Jut.Y 1984 

Commission Decisions 

7-02-84 

7-'05-84 

7-11-84 

7-12-84 

7-17-84 

7-18-84 

FMC Corporation 

Badger Coal Company 

U.S. Steel Mining Co., Inc. 

Freeman United Coal Mining Co. 

Roy Glenn (Climax Molybdenum Co.) 

Kitt Energy Corporation 

Administrative Law Judge Decisions 

7-02-84 

7-03-84 

7-03-84 

7-05-84 

7-06-84 

7-11-84 

7-11-84 

7-11-84 

7-11-84 

7-16-84 

7-17-84 

7-17-84 

7-18-84 

7-19-84 

7-20-84 

7-20-84 

7-23-84 

7-24-84 

7-24-84 

7-26-84 

7-26-84 

7-30-84 

7-30-84 

7-31-84 

Carbon County Coal Company 

Grandview Dock Corporation 

U.S. Steel Mining Co., Inc. 

Earth Coal Company 

H J and H Coal Company, Inc. 

UMWA for James Rowe, ~ al. v. 

-Peabody Coal Company 

James L. Dowdell v. Consolidation Coal 

U.S. Steel Mining Company, Inc. 

Westmoreland Coal Company 

MSHA for Paul Sedgmer, et al. v. 

Consolidation Coal Company 

Louisiana Industries, Inc. 

Cobra Resources, Inc. 

Buckeye Coal Mining Company 

Emiliano Rosa Cruz v. Puerto Rican 

Cement Company, Inc. 

Industrial Mining Company 

Lee Lime' Corporation 

Local 2274, UMWA v. Clinchfield Coal 

Freeman United Coal Mining Company 

Vesta Mining Company 

Pyro Mining Company 

MSHA for Z.B. Houser v. Northwestern 

Resources Company 

Jim Walters Resources, Inc. 

Glinn Gates & Peter Johnstone 

Cicconi Coal Company 

WEST 82-146-RM 

WEVA 81-36-R 

PENN 82-336 

LAKE 82-89 

WEST 80-158-M 

WEVA 83-65-R 

WEST 83-106 

LAKE 84-24 

PENN 83-96 

LAKE 84-14 

VA 83-56 

KENT 82-103-D 

LAKE 83-96-D 

PENN 83-121 

WEVA 83-260-R 

LAKE 82-105-D 

CENT 84-43-M 

KENT 83-54 

LAKE 84-2 

SE 83-62-DM 

LAKE 84-69 

YORK 84-9-M 

VA 83-55-C 

LAKE 84-38 

PENN 83-212-R 

KENT 84-151 

WEST 83-101-D 

SE 84-11 

WEST 83-31-M 

PENN 83-158 

Pg. 1566 

Pg. 1571 

Pg. 1573 

Pg. 1577 

Pg. 1583 

Pg. 1596 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1607 

1611 

1617 

1627 

1629 

1634 

1651 

1664 

1717 

1740 

1747 

1749 

1751 

1753 

Pg. 1778 

Pg. 1780 

Pg. 1782 

Pg. 1785 

Pg. 1787 

Pg. 1789 

Pg. 1798 

Pg. 1815 

Pg. 1826 

Pg. 1829 

JULY 1984 

The following case was directed for review during the month of July: 

Secretary of Labor, MSHA v. Magma Copper Company, Docket No. WEST 83-17-M. 

(Judge Vail, June 14, 1984) 

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

Lonnie Jones v. D & R Contractors, Docket No. KENT 83-257-D(A). (Judge Melick, 

Interlocutory Review of May 15, 1984 order.) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR,. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FMC CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 2, 1984 

DECISION 

Docket No. WEST 82-146-RM 

WEST 82-207-M 

This consolidated proceeding involves the interpretation and 

application of 30 C.F.R. § 57.6-5, a mandatory safety standard dealing 

with storage of blasting agents. 1/ A Commission administrative law 

judge held that the operator, FMC-Corporation ("FMC"), violated the 

standard and assessed a civil penalty. 5 FMSHRC 627 (April 1983)(ALJ). 

We granted FMC's petition for discretionary review. We affirm. 

The relevant facts were stipulated. On March 10, 1982, during an 

inspection of FMC's trona mine located in Green River, Wyoming, an 

inspector of the Department of Labor's Mine Safety and Health Administration ("MSHA") issued FMC a citation alleging a violation of section 

57.6-5. The citation stated, in relevant part, that ammonium nitrate 

fuel oil ("ANFO"), a blasting agent, was stored impermissibily close 

to combustible hydraulic oil. ]:_/ 

1/ 30 C.F.R. § 57.6-5 provides: 

Mandato~y. Areas surrounding magazines and facilities for the 

storage of blasting agents shall be kept clear of rubbish, brush, 

dry grass, or trees (other than live trees 10 or more feet tall), 

for a distance not less than 25 feet in all directions, and other 

unnecessary combustible materials for a distance of not less than 

50 feet. 

2/ ANFO is a blasting agent as defined by 30 C.F.R. § 57.2, which 

incorporates by reference the Department of Transportation's classification scheme for blasting agents set forth at 49 C.F.R. § 173.114a. 

Ammonium nitrate is an essential ingredient in nearly all commercial 

explosives, including dynamite and water gels. Its predominant use is 

in the form of AN prill, a small porous pellet mixed with fuel oil for 

use as a blasting agent. Du Pont Co., Blasters' Handbook 12-15, 55-66 

(16th ed. 1977). This ammonium nitrate fuel oil mixture is referred to 

as ANFO. The most widely used ANFO product is an oxygen-balanced, freeflowing mixture of about 94 percent ammonium nitrate prills and six 

percent No. 2 diesel fuel oil. Id. at 55. 

156t3 
• 
At approximately 9:40 a.m. the inspector observed 9.5 pallets of 

ANFO within the supply yard located near the No. 3 shaft. The ANFO, 

which had an approximate total weight of 10 tons, was located within 

eight feet of a portable 500-gallon oil dispensing tank that was filled 

with combustible hydraulic oil. ]/ The inspector further observed that 

a small quantity of the hydraulic oil was located on the ground under 

the tank. Vehicular traffic in the area presented a possible ignition 

source. 

Upon making the foregoing observation the inspector informed FMC 

personnel of the condition. Thereafter the inspector issued the subject 

citation charging a violation of 30 C.F.R. § 57.6-5 because hydraulic 

oil was located within eight feet of ANFO; because the operator failed 

to place a warning sign in the area; and because the supply yard was not 

guarded. The operator removed the hydraulic oil from the supply yard 

within minutes and indicated that the oil had been mistakenly located 

there •. The operator further contended that the supply yard had been 

routinely used over the years for the placement of materials to be taken 

to the underground work areas and that ordinarily the materials would be 

located therein for approximately 5 hours. However on this day, because 

of unspecified problems, the process of removing the materials underground had been delayed. In fact the ANFO, which had been delivered 

into the supply yard at approximately 8:00 a.m., was not completely 

removed from the supply yard and taken into the mine until sometime 

between 4:00 p.m. and 5:00 p.m. 

The sole issue litigated by the parties before the Connnission's 

administrative law judge was "whether the agreed upon facts show that 

9.5 pallets of ANFO, a blasting agent, w[ere] in 'storage' as that term 

is used in the mandatory safety standard set forth in 30 C.F.R. § 57.6-5." 

5 FMSHRC at 627. The judge found that the supply yard near the No. 3 

shaft was a "facility" used as a holding area for materials, including 

blasting agents, intended for use in the underground parts of the mine. 

5 FMSHRC at 629. The judge stated, "All storage connotes a temporary 

placement awaiting further movement or transport to the place of. 

ultimate rest or use." Id. The judge further found that for an hour 

and a half, 9.5 pallets of ANFO had been stored in impermissible proximity 

to combustible hydraulic oil. Id. Based on these findings, the judge 

concluded that the operator had-Violated section 57.6-5, and assessed a 

civil penalty of $119, an amount stipulated to by the parties. The 

judge also held that the other conditions described in the citation, the 

absence of a guard and a danger sign, were not covered by the cited 

standard. The Secretary of Labor has not appealed this latter aspect 

of the judge's decision. 

On review, FMC argues that "storage," for the purpose of the safety 

standards governing explosives, means "the setting aside of blasting 

agents and explosives in a building or structure until needed." FMC 

contends that because the supply yard in question was neither a structure 

11 "Combustible" is defined in 30 C.F.R. § 57.2 as "capable of being 

ignited and consumed by fire." 
nor a building it was not a "facilit(y] for the storage qf blasting 

agents" within the meaning of section 57.6-5. FMC argues also ~hat the 

ANFO in question was in the process of delivery to the mine when the 

citation was issued and, accordingly, was not subject to the s~andards 

governing storage of explosives and blasting agents. Rather, FMC 

asserts that the delivery process is governed by the standards dealing 

with the transportation of explosives and blasting agents. 30 C.F.R. 

§§ 57.6-40 through 57.6-77. On the facts of this case, we do not agree. 

There is no dispute that some 10 tons of ANFO, a blasting agent, 

were placed.for a period of time.within eight feet of a tank filled with 

500 gallons of hydraulic oil, a combustible material. Therefore, the 

issues to be decided on review are whether the No. 3 shaft supply yard 

was a "facilit[y] for the storage of blasting agents" within the meaning 

of section 57.6-5, and whether FMC's temporary placement of the ANFO in 

the supply yard constituted "storage" within the meaning of the standard. 

Section 57.6-5 applies to the storage of blasting agents in "magazines" 

and "facilities for the storage of blasting agents." The term "magazine" 

is defined in 30 C.F.R. § 57.2 as "a facility for the storage of explosives, 

blasting agents, or detonators." 30 C.F.R. § 57.6-20 provides detailed 

criteria for the construction of magazines. However, there is no 

comparable definition of the term "facilities." While it is clear that 

the word facility may connote an enclosed structure, its meaning in 

ordinary usage is broader. Facility is defined as "something ••• that 

is built, constructed, installed, or established to perform some particular 

function or to serve or facilitate some particular end." Webster's Third 

New International Dictionary (Unabridged) 812 (1981). In other words, 

the primary significance of the term is functional rather than structural. 

Therefore, while a magazine is a structure that must meet the specifications 

set forth in section 57.6-20, a facility, considered from the standpoint 

of ordinary u~age, can be.either an enclosed structure like a magazine, 

or simply an area designated for storage. 

The No. 3 shaft supply yard was a demarcated area regularly used 

for the holding of supplies, including blasting agents to be transported 

underground. Thus, we conclude that the supply yard was a storage 

facility. When blasting agents were stored therein, such storage was. 

required to be in conformity with section 57.6-5. !!.I 

!!.I In relevant part, the citation in this case dealt only with the 

impermissible presence of a combustible material. This case does not 

require us to, and we do not, reach the question of whether, under the 

cited standard or other standards, "facilities for the storage of 

blasting agents" must also be enclosed. We conclude merely that the 

supply yard as used at the FMC mine was a storage facility for blasting 

agents, not that it was a storage facility conforming to all possibly 

applicable requirements. 

1568 
The next question is whether FMC's temporary placement of the ANFO 

in the supply yard facility constituted storage. In ordinary usage, the 

term storage, "the act of storing or the state of being stored," covers 

a wide variety of meanings, including, to accumulate, to supply, to 

amass, or to keep for future use. Webster's, at 2252. Thus, the term 

is sufficiently broad to include short-term, long-term and semi-permanent 

storage, and as used in section 57.6-5, encompasses both short-term and 

long-term storage. 

Applying the foregoing construction of the standard to these facts, 

we conclude that the ANFO was stored in the supply yard within the 

meaning of the standard. Although FMC argues that the ANFO was in 

transit, the 9.5 pallets of ANFO observed by the inspector had been in 

the supply yard for over an hour and some of those pallets were not 

moved below for more than six hours. This situation was not placement 

for a de minimis period of time during an essentially uninterrupted 

transit process. The standard was developed to prevent the very 

situation that existed in this case~-the storage of blasting agents in 

close proximity to a c~mbustible material. The judge's applicatio,n of 

the standard in this case properly effectuates that purpose. Because 

the ANFO was stored in impermissible proximity to the hydraulic oil, a 

violation of section 57.6-5 occurred. 

Accordingly, on the bases discussed above, we affirm the judge's 

decision. ~_/ 

1/ Connnissioner Nelson did not participate in the consideration or 

disposition of this case. 

1569 
Distribution 

John A. Snow, Esq. 

James A. Holtkamp, Esq. 

Van Cott, Bagley, Cornwall & McCarthy 

50 South.Main Streett Suite 1600 

P.O. Box 3400 

Salt Lake City, Utah 84110 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety & Health. Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1570 
FEDERAL MINE SAFETY AND HEAL TH. REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BADGER COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

J\lly s, 1984 

ORDER 

Docket Nos. WEVA 81-36-R 

WEVA 81-37-R 

WEVA 81-277 

WEVA 81-285 

Badger Coal Company's petition for discretionary review of the 

administrative law judge's final decision in this matter was granted 

by this Commission on May 21, 1984. Subsequently, by motion dated 

June 22, 1984, counsel for the operator requested that its petition 

for review be dismissed by the Commission. The Secretary of Labor 

has responded stating that he has no objection to Badger's motion. 

Accordingly, our order granting review in this case is vacated and 

the operator's petition for discretionary review is dismissed. By 

operation of law, the administrative law judge's April 11, 1984, decision 

(6 FMSHRC 874) constitutes the Commission's final decision in this matter. 

30 u.s.c. § 823(d)(l). 

1571 
Distribution 

David J. Romano, Esq. 

Young, Morgan, Cann & Romano 

Suite One, Schroath Building 

Clarksburg, West Virginia 26301 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Richard Steffey 

Federal Mine Safety & Health Review C6mmission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1512 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 11, 1984 

Docket No. PENN 82-336 

U.S. STEEL MINING CO., INC. 

DECISION 

In this case arising under the Federal Mine Safety and.Health Act of 

1977, 30 u.s.c. § 801~~· (1982), United States Steel Mining ("USSM") 

has challenged a finding by the Commission's administrative law judge that 

a violation was "significant and substantial" as that term is used in 

section 104(d)(l) of the Act. 30 u.s.c. § 814(d)(l). 

USSM's Maple Creek No. l coal mine was inspected in May 1982 by an 

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

Administration ("MSHA"). During the inspection a six-inch gash was 

discovered in the outer jacket of insulation of a trailing cable leading 

to a continuous mining machine. Approximately two inches of the gash 

had been covered by electrical tape, leaving exposed about four inches 

of ground wire. Three live power wires carrying 480 volts of current 

also were contained within the trailing cable but each of them was 

covered by a separate layer of insulation; there was no visible damage 

to that insulation at the time of the inspection. The inspector issued 

a citation alleging a violation of 30 C.F.R. § 75.517, and he indicated 

that the violation was "significant and substantial." 1/ 

USSM contested the designation of the violation as "significant and 

substantial" and the matter came before an administrative law judge of 

this independent Commission. USSM did not contest the underlying 

violation. At the hearing, witnesses for both MSHA .and USSM agreed that 

because the power wires remained individually insulated at the time of 

inspection there was no immediate danger of electrical shock even if a 

miner should inadvertently grab the cable. However, the witnesses 

1/ 30 C.F.R. § 75.517 in part provides: 

Power wires and cables ••• shall be insulated 

adequately and fully protected. 

