section 77.202 which specifies that coal dust 

shall not be "allowed" to accumulate in "dangerous amounts" in 

the air or on the surfaces of structures, enclosures, or other 

facilities. As coal dust is a natural consequence of the coal 

preparation process, the issue for determination is whether the 

respondent ''allowed" the accumulations to occur and whether such 

accumulations constituted "dangerous amounts." 

Turning to the question of whether the respondent allowed 

these conditions to occur, the determining factor is the period 

of time in which the respondent permitted the coal dust to 

accumulate. In Utah Power anddLiqht v. Secretary of Labor, 951 

F.2d 292, 295 (lOth Cir. 1991), the Tenth Circuit, in applying a 

similar mandatory safety standard for underground mining 

contained in Section 75.400, stated that coal dust accumulations 

must be 11 o • o cleaned with reasonable promptness, with all 

convenient speed.n Obviously, section 77.202 does not 

contemplate citations for coal dust as it is generated as a byproduct of coal preparation. It is only the accumulation of such 

coal dust, which requires a period of time to occur, which is 

prohibited. (Tr.84-85). Thus, the operator must be afforded a 

reasonable period of time to remove coal dust accumulations 

before a citation can be properly issued. 

In its brief 0 referring to the testimony of Gearyv the 

respondent allegesu without foundation 0 that uc[t]he major 

accumulationv amounting to an estimated 50 tons of coal 0 and the 

dust associated with the spill of that coal, occurred sometime 

during the afternoon shift of August 21 or the midnight shift of 

August 22 o (Tr. ppo 173 and 17 4) • 9

' (Emphasis added) • 

{Respondent 0 s Br. 1=2}o However 9 the respondent has misquoted 

Gearycs testimonyo There is no evidence of record of any recent 

coal spill that could account for the accumulations observed by 

Santee and Campbell. In factu Gearyu speaking hypothetically 6 

testified that 0 given the volume of coal on the conveyor belts it 

would only take uao o o a few minutes for 50 ton[s] to get there 

(spill) o uu (Tr o 17 0-171) • Although Geary referred to 11 a spill 

there sometime during the night" he also testified that he did 

not know how these accumulations (referred to by counsel for the 

respondent as a "spill") occurred or when they occurred. 

(Tr.168,173). Geary's lack of knowledge about a recent coal 

spill is consistent with the testimony of Santee and Campbell 

which makes no reference to any statement by Bailey, Churby or 

Zungri, mine personnel who accompanied Santee on his inspection, 

267 
that a relevant coal spill had occurred. Significantly, Geary 

testified that he only saw 2 to 24 inches of coal dust 

accumulations around the No. 1 conveyor belt rather than a 

catastrophic coal spill. (Tr.172- 173). Thus, the testimony, 

when viewed in its entirety, supports the conclusion that the 

subject accumulations developed over a period of time and were 

not the result of a recent spill. 3 In reaching this conclusion, 

I note the testimony of Campbell concerning the respondent's 

policy of cleaning the transfer house on a weekly basis with 

resultant coal dust accumulations as the week progresses. 

Moreover, the physical evidence consisting of coal dust layers 

saturated with oil and grease, coal dust filtering through cracks 

in electrical boxes, and widespread coal dust accumulations on 

electrical motors, beams and around the rollers of the conveyor 

belts, supports the opinions of Santee and campbell that these 

accumulations existed for a prolonged period of time. 4 

I also reject the respondent's assertion that the subject 

accumulation was noted in the· foreman's log book by Geary prior 

to Santee's inspection. Santee's contemporaneous notes reflect 

that upon arrival at the preparation plant the last entry in the 

inspection log was by Bodkin on the afternoon shift of August 21, 

1991. (Gov. Ex. 2, p.l). Significantly, Superintendent zungri, Plant Foreman Brian Mahalovich and Plant Engineer Bailey never 

informed Santee at the beginning of his inspection of the 

occurrence of a recent spill that required cleanup or of a 

pertinent entry in the inspection log. The first time Santee was 

shown Geary's log entry was sometime after 10:15 a.m. (Tr.35). 

Moreover, Geary testified that he was aware of Santee's presence 

on the premises prior to ending his shift on August 22, 1991. 

Thus 8 Geary had the opportunity to enter the cleanup notation 

concerning both sides of the river tipple belt after he was aware 

Santee had begun his inspection. I concludev therefore 

t.hat t:he evidence fails to establish the existence of a log 

entry concerning a cleanup of any of the subject coal dust 

accumulations until after Santee's inspection and after the 7~15 a.m.u day shift on August 22v 1991, had begun. 

{See Tro 35-36) o 

~. 

d Respondent~s Counsel and Geary have used the word spill and 

accumulation interchangably throughout this proceeding. However, 

find Geary 1 s description of his observations of accumulations 

ranging from 2 to 24 inches consistent with an accumulation rather 

than a significant spill. 

4 As previously noted, Santee estimated that the accumulation 

existed over a period of several shifts to one week. Campbell 

testified that these accumulations were present from 3 weeks to 

more than one month. I give greater weight to Campbell's testimony 

as he is employed at and familiar with the preparation facility. 

268 
Finally, assuming arguendo that Geary's log entry was 

timely, it did not adequately address the widespread 

accumulations on such locations as in the electrical boxes, on 

the electrical motors and on the beams. It is noteworthy that it 

took the respondent an entire day to clean the transfer house. 

There is no evidence that Geary's entry in the log book was 

intended as an acknowledgement of the necessity for such an 

extensive cleanup. Thus, the Secretary has established that the 

respondent "allowed" this coal dust to accumulate in 

contravention of Section 77.202 in that it failed to take 

remedial action until santee issued the subject 104(d) (1) order. 

The remaining issue is whether these accumulations ranging 

from 1/16 inch inside the electrical boxes, 1/2 inch on the 

electrical motors and conveyor belt structures and 2 to 24 inches 

around the conveyor belt rollers, constitute "dangerous amounts". 

The Commission, in Pittsburgh & Midway Coal Mining Company, 8 

FMSHRC 4 (January 1986), has concluded that coal dust 

accumulations 1/8 inch in deptb inside electrical boxes, where 

there is a potential ignition source, are "dangerous amounts" 

within the meaning of Section 77.202. Consistent with this 

Commission decision, I construe the extensive accumulations 

observed by Santee in close proximity to electrical boxes, motors 

and moving belts to be "dangerous" accumulations. Accordingly, 

the Secretary has established a violation of Section 77.202. 

SIGNIFICANT AND SUBSTANTIAL 

The Secretary asserts that the nature and extent of the coal 

dust accumulations cited by Santee warrant the finding that this 

was a significant and substantial violation. A violation is 

deemed to be ~significant and substantial n if there is "a 

?easonable likelihood that the hazard contributed to will result 

an UZ""J or illness of a reasonably serious nature. 10 U.s. 

Steel Mining Co.,Inc.u 7 FMSHRC 327, 328 (1985); Cement Division, 

National Gypsum Co.v 3 FMSHRC 822, 825 (1981); Mathies Coal Co., 

6 FMSHRC 1,3-4 (1984). This evaluation is made in terms of 

uucontinued normal mining operations o 91 U.s. Steel Mining Co 0 , 

Inc.v 6 FMSHRC 1573u 1574 (1984). The question of whether a 

particular violation is significant and substantial must be based 

on the particular facts surrounding the violation. Texasgulf, 

Inc.u 10 FMSHRC 498 (1988)9 Youghiogheny & Ohio Coal Company, 

9 FMSHRC 2007 (1987) 

269 
The respondent concedes that it is "· •• indisputable that 

an accumulation of coal dust did exist in the transfer house on 

the morning of August 22, 1991." (Respondent's Br.l). The issue 

for determination is whether there was a reasonable ·likelihood 

that these accumulations would result in combustion· causing 

serious injury. It is fundamental that float coal dust is 

combustible only if 1) the float coal dust is in suspension; 2) 

there is an ignition source; and 3) there is an actual ignition 

or explosion. (Tr.45). 

With regard to suspension, Santee testified that although he 

did not visualize any float dust in suspension, the widespread 

nature of the accumulations was indicative of suspended coal 

dust. (Tr.49-50). In addition, he testified that there were 

several common occurrences which could place the dust in 

suspension. For example, Santee stated that the starting and 

stopping of conveyor belts, the movement of those belts and tail 

rollersi and the opening of doors causing air circulation were 

all potential causes of float dust suspension. (Tr.63-64). 

With respect to the second element of ignition, I accept the 

unrebutted testimony on behalf of the Secretary concerning the 

presence of potential ignition sources from arcing or sparks from 

the electrical boxes or motors, from heat build up and sparks 

related to friction from the conveyor belts and from occasional 

welding activities. (Tr. 46-47, 121). The proximity of float 

coal dust to these sources of ignition further demonstrates the 

serious nature of this violation. 

Finally, in the event of actual combustion, it must be 

established that a f or explosion is reasonably likely to 

cause serious injury or death. Santeevs citation noted that one 

person was affected by hazardous condition. Apparentlyu one 

employee on each shift is assigned to the transfer house where he 

is responsible for cleaning up the belt areas and hosing down the 

chute. (Tr.l18). The foreman on each shift also travels through 

the transfer house to inspect the condition of the facility. 

" 177). Santee and Campbell also testified that personnel 

enter the transfer building for maintenance and repair • 

• 5lul21). The potential for explosion andjor fire engulfing 

the entire building would subject anyone inside to the 

substantial risk of serious injury or death. Admittedly, while 

the discrete hazard in this instanceu ioe•u combustion and 

resultant injuryv requires the coincidence of several events, I 

find that the secretary has established a significant and 

substantial violation by virtue of the extensive nature of the 

accumulations, their proximity to ignition sources and the 

likelihood of suspension given the accumulations' exposure to 

moving conveyor belts. 

270 
unwarrantable Failure 

The remaining issue concerns whether the respondent's 

failure to timely remove the subject accumulations constitutes an 

unwarrantable failure. The Commission has noted 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 Corporation, 9 FMSHRC 1997 

(December 1987); Youghiogheny & Ohio Coal Company, supra; 

Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249 

(March 1988)s Referring to its prior holding in the Emery Mining 

case, the Commission stated as follows in Youqhiogheny & Ohio, at 

9 FMSHRC 2010: 

We stated that whereas negligence is 

conduct that is "inadvertent, 9

' ''thoughtless", 

or "inattentive, "unwarrantable conduct is 

conduct that is described·· as "not 

justifiable" or "inexcusable." Only by 

construing unwarrantable failure by a mine 

operator as aggravated conduct constituting 

more than ordinary negligence, do 

unwarrantable failure sanctions assume their 

intended distinct place in the Act's 

enforcement scheme. 

In Emery Mining, the Commission elaborated on the meaning of 

the phrase 11 unwarrantable failure as follows: 11 

00Unwarrantable" is defined as 91 not 

ustifiable" or "inexcusable." "Failure" is 

defined as 00 neglect an assigned, expectedc 

or appropriate action Q 

03 Webster us Third New 

International Dictionary (unabridged) 2514~ 

814 (1971) ("Webster's"). Comparativelyp 

negligence is the failure to use such care as 

reasonably prudent and careful person would 

use and is characterized by ou inadvertence u eu 

"

1thoughtlessness, ne and 09 inattentiono oe 

Black 1 s Law Dictionary 930-31 (5th ed. 1979)o 

Conduct that is not justifiable and 

inexcusable is the result of more than 

inadvertence, thoughtlessness, or 

inattention. 9 FMSHRC at 200lo 

The evidence in this case reflects widespread coal dust 

accumulations, including those located on electrical motors and 

inside electrical boxes, which were permitted to accumulate over 

an extended period of time. These conditions were indicative of 

an inadequate cleanup policy which involved periodic cleanup 

rather than effective cleanup on an as needed basis. The 

271 
existence of these accumulations in proximity to ignition sources 

manifests a reckless disregard of this serious risk of explosion 

which goes beyond mere inattentiveness or thoughtlessness. 

Moreoveru the presence of these accumulations despite previous 

meetings with the Safety Committee concerning this problem in the 

transfer house provides an additional basis for concluding that 

the respondentws inaction constituted more than ordinary 

negligence. As such, this violation is attributable to the 

respondent's unwarrantable failure. 

Conclusions 

In view of the above, I conclude that the gravity associated 

with the respondent 1 s violation of Section 77.202 was serious 

given the risk of life threatening injury and that the underlying 

degree of negligence exhibited by the respondent was high. I 

therefore concur with the $1,200 assessment proposed by the 

Secretary in this matter as it is consistent with the evidence of 

record and the criteria in Section llO(i) of the Act. 

ORDER 

Accordinglyv Order No 3691990 IS AFFIRMED and the respondent IS 

ORDERED TO ~AY a civil penalty of $1,200 in satisfaction of the 

violation in issuec Payment is to be made within thirty (30) 

days of the date of this decisionv and upon receipt of payment, 

this matter XS DISMISSED. 

Law Judge 

Distribution~ 

John Me Stra't~n o v Office the Solicitoru UoSo Department of 

;vmy 

14480=Gateway 3535 Market Street 8 

?A 19104 certified Mail) 

Rogers" Esao~ Consolidation Coal Companyv 1800 

ttsburgh PA 15241 Certified Mail) 

272 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HARLAN-KYVA COAL INC., 

Respondent 

February 19, 1993 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-226 

A. C. No. 15-11292-03582 

Mine No. 1 

Docket No. KENT 92-182 

A. C. No. 15-14235-03588 

Docket No. KENT 92-171 

A. C. No. 15-14235-03587 

Docket No. KENT 92-170 

A. C. No. 15-14235-03586 

Mine No. 2 

Docket No. KENT 92-169 

A. C. No. 15-10818-03531 

Mine No. 3 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

These cases are before me upon the petitions for assessment of 

the civil penalties under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. The parties have filed a joint motion to 

approve settlements. A reduction in penalties from $9,370 to 

$5,682 is proposed. The reduction is based upon the operator's 

financial condition. Reports from the operator's accountants show 

a balance sheet with a net deficit in stockholder equity and a 

profit and loss sheet with a net operating loss. I have considered 

the representations and documentation submitted in these cases, and 

I conclude that the proffered settlements are appropriate under the 

criteria set forth in section llO(i) of the Act, particularly the 

criterion of the operatorijs ability to continue in business. 

WHEREFORE 6 the motion for approval of settlements is GRANTED, 

and it is ORDERED that the operator PAY a penalty of $5,682 within 

30 days of this order. 

Paul Merlin 

Chief Administrative Law Judge 

273 
Distribution: (Certified Mail) 

w. F. Taylor, Esq., Office of the Solicitor, u.s. Department of 

Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215 

Mr. carl E. McAfee, Esq., 1033 Virginia Ave., P.O. Box 656, Norton, 

Virginia 24273-0656 

274 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BASIN ASPHALT COMPANY, 

Respondent 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

fEB 19 1993 

: CIVIL PENALTY PROCEEDING 

: 

Docket No. WEST 92-586-M 

: A. C. No. 45-00603-05512 . . 

. . 

. . Moses Lake Pit & Plant 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me upon a petition for assessment of a 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977. The parties have filed a joint motion to 

approve settlement. A reduction in the penalty from $362 to $181 

is proposed. The parties also advise that the Solicitor has agreed 

to modify Citation No. 3644317 by deleting the significant .and 

substantial designation. I conclude that the proffered settlement 

is appropriate under the criteria set forth in section 110(i) of 

the Act. However, the Solicitor should be aware that in the 

future she must explain why the significant and substantial finding 

being deleted and why negligence is being reduced. A conclusive 

statement will not suffice. 

WHEREFORE, the motion for approval of settlement is GRANTED. 

is ORDERED that the operator pay a penalty of $181 within 

0 days this ordero 

Law Judge 

Distribution: (Certified Mail) 

Cathy Barnes, Esq., Office of the Solicitor, u.s. Department of 

Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 

Albert De Atley, Basin Asphalt Company, 2000 East Beech Street, 

Yakima, Washington 98901 

rdj 

275 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BASIN ASPHALT COMPANY, 

Respondent 

FEB 191993 

0 

. 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-587-M 

A. C. No. 45-00603-05511 

Moses Lake Pit & Plant 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me upon a petition for assessment of a 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977. The parties have filed a joint motion to 

approve settlement. A reduction in the penalty from $362 to $181 

is proposed. The parties advise that the Solicitor has agreed to 

modify Citation No. 3644310 by deleting the significant and 

substantial designation. I conclude that the proffered settlement 

is appropriate under the criteria set forth in section 110(i) of 

the Act. However u the Solicitor should be aware that in the 

future she must explain why the significant and substantial finding 

is being deleted and why negligence is being reducedo A conclusive 

statement will not suffice. 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that the operator pay a penalty of $181 within 

30 days of this order. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Cathy Barnes, Esq., Office of the Solicitor, u.s. Department of 

Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 

Albert De Atley, Basin Asphalt Company, 2000 East Beech street, 

Yakima, Washington 98901 

276 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

~E8i91993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING . MINE SAFETY AND HEALTH . ADMINISTRATION (MSHA), 

Petitioner . . Docket No. WEST 92-686-M 

A. C. No. 24-00338-05533 

v. 

MONTANA RESOURCES, Continental 

Before: 

ORDER ACCEPTING LATE FILING 

DECISION APPROVING SETTLEMENT 

ORDERTO PAY 

Judge Merlin 

The Solicitor's unopposed motion to accept late filing of the 

penalty petition is GRANTED. Salt Lake County Road Department, 3 

FMSHRC 1714 (1981). 

The Solicitor has filed a motion to approve settlement of the 

one violation involved in this matter. The originally assessed 

amount was $431 and the proposed settlement is for $431. An 

electrical conduit on the side of the conveyor belt was broken 

exposing employees to possible electrical shock¢ Upon reviewQ I 

find that 31 is an appropriate penalty for this serious violation 

and that is in accordance with the six statutory criteria set 

forth in section 110(i) of the Act. 

AccordinglyQ the recommended settlement 

operator is ORDERED TO PAY $431 within 30 days 

decision" 

\ 

Distribution: (Certified Mail) 

APPROVED and the 

the date of this 

Robert A. Murphy, Esq., Office of the Solicitor, u.s. Department of 

Labor, 1585 Federal Bldg., 1961 Stout St., Denver, CO 80294 

Ed McGowan, Montana Resources, 600 Shields Ave., Butte, MT 59701 

rdj 

277 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

FEB 1 9 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KERN ROCK COMPANY 

Respondent 

: CIVIL PENALTY PROCEEDING . 

. 

: Docket No. WEST 93-9-M 

: A. C. No. 04-01829-05530 . . 

. 

& 

. . Wheeler Ridge Pit & Mill 

DECXSiON APPROVXNG SETTLEMENT 

Before: Judge Merlin 

This case is before me upon a petition for assessment of the 

civil penalties under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. The Solicitor has filed a motion to 

approve settlements. A reduction in the penalties from $1,610 to 

$1,449 is proposed. The Solicitor has explained that the 

original assessments did not adequately take account of good 

faith abatement. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlements are appropriate under the criteria set 

forth section llO(i) of the Act. 

WHEREFOREu the motion for approval of settlement is GRANTED, 

and it is ORDERED that the operator PAY a penalty of $1,449 

within 30 days of this order. 

- \?~ Paul Merlin 

Chief Administrative Law Judge 

Distribution~ (Certified Mail) 

J. Mark Ogden, Esq., Office of the Solicitor, u.s. Department of 

Labor, 3247 Federal Bldg., 300 North Los Angeles St., Los 

Angeles, CA 90012 

Robert E. Jones, Kern Rock Co., P.O. Box 3329, Bakersfield, CA 

93385 

rdj 

278 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

FEB 1 9 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

K Y V COAL COMPANYu INC. 0 

Respondent 

0 

0 

0 

. 

0 

0 

0 

0 

0 

0 

Docket No. WEVA 92-1103 

A. C. No. 46-07622-03539 

No. 3 

DECISION APPROYING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of the 

one violation involved in this matter. The originally assessed 

amount was $903, and the proposed settlement is for $903. The 

ventilation and dust control plan was not being complied with 

because the pressure of the water sprays was less than required. 

Upon review I find that $903 is an appropriate penalty for this 

serious violation and that it in accordance with the six 

statutory criteria set forth section llD(i) of the Act. 

Accordingly, 'che recommended settlement is APPROVED and the 

operator ORDERED TO ~A~ $903 within 30 days of the date of this 

decision. 

~~ ~ '* \, /? ''\J '~-~ 

'\~~' Paul Merlin 

Chief Administrative Law Judge 

Distribution~ (Certified Mail} 

Tina C. Mullins, Esq.u Office of the Solicitoru U.S. Department of 

Laboru 4015 Wilson Blvd.u Arlington, VA 22203 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, Drawer 1560, 

Grundy, VA 24614 

rdj 

279 
FEDERAL MINE SAFETY AND HEALTH. REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYliNE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)f 

Petitioner 

Vo 

COSTAIN COAL INCORPORATED, 

FEB 2 21993 

0 

0 

0 

0 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-452 

A.C. No. 15-13920-03732 

Pyro No. 9 Wheatcroft 

DECISION APPROVING SETTLEMENT 

Before: Judge Feldman 

Statement of the Proceedings 

This proceeding concerns proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

to section 110(a) of the Federal Mine Safety and Health Act of 

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

four(4) alleged violations of certain mandatory safety standards 

found in Part 75v Title 30u Code of Federal Regulations. The 

respondent filed timely answers denying the alleged violations. 

The parties have decided to settle this matterv and the 

Secretary has filed a oint motion pursuant to Commission Rule 30~ 29 C.F.Ro §2700.30u seeking approval of the proposed 

settlements. No reduction in penalties is proposed. The 

citationsu initial assessments" and the proposed settlement 

amounts are as followsg 

:i!?roposec.l 

Citation ~©o assessment !Settlement. 

3549975 126.00 $ 126.00 

3549976 .e 178.00 $ 178.00 "" 3546673 $ 192.00 $ 192.00 

3546677 $ 192.00 $ 192.00 

280 
Discussion 

In support of the proposed settlement disposition, the 

petitioner has submitted information pertaining to the six 

statutory civil penalty criteria found in section llO(i) of the 

Act. In addition, the petitioner has submitted a full discussion 

and disclosure as to the facts and circumstances surrounding the 

issuance of the citations in question. 

conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case 6 I conclude that the 

proposed settlement disposition is reasonable and in the public 

interest. Accordingly, pursuant to 29 C.F.R. §2700.30, the 

motion IS GRAHTEDu and the settlement IS APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the amount 

of $688 in satisfaction of the violations in question. Payment 

is to be made to MSHA within thirty (30) days of the date of this 

order, and upon receipt of payment, this proceeding IS DISMISSED. 

Mary Sue Tayloru Esqou Office 

002 Richard Jones 

Tennessee 7215 (Certified 

Lamey u Esq o i Loss 

Incorporated 8 PoOo Box 289 

vmy 

~<;:;2) ~ ---~-- Jerold Feldman 

Administrative Law Judge 

281 

Solicitoru u.s. Department 

B-201u Nashvilleu 

Costain Coal 

42459 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 31993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

ROBERT C. TEANEY, 

Complainant 

ROBERT C. TEANEY, 

Intervenor 

BLACK MOUNTAIN COAL MINING, 

INCORPORATED, 

Respondent 

ROBERT C. TEANEY, 

Complainant 

v .. 

BLACK MOUNTAIN COAL MINING, 

INCORPORATED, 

Respondent 

. 

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c 

. 

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. .. 

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. 

.. 

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. 

0 

.. 

. 

0 

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0 

0 

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DISCRIMINATION PROCEEDING 

Docket No. KENT 92-867-D 

MSHA Case No. BARB CD-92-14 

No .. 1 Mine 

DISCRIMINATION PROCEEDING 

Docket No. KENT 93-264-D 

MSHA Case No. BARB CD-92-53 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Appearancesg 

Before~ 

Donna Eo Sonner, Esguireu Office of the 

Solicitor 8 .. So Department of Laboru 

Nashville 0 Tennessee 0 for the Secretary; 

Tony Oppegard, Esquire, Appalachian Research 

and Defense Fund of Kentuckyu Inc. 0 for 

Intervenor" and Complainant Robert Co TeaneyF 

William o Hayesu Esquire~ Middlesboro 9 

Kentucky 0 for Respondent 

Judge Melic1t 

These cases are before me upon Discrimination Complaints 

under Section 105(c) of the Federal Mine Safety and Health 

Act of 1977 8 30 U.S.Ce 801, et seg. (the Act). Before and 

at hearings the parties filed motions to approve settlement 

agreements and to dismiss the cases. The terms of the settlement are attached hereto as Appendix A. I have considered 

the representations and documentation submitted in these cases 

and I conclude that the proffered settlement is appropriate. 

282 
WHEREFORE, the motion for approval of settlement is 

GRANTED. Accordingly, Respondent is directed to: (1) pay 

Robert Teaney within 30 days of the date of this decision 

backpay of $3,600 and interest of $400; (2) expunge the 

employment records of Robert c. Teaney of all references 

to the circumstances involved in this matter; (3) post a 

copy of this decision, including Appendix A, at the mine 

office for 60 days from the date of receipt; and (4) ay a 

civil penalty (in Docket No. KENT 92-867-D) of $125, the 

secretary of Labor within 30 days f the date of this decision. 

Furthermore, these Discrimination roceedings are DIS ISSED. 

Distribution: 

Donna E. Sonner, Esq., Office of the So icitor, 

u.s. Department of Labor, 2002 Richard ·ones Road, 

suite B-201, Nashville, TN 37215 (Certified Mail) 

William A. Hayes, Esq., 2309 Cumberland Avenue, 

P.O. Box 817, Middlesboro, KY 40965 (Certified Mail) 

Tony Oppegard, Esq., Mine Safety Project of the 

Appalachian Research and Defense Fund of Kentuckyu 

Incou 630 Maxwelton Courtu Lexingtonu KY 40508 

Certified Mail) 

/lh 

283 
APPENDIX A KENT 92-867-D 

*MOTION TO APPROVE SETTLEMENT 

The parties, by their undersigned attorneys, hereby move 

the Administrative Law Judge to approve the settlement set out 

below. This motion is filed pursuant to 29 C.F.R. § 2700.30. 

As reasons for this motion the parties state as follows: 

1. on July 16, 1991, the Secretary of Labor filed a 

complaint against Respondent. The complaint alleged that 

Robert c. Teaney was the victim of unlawful discrimination 

by Respondent in that he was transferred to a belt head 

position from a roof bolter operator position after he called 

the Kentucky Department of Mines and Minerals to report an 

electrical hazard. Subsequently, the roof bolter operators 

received an increase in pay of $1.00 per hour, which caused 

Teaney to suffer a loss of compensation from the time of his 

transfer until September 18,'1991, when he ceased work due 

to injury. Teaney also worked from employer from April 27, 

1992 until June 2, 1992, when Teaney ceased working due to 

aggravation of previous injuries. The complaint alleged a 

violation of § 105(c) of the Act [30 u.s.c. § 815]. The 

Secretary8 s complaint sought certain relief, namely a finding 

that Teaney was unlawfully discriminated against, an order 

requiring Respondent to pay back wages to Teaney, an order 

directing that interest be added to the back pay, an order 

directing Respondent, its officers, agents, servants, employees 

and all other persons in active concert or participation with 

them1 to cease and desist discriminatory activities directed 

toward their employeesu for an order that Teaney's employment 

=ecord be completely expunged of all references to the 

circumstances involved in this matter 0 and an order assessing a 

penaltyo If the Secretaryus witnesses were called to a 

hearing 1 they would testify as described above. 

2o If Respondent's witnesses were called to a hearingy 

they would admit that Teaney was transferred to the belt head 

position from the roof bolter operator position 1 but would 

assert that the transfer was due to Teaneyvs being unable to 

operate the bolter fast enougho They would admit that the roof 

bolter operators received an increase in pay subsequent to 

Teaneyts transfero 

3o The parties have discussed the alleged violations 

and the statutory criteria stated in Section 110 of the Act. 

4o Pursuant to these discussions, the parties have 

negotiated a settlement, the details of which follow. 

!J As amended at hearing 

284 
5. Respondent does not have a history of previous 

105(c) violations in the previous 24 months. 

6. The violation was determined to involve high negligence. The gravity of the violation was high. 

7. Respondent is a medium-sized operator. 

a. The penalty agreed to will not affect the operator's 

ability to continue in business. 

9. Respondent has demonstrated good faith in prompt 

compliance by agreeing to repay the back wages due plus interest. 

10. Respondent agrees to pay Robert c. Teaney back wages of 

$3,600.00 and interest of $400.00 within 30 days of the date of 

the decision by the Administrative Law Judge. 

11. Respondent agrees that Teaney's employment record shall 

be expunged of all references to the circumstances involved in 

this matter. 