157~ 
also agreed that a tear in the outer jacket weakened the overall system of 

protective insulation and increased the risk of danger to the internal 

layer of insulation on the power wires. Tr. 19, 27-29. ];./ 

The administrative law judge found that the violations were of a 

"significant and substantial" ("S&S") nature because a trailing cable is 

subject to "extraordinary abuse" in the harsh environment of a coal mine. 

5 FMSHRC at 1569. For this reason,"both the outer jacket and the conductor 

wire insulation are important." Id. 3/ The judge stated further that a 

determination of "significant andsubstantial" must be made at the time the 

citation is issued (without any assumptions as to abatement), but in the 

context of "continued normal mining operations." Id. 

USSM challenges those findings on review. It argues that the gash in. 

the trailing cable insulation observed by the inspector would not have 

resulted in injury absent the occurrence of some future additional aggravating condition. Therefore, USSM submits that there was no likelihood 

that serious injury would have resulted from the cable condition, as it 

existed at the time of inspection and citation. In essence, USSM argues 

that the scope of consideration, for determining whether a significant 

and substantial violation exists, should be limited solely to consideration 

of the condition as it exists at the precise moment of inspection. 

We reject this narrow interpretation of the statutory language. 

Section 104(d)(l) specifies that a violation is to be designated S&S if 

it "significantly and substantially contribute[s]" to a mine hazard. 4/ 

This contribution is measured according to whether there is a "reasonable 

likelihood that the hazard contributed to will result in an injury ••• of 

a reasonably serious nature." Cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (April 1981). Such a measurement cannot ignore the 

relevant dynamics of the mining environment or processes; indeed this 

cable was in normal use at the time it was observed by the inspector. 

Under these circumstances, it was not error for the judge to evaluate 

the cited violation in terms of "continued normal mining operations." 

2/ USSM provided testimony as to the presence of a ground fault system 

in the trailing cable used at this mine. The ground fault system is 

designed to deenergize the trailing cable if a power wire comes in contact 

with the ground wire. The administrative law judge found that despite this 

system, electrical shock of some degree could occur.· United States Steel 

Mining Co., Inc., 5 FMSHRC 1567, 1569 (September 1983)(ALJ). 

3/ The judge also discussed the effect of water, if present, upon the 

electrical hazard posed by the violation. 5 FMSHRC at 1569. We regard 

this discussion as an example of how conditions could develop in the 

mining environment which could cause an improperly protected cable to 

become more hazardous. 

4/ The Mine Act states that violations that are "of such nature as could 

significantly and substantially contribute to the cause and effect of a 

coal or other mine safety and health hazard" may serve as the basis for 

certain enforcement mechanisms. 30 u.s.c. §§ 814(d)(l) and (e)(emphasis 

added). 

1574 
The administrative law judge considered those mining conditions to 

which the damaged cable predictably would be exposed. He found that both 

the outer and inner layers of insulation provided important protection 

against electrical shock. These findings are fully supported by the testimony of the MSHA inspector and the operator's witness, each of whom stated 

that the mining environment is harsh and that damage to the outer layer of 

insulation weakened the protection afforded by the inner layer. 

Accordingly, we conclude that the violation in this case properly was 

designated "significant and substantial" in that there was a reasonable 

likelihood that the condition of the trailing cable could contribute, 

significantly and substantially, to the cause and effect of a safety 

hazard. The decision of the administrative law judge is affirmed. 

1575 
Commissioner Lawson concurring: . . ~ . . .. : . ' 

On the basis of the criteria set forth in my separate opinion in 

Cement Division, National Gypsum Co.,. 3 FMSHRC 822 (April 1981), I concur 

in finding the violation in this case to be significant and substantial 

within the meaning of section 104(d)(l) of the Mine Act, 30 U.S.C. 

§ 814 (d) (1) • 

I join my colleagues in rejecting USSM's invitation to consider 

"spatial-temporal variables" in determining whether the violation was 

significant and substantial. At the time of citation the continuous 

mining machine was in operation and the damaged trailing cable was in 

use. It is reasonable to conclude that absent intervention by a federal 

enforcement official operations would have continued and miners would 

have remained exposed to the electrical hazard the cited standard was 

designed to protect against. If, as USSM suggests, all factors necessary 

for the occurrence of an occupational injury must be present before a 

significant and substantial finding can be made, the violation would 

constitute an imminent danger subject to a section 107(a) withdrawal 

order. As the Secretary maintains, this interpretation would be inconsistent with the enforcement scheme of the Mine Act and its preventive 

goals. In order to be designated significant and substantial, under 

section 104(d)(l) of the Mine Act, a violation must "contribute to the 

cause and ~ffect of a ••• ¢ne safety or health hazard," it need not 

constitute one. 

Accordingly, the administrative law judge properly considered whether 

the violation was significant and substantial in light of the extraordinary 

abuse to which a continuous miner trailing cable is subjected during continued normal mining operations. 

A. E. Lawson, Commissioner 

1576 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR,• 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FREEMAN UNITED COAL MINING 

COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 12, 1984 

Docket No. LAKE 82-89 

DECISION 

This civil penalty proceeding involves the interpretation and 

application of the requirement in 30 C.F.R. § 50.20(a) that an operator 

report to the Department of Labor's Mine Safety and Health Administration 

("MSHA") each "occupational injury ••• at the mine." l/ The Connnissi<>n's 

administrative law judge concluded that Freeman United Coal Mining 

Company ("Freeman") violated the regulation, and assessed a civil 

penalty. 5 FMSHRC 505 (March 1983) (ALJ). For the reasons that follow, 

we affirm the judge's decision. 

1/ 30 C.F.R. § 50.20(a) provides in part: 

Preparation and submission of MSHA Report Form 7000-1--Mine 

Accident, Injury, and Illness Report. 

Each operator shall maintain at the mine office a supply of 

MSHA Mine Accident, Injury, and Illness Report Form 7000-1 •••• 

Each operator shall report each accident, occupational injury, or 

occupational illness at the mine. The principal officer in charge 

of health and safety at the mine or the supervisor of the mine area 

in which an accident or occupational injury occurs, or an occupational illness may have originated, shall complete or review the 

form in accordance with the instructions and criteria in § 50.20-1 

through § 50. 20-7. • •. • The operator shall mail completed forms to 

MSHA within ten working days after an accident or occupational 

injury occurs or an occupational illness is diagnosed. 

30 C.F.R. § 50.2(e) defines an "occupational injury" as follows: 

"Occupational injury" means any injury to a miner which occurs at a 

mine for which medical treatment is administered, or which results 

in death or loss of consciousness, inability to perform all job 

duties on any day afte~ an injury, temporary assignment to other 

duties, or transfer to another job. 

1 ~ i.f '": ., t) ( ' 
The facts are undisputed and were stipulated below. On February 18, 

1982, at about 11:00 p.m., approximately one hour before the beginning 

of his shift, Fred Albers, a plant cleaner who had worked for Freeman 

for about 12 years, experienced back pain while putting on his work 

boots in the wash house at Freeman's Orient No. 6 Mine. He was taken by 

ambulance to a hospital emergency room and subsequently.admitted as an 

inpatient. Albers, who had a history of back trouble, was diagnosed as 

having acute lumbosacral (lower back) strain, and was treated with 

physiotherapy, a m~scle relaxant, and a pain reliever. He was discharged from the hospital on February 24, 1982. Albers returned to work 

on March 10, 1982, after missing 13_work days. Freeman did not report 

Albers' injury to MSHA. 

On March 25, 1982, an MSHA inspector cited Freeman for a violation 

of 30 C.F.R. § 50.20(a) because it had not completed and mailed Form 

7000-1 to report Albers' injury within ten working days after the 

occurrence of the injury. Freeman abated the violation the same day by 

completing and mailing the form to MSHA. 

The principal issue considered by the Commission administrative law 

judge was whether Albers' injury was an "occupational injury" within the 

meaning of the cited regulation and as that term is defined in section 

50.2(e). The judge found that the facts established an occupational 

injury because (1) there was an injury to a miner; (2) it occurred at a 

mine; and (3) medical treatment was required and it caused disability. 

He stated that "the facts fit the definition and the definition is 

controlling." 5 FMSHRC at 508. 

In urging reversal, Freeman argues that the section 50.2(e) definition 

of occupational injury contemplates that there must be a causal nexus 

between the miner's work and the injury sustained. Freeman contends 

that Albers' injury was not work-related and, consequently, Freeman was 

not required to report the injury to MSHA pursuant to section 50.20(a). 

Freeman argues in the alternative that the regulation is invalid to the 

extent that it requires reporting injuries lacking a causal nexus with 

the miner's work. We reject both arguments. 

I. 

In interpreting the term "occupational injury," as defined in 

section 50.2(e), we look first to the plain language of the regulation. 

Absent a clearly expressed legislative or regulatory intent to the 

contrary, that language ordinarily is conclusive. As noted above, 

section 50.2(e) defines an occupational injury as "any injury to a miner. 

which occurs at a mine for which medical treatment is administered, or 

which results in death or loss of consciousness, inability to perform 

all job duties on any day after an injury, temporary assignment to other 

duties, or transfer to another job." The term "injury" is not further 

defined. The ordinary meaning of injury is: "an act that damages, harms, 
or hurts"; or "hurt, damage, or loss sustained." Webster's Third 

New International Dictionary (Unabridged) 1164 (1977). The remaind~r of 

the definition in section 50.2(e) refers only to the location where the 

injury occurred ("at a mine"), and to the result of an injury ("medical 

treatment," "death," etc.). Thus, sections 50.2(e) and 50.20(a), when 

read together, require the reporting of an injury if the injury--a hurt 

or damage to a miner--occurs at a mine and if it results in any of the 

specified serious consequences to the miner. These regulations do not 

require a showing of a causal nexus. 

Nor does the regulatory history show any intent to require such a 

specific causal connection. In fact, just the opposite is true. 30 

C.F.R. Part 50, in which sections 50.2(e) and 50.20(a) are contained, 

was originally promulgated by the Department of the Interior's Mining 

Enforcement and Safety Administration ("MESA," the predecessor agency to 

MSHA) under the authority of the Federal Metal and Nonmetallic Mine 

Safety Act, 30 U.S.C. § 721 et~· (1966)(repealed 1977)("Metal Act"), 

and the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 801 ~ seq. 

(1976) (amended 1977) ("Coal Act"). ]:./ Part 50 revised and consolidated 

previously separate reporting requirements under the Part 58 standards 

for metal and nonmetal mines and the Part 80 standards for coal mines. 

42 Fed. Reg. 55568 (October 17, 1977). When promulgated by MESA, 

section 50.2(e) deleted the Parts 58 and 80 requirement that an occupational injury arise out of and/or in the course of work and added the 

present requirement that, to be reportable, an occupational injury need 

only occur at a mine. See 42 Fed. Reg. 65534. MESA's deletion of a 

more specific work-related criterion militates against our according 

such a construction to these regulations. See,~., U.S. v. Guthrie, 

387 F.2d 569, 571 (4th Cir. 1967). We conclude that the above-noted 

regulatory history and the plain language of the section 50.2(e) definition 

of occupational injury control in construing the related reporting 

requirement of section 50.20(a). ]_/ • 

II. 

It is well settled that when considering the validity of an 

administrative regulation, the proper standard of review is whethe~ th~ 

regulation is consistent with, and reasonably related to, the statutory 

2/ After the Mine Act took effect on March 9, 1978, the Secretary of 

Labor made only minor nomenclature changes in Part 50. 42 Fed. Reg. 

65535 (December 30, 1977); 43 Fed. Reg. 12318 (March 24, 1978). 

3/ In oral argument before the Commission, both Freeman and the 

American Mining Congress, as amicus curiae, argued that the Part 50 

reporting requirements apply only to preventable work-related injuries. 

In Freeman's view, it could not have prevented the injury involved in 

this case. However, the Secretary asserts that it is the compilation of 

data regarding all injuries occurring at mines that provides MSHA with 

a basis for determining which injuries may be prevented. 
provisions urider which it was promulgated and is not in conflict with 

any other statutory provisions. See Sewell Coal Co., 3 FMSHRC 1402, 

1405-08 (June 1981). !±_/ SectiOn lll(b) of the Coal Act and sections 4 

and 13 of ·the Metal Act broadly empowered the Secretary of the Interior 

to require operators to maintain and submit accident, injury, and illness 

data, without imposing limitations on the types of data. Similarly, the 

legislative histories of these Acts discussed the reporting requirement 

in extremely broad terms. See S. Rep. No. 411, 91st Cong~, 1st Sess. 92 

(1959), reprinted in Senate Subcommittee on Labor and Public Welfare, 

94th Cong., 1st Sess., Legislative History of the Federal Coal Mine 

Health and Safety Act of 1969 at 218 (1975), and Legislative History 

of the Federal Metal and Nonmetallic Mine Safety Act, 1966 U.S. Code 

Cong. and Ad. News 2856-57. We conclude that section 50.20(a) is 

consistent with and reasonably related to the st.atutory provisions under 

which it was promulgated. i/ 

III. 

The Secretary asserts that Freeman is precluded under the Mine Act 

from challenging the regulation's validity because the operator did not 

raise the question below. 30 U.S.C. § 823(d)(2)(A)(iii). We disagree. 

Before the administrative law judge, Freeman asserted that the Mine Act 

"should not be applied in an unreasonable, illogical manner as attempted 

here." Freeman argued further that an interpretation of the regulation 

which does not require that an occupational injury be work-related 

"stretches the application of the Act and is not in compliance with the 

intention and purpose of the Act." We find that these broad statements 

"afforded the administrative law judge an opportunity to pass" upon the 

question, as required by 30 U.S.C. § 823(d)(2)(A)(iii). 

!±./ This is essentially the same standard of review applied by courts 

of appeals for judging the validity of rules promulgated pursuant to 

informal notice and comment rulemaking. (Section 50.20(a) was the 

product of informal rulemaking.) See,~., Nat'l Indus. Sand Ass'n. v. 

Marshall, 601 F.2d 689, 696-700 (3d Cir. 1979), citing Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); and 

American Mining Congress v. Marshall, 671 F.2d 1251, 1254-55 (10th Cir. 