12. Respondent agrees to comply with the requirements of 

Section 105(c) of the Act and recognizes the right of miners to 

make safety complaints. This agreement in no way constitutes an 

admission of violations of section 105(c) in the instant cases, 

except for proceedings under the Act. 

13. Respondent shall pay to the United States Department of 

Labor a civil penalty in the amount of $125.00, pursuant to 

§ 105(c)(l) of the Act [30 U.S.C. 815(c)(1)]. 

14o Complainant 0 Robert Co Teaney 0 in Docket No. l~NT 93-264-Du further agrees to withdraw his complaint in that 

case consideration of the settlement hereino 

15. It is the parties 8 belief that approval of this 

settlement is in the public interest and will further the 

intent and purpose of the Acto 

285 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JAMES KOSIBA, Employed by 

Rensselaer Stone Co. Inc., 

Respondent 

FEB 2 3 1993 

CIVIL PENALTY PROCEEDING 

Docket No.LAKE 92-454-M 

A. C. No. 12-00087-05513A 

Limestone Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of the 

one violation involved in this matter. The originally assessed 

amount was $500 and the proposed settlement is for $500. Overload 

protection was not provided for the electrical circuit supplying 

power to the main power control center for the crushing plant. 

Upon review I find that $500 is an appropriate penalty for this 

serious violation and that accordance with the six 

statutory criteria set forth in section llO(i) of the Act. 

Accordingly u ·the recommended settlement is APPROVED and the 

respondent having paid, this matter is DISMISSED. 

\~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution~ (Certified Mail) 

J. Phillip Smith, Esq., Office of the Solicitor, u.s. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

James Kosiba, 936 Maxwell Court, Crown Point, Indiana 46307 

rdj 

286 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FlOOR 

WASHINGTON, D.C. 20006 

FEB 231993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JEFFERSON MATERIALS COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 93-40-M 

A. C. No. 33-01526-05506 

Howitt Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

This case is before me upon a petition for assessment of the 

civil penalties under section 105(d) of the Federal Mine Safety and 

Health Act of 1977. The Solicitor has filed a motion to approve 

settlement. A reduction in the penalty from $1,200 to $960 is 

proposed. It appears that the proposed settlement is an across the 

board twenty percent reduction in assessments which gives no 

reasons, even though the violations are characterized as highly 

likely to result in a fatality. Nevertheless, based on the 

information in the file I approve the settlement in light of the 

operator 0 s small size and history under the criteria set forth in 

section O(i of the Act. 

The Solicitor should be aware however, such across the board 

reductions are troubling and in the future she must explicitly 

explain why the recommended amounts are appropriate. 

WHEREFOREp the motion for approval of settlement is GRANTEDv 

and i·t is ORDERED that the operator pay a penalty of $960 within 30 

days of this order. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Elizabeth R. Ashley, Esq., Office of the Sol itor, U.S. Department 

of Labor, 881 Federal Bldg., 1240 East Ninth St., Cleveland, OH 

44199 

John E. Lower, Jefferson Materials Company, 8505 state Route 14, 

streetsboro, Ohio 44241 

287 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

IRENE TONEY, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 31993 

Complainant 

$ 

. 

0 

0 

. 

c 

DISCRIMINATION PROCEEDING 

Docket No. SE 92-318-DM 

MSHA Case No. SE MD 92-04 

IMC FERTILIZER, INC., 

Respondent 0 

c Kingsford Mine/Mill 

Appearances; 

Before: 

DECISION 

Irene Toney, Bartow, Florida, pro se; 

John Ee Phillips, Esq. 0 Holland and Knight, 

Tampa, Florida, for Respondent 

Judge Melick 

This case is before me upon the complaint by Irene Toney 

pursuant to section 105(c){3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.Co 801 et seg., the 11Act,n alleging 

that IMC Fertilizer, Inc. (IMC) discharged her on December 5, 

1991, in violation of Section l05(c)(1) of the Act. 1 

1 Section 105(c)(1) of the Act provides 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 the statutory rights of any 

miner 8 representative of miners or applicant for 

employment in any coal or other mine subject to 

this Act because such miner, representative of 

miners or applicant for employment has filed or made 

a complaint under or related to this Act 0 including 

a complaint notifying the operator or the operator 8 s 

agentu or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mineu or because 

such mineru representative of miners or applicant for 

employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant 

to section 101 or because such miner, representative 

of miners or applicant for employment has instituted 

or caused to be instituted any proceeding under or 

related to this Act or has testified or is about to 

testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or 

applicant for employment on behalf of himself or 

others of any statutory right afforded by this Act. 11 

288 
More particularly, Ms. Toney alleges that her discharge 

was the result of her persistent complaints to IMC management 

about the unsanitary condition of the field toilet facilities 

and, on at least one occasion, the absence of such facilities. 

In her complaint pursuant to Section 105(c)(2) of the Act to 

the Mine Safety and Health Administration (MSHA) and in her 

testimony at hearing, Ms. Toney cited particularly an incident 

in August or September 1991 when she purportedly found maggots 

on the toilet and floor of the portable toilet facility, and 

reported this condition to her foreman at the time, James Pate. 

She testified that she told Pate that if the toilet was not 

cleaned by 3:00 p.m. that day she would report the condition 

to the Polk County Health Department. Ms. Toney maintains 

that when the condition was not thereafter corrected she in 

fact then did call the Polk County Health Department and was 

referred to the local MSHA office. She subsequently reported 

those conditions to MSHA through a toll free telephone number 

and an MSHA inspector thereafter appeared at the mine site. 

Ms. Toney's complaint to the Secretary, providing the 

jurisdictional basis for this case, is set out in full as 

Appendix A to this decision. This complaint was thereafter 

denied by the Secretary by letter dated May 21, 1992, and 

Ms. Toney then filed the instant case with this Commission 

on June 4, 1992. 

Ms. Toney began her employment with IMC in January 1981, 

as a laborer and was promoted to dragline oiler in 1988. She 

thereafter commenced a training program for dragline operator 

and in 1990 became an assistant dragline operator and dragline 

operatoro Mso Toney recalls that her first complaint at the 

Kingsford Mine regarding the absence of any toilet facility 

was made to her then foremanu Jerry Wells. Following her 

request, a toilet was provided and apparently that was the 

end of the incident. Other than this first complaint at the 

Kingsford Mine 0 which apparently occurred in 1988 and the 

August or September 1991 complaint to James Pateu previously 

noted 0 Ms. Toney did not specify dates or particular cir= 

cumstances regarding her other complaints about toilet 

facilitiesQ She testified, however, that she complained about 

these facilities weekly to a number of management officials, 

including Mine Superintendent Ron Hartung, and Foremen 

Jerry Wells, Bonnie Baileyu Darold Weichman and Tom David. 

She also recalled that on at least one occasion 8 either due 

to a lack of toilet facility or unsanitary conditions, she 

had to go around the dragline and nuse the ground." She 

observed that, in general, for the first day or two after 

the toilets were serviced they would be clean but that they 

would thereafter "get dirty fast." 

289 
The Commission has long held that a miner seeking 

to establish a prima facie case of discrimination under 

section ~05(c) of the Act bears the burden of persuasion 

that he engaged in protected activity and that the adverse 

action complained of was motivated in any part by that 

activity. Secretary on behalf of Pasula v. Consolidation 

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

grounds, sub nom. Consolidation Coal Co. v. Marshall, 

663 F.2d ~211 (3rd Cir. 198~); and Secretary of Labor on 

behalf of Robinette v. United castle Coal Co., 3 FMSHRC 

803, 817-18 (~981). The operator may rebut the prima facie 

case by showing either that no protected activity occurred 

or that the adverse action was in no part motivated by 

any protected activity. If an operator cannot rebut the 

prima facie case in this manner, it may nevertheless defend 

affirmatively by proving that it would have taken the adverse 

action in any event on the basis of the miner's unprotected 

activity alone. Pasula, supra: Robinette, supra. see also 

Eastern Assoc. Coal Corp. v~ FMSHRC, 8~3 F.2d 639, 642 

(4th Cir. ~987); Donovan v. 'stafford Construction co., 

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

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

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

Transportation Management Corp., 462 u.s. 393, 397-413 

(1983) (approving nearly identical test under National 

Labor Relations Act. 

I find in this case that Ms. Toney established a 

prima facia case that she engaged in protected activities 

by making health related complaints to IMC management 

regarding the absence of sanitary toilet facilities 

and 0 on at least one occasion, the absence of any toilet 

facilitieso In addition I find that she has established 

undisputed evidence that she engaged in protected 

activity when she filed a complaint regarding unsanitary 

toilet facilities to MSHA in August or September 1991. 

Ms. Toney has also presented evidence which, when considered aloneu might suggest that her discharge may also 

have been motivated by her protected activitieso She 

testified that following her complaint to Foreman Pate 

in August or September 1991 about the unsanitary toilet 

facilityu Pate was so angry that he almost ran her down 

with his pickup trucko She also maintains that following 

this incident and her reporting of the same conditions 

to MSHA she received eight disciplinary points for leaving 

the job site early0 was given two disciplinary points when 

290 
she was late for a safety meeting and was called into the 

superintendent's office "almost daily. 112 

While this evidence, along with the relatively close relationship in time between her complaints to Pate 

and MSHA in August or September 1991 and her discharge 

on December 15, 1991, would tend to support a finding 

that her discharge may have been based, at least in part, 

upon her protected activities I find, in any event, that 

IMC has rebutted such evidence by clearly demonstrating that her discharge was not motivated by her protected 

activity. Pasula, supra, Robinette, supra. 

Doug Wampole has been a personnel supervisor for IMC 

for 18 yearso His job includes reviewing all disciplinary 

matters for consistency under the IMC point system. The 

IMC disciplinary program, in effect since January 1, 1986 

and about which all employees are notified, provides in 

pertinent part as follows: 

Three-Day Disciplinary Layoff 

9 Points - 12 Month Period 

13 Points - 18 Month Period 

15 Points - 24 Month Period 

12 Points - 12 Month Period 

15 Points - 18 Month Period 

18 Points - 24 Month Period 

The IMC Disciplinary Program allows employees to personally 

make positive inputs to their own record. Specifically : 

Jao If any employee has over 

10 years of continuous 

service o o 

- delete 1 point from 

disciplinary record 

2 While Ms. Toney also testified that she complained 

about the lack of sanitary toilet facilities to the Equal 

Employment Opportunity Commission in October 1991, on cross 

examination she acknowledged that the complaint did not 

relate to the cleanliness of the toilet facilities (See 

also Exhibit C-1). On cross examination Ms. Toney also 

acknowledged that the two disciplinary points she received 

for failing to attend a safety meeting occurred in April 

1991, prior to her complaint to MSHA about unsanitary toilet 

facilities. 

291 
Discipline Points 

3 

4 

9 

RULE INFRACTIONS 

Title of 

Discipline 

Reporting Late for Company Required Meeting 

Carelessness in Performing Duties 

(minimal to moderate loss of 

product or damaged equipment) 

Leaving the Job o:r:.Plant Without 

Permission andjor Proper Relief 

(has left Company premises} 

(Exhibits R-2 and R-3). 

Discipline/ Reference Code 

03-06 

04-01 

09-07 

Wampole testified that his role in the disciplinary 

action against Toney was to determine consistency. The 

foreman ordinarily initiates the disciplinary action through 

a "notice of discipline" (R-4) form and classifies the 

violation while Wampole looks to a computerized history of 

similar violations to determine whether the same type of 

violation has received the same penalty. Wampole himself 

the official who assesses the disciplinary points. 

In reviewing Toneyvs disciplinary historyu Wampole 

noted that she received two disciplinary points for a 

violation on April 29u 1991, for being late for a scheduled 

monthly safety meeting. Ms. Toney acknowledges that she was 

indeed late for the safety meeting and did not challenge this 

disciplinary action through the company grievance procedures. 

Wampole noted that this was a minor infraction for which she 

received only two points andu considering credit given for 

one positive pointu she was left with only one disciplinary 

point at that timeo (See Exhibit R-5). 

Wampole noted that Toney was subsequently disciplined 

for leaving the job without permission andjor proper relief 

on September 8 6 1991 and received nine disciplinary points. 

292 
The disciplinary report regarding this incident reads, in 

pertinent part, as follows: 

At 6:40 am on Sunday 9/8/91 the Page 3 dragline 

was called by the day shift foreman in order 

to have the crews work over. There was no reply 

to the repeated efforts to contact the dragline and pit. A roving HOH was sent to the area at 

6:45 am and found no personal vehicles and the 

D/L house interior, exterior and boom lights 

still on, on the machine. It is standard procedure that you cannot leave our assigned work 

station until properly relieved. On this machine, 

you were specifically instructed on 9/6/91 to 

call your foreman as your primary relief. No 

call was received. 

An hour's production was,_lost because of the delay 

in manning 3 stations. (Exhibit R-6). 

Ms. Toney admits that she did in fact leave her 

job site early without receiving direct permission from 

her foreman as charged in the disciplinary notice and 

acknowledges that she did not challenge this action 

through the company grievance procedures. Wampole noted 

that following the issuance of this disciplinary notice 

Ms. Toney had ten cumulative disciplinary points and 

received a 3-day layoff. It is not disputed that the 

two other employees on Toney's work crew who also left 

early on September 8, 1991, also received the same 

nine point disciplinary actiono 

Wampole observedu finallyu that as a result of a 

notice of IMC discipline on December 5u 1991, assessing 

four disciplinary points 1 Mso Toney had, as of that date, 

accumulated 14 points and, under the IMC disciplinary 

programu was subject to dischargeo 

The notice of disciplinary action dated December 5 0 

1991u reported, in partu as follows: 

On saturday 11/30/91 you failed to ensure 

the proper placement of the P-5 power 

cable which is one of the job duties you 

are responsible for as a dragline operator. 

You then got into the cable with the D/L 

bucket blowing it up causing three hours 

downtime and on the D/L and two hours down 

on the pit. (Exhibit R-8) 

29 3 
This disciplinary action was challenged by Ms. Toney 

through the IMC grievance procedures, including arbitration 

at which she was represented by the International Chemical 

Workers Union, Local No. 35. With respect to the factual 

findings and appropriate disciplinary points charged for 

the infractions by Ms. Toney, I give the arbitrator's 

decision significant weight. See Pasula, supra, 2 FMSHRC 

at 2795. The arbitrator thoroughly analyzed the factual 

setting given rise to the December 5, 1991, disciplinary 

action and found just cause for her discharge. (See 

Exhibit R-1). There is no challenge to the procedural 

fairness of these proceedings and Ms. Toney was represented 

by the union. It is also noteworthy that the same number 

of disciplinary points charged in this incident to Ms. Toney 

had also been issued to at least three other dragline operators 

between January 1991 and August 1991 for the same offense, 

i.e., cutting the dragline power cable with the bucket (See 

Exhibit R-9). I further find credible Mr. Wampole's testimony 

that at the time he evaluated-the issuance of disciplinary 

points to Ms. Toney he was unaware of her complaints regarding 

the lack or the unsanitary condition of the toilet facilities. 