1982). . 

ii Freeman's argument that section 50.20(a) conflicts with section 

103(e) of the Mine Act, 30 U.S.C. § 813(e), which requires the Secretary 

to minimize burdensome reporting requirements, is unpersuasive because 

there is no evidence as to this alleged burden. Nor is there support 

for Freeman's argument that the requirement as interpreted needlessly 

duplicates the state workers' compensation reports that the operator is 

required to file. Workers' compensation statutes differ both in purpose 

and effect from the Mine Act and, in any event, in promulgating section 

50.2(e), MESA expressly rejected reliance for reporting purposes on 

diverse state workers' compensation criteria. See 42 Fed. Reg. 65534. 

For these same reasons we would not find state workers' compensation 

statutes analogous. 
The Secretary also asserts that we lack authority to review the 

validity of the cited regulation. Previously, we have rejected the 

same argument by the Secretary in the context of the validity of a 

mandatory safety standard promulgated under section lOl(a) of the Coal 

Act. See Sewell Coal Co., 3 FMSHRC at 1405. .Although the present case 

involves a reporting regulation promulgated under sections 508 and 

lll(b) of .the Coal Act and sections 4 and 13 of the Metal Act, our 

reasoning in Sewell applies. We conclude that a challenge to the validity 

of a regulation promulgated under the Coal and Metal Acts can be raised 

and decided in adjudication before this Commission. 

Accordingly, applying the regulation thus construed to the undisputed facts of this case, we affirm the judge's findings that a 

reportable injury occurred because there was an injury to a miner, which 

occurred at a mine, and which required medical treatment. We note that 

this injury also resulted in an "inability to perform all job duties •••• " 

Therefore, we affirm the judge's conclusion that Freeman violated 

§ 50.20(a) by not reporting this occupational injury to MSHA. 

1581 
Distribution 

Debra L. Feuer, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Harry M. Coven, Esq. 

Gould & Ratner 

300 West Washington Street 

Suite 1500 

Chicago, Illinois 60606 

Michael F. Duffy, Esq. 

Henry Chajet, Esq. 

American Mining Congress 

1920 N Street, N.W. 

Suite 300 

Washington, D.C. 20036 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION. (MSHA) 

v. 

ROY GLENN, Employed by, and 

Agent of CLIMAX MOLYBDENUM 

COMPANY 

July 17, 1984 

Docket No. WEST 80-158-M 

DECISION 

This is a civil penalty case brought under section llO(c) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(c). 1/ Roy Glenn, a 

shift boss employed by Climax Molybdenum Company, seeks review of the administrative law judge's finding that he violated section llO(c) of the Mine Act 

by knowingly authorizing a violation of 30 C.F.R. § 57.15-5. 4 FMSHRC 13 

(January 1982)(ALJ). 

We granted Glenn's petition for discretionary review and heard oral 

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

At the time of the events at issue, Glenn worked as a shift boss 

supervising a crew of miners in the Climax mill and crusher where 

molybdenum ore is processed. Glenn's crew consisted of 10 miners including Chris Martinez, a first class welder, Ron Robinson, a first class 

mechanic and John Payne, a mechanic welder. On January 5, 1979, Glenn's 

l/ Section llO(c) provides: 

Whenever a corporate operator violates a ~andatory 

health or safety standard or knowingly violates or 

fails or refuses to comply with any order issued 

under this Act or any order incorporated in a final 

decision issued under this Act, except an order 

incorporated in a decision issued under subsection 

(a) or section. lOS(c), any director, offker, or 

agent of such corporation who knowingly authorized, 

orde~ed, or carried out such violation, failure, or 

refusal shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a 

person under subsections (a) and (d). 

158'3 
c~ew was engaged in welding a new valve onto an oxygen line. Glenn 

instructed Payne to open and bleed all the existing valves on the line. 

Martinez and Robinson were to weld the new valve onto the line. To do 

this it was necessary to work from an adjacent girder which was approximately 20-21 inches wide, 511 inches thick and 30 feet long with a vertical 

upright in the middle. After assigning the tasks to the crew, Glenn went 

to the back of the crusher and began checking each of the existing oxygen 

valves to be certain they had been opened. After checking the valves, 

Glenn walked to a place where he could observe the girder. 

At. the time of assignment, there were two ways for the miners to reach 

the workplace on the girder. It could be reached by using a 20 foot extension 

ladder which was approximately 40-50 feet away. (Robinson had used the ladder 

in the past to reach the end of the girder where the welding operation was to 

be performed.) Another means of reaching the girder was to ascend a staircase, 

climb onto the girder and walk across it. Glenn had told his crew t9 take 

their safety belts and lines with them, but he gave them no precise instructions regarding how to reach the workplace on the girder. The men·were 

experienced and had worked on girders many times. On this occasion, Martinez 

and Robinson walked across the girder, with the safety belts and lines unsecured, 

rather than using the ladder. Upon reaching their workplace on the girder, they 

secured their safety belts and lines. Glenn did not return from checking the 

valves and observe them until.after they had reached the workplace and tied-off. 

Despite the fact that Payne had been assigned a task different from the 

task of Robinson and Martinez, on his own he decided to assist them in their 

work. Thus, Payne climbed the stairway and began to walk across the girder 

without his safety line being hooked up. As Payne was walking across the 

girder, Glenn saw him and waved him down with a flashlight. At this time, 

an MSHA inspection team arrived. The MSHA inspector thereafter issued a 

citation alleging a violation of 30 C.F.R. § 57.15-5 • 2/ The citation 

stated: -

Three welders were observed working on an oxygen 

line about 30 feet off the ground. One of them 

was observed walking a distance of about 30 feet 

on a steel girder without a safety line hooked up. 

Roy Glenn, shift bqss, was directing the work from 

below. Crusher Building No. 2. 

2/ 30 C.F.R. § 57.15-5 provides: 

Mandatory. Safety belts and lines shall be worn when 

men work where there is danger of falling; a second 

person shall tend the lifeline when bins, tanks, or 

other dangerous areas are entered. 
The cited condition was abated by removing Robinson and Martinez from the, 

girder with a cherry picker obtained from another department.of the mine. 3/ 

(Apparently Payne had walked back across the girder .and down the stairway.) 

On February 22, 1980, as a result of an MSHA ·special investigation, the 

Secretary filed an action against Glenn under section llO(c) of the Mine Act 

for knowingly authorizing, ordering, or carrying out the cited vi9lationof 

30 C.F.R. § 57.15-5. Glenn contested the 'secretary's· action and. a l:iearing 

was held. 

The administrative law judge found that· insofar as the actions of Payne 

were concerned, Glenn had not knowingly authorized, ordered, or carrie~ out 

a violation of the standard. The Secretary has not challenged this aspect 

of the ju~ge's decision. As to Robinson and Martinez, the judge found that· 

"there is no evidence to support MSHA's allegation that Glenn himself carried 

out the violation or directly ordered the two miners to walk across the 

girder without the benefit of a safety belt." 4 FMSHRC at 20. We agree. 

We also agree with his further finding that Glenn did not "presume" that 

the miners would walk across the girder. 4 FMSHRC at 21. 

Nevertheless, the judge proceeded to find that Glenn violated section 

llO(c) of the Act because he "indirectly authorized the violation." Id. 

We hold that the judge's finding of a violation is incorrect as a matter 

of law and, further, that a finding of corporate agent liability cannot 

be sustained on the facts of this case even when the appropriate legal 

test is applied. 

Regarding the statutory language of section llO(c), we have held 

previously that the proper legal inquiry for purposes of determining 

corporate agent liability is whether the corporate agent "knew or had' 

reason to know" of a violative condition. Secretary v. Kenny Richardson, 

3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982), cert. 

denied, 77 L.Ed. 2d (1983). There, we stated: 

If a person in a position to protect safety and 

health fails to act on the basis Qf information 

that gives him knowledge or reason to know of 

the existence of a violative condition, he has 

acted knowingly and in a manner contrary' to the 

remedial nature of the statute. 

1/ The abatement notice stated: 

Lift truck was brought in to take the other two 

welders down in a safe way. The work was completed with the use of the lift truck. 

A penalty proceeding brought against the corporate operator for the 

violation was settled by the parties. FMSHRC Docket No. WEST 79-375-M. 

1585 
In Kenny Richardson the underlying violation of .a mandatory standard 

existed at the time that the section llO(c) corporate agent violation 

occurred (use of unsafe equipment). Here, however, Robinson and Martinez 

had not yet violated the involved mandatory safety standard by walking 

the girder at the time of Glenn's alleged violation of section llO(c). 

We now apply our holding in Kenny Richardson to those situations 

where, as here, a violation of a mandatory standard does not exist at 

the time of the corporate agent's failure to act, but occurs subsequent 

to that failure. Accordingly, we hold that a corporate agent in a 

poeition to protect employee safety and health has acted nknowingly", 

in violation of section llO(c) when, based upon facts available to him, 

he either knew or had reason to know that a violative condition or 

conduct would occur, but he failed to take appropriate preventive steps. 

To knowingly ignore that work will be performed in violation of an 

applicable standard would be to reward a see-no-evil approach to mine 

eafety, contrary to the strictures of the Mine Act. 

Our decision is supported by the legislative history of the 

1969 Coal Act, in which Congress first set forth the basis for 

establishing personal liability for agents of corporate operators. The 

House Committee on Education and Labor stated: 

The Committee expended considerable time in discussing the role of an agent of a corporate 

operator and the extent to which he should be 

penalized and punished for his violation of the 

·act •••• 

••• The Committee chose to qualify the agent as 

one who could be penalized and punished for 

violations, because it did not want to break the 

chain of responsibility for such violations after 

penetrating the corporate shield. 

R.R. Rep. No. 563, 9lst Cong., 2d Sess. 11-12 (1969), reprinted in Legis-

- lative History of Federal Coal Mine Health and Safety Act, at 568, 569 (1970). 

I~ passing the 1977 Mine Act, Congress evidenced its concern over 

the continuing high rates of preventable death and injury. Quoting a 

study by a Special Mine Safety Board appointed by the Secretary of the 

Interior, Congress observed: 

On the basis of this analysis, 50.7 percent of the 

fatal injuries were classified as resulting "from 

circumstances over which the workmen had no control, 

but which were within the scope and range of supervisory responsibility." That is: approximately half 

of the 270 men killed were victims of inadequate 

supervision, failure to provide safety devices, 

158\3 
defective equipment, collapses of roof which supervisors permitted to be unsupported, inadequate 

ventilation, and other hazardous environmental 

conditions reasonably within the power of management to prevent. (emphasis added) 

R.R. Rep. No. 312, 95th Cong., 1st Sess. 4 (1977), reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 1977, 

at 360 (1977). 

Consistent with this expressed legislative intent, the Commission 

held in Kenny Richardson that a supervisor's blind acquiescence in 

unsafe working conditions would not be tolerated. Onsite supervisors 

were put on notice by our decision that they could not close their 

eyes to violations, and then assert lack of responsibility for those 

violations because of self-induced ignorance. Our decision here today 

is buttressed by the same concerns and principles. 

Under Kenny Richardson, the question is whether, given the facts 

found in this case, Glenn either "knew or had reason to know" that 

Robinson and Martinez would, in fact, walk the girder instead of 

climbing the ladder and thereby violate the standard. 

We answer this question in the negative. The judge specifically 

found, and we agree, that there is no evidence that Glenn "carried out 

the violation or directly ordered the miners to walk across the girder 

without the benefit of a safety belt." 4 FMSHRC at 20. Nor does the 

record establish that Glenn indirectly authorized the violation. Glenn 

instructed Robinson and Martinez to take their safety belts and lines 

with them in working. on the oxygen line. 4 FMSHRC at 17; Tr. 241. 

Glenn did not observe either man actually cross the girder. 4 FMSHRC 

at 20; Tr. 289. Glenn did not presume that Robinson and Martinez would 

use the girder. 4 FMSHRC at 21. Glenn relied on Robinson and Martinez 

to complete their assigned task safely; both were experienceg and highly 

skilled miners who had worked on a girder many times prior to the incident 

in question. 4 FMSHRC at 20; Tr. 263, 269, 270-71. Robinson had used 

the ladder on occasion to get up to the girder. 4 FMSHRC at l.7. When 

Robinson and Martinez crossed the girder, Glenn was busy ensuring·their 

safety otherwise by checking to insure the oxygen line valves were shut 

off; Glenn did not want the crew to cut into a pressurized oxygen line. 

4 FMSHRC at 16; Tr. at 116, 272-73. !:_/ 

The findings of fact by the judge as to what Glenn had "reason 

to know" when he assigned Robinson and Martinez the task of welding 

the oxygen line do not support a legal conclusion that a violation of 

section llO(c) occurred. The judge found only that Glenn had "reason 

!!_/ In 21 years of Glenn's employment by Climax, neither he nor any 

member of any crew that he had supervised had ever lost time from work 

as a result of an accident. Tr. 283, 285. 

1587 
to know" that the two miners "might" use. the girder without the use 

of safety belts and that, therefore, he had "reason to know" of a 

"possible violative condition" because the men "might" or "could" walk 

across the girder and forego use of the ladder. 4 FMSHRC at 20. As 

a practical matter, supervisors will always have "reason to know" that 

miners "might" perform tasks in an unsafe manner. This degree of knowledge, acct.irately phrased by the judge in the subjunctive mood, is too 

contingent and hypothetical to be legally sufficient under our test 

enun~iated above that a supervisor can be held personally responsible 

under sectionllO(c) "when,.based upon the facts available to him, he 

either knew or had reason to know that a violative condition or conduct 

would occur, but he failed to take appropriate preventive steps." Moreover, for the reasons above, we reject the judge's legal conclusion that 

Glenn violated section llO(c) by not instructing the miners to use the 

ladder "because walking across the girder was at least as likely a means 

of getting to the oxygen line." 4 FMSHRC at 21. 

Before personal liability under section llO(c) can be imposed on an 

operator's agent for "knowingly" authorizing, ordering, or carrying out 

a violation, the Secretary's proof must rise above mere assertion that, 

at the time of assignment, an assigned task could have been performed by 

the miners in an unsafe as well as a safe manner. Adoption of this 

rationale could mean that, in every instance in which a miner engages in 

violative conduct, an operator's agent could be held personally liable 

under section llO(c) for failing to anticipate the miner's unsafe 

actions and not giving specific instructions to each miner, at the time 

of assignment, to avoid all of the hazardous approaches to a task that 

could be followed. We cannot accept as probative evidence to fill this 

void in the record, the assertion made by counsel for the Secretary at 

oral argument that "any reasonable man should have known at that time 

that given the situation, ••• [the miners] clearly would take the 

easiest course to get there." Oral Arg. Tr. 36. ]_I 

In sum, although we agree with the judge's statement that agents of 

corporate operators have a duty to prevent violations that they have 

reason to know will occur, we hold that in this case Glenn, based upon 

the facts available to him at the time of the work assignment, did not 

5/ Although the Secretary argued in his brief that it is "obvious that 

walking on girders without a safety belt is a common practice at Climax," 

he disavowed that position at oral argument and agreed that there is no 

record evidence of such a practice. Oral Arg. Tr. at 46. 

1588 
6/ In light of this disposition we need not reach the other issues 

raised by the parties. 

1583 
Commissioner Jestrab dissenting: 

I respectfully dissent. The statute provides in part: 

Whenever a corporate operator violates a mand~tory 

••• safety standard ••• any ••• agent of such 

corporation who knowingly authorized ••• such 

violation ••• shall.be subject to the same civil 

penalties •••• 30 U.S.C. § 820(c). 

Here the experienced Admininstrative Law Judge weighed the evidence 

presented and found that the agent, Roy Glenn, knowingly authorized a 

violation of the standard cited and he held the agent liable. I most 

respectfully submit to my esteemed colleagues that there is substantial 

evidence to support the finding. 

The work to be performed was a welding job on a girder over 20 feet 

above the floor. Tr. 22, 263. There were two ways to reach the workplace. Tr. 237. One way was to use a staircase and then walk across the 

girder, which had no siderails or lines to which one could tie off a 

safety belt. Tr. 24, 237. The other way was by use of a nearby ladder. 

Tr. 237, 289. The former route was selected by the workmen and thus 

neither workman could use his safety belt. Tr. 230, 231. The inspector 

cited the employer for a violation of 30 C.F.R. § 57.15-5, which provides: 

Mandatory. Safety belts and lines shall be worn when 

there is a danger of falling •••• 

~SHA also cited the agent, Glenn, under 30 U.S.C. § 820(c) above. 

The question here is whether the agent, Roy Glenn, knowingly 

authorized the violation by the employer. Glenn knew of the two alternatives for reaching the site when he assigned the workman to the welding 

task. Tr. 289. Glenn claimed he did not know how the workmen intended 

to get to the workplace. See, e.g., Tr. 269, 292. Indeed, he suggested 

that it was of no concern to him how they proceeded to the worksite. Id. 

But the statute imposes upon him as an agent the duty not to authorize""""i 

violation of the standard. He is charged with knowing that which was 

clearly before him. His omission to eliminate the route across the girder 

which violated the standard, or to bring it into compliance with handrails 

or lines, was a knowing authorization implied in fact for the workmen and 

hence the corporate operator to violate the standard. There was no showing 

at the hearing by the agent, Glenn, that he had any expectation that the 

ladder would be used or if used that it would have complied with applicable 

safety regulations. 

I would affirm the order. 

1580 
Commissioner Lawson dissenting: 

Despite the rhetorical flourishes and obligatory obeisance to 

precedent and legislative history, today the Commission majority vitiates 

the principles established by Kenny Richardson. My colleagues err in 

concluding that the findings of the judge below are legally insufficient 

to support a finding of corporate agent liability under section llO(c) 

of the Mine Act. The Mine Act places primary responsibility for maintaining safe and healthful working conditions in our nation's mines on mine 

operators and their corporate agents. Sections 2(e) and lIO(c). In 

Kenny Richardson the Commission held that a supervisor, as an agent of 

management, is in a position to protect the safety and health of individual 

miners and has a statutory duty to take affirmative action to prevent 

violative conduct or conditions. By their decision in this case, my 

colleagues have permitted corporate agents to abdicate that responsibility 

and permit individual miners the choice of performing their work in an 

unsafe manner, regardless of the hazard to them and their fellow miners. 

This result is inconsistent with the Mine Act's preventive goals and 

enforcement scheme. If through adequate supervision a violation can be 

prevented, it is contrary to the purpose of the Act to permit this shift 

of statutory responsibility. 

The legislative history reflects, as the majority acknowledges, that 

Congress was particularly concerned over the high number of mining injuries 

and fatalities that resulted from inadequate supervision and hazardous 

workplace "conditions reasonably within the power of management to prevent" 

(emphasis added). H. R. Rep. No. 312, 95th Cong., 2d Sess. 4 (1977), 

reprinted in Legislative History of the Federal Mine Safety and Health Act 

of 1977, 95th Cong., 2d Sess. 357, 360 (1978). The key is prevention--

management's duty to stop violations before they occur. This requires the 

exercise of forethought by those responsible for maintaining safety in the 

mines, and is a duty that is essential to achieve the statutory purpose. 

The majority in this case fails to erect any affirmative standard 

or framework against which one is to measure, not whether or not the 

admittedly violative conduct might, or could occur, but indeed whether 

it "would." Determining whether a violation "would" occur in the absence 

of supervisory action is an exercise more suited to retrospective application than to prospective intervention. If intervention is not demanded 

of an agent when unsafe conduct is "at least as l.ikely" as safe conduct, 

but is to be required only when a violation is imminent, or has already 

occurred, the Act's protections would indeed be hollow. Under the 

majority's rationale, if the facts in this case had revealed that the 

miners were proceeding into an area of unsupported roof, although an 

1alternate route was available, no supervisory duty to intervene would 

arise other than a last minute tackle by their supervisor, until they 

had actually entered the hazardous area. One searches the statute and 

legislative history in vain for support for such a standard. 

1591 
The jud·ge below found that Glenn had "sufficient information to give 

him reason to know of a possible violative condition." 4 FMSHRC 13, 20. 

He concluded that Glenn had a duty to instruct the miners he had ordered 

to go up on this girder to use the ladder, finding that "walking across 

the girder was at least as likely a means of getting to the oxygen lines 

as using the ladder." 4 FMSHRC at 21. Substantial evidence, including 

Glenn's own uncontroverted testimony, supports the judge's finding. 

Glenn was aware of the construction of the girder, knew that there 

were no handrails thereon, nor cable for attachment of safety lines (Tr. 

286-7). 1/ The ladder, presented as the alternative means of access, 2/ 

was located 40 to 50 feet distant from the job site, "up on another deck" 

(Tr. 286). Glenn was not only unaware of whether the ladder had been used 

previously to reach the girder (Tr. 286), but testified that he "did not 

think" about how the miners would reach the girder. According to Glenn, 

the miners "had two choices: they could have walked across or they could 

have got the ladder" (Tr~ 289). He did not even believe that walking this 

girder, situated twenty feet above a concrete floor, presented a safety or \ 

falling hazard, despite the prohibition of the standard, of which Glenn was ' 

aware (Tr. 295). It is also undisputed that all three miners under Glenn's 

supervision had not used the ladder--nor safety belts or lines--but had 

traversed this girder without protection on the day in question. Slip op. 

at 2. There is no dispute as to the propriety of Payne's attempting to 

assist his fellow miners in the performance of the task at hand. In fact, 

the miners were waiting on the girder for Payne to tell them when the 

oxygen line had been bled and welding could begin (Tr. 130, 133). Work on 

this girder had been undertaken twice prior to the date of this violation, 

and Glenn did not know how the miners gained access to their work station 

on those occasions. (Tr. 251, 271, 286, 293.) Finally, and perhaps of 

greatest significance, if Glenn had seen miner Robinson walking across the 

girder, he probably would not have stopped him, "because I have seen him 

walk other things" (Tr. 297). 

1/ It is true, as the majority states, that Glenn told his crew to take 

their safety belts and lines with them. However, it is also true, as 

Glenn acknowledged, that there was nothing to attach them to until the 

crew reached the assigned work area on the girder, 28 to 30 feet from 

the staircase. 

2/ The very existence of a ladder at this mine capable of providing access 

to the girder is questionable. The ladder itself was, according to Glenn, 

"used for ventilation purposes," not for this girder. (Tr. 269.) It is 

most unlikely that a 20-foot extension ladder, which simple observation 

would reveal to have a maximum side-rail extension of 17 feet, would reach 

a 5-1/2 inch thick girder that is 20 feet 2 inches above the floor, even 

if (1) the ladder was positioned vertically rather than at the necessary 

angle for stability, and (2) there was something to lean it against other 

than the vertical support beam located 14 feet away from the work station 

involved in this case. See 30 C.F.R. §§ 57.11-4. It is significant 

that after arrival of the inspection party, rather than using this ladder 

to remove Robinson and Martinez from the girder, Glenn had a cable strung 

along the girder, upon instruction from his superior, and then personally 

went and obtained a cherry picker to bring the two miners down. (Tr. 

280-82, 287.) 

1592 
The judge below phrased Glenn's responsibility in terms of "indirect 

authorization." Read in context, this does not appear to differ from 

constructive "knowledge or reason to know," under the Kenny Richardson 

test, that these miners would utilize the girder to reach their work site. 

Indeed, it would appear that Glenn had actual knowledge of at least 

Robinson's earlier noncompliance with the safety standard, and had 

through inaction condoned such in the past. (Tr. 297.) Failing to 

correct an unsafe practice which is known is indistinguishable from 

authorizing that practice to continue. 

Here, there was a "high probability of the existence of the fact in 

question," U.S. v. Jewell, 532 F.2d 697, 700, (9th Cir.), cert. denied. 

426 U.S. 951 (1967): walking the girder without utilizing safety belts. 

Knowledge by Glenn of the violation of this standard by a member of his 

crew is thus properly imputable to him. The facts in this case do not 

present the situation, so alarming to the majority, in which a supervisor 

fails to anticipate "all of the hazardous approaches to a task that could 

be followed." (slip op. at 6). It is thus unnecessary to determine the 

outer limits of an agent's liability under some factual construct not· 

presented by this record. The judge's finding that use of the girder to 

gain access to the work area was at least as likely as use of the--it 

would appear inadequate--ladder, is no more than a restatement of Glenn's 

own view of the alternatives presented. Glenn, as the judge found, did 

not consider it to be unsafe for Robinson and Martinez to walk across 

the girder without safety belts, preferring to rely on their opinion of 

the hazard involved, rather than insisting that there be compliance with 

the regulation. (Tr. 295, 4 FMSHRC at 20). This is, simply put, not only 

to ignore, but to condone, unsafe and violative work practices by knowingly 

allowing the individual miners that option. 

The test under Kenny Richardson is whether Glenn had information 

that would lead a person exercising reasonable care, who is responsible for the proper performance by miners of their assigned duties and 

is in a position to forestall safety and health hazards, to be aware of 

the existence of a violative condition, and whether he failed to act on 

the basis of that information. 3 FMSHRC at 16. It is abundantly clear 

from this record that Glenn should have known with the exercise of 

reasonable, even minimal, diligence of the hazardous conduct involved in 

this case, as the judge below found. See Austin Building Co., v. OSHRC, 

647 F.2d 1063, 1067-68, (10th Cir. 1981). To ignore work performed or 

to be performed, or not to think about how that work is to be done (Tr. 

289), in violation of an admittedly applicable standard, is to reward 

the type of see-no-evil approach to mine safety that the majority claims 

to disavow. The judge's finding that Glenn had sufficient information 

to give him reason to know of the existence of a violative condition and 

a duty to act on the basis of that information is the relevant determination under Richardson, and is supported by substantial evidence. ]./ 

3/ To the extent that any doubt may have existed as to the degree of 

Glenn's negligence and responsibility, the response of the judge below, 

which was to reduce the proposed penalty from $500.00 to $40.00, would 

appear to be both equitable and eminently reasonably. 4 FMSHRC at 21, 22. 

1593 
For the reasons set forth, I would affirm the decision and order of 

the judge. 4/ 

I therefore join with Commissioner Jestrab and dissent. 

A. E. Lawson, Connnissioner 

4/ The judge's rulings on the constitutional and procedural issues raised 

below and renewed before the Connnission are correct, for the reasons given. 

1591.l 
Distribution 

W. Michael Hackett, Esq. 

1310 South Denver 

Tulsa, Oklahoma 74119 

Michael McCord, Esq. 

Anna L. Wolgast, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Edward H. Sherman, Esq. 

Sherman & Sherman, P.C. 

Suite 475, Capital Life Center 

16th at Grant Street 

Denver, Colorado 80203 

Richard W. Manning, Esq. 

Climax Molybdenum Company 

1707 Cole Boulevard 

Golden, Colorado 80401 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

1595 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KITT ENERGY CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1984 

Docket No. WEVA 83•65-R 

DECISION 

This proceeding, arising under the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et~· (1982), involves the interpretation of 

section 104(d) of the Mine Act. Section 104(d) authorizes the Secretary 

to issue mine withdrawal orders for a certain chain of violations, the 

chain to be broken only by an intervening "clean" inspection. The principal issue in this case is whether an inspection under section 104(d)(2) 

of the Mine Act, commonly referred to as a "clean inspection," must be a 

complete regular quarterly inspection. Also at issue is whether Kitt 

Energy Corporation (Kitt)' unwarrantably failed to comply with 30 C.F ~R. 

§ 75.1722(a), a machine guarding standard. A Commission administrative 

law judge concluded that Kitt unwarrantably failed to comply with the 

cited standard and affirmed the section 104(d)(2) withdrawal order issued 

to Kitt, concluding that an intervening clean inspection of the mine had 

not occurred so as to break the section 104(d) withdrawal order chain. 

5 FMSHRC 201 (February 1983)(ALJ). For the reasons that follow, we reverse 

on the clean inspection issue, but affirm the conclusion that Kitt unwarrantably failed to comply with § 75.1722(a). 

On December 1, 1982, during a regular quarterly inspection of Kitt's 

underground coal mine, an inspector of the Department of Labor's Mine 

Safety and Health Administration (MSHA) issued a section 104(d)(l) citation 

to Kitt alleging a violation of§ 75.1722(a). The citation stated that 

"[a] guard was missing from the eccentric on the scalping screen and the 

guard over the belt drive was not adequate in the bin area." J:./ The citation 

1/ 30 C.F.R. § 75.1722(a) provides: 

Gears; sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings, shafts; 

sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, 

and which may cause injury to persons shall be 

guarded. 
indicated that the violation was "significant and substantial" and caused by 

Kitt's "unwarrantable failure." See section 104(d)(l), 30 u.s.c. § 814(d)(l). 

The citation was terminated 1-1/2 hours later, after Kitt blocked access to 

the area with a mesh screen and posted a danger sign. 

On December 22, 1982, the inspector issued a modification converting the 

section 104(d)(l) citation to a section 104(d)(2) withdrawal order. 2/ He 

did so after reviewing MSHA records and determining from those records that a 

clean regular inspection of the mine had not been completed since the issuance 

of a prior section 104(d)(2) withdrawal order on July 14, 1982. 1/ 

The alleged violative condition cited by the inspector involved moving 

parts of a vibrator machine which controlled the flow of coal and sorted it 

by size. The vibrator caused small pieces of coal to drop onto and through 

a scalping screen down onto the slope conveyor belt carrying the coal to the 

surface. Large pieces of coal were moved first to a crusher and then to the 

slope belt. The citation alleged that the belt drive on the vibrator motor 

was inadequately guarded and that the eccentric, a crescent-shaped wheel 

behind the belt drive that rotated and moved the scalping screen, was 

unguarded. The belt drive guard consisted of a sheet metal frame to which 

a mesh screen was attached. The frame was not bolted to the floor. The 

screen was attached loosely by wires, ended about 23 inches above the floor, 

and had a hole in its upper right-hand corner. The eccentric protruded above 

the belt guard at times during its rotation. 