Under the circumstances I conclude that in issuing 

disciplinary points against Ms. Toney, leading to her 

discharge on December 5, 1991, IMC was not motivated 

in any part by activity protected by the Act. Accordingly, 

this case must be dismissed. 

ORDER 

Discrimination Proceeding Docket No~ SE 92-318-DM is 

hereby dismissedo 

Distributiong 

Mso Irene Toney 9 2962 Morris Drive 8 GHv 

(Certified and First Class Mail) 

\ 

~ II ~ n 

La'udge 

\ Bartowu FL 33830 

John E. Phillips, Esq., Holland and Knight, P.O. Box 1288, 

Tampa, FL 33601 (Certified Mail) 

/lh 

294 
APPENDIX A SE 92-318-DM 

I called your office to report bathroom condition in 

field. I tried to call Safety Personnel first but he did 

not return call. Within two weeks of that time I received 

a points for so called leaving job site to [sic] early 

4 more points were given for a cable that was buried under 

ten or more feet underground. This cable should have been 

moved by two earlier shiftse When I told James Pate about 

bathroom problem he said there was nothing he could do about 

bathrooms which had maggots on floor on toilet itself and 

crawling all about the whole bath. I had complained to all 

said foremen about bathrooms and to no avail did I get any 

results. There were up to 15 men around the day I complained 

to James Pate. He even almost ran over me he was angry at me. 

Will give more details. 

295 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

FEB 2 3 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BAXTER R. NEECE, formerly employed 

by H B & B EQUIPMENT CO. INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 92-187 

A. C. No. 44-06593-03522 

Mine No. 4 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

This case is before me upon a petition for assessment of a 

civil penalties under section 105 (d) of the Federal Mine Safety and 

Health Act of 1977. The Solicitor has filed a motion to approve 

settlements. A reduction in the penalties from $2,950 to $50 permonth for 10 months for a total civil penalty of $500 is proposed. 

According to the Solicitor, the respondent is currently 

unemployed and has not worked as a foreman for the last year and a 

half" In addition, the Solicitor states that while the respondent 

conducted preshift examinations as a maintenance foreman on the 

midnight shift which should have revealed these violations, it was 

unlikely that he had the authority to have prevented or corrected 

the violations" 

The reductions are extraordinary and constitute low penalty 

amounts under section 110 ( i) of the Actu but relying upon the 

Solicitor 9 s detailed motionu I find that the amounts are 

appropriate. 

WHEREFOREu the motion for approval of settlements is GRANTED~ 

and it is ORDERED that the respondent, Baxter R. Neece, PAY a 

penalty of $500 according to the payment schedule set forth in the 

settlement motion. 

Paul Merlin 

Chief Administrative Law Judge 

296 
Distribution: (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, u.s. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Baxter R. Neece, P.O. Box 85, Trammel, VA 24289 

rdj 

297 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

WESTERN SAND & GRAVEL, 

Respondent 

FEB 231993 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-524-M 

A. C. No. 45-03119-05509 

Tenino Pit 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

This case is before me upon a petition for assessment of the 

civil penalties for ten violations under section 105 (d) of the 

Federal Mine Safety and Health Act of 1977. The parties have filed 

a joint motion to approve settlements. A reduction in penalties 

from $738 to $642 is proposed. Nine of the ten citations involved 

in this case were assessed $50 and are all non significant and 

substantial. The parties have agreed to settle these for the 

original amounts. I approve the findings for these violations and 

the proposed penalty amounts. 

respect to remaining citation, the Solicitor has agreed 

to reduce the penalty amount from $288 to $192. I find the $192 

pena reasonable based upon reading of the citation and the 

statutory criteria set forth in section 110{i) of the Act. 

Howeveru no reasons are given in the joint motion to support the 

recommended penalty. The Solicitor should be aware that in the 

:Eutur.e she must explicitly disclose why the penalty is appropriate 

ander section llO(i and explain the reduction in a penalty amount. 

The mere submission of boiler plate language for a reduction will 

not suffice. 

WHEREFOREu the motion for approval of settlements is GRANTED, 

and it is ORDERED that the operator PAY a penalty of $642 within 30 

days of this order. 

Paul Merlin 

Chief Administrative Law Judge 

298 
Distribution: (Certified Mail) 

cathy Barnes, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1111 Third Avenue, suite 945, Seattle, WA 98101 

A. Don Scarsella, Western Sand & Gravel, P.O. Box 68388, Seattle, 

Washington 98188 

rdj 

299 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

ftS 'l4 \993 

STEPHEN D. JUNGERS, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEST 92-226-DM 

v. 

WE MD 91-03 

U.S. BORAX 

Respondent Boron Mill 

DECISION 

Appearances~ Stephen D. Jungers 9 North Edwards~ California 9 

Pro Se; 

Michael G. McGuinness~ Esq. 9 Los Angeles 9 

Californiau 

for Respondent. 

~eforeg Judge cetti 

statement of the case 

This case is before me upon the Complaint by Stephen o. 

Jungers under section 105{c)(3) of the Federal Mine Safety and 

Health Act of 1977 9 30 u.s.c. § 801 et seq., the "Act," alleging 

a five day disciplinary suspension without pay by U.S. Borax 

300 
(Borax) in violation of section 105(c) (1) of the Act. 1 More 

specifically, the Complainant alleges that he was unlawfully suspended without pay commencing 2 hours after the start of his work 

shift on August 12, 1990, and continuing thereafter through his 

normal scheduled work days of August 21, 24, 25 and 26th. Complainant contends the disciplinary suspension was imposed on him 

for having made safety complaints to management on August 12, 

1990 concerning the practice and procedures used by Respondent's 

production foreman Dick Moore in handling the sodium dithionite 

fires that had been occurring in the White 5 Mol area of the 

plant where Complainant had been assigned to work that shift. 

Mr. Jungers, the Complainant, seeks to have his personnel 

record purged of the August 12, 1990, Personnel Action Notices 

and (2) back pay for the 38 hours of work missed on August 12, 

21, 24, 25 and 26, 1990 due to the suspension. 

Complainant's position with Respondent U.S. Borax in August 

1990 and at all relevant times''herein was chief production operator at Respondent's Boron Mill earning $15.99 an hour. Mr. Jungers worked at Respondent's Boron Mill for 12 years. He testified he hired on as a laborer and within a few months took a bid 

under the union agreement with ILWU, Local 30 to Primary Process 

Plant One, where he started as a helper and then worked his way 

through the ranks to the chief position in the matter of a year 

or two. 

The Respondent, u.s. Borax, is incorporated under the laws 

of Delaware as United States Borax Chemical Corporation. 

Section 105(c){1) provides~ 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any 

coal or other mine subject to this Act because such 

miner, representative of miners or applicant for 

employment has filed or: made a complaint under or 

related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative 

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

danger or safety or health violation in a coal or other 

mine, or because such miner, representative of miners or 

applicant for employment is the subject of medical evaluations and potential transfer under a standard 

published pursuant to section 101 or because such miner, 

representative of miners or applicant proceeding under 

or related to this Act or has testified or is about to 

testify in any such proceeding, or because of the exer-

.cise by such miner, representative of miners or applicant for employment on behalf of himself or others of 

any statutory right afforded by this Act. 

301 
(Ex. 2). Respondent operates an open pit mine in Boron, California, where it extracts and refines borax. 

Mr. Jungers as a chief operator at the Boron Mill monitored 

the process in which liquid borax and borate elements are removed 

and separated from solid elements such as rock and silt. Mr. 

Jungers worked in plant one at the Boron facility, and was 

assigned primarily to an area commonly referred to as the "mud 

birds." Mud birds are mechanical devices, shaped like cylinders, 

which separate the liquid borates from the non-usable rocks and 

silt as the first step in the refining process. 

On August 12, 1990, at the beginning of his shift, Mr. Jungers started to perform his usual duties at the plant's mud birds 

area when a fellow employee approached him and informed him that 

she had just received a telephone message directing her to switch 

positions with the Complainant. The switch would result in 

Mr. Jungers working at the WlJ.Jte 5 Mol area where borax is chemically treated to bleach it and make it have a rich white color. 

This task requires a miner such as Mr. Jungers to add sodium 

dithionite, a potentially hazardous chemical, to the refining 

process. Mr. Jungers, on occasion, had performed this task 

before. 

On August 10, 1990, two days before Mr. Jungers' suspension, 

there had been a sodium dithionite fire at the White 5 Mol area 

which is the area Mr. Jungers had been directed to switch to at 

the beginning of his shift on August 12, 1990. Mr. Jungers felt 

that the fire had been handled in an unsafe manner. Mr. Jungers 

believed that the production foreman at White 5 Mol, Dick Moore, 

used unsafe and hazardous procedures in handling sodium dithion2·ce r .1.res o Dick Moore would be Mr. Junger us supervisor at the 

White 5 Mol faci approximately two hours as a result of 

t.he August 12th job switch. 

It was undisputed that sodium dithionite liberates sulfur 

dioxide (S02 ) when it decomposes. It decomposes when it contacts 

moisture such as drops of condensation. It decomposes when it 

smolders and starts to burn. (Tr. 101-102). There was over 

4 7 000 lbs. of sodium dithionite in the bin at the White 5 Mol. 

Even before the White 5 Mol facility was installed in the 

plant in September 1989, complainant and other employees heard of 

the hazards involved in the use of the chemical sodium dithionite. Prior to his suspension Mr. Jungers had access to Occupational Health Guidelines for Chemical Hazards (Ex. 5) and other 

similar material. To show the reasonableness of his safety 

concerns Mr. Jungers read into the record, page 14 of Complainant's Exhibit 5 under the subheading "Major Hazards" as follows: 

30:2 
"Sulfur dioxide (S02 ) is a highly irritating gas to the 

mucous membranes of the upper and lower respiratory tract. 

Short-term, high dose exposures have resulted in work-related 

fatalities due to marked airway obstruction. Liquid or gaseous 

sulfur dioxide can cause both skin and eye burns." 

Then continuing on the same page of Exhibit 5, under "Acute 

Effects", Mr. Jungers read into the record the effects of exposure to different concentrations of S02 as follows: "From 50 

parts per million, marked irritation to eyes, nose and throat and 

lower respiratory tract occurs. Exposure to a concentration of 

500 parts per million for 30 to 60 minutes is dangerous to life." 

"A few fatalitie~ has followed exposure to unknown but very 

high concentrations of gas. One report describes a case of chemical bronchial pneumonia that ended in death after 17 days." 

Mr. Jungers explained tha~ these are the types of concerns 

he and others had regarding the hazards of exposure to S02 • He 

stated that concentrations of S02 fumes produced during a sodium 

dithionite fire are dangerous and hazardous to life. 

As previously stated it is undisputed that sodium dithionite 

liberates sulfur dioxide (S02 ) when it decomposes. It decomposes 

when it contacts moisture and when it smolders and starts to 

burn. (Tr. 101-102). 

Complainant stated that he and his fellow workers "wouldn't 

seem to get answers to a number of questions such as how much S02 

they were being exposed to.n (Tr. 29). Several times Mr. Jungers had coughing fits he attributed to the S02 fumes even when 

there was no fire. 

Mr. Jungers testified iii wanted to make sure that before I 

worked with him (foreman Dick Moore) on shift again at the White 

5 Mol with the possibility of a fire, that he (Dick Moore) was 

certain and I was certain that he was certain about what the safe 

procedures were in handling the fire." 

Mr. Jungers stated that one of his main safety concerns was 

that the foremanv Dick Moore 6 not ask him to fight a sodium dithionite fire once it started and that he (Jungers) would be allowed to be evacuated along with the other employees and that he 

would be allowed to bring the hazardous material team in as is 

and was the stated company policy at the time. 

Asked if there was any reason to be concerned that Dick 

Moore would not follow company safety policy in handling a 

dithionite fire, Mr. Jungers replied "Yeah. The fire we had on 

Friday, while we were all evacuated, and even though we we~e an 

eighth of a mile, or a quarter -- however far it is from the 

303 
White 5 Mol, it was bad enough for us to be evacuated. He (Dick 

Moore) didn't evacuate Chuck Jones who was working at the White 5 

Mol on Friday during the fire." •.•• 

Dick Moore tried to get Chuck Jones to fight the fire and 

tried to prevent or at least discourage him from calling the 

hazardous materials team to fight the fire. (Tr. 34). (Ex. 8 

and Ex. 9 are signed statements of Chuck Jones concerning the 

August 10, 1990 fire.) 

Mr. Jungers testified there was a tendency by some people in 

management to try to circumvent the company's policy on fighting 

fires in the White 5 Mol. Production foreman, Dick Moore, would 

request regular untrained and unequipped employees to assist in 

fighting sodium dithionite fires instead of having all the employees evacuate the area and calling the hazardous material team 

to handle the fire. 

Mr. Jungers testified that two days before he voiced his 

safety concerns to management, there was a sodium dithionite fire 

at the White 5 Mol. All the employees were evacuated approximately a quarter of a mile away except Chuck Jones. Mr. Jones 

told Mr. Jungers that Dick Moore tried to get him (Chuck Jones) 

to fight the fire and discouraged him from calling the hazardous 

material team. (Tr. 34). He was also concerned that Dick Moore 

had stated to Chuck Jones that he (Dick Moore) and Jungers {Complainant) had put out fires by themselves without calling the 

hazardous material team. 

On August 12 1990u when he heard he was to switch jobs and 

·£vork at ~the 5 lVIol Mr. Jungers went to the off ice of the 

foreman on duty a'c 'that timeu Roy Beaver v 'co talk 

sare~y concerns. Mr. Jungers asked Chuck Jones (a 

union steward) to go with him as a witness. Mr. Jungers testified 0

'I was very concerned and I was pretty -- waiting till Monday which would have been the next day to bring a concern up to 

Bob Delyser (Plant one supervisor)u who I wanted to have in my 

presence 9 the presence of Dick Moorev make very certain what 

we were going ·co do in. the event of another fire because I did 

no·t want to just have Dick tell me that we're going to do it a 

certain way. I wanted to make sure that Dick knew that I knew 

and the supervisor knew that company policy as to the safe 

procedures would be followed in handling any sodium dithionite 

fire. uu Dick Moore was going to be Mr. Jungers foreman on that 

part of the shift Mr. Jungers would be working at the White 5 

Mol. 