The inspector issued the citation during a regular inspection conducted 

from October 14 through December 17, 1982. MSHA had issued a prior section 

104(d)(2) order on July 14, 1982, during a regular inspection conducted at 

Kitt's mine from July 2 through September 28, 1982. The administrative law 

judge construed section 104(d)(2) of the Mine Act as requiring· a complete 

regular inspection of the entire mine, during which no "similar" violations 

are discovered, before an operator is removed from that section's continuing 

withdrawal order sanctions. Finding that no such intervening complete regular 

inspection had occurred here, he affirmed the order. The judge further found, 

however, that MSHA had "visited" all active sections of the.mine in the period 

between the issuance of the July 14 withdrawal order and the order at issue in 

this proceeding. 

On review, Kitt asserts that the judge's affirmance of the second section 

104(d)(2) order is inconsistent with Commission case law, and that the Secretary failed to carry his burden of proving the absence of an intervening clean 

inspection. Kitt further argues that the judge's finding that MSHA "visited" 

all sections of the mine, without citing another similar violation, required 

him to conclude that an intervening clean inspection sufficient to remove 

Kitt from section 104(d)(2) sanctions had been completed. 

2/ The inspector subsequently issued another modification deleting his 

finding that the violation was significant and substantial. 

11 The term "regular inspection" refers to the quarterly or semi-annual 

inspections of underground or surface mines, respectively, "in [their] 

entirety" mandated by section 103(a) of the Mine Act. 30 U.S.C. § 813(a). 

159·;· 
Section 104(d)(2) of the Mine Act provides: 

If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to 

[section 104(d)(l)], a withdrawal order shall 

promptly be issued by an authorized representative 

of the Secretary who finds upon any subsequen~ 

inspection the existence in such mine of violations 

similar to those that resulted in the issuance of 

the withdrawal order under [section 104(d)(l)] until 

such time as an inspection of such mine discloses no 

similar violations. Following an inspection of such 

mine which discloses no similar violations, the 

provisions of [section 104(d)(l)] shall again be 

applicable to that mine. 

30 u.s.c. § 814(d)(2)(emphasis added). The dispute in the present case 

concerns the meaning of the phrase "an inspection of such mine" as used 

in section 104(d)(2). 'lhe Secretary argues that the judge correctly concluded that the phrase means only a complete regular inspection conducted pursuant to section 103(a). In the Secretary's view, only a complete 

regular inspection is comprehensive enough to satisfy section 104(d)(2)'s 

requirement, because only through such an inspection is a mine inspected 

"in its entirety." The Secretary further asserts that to hold otherwise 

would impose "serious enforcement problems" upon MSHA because the task of 

determining whether a complete inspection has occurred since the issuance 

of a preceding withdrawal order is complicated if a series of separate 

inspections can comprise "an inspection" of the mine. 

We have previously considered and rejected these same arguments in construing the identical statutory provision in the Federal Coal Mine Health 

and Safety Act of 1969, 30 u.s.c. § 814(c)(l976)(amended 1977) • .£!!.!. 

Steel Corp., 2 FMSHRC 3459 (December 1980); U.S. Steel Corp., 3 FMSHRC 5 

(January 1981); Old Ben Coal Co., 3 FMSHRC 1186 (May 1981). In £!!.!. we 

stated: 

The requirement of a clean inspection before an 

operator could avoid being subjected to section 

104(c)(2) [now 104(d)(2)] withdrawal orders was 

intended to further public interest in promoting 

earnest and continuous compliance with mandatory 

safety and health standards. Nothing in the 

record, however, suggests that the Secretary's 

position--that only a complete regular quarterly 

inspection can constitute a "clean" inspection of 

the entire mine--is necessary to achieve this 

interest. 

2 FMSHRC at 3461. Our conclusion on this issue was in accord with the longstanding adjudicative interpretation of the Coal Act provision by the 

Department of Interior's Board of Mine Operations Appeals. In Eastern 

Associated Coal Corp., 3 IBMA 331 (1974), the Board held that the language 

at issue "appears to us to direct a thorough examination of the conditions 

and practices throughout a mine." 3 IBMA at 358 (emphasis in original). 

1598 
On reconsideration, the Board stressed that "several completed partial or 

completed spot inspections of a mine may be required to constitute a 

'complete inspection' of a mine in order to lift the withdrawal order 

liability of an operator from the provisions of section 104(c)(2) (now 

104(d)(2)]." 3 IBMA 383, 386 (1974)(emphasis in original). 

Nothing in the text of the Mine Act or its legislative history indicates 

that this construction of the Coal Act's "clean inspection" provision was 

flawed or contrary to legislative intent. Furthermore, nothing in the arguments repeated by the Secretary here persuades us that our prior construction 

of this provision is inconsistent with and should not be applied to the Mine 

Act. In fact, as explained below, we believe that adoption of the Secretary's 

argument could prove a disincentive to maximum compliance efforts by mine 

operators. 

By its terms section 104(d)(2) requires that there be "an inspection of 

such mine" disclosing no similar violations. A narrow, literal interpretation 

of the term "an inspection" to mean any inspection, including an inspection of 

only a portion of a mine, previously has been rejected. Eastern, 3 IBMA at 

357-58. Instead, the term consistently has been construed to require the 

inspection of a mine .!!!, its entirety. CF&I, supra; Eastern. Tilis construction is in complete accord with the passages in the Mine Act's legislative 

history cited and relied upon by the Secretary in his brief. See s. Rep. 

No. 181, 95th Cong., 1st Sess. 31-34 (1977), reprinted in Sena~ 

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

Legislative History of the Federal Mine Safety and Health Act of 1977, 

at 619-22 (1978). 

The Secretary's attempt to exclude from consideration under section 

104(d)(2) all inspections other than the so-called regular inspections is 

unconvincing. In previous litigation the Secretary has argued successfully 

that "spot inspections," i.e., any inspection conducted for enforcement 

purposes other than regular inspections, are conducted pursuant to section 

103(a). ~ v. FMSHRC and Helen Mining Co., et al., 671 F. 2d 615 (D.C. Cir. 

1982), .£!!.!~· SQb.!!2!!!_. Helen Mining Co. v. Donovan, 459 U.S. 927 (1982). 

In that case the Secretary asserted that his designations of inspections as 

"spot" or "regular" inspections are administrative designations not established 

in the Act and that there is "substantial overlap" between the two "types" 

of insp~ctions. See Sec. Brief in UMWA v. FMSHRC at 20, 21, 24. We find 

this position conSIS'tent with our c"OriCTusion that inspections other than 

"regular" inspections can be taken into account under section 104(d)(2). 

Any MSHA inspector conducting any enforcement inspection authorized by 

the Mine Act is required to cite every observed violation of the Act or its 

standards. The fact that during a particular inspection an inspector may 

give emphasis to particular types of hazards does not serve to place blinders 

on the inspector or prevent the issuance of citations for other violations. 

For example, an inspector is required to cite roof control violations he 

observes even if he is present for an electrical inspection. Furthermore, 

the fact that a miners' representative is entitled to accompany a federal 

inspector during inspections (30 u.s.c. § 813(£); ~ UMWA v. FMSHRC, supra) 

lessens the possibility that an inspector conducting an inspection with a 

particular emphasis will fail to detect the presence of other hazards. 

1598 
We also believe that adoption of the Secretary's interpretation of section 

104(d)(2) could undercut the incentive for maximum compliance efforts by mine 

operators. Under the Secretary's interpretation, if a "similar violation" 

under section 104(d}(2} results in the issuance of a withdrawal order at the 

beginning of a regular inspection (which can last for three months), the 

incentive to avoid further violations may be lessened because section 

104(d)(2)'s sanctions have already been triggered. Thus, there is no 

possibility that the operator can remove itself from the operation of 

section 104(d)(2) until after the completion of the following regular 

inspection. In contrast, ·applying the plain words of section 104(d)(2), 

an operator has an immediate incentive to avoid future "similar" violations: 

the operator knows that continued avoidance of similar violations will 

remove it from the possible sanctions of section 104(d}(2} as soon as the 

mine has been inspected in its entirety through any combination of regular 

and spot inspections. 

We are not persuaded by the Secretary's argument that extending the 

construction consistently given to section 104(c)(2) of the Coal Act to the 

identical language of section 104(d)(2) of the Mine Act will result in insurmountable problems of enforcement and proof. The Secretary asserts that MSHA 

will be unduly burdened if, in order to sustain a section 104(d)(2) order, it 

is required to establish that it has not inspected a mine in its entirety, 

rather than simply showing that a clean regular inspection has not been 

completed. The burden complained of is in part caused by the fact that mines, 

or portions thereof, may be inspected at different times, in different 

sequences, by different MSHA inspectors. According to the Secretary, unless 

an inspector.is permitted to refer to the simple benchmark of whether a 

complete clean regular inspection has occurred since the issuance of a prior 

section 104(d) order, the enforcement purpose behind section 104(d)(2) will 

be seriously frustrated by "complicated and time consuming problems of 

record keeping and proof." Sec. Brief at 16. 

We have difficulty reconciling the result sought by the Secretary with 

the statutory requirements. Administrative convenience cannot be.a basis for 

determining statutory rights. Section 104(d)(2) authorize& the issuance of 

withdrawal orders "until such time as an inspection of such mine discloses no 

similar violations." The burden of establishing the validity of such an order, 

necessarily including proof that an intervening clean inspection has not 

occurred, appropriately rests with the Secretary. It is not necessary to 

view this burden, as the Secretary asserts, as requiring proof of a negative. 

Rather, the Secretary must only demonstrate that when his inspector issued 

the contested order, portions of the mine remained to be inspected. We do 

not believe that this burden requires the Secretary to depend on evidence 

unavailable to him in order to establish his case. In order to carry out 

his statutory duties properly, the Secretary maintains records of all 

inspections conducted in a mine and the extent of those inspections. The 

contention that the Secretary or his representative cannot determine the 

areas of a mine that have been inspected in any given period, or the areas 

that remain to be inspected in a future period, gives us great concern. 

The very same record keeping, which the Secretary claims to be burdensome, 

is necessary in order to support the claim that a "regular" clean inspection 

has not occurred. If the Secretary's record keeping system is not presently 

1600 
up to this task, of which we are not persuaded, proper administration of the 

Mine Act requires that the Secretary maintain a workable mine inspection 

record keeping system. ~/ 

For the foregoing reasons, we reject the Secretary's argument that under 

section 104(d)(2) of the Mine Act, a clean inspection can only be comprised of 

a complete regular inspection. Instead, we extend to section·l04(d)(2) the 

prior consistent interpretation of section 104(c)(2) of the Coal Act, and hold 

that the essential determinant of a clean inspection under section 104(d)(2) is 

whether the entire mine has been inspected since the issuance of a prior 104(d) 

order with no "similar" violations cited. 2_/ 

The factual question presented in this case is whether the inspections 

conducted by MSHA between the first section 104(d)(2) order issued on July 14, 

1982, and the second order issued on December +, 1982, comprised, in the 

aggregate, a clean inspection of the entire mine. The judge made three 

findings crucial to this question: 

[l] MSHA began a complete quarterly inspection ("AAA inspection") 

of the subject mine on July 2, 1982, and completed it on 

September 28, 1982. Another quarterly inspection was begun 

on October 14, 1982 •••• 

[2] A special technical inspection ("CEF investigation") was 

commenced on July 19, 1982, and completed on August 6, 

1982. 

[3] All the active sections of the mine were visited by MSHA 

inspectors (in either the regular inspection or the 

technical inspection) between July 19, 1982, and 

September 28, 1982. 

5 FMSHRC at 202. If supported by substantial evidence, these findings lead 

to the conclusion that an intervening clean inspection had occurred between 

the two withdrawal orders. (The Secretary does not atgue, and there is no 

suggestion in the record, that the judge's use of the term "visited" was 

intended to mean anything other than "inspected.") 

Because of his view that a complete regular inspection was necessary to 

remove the operator from the effect of section 104(d)(2), maintained despite 

~, U.S. Steel, and O~.d Ben, supra, the Secretary did not attempt to 

!!./ The Secretary further claims that rejection of his view would lead to 

section 104(d)(2) orders being issued as a "matter of hindsight." We note 

that in this case, where the inspector followed the Secretary's interpretation, he issued the subject· 104(d)(2) order only as a modification 

to a citation issued three weeks earlier, after reviewing relevant MSHA 

records. 

5/ Administrative law judges of this Commission must follow our precedent 

where applicable. The judge's failure in this case even to mention our prior 

decisions construing section 104(c)(2) of the Coal Act is inexplicable. 

1601. 
establish that portions of Kitt's mine had gone uninspected since the issuance 

of. the July 14 order. Therefore, the Secretary failed to establish an essential 

element of his prima facie case. In addition, in this case the operator presented evidence as to the extent of the inspections made during the relevant 

period. The prior section 104(d)(2) withdrawal order was issued on July 14, 

1982, during a regular inspection that had begun only twelve·days earlier. 

This regular inspection was not completed until September 28, 1982. During 

the period of July 14 to September 28, two to three MSHA inspectors were in 

all active sections of the mine conducting the regular inspection as well as 

a combination of spot and technical inspections. During this period no other 

unwarrantable failure citations were issued by any of the inspectors. On 

October 14, 1982, another regular inspection was begun. Between that date 

and December 1, 1982, when the violation at issue was cited, no other unwarrantable failure citations were issued. 6/ Thus, substantial evidence 

supports the judge's finding that all active sections of the mine were 

inspected in the period between the issuance of the July 14 order and the 

December 1 citation. Therefore, we reverse the judge and vacate the order. 

Invalidation of the order does not end the case, however. We have 

held that the underlying violation survives the vacation of a section 104(d) 

withdrawal order. Island Creek Coal Co., 2 FHSHRC 279, 280 (February 1980); 

see also Consolidation Coal Co., 4 FMSHRC 1791, 1793-97, (October 1982). 7/ 

ifere, the inspector cited a violation of 30 C.F.R. § 75.1722(a). Kitt does 

not challenge the judge's finding that one of the conditions described by the 

inspector, i.e., the unguarded eccentric, violated the standard. Kitt does 

contest, however, the judge's finding that the belt guard was inadequate. 

Although our affirmation of the judge's finding of a violation of § 75.1722(a) 

could rest on the unguarded eccentric alone, we will address briefly Kitt's 

arguments regarding the~belt drive. 

The judge concluded that the belt guard was in violation of the cited 

standard because injury could result from contact with the moving belt drive 

due to the gap at the bnttom of the screen, the hole in the upper right-hand 

corner of the screen and its looseness. He found further that at least one 

employee was in the area. during each of three shifts and that a rope or wire 

across the area was not adequate to prevent access and in any event was not 

present on the day the inspector issued the citation. 5 FMSHRC at 204-05, 207. 

These findings are supported by substantial evidence. The record establishes 

that on each of three shifts a miner was in the area to remove spillage from 

6/ The dates of the MSHA inspections and the sections inspected were 

contained in Exhibit C-18, a cumulative record of MSHA inspections of 

active sections of the mine during this period. The Secretary objected 

to the introduction of the exhibit solely because it did not specify the 

types of inspections conducted, particularly the regular quarterly inspections, without which in his view there could be no intervening clean 

inspection. The judge properly admitted the exhibit. 

7/ Since the "significant and substantial" designation was removed from 

the 104(d)(2) order, it does not become a 104(d)(l) order but a 104(a) 

citation. 

1

. 6 L n'~: ,.._, 
the scalping screen and other miners were intermittently in the area to perform 

maintenance work. These miners had access to the scalping screen; they merely 

lifted the rope or wire across the area when it was present. The scalping 

screen operated almost continuously. Although most of the spillage dropped 

through the metal floor grating, some spillage and grease were on the floor 

near the scalping screen, creating a slip and fall hazard. The defects in 

the screen and the level of employee exposure, taken together, support 

affirmance of the judge's conclusion that the condition of the belt guard 

violated the standard. 

The judge further concluded that the lack of a guard on the eccentric, 

as well as the inadequate guard on the belt drive, were caused by Kitt's 

unwarrantable failure to comply with the standard. The judge found Kitt's 

awareness of the unguarded eccentric demonstrated by recurring notations of 

the condition in the preshift book, fabrication of replacement guards, the 

ordering of a new guard, and the ineffective use of a wire to block access 

to the area. - 5 FMSHRC at 207-08. He found unwarrantable failure as to the 

belt guard because it was clearly visible and Kitt's chief electrician, who 

visited the area monthly, should have been aware of it. 5 FMSHRC at 208. 

Kitt challenges both of these findings. 

For the reasons stated by the judge, we affirm his determination that 

Kitt unwarrantably failed to guard the eccentric. ~U.S. Steel Corp., 

Docket Nos. LAKE 81-102-IDi, et al., June 26, 1984. Whether the judge 

properly found unwarrantable-Yailure as to the belt drive guard is a closer 

question, and we might have reached a different result de novo. The judge's 

finding is based on his apparent belief that the belt drive guard had existed 

in the condition observed by the inspector for some time and that the operator 

had to have been aware of its ·condition. The record sheds little direct 

light on the questions of how long the condition had existed and who was aware 

of the violative condition. Nevertheless, in view of the conspicuous nature 

of the defective condition of the belt guard, the testimony of Kitt's chief 

electrician that he was in the area per~odically, and the lack of compelling 

contrary record evidence on these points, we conclude that substantial 

evidence supports the judge's unwarrantable failure finding as to the belt 

drive guard. We note, however, that only one citation was issued and only 

one violation alleged. 

1 SO~J 
Accordingly, we reverse the judge's finding that the section 104(d)(2) 

withdrawal order was validly issued, but affirm his conclusions that Kitt 

violated the standard and that the violation was caused by Kitt's unwarrantable failure. 
Distribution 

Linda L. Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

B. K. Taoras, Esq. 

Kitt Energy Corporation 

455 Race Track Road 

P.O. Box 500 

Meadow Lands, PA 15347 

Gregory A. Riley 

Safety Comm. Chairman 

Local 2095, Dist. 31 

· 1306 Pennsylvania Ave. 

Fairmont, West Virginia 26554 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1603 
ADMINISTRATIVE LAW JUDGE DECISIONS 
FEDERAL MIMI: SAFETY AND HEALTH REVIEW t.OMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

F~LLS CHURCH, VIRGl!lllA 22041. 

• JULY 2, 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARBON COUNTY COAL COMPANY, 

Respondent 

. . 

. . 

. . 

Docket No: WEST 83-106 

A/O No: 48-01186-03031 

Carbon Mine 

RULING ON MOTION AFTER REMAND FROM THE COMMISSION 

AND RECONSIDERATION 

The Commission has remanded this case to me for reconsideration of Respondent's Motion for Summary Decision. The 

Commission did not give instructions as to what I should do 

subsequent to reconsideration of the motion. I am therefore, 

going to treat the matter as though I were ruling on it for 

the first time. For the reasons stated hereinafter, I will 

DENY respondent's motion for summary judgement and will 

anticipate going to trial in this case. */ If the respondent 

feels it to be worth while, it can again-petition the Commission 

for interlocutory review and if the petition is granted I 

will again stay with the proceedings. 

The holding in Zeigler Coal Company vs. Kleppe, 536 

Fed. 2d. 398 (O.C. cir. 1976) is that the violation of a 

non-controversial ventilation plan is the equivalent of a 

violation of a mandatory standard. The terms of the ventilation 

plan involved in that case were not in dispute. The Court 

went on however, to discuss hypothetical plans which might 

contain controversial requirements. The Court said for 

example at Page 406-407: 

The statute makes clear that the ventilation 

plan is not formulated by the Secretary, but is 

"adopted by the operator•" While the plan must be 

approved by the Secretary's representative who may 

V Certain language in the Commission's opinion indicates to 

me· tbat the Commission wanted me to grant the Motion for 

Summary Judgement in favor of Carbon County Coal. But the 

Commission had before it all the facts that I have before me 

and if it wanted the motion granted it could have done so 

itself or it could have ordered me to grant it. 

1607 
on that account have some significant leverage in 

determining its contents, it does not follow that 

he has anything close to unrestrained power to 

impose terms. For even where the agency representative 

is adamant in his insistence that certain conditions 

be included, the operator retains the option to 

refuse to adopt the plan in the form required. 

Were the statute not clear enough on its face, the· 

IBMA's recent decision in Bishoaccoal Company 

estaplishes beyond doubt that a option of the plan 

by the operator is an essential prerequisite to 

the enforcement of any of its terms. 

The agency's recourse to such a refusal to 

adopt a particular plan appears to be invocation 

of the civil and criminal penalties of section 

109, which require an opportunity for public 

hearing and, ultimately, appeal to the courts. At 

such a hearing, t.he operator may offer argument as 

to why certain terms sought to be included are not 

proper subjects for coverage in the plan. Because 

we believe that the statute offers sound basis for 

narrowly circumscribing the subject matter of 

ventilation plans, we conclude that this opportunity 

for review is a substantial safeguard against 

significant circumvention of the section 101 

procedures. 

The last paragraph quoted above describes a situation 

very similar to what occurred in the instant Carbon County 

case. The procedire in the instant case is succintly described 

on pages 2 and 3 of the Commission's decision as follows: 

The Carbon No. 1 Mine is located in MSHA Coal 

Mine Safety and Health District 9,.headquartered in 

Denver, Colorado. District 9 had published "guidelines" regarding the contents of ventilation system 

and methane and dust control plans. The District 9 

guideline regarding the amount of air to be made 

available to auxiliary exhaust fans stated "]T[he 

volume of intake air delivered to the fan prior to 

the fan being started shall be greater than the free 

discharge capacity of the can." The District 9 guideline essentially restated MSHA's national guideline 

regarding the amount of air to be made available to 

exhaust fans. The national guideline stated in part: 

"]T]he volume of positive intake air current available • • • shall be greater than the free discharge 

capacity of the fan." The legal effect of the 

District 9 guideline, and of MSHA's possible reliance 

upon it during the plan review process, are at issue 

in this case. 

1608 
By Auqust 1981, neqotiations over the free 

discharqe capacity requi·rement reached an impasse, 

and the parties were unable to aqree on a plan 

requirement qoverninq the amount of air to be made 

available to the auxiliary fans. In a letter dated 

August 21, 1981, MSHA revoked its approval of 

carbon county's plan dated August 25, 1980, and 

stated that it would not approve Carbon County's 

plan unless the plan contained the free discharge 

capacity provision. After MSHA's revocation of 

approval of Carbon County's plan, Carbon County 

failed to submit a plan containing the provision 

sought by MSHA and continued to operate the mine. 

As a result, MSHA issued a citation and withdrawal 

order to Carbon County, under sections 104(a) and (b) 

of the Mine Act, respectively, for operating without 

an approved ventilation plan. The violation was 

abated when MSHA approved, and Carbon County adopted, 

a plan which contained the free discharge capacity 

requirement. MSHA then sought a civil penalty for 

the alleged violation. 

On Paqe 407, the Zeigler court stated that the 

ventilation plan "was not to be used to impose general requirements of a variety well suited to all or nearly all coal 

mines, but rather to assure there is a comprehensive scheme 

for realization of the statutory goals in-the particular 

instance of each mine." This is the language principally 

relied on by re.spondent. As I understand respondent's 

position, inasmuch as MSHA is following a guideline which 

contains a requirement that is not a mandatory standard, it 

must be following that guideline universally in apparent 

violation of the language in the Zeigler opinion. As to 

the guidelines themselves MSHA has habitually instructed its 

district offices and inspectors by the various Cook, and 

Crawford memorandums as well as by the inspection manuals. 

This Commission has never felt that it or the operators were 

bound by such guidelines and many of them have been either 

set aside or ignored by the Commission and its judges. If 

this case ever comes to trial I may decide that the guideline in question is invalid and that the proper amount of air to 

be supplied at the face must exceed the capacity of the 

exhaust fan if the tubing fails at the worst possible place. 

In all likelihood such a requirement would not be "suited to 

all or nearly all coal mines" and would not contradict the 

court's dicta. In fact any quantity of air that I might decide upon, unless I uphold the MSHA guideline in its 

entirety, would ~robably not be a quantity of air suited to 

all or nearly all mines. But if on the other hand, I find, 

as a matter of engineering fact, that in order to avoid recirculation as prohibited by a mandatory standard, it is 

necessary to have the air at the face exceed the free 

1609 
discharge capacity of the exhaust fan in any mine, then the 

guideline should apply to all mines and the fact that the 

provision is not a specific mandatory standard and the 

quoted language of the Ziegler case should not be allowed to 

stand in the way of mine safety. 

I find that there are unresolved factual issues necessary 

for the resolution of this case and that a summary decision 

is not appropriate. The Motion is accordingly DENIED. 

Distribution: 

~e./ll~,J. Charles C. Moore, Jr., 

Administrative Law Judge 

Robert E. Vagley, Esq., Preston, Thorrngrimson, Ellis and 

Holman, Suite 500, 1735 New York Avenue, N.W •. , Washington,:. 

D.C. 20006 (Certified Mail) 

Robert A. Cohen, Esq., Office of 'the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203. 

(Certified Mail) 

/db 

1610 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041· JUL 3 19a.4 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

. . 

: Docket No. LAKE 84-24 

: A.C. No. 12-01729-03502 

v. . . 

: Grandview Dock 

GRANDVIEW DOCK CORPORATION, 

Respondent 

. . 

Appearances: 

Before: 

DECISION 

Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, Chicago, 

Illinois, for Petitioner; 

Cedric Hustace, Esq., Bowers, Harrison, Kent 

& Miller, Evansville, Indiana, for 

Respondent. 

Judge Melick 

Hearings were held in this case on April 24, 1984, in 

Evansville, Indiana. A bench decision was thereafter rendered and appears below with only non-substantive changes. 

That decision is now affirmed. 

This case is, of course, before me upon the petition 

for assessment of civil penalty, filed by the Secretary of 

Labor, pursuant to section 105Cd) of the Federal Mine Safety 

and Health Act of 1977, for five violations of mandatory 

standards. The issues before me are whether there were violations of the regulatory standards as-cited, and, if so, 

whether the violations were "significant and substantial," 

as set forth in the Act and as defined by the Commission. 

If violations are found to exist, I must also determine the 

appropriate civil penalty to be assessed. The operator in 

this case, Grandview Dock Corporation (Grandview), challenges only the amount of penalty to be assessed and does 

not challenge the existence of the violations or that they 

were "significant and substantial." 

Citation No. 2319454 charges a violation of the regulatory standard at 30 C.F.R. § 1

77.1710Cd) and reads as 

follows: "Kermit Harlen, miner, was not wearing a suitable 

1611 
hard hat <no hat) •. He was in the workinq area of the coal 

crusher facilities." The cited standard provides in essence 

that a suitable hard hat or hard cap must be worn when in or 

around a mine or plant where fallinq objects may create a 

hazard. 

Now, the evidence in this case indicates that durinq the course of a spot inspection of the Grandview facilities 

on October s, 1983, Inspector Stanley ozalas observed two 

miners, Kermit Harlen and Richard Briqqeman, workinq in the 

mine premises without hard hats. There is no dispute that 

the violation was accordinqly committed by the operator. 

Accordinq to the undisputed testimony of Inspector Ozalas, the hazard here was created by the fact that there 

was only 20 to 30 feet from where these miners were working 

an elevated coal conveyor belt from which chunks of coal, 

varying in size from the size of a fist to the size of a 

man's head, were falling. The conveyor was on an incline, 

risinq to a height of approximately 25 to 30 feet. Beneath 

the conveyor was a travelway on which miners were walking. Considerinq the weiqht of the chunks of coal, the· inspector opined that serious injuries and, indeed, a fatality could 

occur from such a condition. That is, a miner walking beneath the conveyor, without a hard hat, exposed to the 

fallinq chunks of coal. The inspector also observed that 

the conveyor rollers weighing about 15 pounds have been 

known to fall off the conveyor. 

Foreman, Jack Crowe, also admitted in essence that he 

was aware of the 'coal chunks falling off of the conveyor inasmuch as he told the inspector that he had intended to 

install sideboards to prevent the coal from falling off. It 

is also clear from the inspector's testimony that Mr. Crowe 

could easily have seen the men working without their hard 

hats. So under all the circumstances, I do consider that 

this violation was of a serious nature,-and was the result 

of operator negligence. The cited condition was abated in a 

timely fashion, when the miner immediately retrieved his 

hard hat and put it on. 

It is not disputed that the violation charged in Citation No. 2319455 was the same as that charged in the prior citation except that it involved a different miner, Richard 

Briggeman, not wearing his hard hat. The two men were working side by side and were exposed to the same hazards. I . 

therefore find that this violation was also serious and was 

caused by operator negligence., 

1612 
Citation No. 2319446 charges a violation of the regulatory standard at 30 C.F.R. § 77.410, and reads as follows: 

"The automatic warning device did not give an audible alarm 

when the 988B Caterpillar No. 1 end loader was put in 

reverse. The end loader was operating over the entire coal 

crusher site." 

The cited standard reads as follows: "Mobile equipment, such as trucks, fork lifts, front end loaders, tractors and graders shall be equipped with an adequate 

automatic warning device, which shall give an audible alarm 

when such equipment is put in reverse." 