Mr. Jungers testified as to what occurred in Mr. Beaver's 

office as follows: 

And we went to the office (of production 

foreman Beaver) and talked about the whole 

304 
thing. I talked about what I was concerned 

about, what I've already delineated here. 

Chuck mentioned things that he thought were 

-- specifically needed to be looked at. He 

mentioned the teflon liner, because that's 

one of the ways in the past the fires had 

initiated, where the liner would slip out, 

cause the powder to miss its distribution 

drop and end up on top of a mixing unit and 

be exposed to moisture at that point, enough 

.to cause a fire. 

So he was concerned with the lining and 

plus the fact that he wasn't very confident 

working the area. He was relatively new to 

-- he wasn't -- hadn't had a whole lot of 

training. So he was kind of scared as far as 

having the fire on Friday. He was asthmatic 

to begin with. He-·had gone through some 

things, like he had vomited and coughed and 

he had a bad time on Friday when they had the 

fire, . . . . 

He came mainly as a -- I asked him to come 

as a witness but he began to express concerns 

he had too, that since the subject was safety 

and from -- this is quite of a side point to 

this whole case, but I've never refused to 

work anywhere since I've been at Borax. It's 

one of my -- one of the things that -- about 

me. 

And I really didnvt refuse (to work at the 

White 5 Mol} that day either. The strongest 

words I used was I would rather not until we 

can get this safety question out of the way, 

my safety question being how the fires would 

be handled in terms of evacuating the person 

there and getting the HAZ-MAT team to put the 

fire out. . . o o 

I figured that by my example of saying I'd 

rather not work there for that one day that 

some -- I would get the attention of Bob 

Delyser (and we could have) the meeting with 

Dick Moore. That was my whole intention .... Roy Beaver said you -- there will be no 

discipline. You won't be getting in trouble 

over this. He said he would call some other 

people in. 

305 
Jungers stated that his foreman, Beaver, 

told me and Chuck to go back to the dissol-

·vers and help them start up a line that we 

were starting up. And it -- we did that. 

And about a half hour later we were called 

back to the office. 

And Chuck and I went back to the office. 

And Ben Gray (all plant supervisor) was 

there. • And he said we're going to take 

you to the gate and I -- at that point Roy 

Beaver was there. I looked at Roy and I 

said, what is this? And I said, Roy, what 

about what we just talked about for 30 

minutes, that there would be no discipline 

and on down the whole list there? 

He told me that he had called Bob Delyser 

at home and Bob had-made a decision. And at 

that point I said, right then I said, is it 

too late And he goes, yes, it's too late. 

And I just said wow! 

I 

Discussion 

It is undisputed that there had been at least 5 fires 

involving sodium dithionite at the White 5 Mol. It is also 

undisputed that when this chemical burns it produces an abundance 

of potentially hazardous (S02) fumes. It is company policy that 

the area be evacuated and a hazardous material team called to put 

out the f even they are at home because they are experienced and have the training and the equipment such as self-contained breathing apparatus to handle such fires. 

I credit the testimony of the Complainant Jungers. I find 

he had a good faith reasonable safety concern and safety complaints that he wanted to discuss and bring to the attention of 

management. This not a work refusal case. I credit Mr. Jungers' testimony that he never refused to work anywhere on August 12v 1990, or any other day. He just wanted it clear to 

management that he had a serious safety concern and rather not 

work at the White 5 Mol until as he states it "until we can get 

this safety question out of the way, my safety question being how 

the fires would be handled in terms of evacuating the person 

there and getting the HAZ-MAT team to put the fire out." He 

wanted to 'be sure that in the event of a fire, foreman Dick Moore 

would not require him (Jungers) to stay and help put out the fire 

rather than permit him to evacuate the area and call the hazardous material team to handle the fire. 

306 
The evidence leads me to the conclusion that Mr. Jungers and 

his fellow employee Chuck Jones wanted to bring to management's 

attention and discuss with management legitimate safety concerns. 

They did have a discussion of their safety concerns with lower 

management and indicated that they preferred not to work at the 

White 5 Mol until their concerns were dealt with. As soon as 

they left lower management {Beaver) made a call to upper management. Upper management may or may not have gotten an accurate 

picture of what the situation was but nevertheless made the decision to take immediate adverse disciplinary action against 

Mr. Jungers and Chuck Jones. 

As Mr. Jungers aptly stated, he and Jones made safety complaints to management with the assurance from lower management 

that there would be no retaliation and return to the work management (Beaver) assigned to them and 30 minutes later were 

called into the office, taken to the gate and relieved of their 

hard hats and badges. 

II 

Further Discussion and Findings 

Section 105(c) of the Act was enacted to ensure that miners 

will play an active role in the enforcement of the Act by protecting t~em against discrimination for exercising any of their 

rights under the Act. A key protection for this purpose is the 

prevention of retaliation against a miner who brings to an operator's attention hazardous conditions or practices in the workplace or engages in other protected activity. 

The bas principles governing analysis of discrimination 

cases under the Mine Act are well settled. In order to establish 

a prima facie case of discrimination under section 105(c) of the 

Actu a complaining miner bears the burden of production and proof 

in establishing that (1) he engaged in protected activity and (2} 

the adverse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Pasula v. Consolidation Coal Co. 1 2 FMSHRC 2786u 2797-2800 (October 1980) 1 rev'd 

on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 

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

United Castle Coal Co. 1 3 FMSHRC 817-18 (April 1981). The operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no 

part motivated by protected activity. If an operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by the 

miner's unprotected activity and would have taken the adverse 

action in ·any event for the unprotected activity alone. Pasula, 

supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F2d 639, 642 (4th Cir. 1987}; Donovan v. Stafford 

307 
Construction co., 732 F2d 954, 958-59 (D.C. cir. 1984); Boich v. 

FMSHRC, 719 F2d 194, 195-96 {6th cir. 1983) {specifically approving the commission's Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 u.s. 393, 397-413 (1983) (approving nearly identical test under National Labor Relations Act). 

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 ngm_ 

Donovan v. Phelps Dodge Corp., 709 F2d 86 (D.C. Cirl 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eighth 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 ruiner 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. Chacon 1 supra at 2510. See 

also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan 

v. Stafford Construction Companyv No.'83-1566 D.C. Cir. (April 

20u 1984) (specifically approving the Commission's PasulaRobinette test). See also NLRB v. Transportation Management 

Corporation, 462 u.s. 393, (1983)u where the Supreme Court 

approved the NLRB's virtually identical analysis for discrimination cases arising under the National Labor Relations Act. 

On the basis of the most credible evidence presented I find 

that this is not a work refusal case. Mr. Jungers simply wanted 

to bring to management's attention legitimate safety concerns and 

either through a deliberate intent to retaliate against Mr. Jungers for this protected activity or possibly through a negligent 

misunderstanding of the true facts on the part of higher 

308 
management, Mr. Jungers was "taken to the gate" and relieved of 

his badge and hard hat approximately 30 minutes after he voiced 

his safety concerns and complaints to management. 

It is clear from the Commission's analysis in Chacon, supra, 

that the coincidence in time between the protected activity and 

adverse action such as we clearly have in this case is strong 

circumstantial evidence of the retaliatory motivation for the 

disciplinary suspension Respondent imposed on Mr. Jungers. 

On careful evaluation of all the evidence I find Mr. Jungers 

was "taken to the gate" on August 12, 1990, and suspended in retaliation for Mr. Jungers' protected activity. Respondent failed 

to rebut Mr. Jungers' prima facie case. Respondent also failed 

to prove as an affirmative defense that it would have discharged 

Mr. Jungers in any event for his unprotected conduct alone. 

In sum on the basis of the·preponderance of the most credible evidence I find that Respondent suspended Mr. Jungers in retaliation for engaging in protected activity in violation of 

section 105(c) of the Act. 

III 

Timeliness 

Although the issue of the timeliness of Mr. Jungers' complaint was not raised at the hearing, Respondent in its answer 

contends that 91 Jungers failed to timely file his complaint with 

the Secretary.u~ The violation of section 105(c) occurred during 

":.he August 12 - 26 p 1990 u Mr. Jungers filed his complaint 

on October 30J 1990. Thus was filed just a few days in excess 

cf the 50 period specif section 105(c) (2). 

The purpose of this time limit is to avoid stale claims, but 

a late f ing may be excused. The time limit in section 

l05(c) 2) not jurisdictional nature. Christian v. South 

Hopkins Coal Company, 1 FMSHRC 126Q 134-136 (April 1979); 

v. Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539 (June 

1981); Secretary v. 4-A Coal Company, Inc.u 8 FMSHRC 240 (February 1989). 

The Commission has indicated that dismissal of a complaint 

for late filing is justified only the Respondent shows 

material, legal prejudice attributable to the delay. Cf. 

tary/Hale v. 4-A Coal Company, Inc., supra. No such showing has 

been made here. Under the facts and circumstances presented at 

the hearing in this case the late filing is excused. Respondent's request for dismissal of the complaint is denied. 

309 
Conclusions of Law 

1. Jurisdiction over this action is conferred upon the 

Federal Mine Safety and Health Review Commission under section 

105(c} and section 113 of the Act. 

2. Respondent's Boron Mill is a mine, as defined in section 

3(b) of the Act, and its products affect commerce under section 4 

of the Act. 

3. Respondent at all relevant times was an operator within 

the meaning of section 3(d) of the Act. 

4. Steven D. Jungers was a miner at all relevant times 

within the meaning of section 3(g) of the Act. 

5. Mr. Jungers engaged in protected activity when on August 12, 1990 he brought to Respondent's attention his safety concerns and complaints. At the time he articulated his safety 

concerns he had a good faith reasonable belief as to the hazards 

involved. 

6. Mr. Junger's claim is not barred by his failure to file 

a written complaint within 60 days of his suspension. 

7. Mr. Jungers' suspension was directly motivated at least 

to a large extent by his articulation to management his safety 

concerns and complaints. 

ORDER 

Based on the above findings of fact and conclusions of lawu ORDERED~ 

lo Respondent shall pay to Complainant Steven D. Jungers 

within 30 days of the date of this decision the sum of $569.62 

representing back pay for 38 hours of work missed during the 

suspension beginning on August 12 1990u with interest thereon in 

accordance with the Commission decision in Local Union 2274, UMWA 

Vo Clinchfield Coal Co., 10 FMSHRC 1493 (1988) aff'd, 895 F2d 773 

(D.C. Cir. 1990) calculated proximate to the time payment is 

actually made. In that case interest was calculated at the 

short-term federal rate used by Internal Revenue Service for the 

underpayment and overpayment of taxes plus 3 percentage points. 

310 
2. Respondent shall expunge from its personnel records 

maintained on Steven D. Jungers the Personnel Action Notices of 

August 1990 and all references to the August 1990 suspension of 

Steven D. Jungers. 

(b~7~ Administrative Law Judge 

Distribution: 

Mr. Stephen D. Jungers, 16966 Bellaire Avenue, North Edwards, CA 

93523 (Certified Mail) 

Michael G. McGuinness, Esq., O'MELVENY & MYERS, 400 South Hope 

Street, Los Angeles, CA 90071-2899 (Certified Mail) 

sh 

311 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTERN SAND & GRAVEL, 

Respondent 

FEB 2 4 1993 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-511-M 

A. C. No. 45-03119-05508 

Tenino Pit 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

This case is before me upon a petition for assessment of a 

civil penalty under section 105{d) of the Federal Mine Safety and 

Health Act of 1977 o The parties have filed a joint motion to 

approve settlement. A reduction in the penalty from $431 to $192 

is proposed. The proposed reduction is large but the recommended 

amounts appear proper in light of the operator's small size and 

negligible history. Therefore, I conclude based on the 

representations and documentation submitted in this case that the 

proffered settlement is appropriate under the criteria set forth in 

section 110(i) of the Acto 

WHEREFORE 0 t.he for approval of settlement is GRANTED 11 

and lL. ORDERED that the operator pay a penalty of $192 within 30 

days of ordero 

-~~?~ Paul Merlin 

Chief Administrative Law Judge 

Dist.ribution (Cert:.i Ma 

Cathy Barnes Esq., Office of the Solicitor, U.S. Department of 

Labor, 1111 Third Avenue, Suite 945, Seattleu WA. 98101 

A. Don Scarsella 1 Western Sand & Gravel, P.O. Box 68388 1 Seattle, 

Washington 98188 

rdj 

312 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 2 4 1993 

CONSOLIDATION COAL COMPANY, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANYu 

Respondent 

0 

0 

CONTEST PROCEEDING 

Docket No. WEVA 93-29-R 

citation No. 3121684; 10/7/92 

Osage No. 3 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-63 

A.C. No. 46-01455-03960 

Osage Noo 3 Mine 

DECISION 

Appearances: Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, 

Before: 

for Respondent. 

Rebecca ... Zuleskiu Esq.u Furbee, Amos 9 Webb 

C::i u Morgantownu West Virginia, 

Petitioner . 

.,Judge Barbour 

involves ~ Notice of Contest filed on 

Consolidation coal Company C oticonsol 00 ) 

pursuant 105(d) 30 u.s.c. § B15(d), of the Federal 

Mine and Health Act of 1977 ("Act" or "Mine Act") and a 

Petition the Assessment of a Civil Penalty filed on 

December 24 1992, by the Secretary of Labor ( 91 Secretary11 ) 

pursuant to Section 110(a), 30 u.s.c. § 820(a), of the Act. In 

the contest proceeding Consol seeks the vacation of citation 

No. 3121684, issued on October 7, 1992, pursuant to 

Section 104(a} of the Act, 30 u.s.c. § 814(a). The citation 

alleges a violation of 30 C.F.R. § 75.520. 1 Consol asserts that 

the citation was improperly issued because the condition for 

Section 75.520 provides: 

All electrical equipment shall be provided with switches or other controls that 

are safety designed, constructed and installed. 

313 
which it was cited did not violate Section 75.520. In the 

Civil Penalty proceeding the Secretary seeks the assessment of a 

civil penalty of $50 for the alleged violation of Section 75.520. 

The specific issue to be resolved is whether a trolley switch 

with its handle and blade removed but with its fingers attached 

and being used as a dead block on the main haulage track 

constituted a safely designed, constructed and installed switch. 