According to the undisputed testimony of Inspector 

Ozalas, there was indeed no backup alarm on the cited frontend loader. Moreover, during the course of the inspection, 

the loader nearly backed into the inspection party. The 

violation was hazardous because of the number of pedestrians 

moving about the premises, including truck drivers who 

occasionally exit their trucks, a coal sampler, the foreman, 

the operator of the small Bobcat front-end-loader and two 

other miners. The hazard was increased because of the 

limited visibility to the rear, and the fact that the loader 

was being operated carelessly. In addition, since no one 

was acting as a spotter, it was impossible for the machine 

operator to know whether pedestrians were behind him. 

Although the loader operator claimed that he did not 

know the alarm was defective, I accept the inspector's undisputed testimony that the backup alarm is loud enough so that 

the operator should know when it fails. Moreover, since the 

foreman was situated within 20 feet of the loader, he should 

have been aware of the malfunctioning alarm. I find that 

serious and fatal injuries were likely under the circumstances and that it was therefore a serious hazard. I further 

find that the violation was caused by operator negligence. 

Citation No. 2319457 charges a violation of the standard 

at 30 C.F.R.· § 77.400Ca) and reads as follows: "A guard was 

not provided to prevent a person from contacting the rotating 

pulley and conveyor belts, and result in injury. The conveyor 

belt was transferring coal from the coal crusher." Citation 

No. 2319458 also charges a violation of that standard and 

reads as follows: "A guard was not provided to prevent a person f rom;.contacting the rotating pulley and conveyor belt and 

result in injury. The conveyor belt was transferring coal to 

the coal crusher." 

1613 
The cited standard provides that, "Gears, sprockets, 

chains, drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, saw blades, fan inlets, and similar exposed 

moving machine parts, which may be contacted by persons and 

which may cause injury to persons shall be guarded." Inspector Ozalas testified that the exposed belt and rotating pulley 

noted in Citation No. 2319457 was located only 12 inches off 

the ground and within 2 or 3 feet of a walkway. The unguarded 

area was described as approximately 4 feet long, 2 feet wide, 

and 5 feet across the end and over the top of the belts. In 

other words, both the sides and the top of the exposed area 

needed covering or other protection. 

The conveyor was in operation when cited, and the rapidly 

moving pulley, indeed, posed a serious hazard to miners working nearby and to passersby contacting the moving parts, becoming entangled and having limbs crushed or broken, and even 

causing fatalities. Indeed, according to Inspector Ozalas, 

there has been a history of fatalities resulting from miners 

caught. in such moving machine parts. The greaser and the 

miner responsible for cleanup around the conveyor were the 

most likely persons exposed to the hazard. While the foreman 

indicated that it was the practice for the machinery to be 

shut down before cleanup and/or greasing operations, it is not 

unusual according to Ozalas for employees to nevertheless disregard such practice and to work near these dangerous exposed 

moving machine parts resulting injuries and, indeed, fatalities. Under the circumstances, I find that there was a 

serious hazard created by this violation. 

. I also find that the violation was the result of a high 

degree of negligence and in fact was a violation known by 

mine management. The guard was lying adjacent to the 

exposed area and was partially covered with coal, indicating 

to the inspector that it had been lying there for some time. 

The mine foreman also admitted to Inspector Ozalas that he 

knew the protective guard had been removed. 

The facts surrounding Citation No. 2319458 are similar, 

in that the protective guard had been removed. The guard in 

this case had been damaged and a part was missing. The 

exposed conveyor and pulley were only about a foot off the 

ground and the pulley was only 2 or 3 feet from a walkway 

known as an employee short cut. It thereby posed a serious 

hazard to miners working on the belt or passing nearby. The 

fast moving conveyor was also operating when cited and under 

the circumstances I find that serious hazard existed. There 

was also a high degree of negligence, based on the admissions 

1614 
of the foreman that he had, indeed, had the guard removed 

from the conveyor and pulley. 

Now, in determining the amount of penalty to be assessed 

in this case, I must look also, of course, to the size of the 

mine operator, and the history of its violations. The mine 

operator is apparently small in size, but I am particularly 

concerned in this case with its history of violations. The 

inspector has testified, and this is supported by the computer 

printout of record (Petitioner's Exhibit No. 6), that there 

has been a pattern of prior violations of the standards cited 

in this case. This evidence shows that on December 15, 1981, 

there had been an equipment guarding violation, on January 20, 

1982, there had been two equipment guarding violations, and ori 

March 2, 1983, there had been another equipment guarding violation. In addition, with respect to the failure to have a 

backup alarm in this case, I note that qn January 20, 1982, 

there were two violations for failing to have operative backup 

alarms and again on March 2, 1983, a violation for failing to 

have an operative backup alarm. 

This pattern of violations, with, I note, rather small 

assessments given, shows to me that the mine operator has 

not been impacted sufficiently to take corrective m~asures 

with respect to these violations. I therefore am going to 

assess penalties in excess of those proposed by the 

Secretary of Labor in this proceeding. 

ORDER 

The Grandview Dock Corporation is ordered to pay the 

following civil penalties within 30 days of the date of this 

decision: 

Citation No. 2319454 

Citation No. 2319455 

Citation No. 2319456 

Citation No. 2319457 

Citation No. 2319458 

,~· 

l 

lick 

I 

\ 

\ 

\ 

nt Chief 

1615 

$ 112 

112 

300 

250 

250 

dministrative Law Judge 
Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

Cedric Hustace, Esq., Bowers, Harrison, Kent & Miller, 4th 

Floor, Permanent Federal Savings Building, Evansville, IN 

47708 (Certified Mail) 

/fb 

1616 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

15203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 3 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 83-96 

A.C. No. 36-03425-03516 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, 

INC., 

Respopdent 

Docket No. PENN 83-97 

A.C. No. 36-03425-03517 

Maple Creek No. 2 Mine 

DECISION 

Appearances: David A. Pennington, Esq., and Thomas A. 

Brown, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner1 

Before: 

Louise Q. Symons, Esq., Pittsburgh, 

Pennsylvania, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

The above cases involve alleged safety violations in 

the same mine cited during inspections in December 1982. 

The cases were consolidated for the'p~rposes of hearing and 

decision. A total of eight citations are involved in the 

two dockets, and the parties have proposed to settle three 

of them. Pursuant to notice, the cases were called for hearing in Washington, Pennsylvania, on November 29 and 30, 1983. 

Because of the unavailability of a government witness, the 

cases were continued to April 24, 1984, when the hearing was 

completed. Alvin Shade, Okie Wolfe and Francis E. Wehr testified on behalf of Petitioner1 Paul Gaydos, Brian Howarth 

and Wayne Croushore testified on behalf of Respondent. Both 

parties have filed posthearing briefs. Based on the entire 

record and considering the contentions of the parties, I 

make the follow decision. 

16 ., 1""'1 

.l * 
PROPOSED SETTLEMENT 

Citation No. 2013974 

This citation charged a violation of 30 C.F.R. § 75.503 

because a conduit was out of the packing gland on the left 

headlight and. on the methane monitor of the continuous miner. 

The violation was originally assessed at $136 and was designated significant and substantial. By the settlement agreement, the parties agreed that the violation was not 

significant and substantial and proposed to settle for a 

payment of $50. Because of the construction of the headlight, it was not possible for the condition to cause a 

safety hazard. I accept the representations in the motion 

and will approve the settlement agreement. 

Citation No. 2013976 

This citation charged a violation of 30 C.F.R. § 75.1105 

because a battery charging station was not vented directly 

into return air. The violation was originally assessed at 

$136. The parties propose to settle for $100. Respondent 

had attempted to vent to the return by knocking holes in 

nearby stoppings but the inspector required a check curtain 

at the charging station. I accept the representations in the 

motion and will approve the settlement. 

Citation No. 2102667 

. I 

This citation charged a violation of 30 C.F.R. § 75.1403 

because a locomotive being operated on track haulage was not 

equipped with a suitable lifting jack and bar. The violation 

was originally assessed at $98. The parties propose to 

settle for $50. Subsequent investigation disclosed that the 

locomotive was tramming to the motor: barn and would have 

reached that destinatiGn in about 5 minutes and would have 

been provided with a lifting jack and bar before leaving the 

barn. I accept the representations in the motion and will 

approve the settlement agreement. 

FINDINGS OF FACT COMMON TO ALL VIOLATIONS 

1. At all times pertinent to this proceeding, Respondent 

was the owner and operator of an underground coal mine in 

Washington County, Pennsylvania, known as the Maple Creek No. 

2 Mine. ' 

2. Respondent is a large operator, producing in excess 

of 15 million tons of coal annually. 

1618 
3. In the 2-year period prior to the issuance of the 

citations involved herein, the subject mine had 469 paid 

violations of mandatory safety and health standards, 394 of 

which were designated as significant and substantial. This 

history is not such that penalties otherwise appropriate 

should be increased because of it. 

4. The imposition of penalties in this proceeding will 

not affect Respondent's ability to continue in business. 

5. The violations involved in this case were abated 

.timely and in good faith. 

DOCKET NO. PENN 83-96 

Citation No. 2013973 

6. On December 9, 1982, Federal Coal Mine Inspector 

Francis E. Wehr issued Citation No. 2013973 alleging a violation of 30 C.F.R. § 75.503 because the battery covers on a 

scoop tractor being operated-at the last open crosscut were 

not secured to the frame of the battery. 

7. On December 9, 1982, the battery covers were not 

locked or bolted to the frame of the battery compartment on 

a Kersey scoop tractor used in the last open crosscut in the 

subject mine. The covers consisted of four separate lids 

made of one-quarter inch steel plate. They fit over the 

battery compartments "like the top of a shoe box fits over 

the shoe box." Two of them weighed about 80 pounds each1 

the other two weighed about 50 pounds each. There was a 

1-inch lip around the outside edges of the compartment. 

Each lid has insulating material on the undersurface. The 

lids are approximately 1 to 1-1/4 inches from the battery 

terminals. 

8. The subject mine liberates more than one million 

cubic feet of methane in a 24-hour period. 

9. Devices were provided on the lids to lock the 

battery covers in place, but the bolts needed to secure them 

were missing. 

10. When the scoop is in use, the batteries are 

normally recharged each shift. When they are recharged, the 

lids have to be lifted to help ventilate the battery. 

1618 
11. Citations have been issued at the subject mine for 

the same condition as described in this citation. 

12. In the normal operation of a scoop tractor, battery 

covers can be jarred. However, there is a lip of 1 inch on 

the lids and a tongue in the back that fits through the lids. 

Therefore, in order for the lid to pick up from its place, it 

would have to bounce up at least an inch and then slide back. 

Citation No. 2102601 

13. On December 14, 1982, Federal Coal Mine Inspector 

Alvin L. Shade issued Citation No. 2012601 alleging a violation of 30 C.F.R. S 75.1003 because the energized trolley feeder wire on a track haulage switch was not guarded. 

14. On December 14, 1982, the trolley feeder wire on 

the track haulage switch in the 6 Flat 1 chute was not 

guarded. Miners were required to travel under this switch 

regularly. The wire was approximately 5 and 1/2 feet from 

the mine floor. It was not insulated and carried 550 volts 

of direct current. The section was not producing coal, but 

cars and supplies were stored in the area. 

15. The guard boards which normally guarded the 

trolley wire at the switch had been dislodged and were lying 

on the ground when the citation was issued. 

16. The area is preshift examined daily. A "shopped" mine car was parked in the chute at the time the citation 

was issued. 

Citation No. 2102602 

17. On December 15, 1982, Inspector Shade issued 

Citation No. 2102602 charging a violation of 30 C.F.R. 

§ 75.516 because eight energized power wires were in contact 

with combustible material. 

18. On December 15, 1982, eight energized power wires 

supplying power to signal lights and an electric switch on 

track haulage in the subject mine were hung on wooden planks 

bolted to the roof and were not insulated. The wires were 

also touching the coal roof. 

19. The wires carried 550 volts of direct current. 

The area was subject 'to preshift examinations. The area was 

damp. There was no tension on the wires at the time the 

citation was issued. 

1620 
DOCKET NO. PENN 83-97 

Citation No. 2013980 

20. On December 14, 1982, Inspector Wehr issued 

Citation No. 2013980 charging a violation of 30 C.F.R. 

§ 75.400 because of an accumulation of combustible material 

around the track dusting machine. 

21. On December 14, 1982, there was an accumulation of 

approximately 53 empty rock dust bags at No. 23 room along 

the 2 Flat main haulage room in the subject mine. The bags 

were piled in and around the track rock dusting machine. 

22. The bags had apparently been left by the prior 

shift. The rock duster has an electric motor and its power 

is supplied by a cable. The cable was fully insulated. 

Rock dust was present on the mine floor, approximately 

16 inches deep. 

23. There were energized trolley wires and trolley 

feeder wires approximately 20 feet from the' area of the 

empty bags. The rock duster was not operating at the time 

the citation was issued. 

24. Respondent has a verbal clean up program which 

provides that the crew using the bags pick them up before 

they leave the mine, place them on a supply truck and park 

it on a side chute until the next supply crew picks up the 

truck and takes it to the outside. 

25. Respondent has been cited for this same condition 

several times in the past. 

Citation No. 2102666 

26. On December 15, 1982, Fed~ral Coal Mine Inspector 

Okey H. Wolfe issued Citation No. 2102666 charging a violation of 30 C.F.R. § 75.1106 because stored oxygen and acetylene cyliners were not properly secured. 

·27. On December 15, 1982, there were four oxygen and 

two acetylene cylinders stored in a block building at the 

mouth of No. 5 flat belt in the subject mine, which cylinders were not secured to prevent being accidentally tipped 

over. The cylinders were pressurized. 

1621 
28. The storage area for the cylinders was subject to 

preshift examination. 

29. The tanks were standing upright. The oxygen 

bottles contained metal caps. A chain bolted to the wall 

was provided to hold the cylinders but was not secured 

around them. 

APPLICABLE REGULATORY PROVISIONS 

30 C.F.R. § 75.503 provides as follows: 

The operator of each coal mine shall 

maintain in permissible condition all 

electric face equipment * * * which is taken 

into or used inby the last open crosscut of 

any such mine. 

30 C.F.R. § 18.44Cc> provides as follows: "Battery-box 

covers shall be provided with a means for securing them in a 

closed position." 

30 C.F.R. § 75.1003 provides in part as follows: 

Trolley wires, trolley feeder wires, and 

bare signal wires shall be insulated adequately where they pass through doors and 

stoppings, and where they cross other power 

wires and cables. Trolley wires and trolley feeder wires shall be guarded adequately: 

(a) At all points where men are 

required to work or pass regularly under the 

wires7 

Cb) On both sides of all doors and 

stoppings7 and 

Cc) At man-trip stations. 