A hearing on the merits was held in Morgantown, West Virginia, on 

November 13, 1992. 2 Following the hearing, the parties filed 

helpful briefs, which I have fully considered in reaching this 

decision. 

STIPULATIONS 

At the commencement of the hearing the parties stipulated as 

follows: 

1. Consol is the owner and operator of the Osage No. 

3 Mine. 

2. The Osage No. 3 Mine is subject to the 

jurisdiction of the Mine Act. 

3. The Administrative Law Judge has jurisdiction to 

hear and decide the case. 

4. Federal Mine Safety and Health Administration 

("MSHA") Inspector Michael Kalich was acting in his official 

capacity when he issued citation No. 3121684. 

5. True copies of Citation No. 3121684 and subsequent 

Action No. 3121684-01 (the termination of the citation) were 

served on Consol and as required by the Act. 

The condition ted was abated in a timely 

fashion. 

THE EVIDENCE 

The first witness called by Secretary was Michael G. 

Kalich. Kalichp an electrical inspector with MSHA for almost six years~ stated that approximately 40 per cent of his time has been 

spent conducting electrical inspections at Consol mines, 

2 The hearing was noticed solely for the contest proceeding, the civil 

penalty proceeding having not yet been filed by the Secretary. The parties 

agreed, however, that evidence would be taken at the hearing regarding the 

applicable civil penalty criteria and that the subsequently filed civil penalty 

proceeding would be consolidated for decision with the contest proceeding. 

314 
including the Osage No. 3 Mine. (The mine is located in MSHA 

District 3, the district that has its headquarters in Morgantown, 

West Virginia.) Kalich testified that he is currently assigned 

full-time to inspect the Osage No. 3 Mine and has been so 

assigned for the past two years. However, even prior to being 

assigned to the mine, he occasionally had inspected there. 

Tr. 25-26. Thus, Kalich believed that he was thoroughly familiar 

with the mine. 

Turning to the events of October 7, 1992, Kalich stated that 

he went to the mine to continue an ongoing electrical inspection. 

He arrived at the mine around 7:45 AM and went to the mine office 

where a discussion was underway involving Dale Denning, a regular 

(i.e.u non-electrical} MSHA inspector, Spike Bane, safety 

director for Consol and Bill Kung Consol 0 s mine safety officer. 

According to Kalichu the discussion centered upon the use as 

dead blocks of trolley switches when the fingers had not been 

removed from the switches. 3 Kalich stated that the use of such 

section switches was an ongoing controversy at the mine and that 

Consol wanted to be cited for so using the switches in order to 

contest the citation and resolve through the administrative 

hearing process whether it had, in fact, violated the cited 

regulation. Because Denning was a regular inspector, not an 

electrical inspector, Denning was reluctant to issue the 

citation; therefore, Kalich agreed to do it. Tr. 27-28. 

Kalich proceeded underground accompanied by Kun and the UMWA 

walkaround representative. The inspection party traveled the 

main haulageway to the No. 571 Block at the 14 North ITE Breaker 

where Kalich observed a trolley switch installed and used as a 

dead blocko The switch had and blade removedv and the 

handle and blade were not near the switchv but the 

In the context of this case, the term "dead block" refers to an 

electrical device or control on a mine system that separates portions of 

the trolley system wiring" wire enters the device from both of its 

ends. Each aide of ·the wire is from a separate portion or block of trolley 

system wiring. The trolley wires do not meet, rather an air gap in the center 

of the device prohibits any direct current from crossing between the two ends of 

the trolley wires, in part to assure short circuit protection on each block of 

power. The air gap between the wires must be wide enough to prevent the current 

from crossing, and narrow enough so trolley cars will continue to run evenly when 

traveling along the track and changing from one portion of the electrical system 

to the other. 

The type of trolley switch used as a dead block is depicted in Contestant's 

Exhibit 3. ("C. Exh."). As the exhibit. makes clear, the wires enter both ends 

of the switch. The air gap between the ends of the wires is bridged by a switch 

handle and blade, which when opened (i.e., when used to connect the two wires), 

pivots between two metal flanges or protrusions at the end of the switch and 

slides into two basically similar metal flanges or protrusions at the other end. 

These flanges or protrusions are the section switch's "fingers". 

315 
switch's fingers were still in place. Kalich believed that the 

presence of the switch in this condition was a violation of 

Section 75.520, and he accordingly issued the subject citation. 

Tr. 29. 

The citation states: 

At the 571 + 000 Block along the main haulage 

at the 14 North ITE Breaker the dead block in 

use was not properly maintained. A trolley 

switch with a handle removed was being used 

as a dead block. The switch fingers were 

still installed. The dead block is used to 

separate the 300 Volt DC power feeding from 

the Moorsville bore hole and the 1 Butt 

Rectifier. This condition enables the dead 

block to be easily jumped with the switch 

handle and poses an electrical arc or burn 

hazard and possibly renders the trolley short 

circuit protection useless. These conditions 

have been found cited at this mine in the 

past. 

Secretary 9 s Exhibit ( "S. Exh. ev) 2. 

Kalich testified that the citation was terminated the 

following day by Denning. To abate the citation, Consol removed 

the fingers from the switch. Tr. 30, G. Exh. 2 at 2. Kalich 

also testified that he modified the citation to reflect a finding 

that the cited condition constituted a significant and 

substantial contribution to a mine safety hazard. Tr. 30-31v G. 

Exho 2 at 3-4. 4 When asl{ed to describe the unsafe nature of the 

condit.ion citedr Kalich answeredg 

Tr. 32. 

[T]he condition is unsafe because with the 

fingers still installedp itis very easy for 

anyone to jumper the dead block. The dead 

block would be jumpered with the switch 

handle or 9 • o • it could be jumpered with a 

fuse even. 

Kalich was shown copies of pages from a catalog published by 

Dusquesne Mine Supply Company ( g'Dusquesne") and was asked to 

point out the type of switch that was used as a dead block. 

4 Interestingly, MSHA has proposed a civil penalty assessment of 

$50, based upon its single penalty assessment provision, a provision 

inapplicable to S&S violations. 30 C.F.R. S 100.4. ~ Proposed Assessment, 

Exhibit A, Docket No. WEVA 93-63. 

316 
Kalich identified Ousquesne as a manufacturer of trolley switches 

and stated that as best he could recall, Model No. s

5ooo-R was 

the type that he had cited. Tr. 34, c. Exh. 3 at 2. Using the 

catalog as a point of reference, Kalich turned to a schematic 

drawing of a switch and identified where the trolley wires were 

connected to the switch. He labeled these as positions "A". He 

also identified the handle and blade depicted in the drawing, 

which he labeled "B". Tr. 37, s. Exh. 3 at 4. He marked the 

fingers, "C". Tr. 37, s. Exh. 3 at 4. Finally, Kalich pointed 

out a diagram that he stated was specifically designed to be used 

as a dead block. Tr. 39, s. Exh. 3 at 3. 6 

Kalich then described the purpose of a dead block. He 

stated that it separates and isolates two different sections of 

trolley wire. Separation and isolation allows trolley wire short 

circuit protection to be maintained on the isolated sections. 

Without a dead block the joined sections of wire are too long and 

short circuit protection may be rendered ineffective. Tr. 39-40. 

While Kalich admitted that the use of a trolley switch with 

the handle and blade removed constituted an effective dead block 

in that it completely separated the different sections of trolley 

wire, he was of the opinion that the section switch so used was 

not safely designed, constructed and installed because the 

presence of the fingers "makes it real easy to jumpering the dead 

block." Tr. 40. He explained that the dead block could be 

jumpered by the reinstallation of the handle and blade into the 

fingers. He stated that he also had heard of jumping the dead 

block by laying a piece of trolley wire across the gap or by 

using jumper cables (i.e., nipped jumpers). Tr. 41. In Kalich's 

opinion 1 if power were lost on one of the sections of the trolley 

wireQ rather than correct the condition that had caused the power 

lossv miners would be tempted to do the easy thing and jumper the 

dead block to restore power to the affected trolley wire section. 

While would be more difficult to replace the handle and blade 

than to remove itu an untrained person could do it if he or she 

wanted to. Tr. 43. 

Kalich also explained that after initially concluding the 

'liolation was not S&S v uor • o • went back to the office and 

thought about it for a while and • o • realized that we were 

Kalich also explained that there are other manufacturers of trolley 

switches, notably; Ohio Brass. However 0 he stated that their switch designs are 

basically similar. Tr. 35. 

This equipment is labeled "Dukane No. 5800 Section Insulator for 

trolley wire and feeded cables." It is similar to a section switch, except that 

it lacks the fingers, handle and blade of a section switch. See S. Exh. 3 at 3. 

Or as Kalich put it, "[the section insulator] doesn't have a place for a switch 

handle." Tr. 99. 

317 
going to use this as a test case not just for o o • the Osage 

Mines [sic], but all the mines in the district ••• 

(a]nd • • • I reviewed accidents and • . • fatalities that have 

happened because of electric shock from the trolley wire or from 

mine fires. And • o o decided to make it S&S." Tr. 44-45. 

He continued, that the dead block was on the main haulage 

where miners had access to all the operating sections of the mine 

and that "it would be pretty tempting for somebody to jumper the 

dead block if the rectifier or bore hole would • • • go down 

••• and they would need the power in the area." Tr. 45. 

He further explained that in the particular area of the dead 

block power feeds from two directions - - from the Mooresville 

Portal bottom to the dead block and from the One Butt rectifier 

to the dead block. If the power from the bore hole on the 

rectifier were shut down, 11 it would de-energize that section of 

trolley wire for approximately 2 1 000 feet and then you would 

still have power on one-half of the dead block. And if you 

inserted the knife blade • . • into [the fingers of the dead 

block) • • • then that would provide a path for • • • current to 

flow from the energized side to the de-energized side." Tr. 46. 

Kalich maintained that if this happened, frequently there would 

not be sufficient current available to cause the circuit breaker 

to de-energize the expanded circuit if there were a short. This 

in turn could lead to arcing and sparking and the catching fire 

of combustible materials in the vicinity of the electrical 

malfunction. Tr. 47. Such a fire could endanger all miners inby 

the ignition by subjecting them to possible burns and smoke 

inhalation. Tr. so. 

Kalich believed that 10 years ago a fire caused by 

inadequate circuit breaker protection due to jumping had occurred 

at Eastern Associated Coal Corporation°s (nEastern") Federal 

No. 2 Mine and that 5 years ago a similar fire had occurred at 

Consol 0 s Arkwright Mine. Tr. 66-67. 7 Howeveru no such fire 

had ever occurred at Osage No. 3 Mine. Tr. 90. 

In addition Kalich believed ~chat there t'\l'as a shock and 

electrical lburn hazard visited upon the :miner jumpering a trolley 

switch dead block in that the insertion of the knife blade into 

the fingers could lead to arcing and sparking at the knife blade, 

or the miner inserting the blade could accidentally touch the 

energized portion of the ~crolley wire and electrocutedo See 

Tro 49- 50u 64u 65o 

7 Kalich stated that his knowledge of the Arkwright fire was based on 

what he had been told by another MSHA inspector. Tro 92. 

318 
Regarding negligence, Kalich stated that mine management 

knew the fingers were on the dead block. Further, he stated that 

Consol had been cited at other of its mines in the MSHA district 

for using trolley switches as dead blocks. Tr. 55. He 

maintained that over the past two years and prior to issuing the 

subject citation, he had met with Consol management personnel "at 

least six times" to discuss the unacceptability of using as dead 

blocks section switches with fingers in place. Tr. 88. Thus, 

Consol management knew that the practice was unacceptable to 

MSHA. 

Kalich stated that although Consol management advised him 

the reason the fingers were not removed from the section switches 

was to be able to jumper the dead blocks fast in case of an 

emergency need to evacuate an injured miner, he did not believe 

it. Kalich had never heard of an occasion wherein the two 

circumstances supposedly feared by Consol -- a miner being 

injured and a trolley line section being de-energized -- had 

occurred at the same time. Tr .. ·61 •.. Rather, he believed the real 

reason Consol management wanted to keep the fingers on the dead 

blocks was to be able to continue production and the 

transportation of men and materials if a trolley wire section 

de-energized. Tr. 62. In fact, he stated, he had issued 

citations to Consol for violations of Section 75.520, where dead 

blocks had been jumpered for this very purpose. 8 

With regard to the extent of the practice in MSHA District 

3, Kalich testified that he had seen section switches with 

fingers used as dead blocks at Consol's Arkwright, Humphrey and 

Blacksville mines, as well as at Eastern's Federal No. 2 Mine. 

Howeveru at mines owned by USX Corporation, section insulators 

had been purchased and instal u and section switches had not 

been used" Tro 68o 

According to Kalich, policy in District 3 regarding the 

use as dead blocks of section switches evolved over the years. 

He stated that at first he did not recognize the hazards 

associated with the practice" However as time passed he became 

more aware of hazardso In 1990 he began informing mine 

g Kalich also stated that he had issued citations to Consol for 

violations of 30 C.F.R. § 75.1001 where section switches had been jumpered and 

short circuit protection had not been provided. Section 75.1001 states: 

Trolley wires and trolley feeder wires 

shall be provided with over current 

protection. 

319 
operators in District 3, including Consol, that he considered the 

use as dead blocks of switches with fingers to be violations of 

Section 75.520. Tr. 719 

Kalich reached this conclusion solely on the basis of his 

own opinion. He stated and that there was and is no MSHA policy 

memorandum or written instruction of which he is aware regarding 

the use of section switches as dead blocks. Tr. 101, 104, 

116-117. 

Kalich believed that he and other inspectors in the district 

originally brought the problem to the attention of Michael Hall, 

Kalich 1 s supervisor. Tr. 113. Gradually, it became a districtwide policy not to accept section switches with fingers attached 

as dead blocks. 

With regard to abatement, Kalich stated that operators have 

an option. Either, they can remove the section switch and 

replace it with equipment designed to serve only as a dead block 

(i.e., a section insulator), or they can knock off the fingers 

with a hammer. Tr. 124. 

Kalich acknowledged that prior to jumpering a section 

switch~ short circuit protection could be provided if a miner 

went to the rectifier and reset the short circuit protection. 

Tr. 143-144.w Kalich also stated that 30 C.P.R. § 75.509 

prohibits reinstalling a handle and blade while the trolley wire 

is energized. Tr. 168-169, 172. 11 He further agreed that if 

there were compliance with this regulation the electrical hazard 

to the miner posed by the procedure of jumpering the section 

switch would be eliminated. However, Kalich believed that once 

power was restored, the hazard posed by not having proper short 

protection would remainu assuming that there had been no 

compliance with Section 75.100L Tr. 172. Even if there were 

9 The Secretary offered into evidence citations issued at osage No. 3 

i!iine, Humphrey No. Mine, u Blacksville No. 1 Mine~ all of which were issued 

prior to the subject citation and all of which alleged violations of 

Section 75.520 for the use as dead block of section switches with fingers. 

G. Exh. 4, G. Exh. 5, G. Exh. 9, G. Exh. 10. 

lO Kalich testified that on some rectifiers, short circuit protection 

can be adjusted by turning a thumbwheel. Id. 

Section 75.509 states: 

All power circuits and electric equipment 

shall be de-energized before work is done 

on such circuits and equipment, except when 

necessary for trouble shooting or testing. 

320 
full compliance with Sections 75.509 and 75.1101, Kalich believed 

that there would still be a violation of Section 75.520, "because 

the fingers would still be on the switch. If the fingers are 

removed from the switch then it's not a violation." Tr. 173. 

CONSOL'S CASE 

John Burr, the manager of electrical engineering in Consol's 

Maintenance Electrical Department, was Consol's first witness. 

Burr stated that he has 22 years of experience as an electrical 

engineer with Consol. Tr. 176. Burr testified that after the 

subject citation was issued he was called by Spike Bane and was 

asked whether he considered the use as a dead block of a section 

switch with the handle and blade removed and the fingers attached 

to be a violation of Section 75.520? Tr. 178. Burr stated that 

he did not and that when used as a dead block such a section 

switch was safely designed, installed and maintained. Tr. 201. 

Further, in his opinion, if the blade was reinserted and the 

procedure was done as prescrib~sl by. the regulations - - i.e •. , power was de-energized in both blocks (Section 75.509) and 

circuit breaker protection was properly set (Section 75.1001}, 

there would be no hazard. Id. Also, as Burr noted, 

Section 75.511 requires that such work be done by a qualified 

electrician. Tr. 216. 12 

Burr described the functional difference between a section 

insulator and a section switch (or as Burr termed it, a "line 

switch"). The section insulator is used when it is assumed that 

under no circumstances the operator will want to tie together the 

two blocks of power on both sides of the insulator. The section 

switch is used when the operator feels that there are times when 

the switch will have to be open and other times when it will have 

to be closed. Tr. 184-185. 

According to Burru Consol initially left the handles and 

blades attached to section switches that it had installed. 

However, MSHA District 3 personnel, subsequently, advised Consol 

that MSHA would not accept switches with the handles and blades 

attached because anyone could come along and throw the switches. 

At that pointu Consol agreed to remove the handles and blades 

because the switches did not have to be opened on a regular 

basis. Tr. 187o At firstu Consol stored the handles and blades 

12 30 C.F.R. § 75.511 states in pertinent part~ 

No electrical work shall be performed on 

low-, medium-, or high-voltage 

distribution circuits or equipment, except 

by a qualified person or by a person 

trained to perform electrical work and to 

maintain electrical equipment under the 

direct supervision of a qualified person. 

321 
in the area of the section switches because Consol fully intended 

to use the handles and blades when it opened the switches. After 

awhile, according to Burr, MSHA objected to this too, and 

pursuant to MSHA's objection, the handles and blades now are 

stored in the possession of qualified electricians and 

maintenance personnel and away from the switches. Tr. 188. 

CUrrently, MSHA is requiring the removal of section switch 

fingers as well. 

Burr also stated his understanding of procedures usually 

undertaken at Consol if a section switch handle and blade has to 

be installed. The power is de-energized so that the procedure 

does not .present a hazard to the miner doing the work and circuit 

breaker protection is provided, frequently, by adjusting a 

thumbwheel switch on the over current relay. Tr. 189, 191. 

(According to Burr, approximately 90 percent of the relays at the 

Osage No. 3 Mine have thumbwheel switches. Tr. 218.) In 

addition, Burr claimed that at every section switch used as a 

dead block Consol has hung a, . .sign stating "Dead Block Do Not Put 

Blade In". Tr. 199-200, See c. Exh. 5. 

Burr stated that the use of section switches as dead blocks 

is standard practice throughout Consol's mines. Tr. 209. 

Removing the fingers essentially destroys the dead block for use 

as a switch because the fingers, which are welded or wedged in 

place .. must be "hacksawed" off. Tr. 210. 

Bill Kun, the safety supervisor at Osage No. 3 Mine and a 

mine foreman, testified next. Kun described his version of how 

the contested citation came to be written. He stated that at 

approximately 7:30AM, on October 7 9 1992 9 Dale Denning, the 

regular MSHA inspect at Osage No. 3 Mine 9 arrived and told Kun he 

was going to 00write every . . o dead block in the . o • mine that 

didn°t: have t.he fingers taken out. 00 Tr. 247. According to Kunu 

Denning said that he had been told to do it. Kalich arrived 

about 10 minutes later and Denning said to Kun that he would let 

Kalich take care of it. Spike Bane then arrived and said that it 

was "Ok" to have a citation issued because Consol intended to 

contest the citation in order to 00 get it. straightened out, 90 that 

Consol contended there was DDno violation at all. wo Tr" 250. Kun 

estimated that there are approximately 170 section switches at 

the mine of which 37 to 39 have the handles and blades removed in 

order to be used as dead blocks. Id. 

Regarding the history of the controversy, Kun stated that 

prior to 1990 8 the only thing he was ever told by MSHA about the 

use of section switches as dead blocks was to not leave the 

blades at the location of the dead blocks. Spencer Shriver was 

MSHA's electrical inspect then, and he is the person who told 

Kun. Tr. 253. Later, Shriver also told Kun that the fingers 

should be removed from the section switches. Tr. 258. 

322 
Kun estimated that section switches cost between $360 to 

$400 apiece and section insulators each cost between $260 to 

$270. Tr. 255. Kun further stated that when blades are removed 

they are kept with the maintenance department and with a 

certified electrician "because they're the ones that have been 

instructed to put them in if need be." Tr. 260. 

Consol's next witness was Gary Mair, general manager of 

Dusquesne Mine Supply Company. Mair testified that with respect 

to products that it produces for the mining industry, the company 

is primarily involved in the manufacture of trolley system items. 

Tr. 266. Mair also stated that he was advised of the existence 

of the subject citation by Spike Bane. Tr. 269. 

Mair said that he believes that section switches made by 

Dusquesne are safely designed. Tr. 270. He testified that the 

basic product design was set 12 years ago and has never 

experienced a failure. He further stated that each section 

switch is properly constructed, .. and he described the process by 

which each is made. Tr. 271-272. He also stated that at Osage 

No. 3 Mine, the switches are properly installed. Tr. 172. 

Because of the way the switches are manufactured, Mair said that 

there are only two ways to remove the fingers -- saw them off or 

try to knock them off with a hammer. Tr. 277. He acknowledged 

that section switches could be replaced with section insulators 

(Tr. 284), and he confirmed that section switches cost 

approximately $100 more apiece than section insulators. Tr. 280. 

Mair stated that section switches and section insulators 

differ (aside from the handles and blades on the section 

switches) only in that the section switches have fingers and the 

section insulators do not" Their main frames are essentially the 

same Tr. 28lo 

As its last witnessu Consol called Michael Hall to testify. 

Hall is the chief electrical engineer for MSHA District 3. Hall 

also is the supervisor of the District 3 electrical section and 

has been since 1978. Tro 287" As such, he supervises the 7 or 8 

electrical inspectors in District 3u including Kalich. 

Hall explained that in the 70Qs and 80 1 s, District 3 had 

accepted section switches with handles and blades removed as dead 

blocks. Tro 293. Then MSHA began getting reports from 

inspectors that they were finding section switch handles and 

blades hanging right beside the section switches, an indication 

that the blades were being inserted to jumper the dead blocks. 

Tr. 297. Hall explained the problem confronting MSHA as follows: 

"[T]hese switches that •.• had the switch 

handle - - - switch blade removed, we were 

finding people were bypassing these switches 

323 
with various devices, either with a switch 

blade or with a fuse or some other method 

which caused the person who was doing that to 

be exposed to unsafe voltages." 

Tr. 299. Hall also believed that the practice caused short 

circuit problems which in turn could cause burn injuries to 

miners or a mine fire. Tr. 311. Hall admitted that MSHA 

personnel had done no testing or experimentation to assess any 

shock, burn and fire hazards associated with the practice. 

Tr. 302. 

Hall stated that MSHA's concern was its fear that the 

section switch used as a dead block would be used in an unsafe 

manner. Tr. 326. Hall agreed that with respect to the use as 

dead blocks of section switches with fingers, a violation of 

Section 75.520 is premised upon the assumption that miners will 

not at all times act in compliance with Sections 75.1001, 75.509 

and 75.511. Tr. 327. The N,ngers on the section switches are an 

incentive to miners to violate those regulations because they 

make it too easy to jumper the dead block. Tr. 328. 

THE VIOLATION 

Because I conclude that the cited section switch was safely 

designed, constructed and installed and that, in any event, MSHA, 

in regulating a future work practice through the application of 

Section 75.520, stretched the standard beyond reasonable and 

permissible bounds, I hold that a violation of Section 75.520 did 

not exist. 

In specifying that 11 [a]ll electric equipment shall be 

provided with switches or other controls that are safely designed 

constructed and installed uu Section 75.520 repeats 

Section 305(o) of the Mine Act. 30 u.s.c. § 865(o). The 

legislative history of the interim mandatory standard states: 

This section requires that electric equipment 

be provided with switches or other safe 

control[s] so that the equipment can be 

safely started, stopped? and operated without 

danger of shock, fire, or faulty operation. 

s. Rep. No. 411, 91st Cong., 1st Sess. 68, reprinted in Senate 

Subcommittee on Labor, Committee on Labor and Public Welfare, 

94th cong., 1st Sess., Part I Legislative History of the Federal 

Coal Mine Health and Safety Act of 1969, at 194 (1975). No 

argument has been presented that the cited section switch was not 

a "switch or other control of electric equipment." Indeed, when 

used as a dead block, the section switch segregated and 

324 
controlled the current available to the power block sections of 

the trolley wire that it separated. Therefore, I find that the 

cited equipment had to conform to the requirements of 

Section 75.520. 

That being the case, the question is whether the equipment 

was "safely designed, constructed and installed." There is no 

doubt, I think, that in and of itself, the cited section switch 

was safely designed and constructed. "Design" is defined as 

"the drawing up of specifications as to structures, forms, 

positions, materials, texture, accessories . . . in the form of a 

layout for setting up, building or fabrication." Websters Third 

New International Dictionary (Unbridged) at 611-612 (1986). 

"Construct" is defined as "to form, make, create by combining 

parts." Id. 489. Thus, design and construction of the 

referenced switches and controls refers to their structural 

integrity, to the manner in which they have been conceived on 

paper, modeled and to the manner in which they have been 

fabricated. In this regard, ,the question is whether there is 

anything inherently unsafe about the cited component resulting 

from its configuration and structure? Clearly -- or so it seems 

to me -- the answer is "no". 

There was general agreement that there is no standard 

definition of "dead block11 , but that the purpose of such 

equipment is to separate blocks of power on a trolley line. 

To effectuate the separation there must be an effective air gap 

between conductors that enter the dead block mechanism from both 

sides. Mair testified that the basic design of a section switch 

and a section insulator is the same -- except for the blade, its 

handle and the fingers -- and that the design in question, which 

has been unaltered for the past twelve years, has never 

experienced a failure. His testimony was not rebutted. There 

was simply no evidence offered that the configuration and 

structure of the cited equipment was, in and of itself, 

hazardous. I conclude, therefore, that the cited section switch 

was safely designed and constructed. 

The next question is whether the section switch was safely 

installed? In Mettiki Coal Corp., 13 FMSHRC 760, 768 (May 1991), 

the Commission noted that the word "install" means "to set up for 

use or service." Webster's at 1171. The use or service of 

equipment involves putting the equipment to a given purpose once 

it is in position to function and thus involves the relationship 

of miners to the equipment in the ongoing mining process. In the 

context of Section 75.520, this means that a switch or control, 

once in place, must not pose a hazard to miners during normal 

ongoing mining operations. 

Of course, the entire thrust of the Secretary~s case is that 

the cited section switch posed such a hazard. Kalich repeatedly 

explained that the use as a dead block of a section switch with 

325 
its fingers attached made it too easy for the dead block to be 

jumpered with resulting hazards possible both to the miner 

performing that operation and to other miners as well. In 

Kalich's opinion, the miner jumpering the switch could be 

subjected to a shock hazard from working in close proximity to 

the energized trolley wire. Tr. 44-45, 64-65. Further, other 

miners could be subjected to the fire hazards presented when 

adequate short circuit protection was not provided in conjunction 

with the jumpering of the dead block. Tr. 43, 47, 50. Hall 

echoed Kalich's concerns. Tr. 311. 

While I do not doubt that these hazards can and do exist, 

they are anticipatory. As both Kalich and Hall freely admitted, 

they rest upon the assumption that miners will purposefully act 

in derogation of regulations which, if complied with, eliminate 

the hazards altogether-- i.e., that they will not de-energize 

the circuits and equipment as required by Section 75.509, 

that they will not provide adequate short circuit protection 

once the section switch has be~n jumpered as required by 

Section 75.1001, and that jumpering will not be done by a 

qualified person or under the direct supervision of a qualified 

person as required by Section 75.511. See Tr. 49, 168-169, 

172, 327. 

Further, there are safe ways to jumper a section switch, 

even if the fingers are attached to the switch, See e.g., Tr. 49. 

As the testimony of Kalich and Hall made clear, it is not the use 

of the section switch as a dead block and its jumpering that is 

unsafe, it is the manner in which the jumpering is done. 

Thus, -- and this gets to the heart of the matter -- it is not 

the design 9 construction or installation of the cited equipment 

that the focus of the contested citation and the reason for 

issuance but a work practice that may in the future be 

associated with the equipment -- a practice that would be 

eliminated by compliance with existing regulations. 

There are serious flaws with this approach to compliance. 

One that MSHA must cite existing violations of regulations 9 

not those that anticipates may occur at some unspecified time 

the futureo 13 Another is that prohibition of a hazardous 

work practice is best regulated through specifically addressing 

the practice -~ as 9 for example 0 in the standard regarding 

The citation of existing violation is, of course, exactly what MSHA 

does when it finds that in jumpering a section switch, an operator fails to deenergize the circuit, fails to have the work performed by a certified person, or 

fails to provide short circuit protection. See e.g, Secretary of Labor v. Ronald 

Weaver, 14 FMSHRC 1647, (September 1992) (citation issued for failure to comply 

with Section 75.1001). 

326 
repairs or maintenance on mobile and stationary machinery (30 

C.F.R. § 75.1725(c)) --rather than by trying to prohibit the 

practice through stretching beyond reasonable limits the 

interpretation of an existing regulation. 

This is particularly true when, as here, the regulation MSHA 

seeks to expand is broad to begin with. The Commission has noted 

that Section 75.520 is the type of broadly worded standard that 

is not unenforceably vague, provided a reasonably prudent person 

familiar with the mining industry and the protective purposes of 

the standard would have recognized the specific prohibition 

requirement of the standard. Mettiki, 13 FMSHRC at 768-769. It 

has further stated that the standard cannot be 18 so ••• uncertain 

that (persons] of common intelligence must necessarily guess at 

its meaning and differ as to its application." Id. at 768 

(guoting Alabama By-Products corp. 0 4 FMSHRC 2128, 2129 

(December 1982)). 

As the testimony establishes, the history of MSHA's 

enforcement actions with regard to the use as dead blocks of 

section switches with their fingers attached is one premised upon 

changing interpretations of what the standard requires. First, 

the section switches were accepted provided their handles and 

blades were removed. Tr. 118-119, 293. Next, they were 

accepted, provided the handles and blades were removed and were 

kept elsewhere. Tr. 127, 187-188, 253. Finally, they were 

accepted provided the handles and blades were kept elsewhere and 

the fingers were removed. Tr. 258, 301. It seems to me that 

this changing interpretation of what is required by the standard 

establishes that, at least as applied to the facts of this case, 

persons of common intelligence must necessarily guess at its 

meaning and reasonable could differ as to its application. 

I am sympathetic ·to the concerns of Kalich and Hall 

regarding the dangers they believe to be inherent in the practice 

of jumpering dead blocks when such work is not done by a 

certified person or under the supervision of a certified person 

and when there has not been compliance with Sections 75o509 

and 75.1001" L not doubt for an instant that in establishing 

a "

0 fingerless section Slflitchesa~ policy for MSHA District 3 they 

were motivated by a commendable concern for the safety of those 

miners who come within their jurisdiction and of whose well-being 

they are required ever to be mindful. Lacking a specific 

regulation concerning the practice and, perhaps 1 lacking guidance 

from MSHA as wellu they acted to protect miners from themselves. 

While their motives were laudatoryv their means were not; for in 

so doing I believe that they acted beyond the proper scope of 

Section 75.520. 

In view of the foregoing, I conclude and find that Citation 

No. 3121684 does not set forth a violation of Section 75.520 and 

accordingly must be vacated. 

327 
ORDER 

It IS ORDERED that Section l04(a) Citation No. 3121684, 

dated October 12, 1992, and citing an alleged violation of 

30 C.F.R. § 75.520, is VACATED. Consol's contest of the citation 

is GRANTED. 

It is further ORDERED that MSHA 1 s proposed civil penalty 

assessment for the alleged violation of Section 75.520 is DENIED 

and its petition is DISMISSED. 

Distribution: 

J)w;cl £ &,£,'-'rtoavid F. Barbour 

Administrative Law Judge 

Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Boulevard, Suite 516, 

Arlington, VA 22203 (Certified Mail) 

Rebecca Zuleski, Esq., Furbee, Amos, Webb, & Critchfield, 5000 

Hampton Center, Suite 4, Morgantown, WV 26505 (Certified Mail) 

\epy 

328 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 26, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONN PEST CONTROL 

INCORPORATED, 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-563 

A. C. No. 02-01195-03502 KCK 

Kayenta Mine 

DECISION AEPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Mer11.n 

The Solicitor has filed a letter advising that the operator 

has paid $150 in settlement of the penalty originally assessed at 

$300. The Solicitor asks that his letter be treated as a motion 

to dismiss. 

The subject citation indicates that it was issued for a 

violation of 30 C.F.R. § 48.28(A) because a miner had not received the required annual refresher course. The Solicitor 

represents that negligence less than first thought because 

·there some question whether or not the operator was fact 

aware that the miner had not been trained. 

The Solicitorus letter is treated as a motion for settlement 

and I accept the advice set forth therein. Based thereon I 

conclude that $150 is an appropriate penalty under the six 

criteria set forth section llO(i) of the Act. Accordingly a 

settlement that amount approved. 

The Solicitor reminded that under section llO(k) of the 

Act no proposed penalty that has been contested before the 

Commission can be compromised, mitigated or settled without the 

approval of the Commission. All such matters are before the 

Commission de novo. Sellersburg stone Company v. Federal Mine 

Safety and Health Review Commission, 736 F.2d 1147 (7th Cir. 

1984). Therefore, in all cases a motion to approve settlement 

should be made rather than a request for dismissal. 

329 
In light of the foregoing, it is ORDERED that the recommended settlement be APPROVED and that the operator PAY $150 within 

30 days of the date of the order. 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, u. s. Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105 (Certified Mail) 

Mr. Les Shelton, Conn Pest Co,ntrol, P. o. Box 1146, Flagstaff, AZ 

86002 (Certified Mail) 

/gl 

330 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH ·REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

UNITED MINE WORKERS OF 

AMERICA ON BEHALF OF 

LOCAL UNION NO. 1588, 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

FEB 0 5 1993 

. . 

. . 

COMPENSATION PROCEEDING 

Docket No. WEVA 92-1006-C 

: Blacksville No. 1 Mine 

. . 

PARTIAL DISMISSAL OF COMPLAINT 

In this proceeding, arising under Section 111 of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 821, ("Mine 

Act"), the United Mine Workers of America ("UMWA") on behalf of 

Local Union 1588 seeks compensation under the first two sentences 

of Section 111 for miners idled by an order of withdrawal issued 

on March 19, 1992, pursuant to Section 103(k) of The Mine Act 

following an explosion that occurred the same day at 

Consolidation Coal Company's ("Consol") Blacksville No. 1 Mine. 

The UMWA also seeks compensation under the third sentence of 

Section 111 for miners idled by an order issued on March 22, 

1992 0 pursuant to Section 107(a) of the Mine Act 1 for an 

allegedly imminently dangerous condition arising out of the same 

explosion¢ 

Because counsels were involved in settlement negotiations 

concerning the UMWAvs claims regarding the Section 103(k) order 

and be9ause the Secretary's Mining Enforcement and Safety 

Administration (MSHA) had yet to complete its investigation of 

the explosion and consequently 9 had not issued any citations or 

orders alledging that the Section 107(a) withdrawal order closed 

the mine ijifor a failure of the operator to comply with any 

mandatory health or safety standards"o the parties moved that the 

case be stayedu and I granted the motion. 

The UMWA now seeks dismissal of its complaint with respect 

to its claims under the first two sentences of Section 111. The 

UMWA asserts that in essence the parties have settled these 

claims and that payment has been made to claimants in accordance 

with the terms of the agreement. The UMWA has attached a joint 

"Stipulation of Partial Settlement and Partial Release of Claims" 

to its motion. Counsel for Consol had advised me that he 

concurrs with the UMWA's motion. 

331 
ACCORDINGLY, the motion is GRANTED. The UMWA's complaint 

with respect to the first two sentences of Section 111 is 

DISMISSED. The proceeding involving its third sentence claims 

continues to be stayed pending a determination by MSHA whether 

citations or orders alleging violations of any mandatory health 

or safety standards should be issued in conjunction with the 

subject Section 107(a) order and the issuance by MSHA of such 

citations or orders. 

Distribution: 

yv(/~1' 3t/_fi_/~ David F. Barbour 

Administrative Law Judge 

(703) 756-5232 

Mary Lu Jordan, Esq., UMWA, 900 15th Street, NW, Washington, DC 

20005 (Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

fepy 

332 
FEDERAL MINE SAFETY AND HEALTH-REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ffB J 2 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

VIRGINIA CREWS COAL COMPANY, 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-714 

: A.C. No. 04702-03566 Q 

. 

. . 

Noo 14 Mine 

ORDER DENYING MOTION FOR CONTINUANCE OF HEARING 

By letter dated February 10, 1993, the respondent's counsel 

requests a continuance of the hearing scheduled in this matter in 

Charleston, West Virginia on Tuesday, March 16, 1993. As grounds 

for the request, counsel states in pertinent part as follows: 

The captioned matter is scheduled for hearing on 

March 16, 1993 at 9:00 a.m. in Charleston, West 

Virginia. I am also scheduled for hearing in Secretary 

of Labor v. Laurel Coal. Inc., Docket No. WEVA 92-1282' 

(ALJ Melick) for the same date. The Laurel Coal matter 

has already been rescheduled twice and Judge Melick has 

said that he will grant no further continuances. 

The Notice of Hearing in this case was issued on October 23 0 

1992u prior to Judge Melickas scheduling of the hearing in the 

Laurel Coal case, and the subsequent continuances which he 

granted. I have other hearings scheduled in Charleston for the 

remainder of the week of March 15, 1993, and continuing this case 

simply not cost effective. My trial calendar is full through 

the first week of Mayu 1993u and it does not include any hearings 

in Charleston. Under the circumstances, further delay in this 

case pending the scheduling of hearings in Charleston at some 

future unknown time is not warranted. Further 5 given the size of 

the firm representing the respondent in this matter, I am not 

convinced that counsel of record is the only attorney available 

to proceed with this case. In addition to its Charleston office, 

Jackson & Kelly has four other offices in West Virginia, and the 

issues in this case do not appear difficult or unusual. Under 

all of these circumstances, the request for a continuance of the 

hearing IS DENIED, and it will proceed as scheduled. 

~.~~ Administrative Law Judge 

333 
Distribution: 

Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

/ml 

334 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fEB J 1 1993 

SECRETARY OF LABOR, . MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

MAPLE MEADOW MINING COMPANY, 

Respondent 

. . 

. . 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-1025 

A.C. No. 46-03374-03732 

Maple Meadow Mine 

ORDER DENYING MOTION. FOR CONTINUANCE OF HEARING 

By letter dated February 15, 1993, the respondent's counsel 

requests a continuance of the hearing scheduled in this matter in 

Charleston, West Virginia, on Wednesday, March 17, 1993. As 

grounds for the request, counsel states in pertinent part as 

follows: 

The captioned matter is scheduled for hearing on 

March 17, 1993, in Charleston, West Virginia. 

Administrative Law Judge Melick has scheduled a hearing 

in Secretary of Labor v. Laurel Coal Corporation 

(Docket No. WEVA 92-1282} for March 16. That matter 

involves approximately ten witnesses and has been 

continued twice before. Judge Melick has informed the 

parties that he will grant no further continuances in 

that proceeding. 

The Notice of Hearing in this case was issued on October 23 0 

1992 prior to Judge Melickgs scheduling of the hearing in the 

Laurel Coal case 0 and the subsequent continuances which he 

granted. I have other hearings scheduled in Charleston for the 

remainder of the week of March 15, 1993u and continuing this case 

is simply not cost effective. My trial calendar is full through 

the first week of Mayu 1993 9 and does not include any hearings 

in Charleston. Under the circumstances, further delay in this 

case pending the scheduling of hearings in Charleston at some 

future unknown time is not warranted. Further, given the size of 

the firm representing the respondent in this matter, I am not 

convinced that counsel of record is the only attorney available 

to proceed with this case. In addition to its Charleston office, 

Jackson & Kelly has four other offices in West Virginia, and the 

335 
issues in this case do not appear difficult or unusual. Under 

all of these circumstances, the request for a continuance of the 

hearing IS DENIED, and it will proceed as scheduled. 

~~~ Administrative Law Judge 

Distribution: 

Patrick L. DePacev Esg.Q Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Blvd.u Room 516, Arlington, VA 22203 

(Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

jml 

336 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH fLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONCRETE MATERIALS, 

Respondent 

FEB 1 ~ 1993 

. . 

. 

0 

0 

0 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-358-M 

A. C. No. 39-00226-05506 

Summit Pit 

ORDER DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

This case is before me upon a petition for assessment of a 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977. The Solicitor has filed a motion to approve 

settlement of the one violation involved in this case. The 

Solicitor seeks approval of a reduction in the penalty amount 

from the original proposal of $690 to $50. 

Citation No. 3909835 was issued for a violation of 30 C.F.R. 

56.12067 because the fence surrounding an electrical substation 

was not feet in height. According to citationQ the substation contained six mounted transformers with exposed energized 

components. The inspector concluded that contact with the energized high voltage components might result in a fatality. In her 

motion the Solicitor alleges that negligence is less than originally assessed and that because the violation was unlikely rather 

than likely to contribute to an accident the significant and 

substantial designation should be deleted. 

The Solicitor however, gives no reasons to support the 

conclusions she would have the undersigned adopt. She has 

instead filed her usual form motion. In this instance where the 

Solicitor recommends a 93% reduction in the penalty amount she 

must do more. Even more importantly, a $50 penalty would be 

totally at variance with what the inspector wrote on the citation 

which would require a far higher penalty under the criteria set 

forth in section 110 (i} of the Act. 

The Solicitor is reminded that the Commission and its judges 

bear a heavy responsibility in settlement cases pursuant to 

section 110(k) of the Act. 30 u.s.c. § 820(k); See, s. Rep. No. 

95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcom337 
mittee on Labor, Committee on Human Resources, 95th Cong., 2d 

Sess., Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 632-633 (1978). It is the Commission's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set forth in section 110(i) of the 

Act. 30 u.s.c. § 820(i); Sellersburg Stone Company v. Federal 

Mine Safety and Health Review Commission, 736 F.2d 1147 (7th Cir. 

1984). 

Based upon the Solicitor's motion, I cannot conclude that 

the recommended penalty of $50 is warranted. The Solicitor must 

provide explicit reasons for the action she wishes this Commission to undertake. 

In light of the foregoing, it is ORDERED that the motion for 

approval of settlemen~ be DENIED. 

It is further ORDERED that within 30 days of the date of 

this order the Solicitor submit additional information to support 

her motion for settlement. Otherwise this case will be assigned 

and set for hearing. 

Chief Administrative Law Judge 

Distribution: {Certified Mail) 

Margaret Ao Miller 9 Esqo, Office of the Solicitoru U.So Department of Laboru 1585 Federal Bldgou 1961 Stout Stou Denveru CO 

80294 

Jerome T. Nusbaum, Concrete Materials, PoO. Box 84140, Sioux 

Falls, SD 57118 

* IJ .S COVi.RNMENT PRINT INC OF'FlCl'. l s 9 3 • 3 4 2 • l 4 lll 3 3 7 7 

338