30 C.F.R. § 75.516 provides as follows: 

All power wires (except trailing cables 

on mobile equipment, specially designed 

cables conducting high-voltage power to underground rectifying equipment or transformers, 

or bare or insulated ground and return wires) 

shall be supported on well-insulated insulators and shall not contact combustible material, roof, or ribs. 

1 e.· ') !') u . .,,.., 
30 C.F.R. § 75.400 provides as follows: °Coal dust, 

including float coal dust deposited on rock-dusted surfaces, 

loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein. 0 

30 C.F.R. § 75.1106-3 provides in part as follows: 

Ca> Liquified ~nd nonliquified 

compressed gas cylinders stored in an underground coal mine shall be 

* * * * * * 

(2) [P]laced securely in storage areas 

designated by the operator for such purpose, 

and where the height of the coalbed permits, 

in an upright position, preferably in 

specially designated racks or otherwise 

secured against being accidentally tipped 

over. 

ISSUES 

* 

With respect to each citation the issues are Cl> 

whether the cited violation occurred1 (2) if it did, whether 

it was significant and substantial1 and (3) if it did, what 

is the appropriate penalty. 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the 

Federal Mine Safety and Health Act ot 1977 in the operation 

of the Maple Creek No. 2 Mine, and I 1 have jurisdiction over 

the parties and subject matter of this proceeding. 

2. The condition described in Findings of Fact Nos. 7 

through 12 did not constitute a vioiation of 30 C.F.R. 

§ 75.503. 

DISCUSSION 

Two Administrative Law Judges have considered similar 

alleged violations of 75.503 and ruled that the lip around 

the covers and the tongues on the covers constituted means 

for securing the battery box covers in a closed position. 

Secretary v. U.S. Steel,· 6 FMSHRC 155 (1984) CALJ). 

Secretary v. U.S. Steel, __ FMSHRC __ (June 8, 1984> 

162 '') u 
(ALJ). Since the issue here was decided in these prior 

proceedings involving the same parties, the prior decisions 

are !.!!. judicata. See Secretary v. U.S. Steel 5 FMSHRC 1334 

(1983) CALJ). Therefore, I conclude that the condition 

cited was not a violation of the mandatory standard. 

3. The condition described in Findings of Fact Nos. 14 

through 16 constituted a violation of 30 C.F.R. § 75.1003. 

Respondent does not contest the finding that the trolley 

feeder wire in question was not guarded. 

4. The violation was significant and substantial. 

Miners travelled in the area regularly and could receive 

electric shocks if they touched the bare wire. Reasonably 

serious injuries would likely result from the violation. 

5. The violation was serious. Respondent should have 

been aware of it. An appropriate penalty for this violation 

is $200. 

6. The condition described in Findings of Fact Nos. 18 

and 19 constituted a violation of 30 C.F.R. § 75.516. The 

energized eiectric power wires going to the signal lights 

and electric switch had been placed on top of a wooden plank 

bolted to the roof. They were also in contact with the coal 

roof. Apparently some of the coal had potted out and the 

insulated hooks which held the wires had fallen down and the 

wires were placed on the plank. 

7. The hazard created by the above violation was the 

possibility of a mine fire in the event of a short in the 

wire and a failure or melting of the fuse. I conclude that 

the violation was significant and substantial. 

8. The violation was moderately serious. Respondent 

should have been aware of the condition and should have 

corrected it. I conclude that an appropriate penalty .for 

the violation is $150. 

9. The condition described in Findings of Fact Nos. 21 

to 25 constituted a violation of 30 C.F.R. § 75.400. The 

rock dust bags which are combustible had been permitted to 

accumulate. 

10. The hazard created by the violation was a mine 

fire. The likelihood of such an occurrence was remote. The 

violation was not significant and substantial. 

16211 
11. The violation was not serious. The negligence was 

slight - consisting in permitting the bags to be strewn on 

and against the rock dusting machine. Except for that, the 

clean up plan was being followed.. I conclude that an appro- priate penalty for this violation is $50. 

12. The condition described in Findings of ract Noa. 

27 to 29 constituted a violation of 30 c.r.R. S 75.1106. 

The oxygen and acetylene tanks were not properly secured 

although they were in a storage area. 

13. The hazard created by this violation is that.the 

cylinders could be knocked over and the valve broken or the 

cylinder ruptured. Such an occurrence is less likely in a 

storage area than in a roadway, compare Secretari v. u.s. 

Steel, S FMSHRC 1728, 1732 Cl983) CALJ), but it s nevertheless reasonably likely. The violation was significant and 

substantial. 

14. The violat;on was serious and since it should have 

been known by Respondent, was caused by its negligence. I 

conclude that an appropriate.penalty for this violation is 

$125. 

ORDER 

Based on the above Findings of Fact and Conclusions of 

Law, it is ORDERED 

1. Citation No. 2013973 is VACATED. 

2. Citation Nos. 2013976, 2102601, 2102602, 2102~67, 

2012666 are AFFIRMED as properly charging significant and 

substantial violations. 

3. Citation Nos. 2013974 and 2013980 charge violations 

not properly designated as significant·· and substantial. 

4. Respondent shall within 30 days of the date of this 

decision pay the following civil penalties for violations 

found herein to have occurred. 

CITATION 

2013974 

2013976 

2102601 

2102602 

1625 

PENALTY 

$ so 

100 

200 

150 
Distribution: 

2102667 

2102666 

2013980 

Total 

50 

125 

50 

$ 725 

j {l...it.<.S A-6','?'ci:/'/el 

James A. Broderick 

Administrative Law Judge 

David A. Pennington, Esq., and Thomas A. Brown, Esq., Office 

of the Solicitor, U.S. Department of Labor, Room 14480 

Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) 

/fb 

162G 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL o 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

Docket No. LAKE 84-14 

A.C. No. 12-01890-03507 

v. 

Lengacher Mine No. 1 

EARTH COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISI'ON 

Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Petitioner; 

Mr. Byron w. Terry, Tell City, Indiana, 

for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penal·ty under section 110 {a) of the Federal Mine Safety 

and Health Act of 1977 (the Act). At hearings in Evansville, 

Indiana, Petitioner moved to withdraw and vacate Citation 

No. 2353623 on the grounds that the cited Caterpillar Model 

627 Scraper did not come within the scope of equipment covered 

by the cited regulation, 30 C.F.R. § 77.1605(b). The motion 

was granted at hearing and is now af:firmed. Following 

hearings on the merits, Petitioner filed a motion to approve. 

a Eettlement agreement and to dismiss the case. A reduction 

in penalties from $326 to $250 was proposed. I have considered the testimony and documentation submitted in this case, 

and I conclude that the proffered settlement is appropriate 

under the criteria set forth in section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent pay the following 

penalties within 30 days of this decision: 
Citation No. 2343622 

Citation No. 2353624 

Citation No. 2353625 

Distribution: 

' ! 

' I 

-Ga:t'y M 

Assist 

,, 

$150 

50 

50 -

Miquel J. Carmona, Esq.,·o f'ce of the Solicitor, U.S. 

Department of Labor, 230 So th Dearborn Street, 8th Floor, 

Chicaqo, IL 60604 (Certified Mail) 

Mr. Byron w. Terry, Safety Director, Grandview Dock Corporation, 

P.O. Box 306, Tell City, IN 47586 (Certified Mail) 

/fb 

1628 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner Docket No. VA 83-56 

A.C. No. 44-04920-03513 

v. 

HJ AND H COAL COMPANY, INC., 

Respondent 

Docket No. VA 83-57 

A.C. No. 44-04920-03514 

'Appearances: 

Before: 

.. . 

Docket No. VA 83.-58 

A.C. No. 44-04920-03515 

Docket No. VA 83-59 

A.C. No. 44-04920-03516 

No. 3 Mine 

DECISION 

Patricia L. Larkin, Esq., Office of the 

Solicitor, u.s. Department of Labor, Arlington, 

Virginia, for Petitioner; 

John L. Bagwell, Esq., Grundy, Virginia, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

The above cases all involve the s~~e mine and were consolidated for the purposes of hearing and decision. Of the nine 

alleged violations in the four dockets, the parties moved for 

approval of settlement agreements concerning six of them. 

Pursuant to notice, the cases were heard in Abingdon, Virginia, 

on June 5, 1984. Respondent admitted that the violations 

occurred, and testimony was taken on the three which were not 

settled for the purpose of determining appropriate penalties. 

Federal Mine Inspectors Ronald Matney and Donald Shortridge 

testified on behalf of Petitioner. No witnesses were called 

by Respondent. The parties waived their rights to file 

posthearing briefs. • 

162n d 
SETT·LEMENT PROPOSAL 

Docket No. VA 83-56 

1 •. citation No. 2158823 charged a violation of 30 c.F.R. 

§ 75.313 because of an inoperative methane monitor on a cutting 

machine. The violation was originally·assessed at $20 and the 

parties propose.to settle for $60. There. is no history of 

methane at the mine. The machine operator was carrying a 

methane detector. The mine is above the water table. I 

accepted the representations in the motion and approved the 

settlement. 

2. Citation No. 9925742 charged a violation of 30 C.F.R. 

§ 20.208(a) because of the failure of Respondent to take 

respirable dust samples for the 2-month period June and 

July 1982. The violation was originally assessed at $20 and 

the parties propose to settle for $40. Respondent's dust 

samples are now taken by a contraqtor. Respondent represents 

that the contractor is reputable, and that Respondent will see 

to it that samples are taken on a bi-monthly basis. I accepted 

the representations in the motion and approved the settlement. 

Docket No. VA 83-57 

1. Citation No. 2159242 charged a violation of 30 C.F.R. 

§ 77.1103(d) because of Respondent's failure to keep a transformer station area free of weeds. The violation was originally assessed at $20,and the parties propose to settle for 

$20. The violation was stated not to be serious. The weeds 

had just begun to grow and were not high. The condition had 

not been cited in the past. I accepted the representations 

in the motion and approved .the settlement. 

2. Citation No. 2159243 charged a violation of 30 C.F.R. 

§ 77.509 because of Respondent's faflure to keep a transformer 

station locked against unautqorized entry. The violation was 

originally assessed at $20 and the parties propose to settle 

for $80. The area is somewhat isolated, and unauthorized 

entry is unlikely. However, .the condition has been cited in 

the past, and serious injury is possible. I accepted the 

representations in the motion and approved the settlement. 

3. Citation No. 2159244 charged a violation of 30 C.F.R. 

§ 75.403 because of Respondent's failure to record the results 

of onshift daily inspections. The violation was originally 

assessed at $20, and the parties propose to settle for $20. 

The inspections had in fact been made, but not recorded. I 

accepted the ·representations in the motion and approved the 

settlement. 
Docket No. VA ·83-58 

1. Citation No. 936387 charged a violation of 30 C.F.R. 

§ 75.305 for failure to make weekly examinations for hazardous 

conditions in an abandoned section. The violation was originally assessed at $20, and the parties propose to settle for 

$20. The operator believed the area was unsafe for entry to 

conduct the tests and filed a petition for check points.to 

conduct the examinations. Ultimately the area was ordered 

sealed. I accepted the representations in the motion and 

approved the settlement. 

CITATIONS .IN WHICH THE PENALTY IS CONTESTED 

1. Respondent does not contest the fact of violation 

in any of the three citations involved. 

2. Between August 24, 1980 and August 23, 1982, there 

were 11 violations assessed and paid at the subject mine. 

This is a moderate history of prior violations. 

3. The subject mine· produces 200 to 300 tons of coal 

daily and employs from 7 to 15 miners. Respondent is a small 

operator. 

4. There is no evidence that penalties assessed herein 

will affect Respondent's ability to continue in business. 

5. The mine employs a conventional mining system with 

one section. The coal is removed. by conveyor belt. The coal 

seam is 36 to 40 inches high. 

6. The mine is 2,000 to 4,000 feet deep. It has a very 

hazardous slate roof and a history of roof falls. 

7. On June 6, 1983, Inspector Matney issued Citation 

No. 2159241 charging a violation of 30 ~.F.R. § 75.1714(a). 

8. On June 6, 1983, there were ten miners working 

underground. Only three self-contained self rescuers were 

present. Coal was being produced. 

9. Respondent had an approved self-contained self rescuer 

storage plan which required that such devices be stored not 

more than 400 feet outby the face at the power station on 

intake air with two approac;:hes •. 

10. An investigation and checking of serial' numbers disclosed that Respondent had sent the self rescuers to a· nearby 

mine owned by M P & M Coal Company to enable the latter to 

abate a citation for failure to have a self rescuer for eac·h 

employee. 

1631 
11. The violation was deliberate. 

12. The violation was v.ery serious. 

·erected in it, and there was a high degree 

cutting into oxygen deficient atmosphere. 

number of self rescuers, this could result 

to miners. 

The mine had seals 

of possibility of 

Without an adequate 

in fatal injuries 

13 •. I· conclude that an appropriate penalty for the violation is $2,500. 

14. On July 12, 1983, Inspector Matney issued Citation 

No. 2159249 charging a violation of 30 C.F.R. § 75.202. 

15. On July· 12, 1983, there were four or five dislodged 

timbers in the main haulage area of the subject mine. They 

had probably been knocked out by a scoop. 

16. The roof in the area was not bad. This is a heavily 

travelled area and Respondent should have been aware of it. 

17. An injury was not·likely to occur as a result of the 

violation. 

18. I conclude that an appropriate penalty for the 

violation is $50. 

19. On July 12, 1983, Inspector Matney issued Citation 

No. 2159250 charging a violation of 30 C.F.R. § 75.200. 

20. On July 12, 1983, at numbers 5, 6 and 7 entries and 

adjoining crosscuts on the working section, the roof bolts 

were spaced from 53 inches to 60 inches at several locations. 

21. The approved roof-control plan at the subject mine 

required that roof bolts be installe'd on 4 foot centers. 

22. The roof was composed of slate and was fragile. A 

number of. unplanned roof falls have-occurred at the subject 

mine. 

23. The operator should have been aware of the condition. 

It occurred on the working section which was heavily travelled. 

24. The violation was .. serious. Because of the· condition 

of the roof, strict following of the roof-control plan is 

imperative. 

25. I conclude that an appropriate penalty for this 

violation is $150. 

1632 
ORDER 

Based on the above f indinqs of fact and conclusions of 

law, Respondent is ordered to pay the followinq civil penalties within 30 days of the date of this decision. 

Distribution: 

CIT:ATI'ON 

2158823 

9925742 

2159242 

2159243 

2159244 

936387 

2159241 

2159249 

2159250 

Total 

PENALTY 

$ 60 

40 

20 

80 

20 

20 

2,500 

so 

150 

$2,946 

J

t1.iVtM>5 )-.611i cfe V1. f( 1 James A. Broderick · Administrative Law Judqe 

Patricia L. Larkin, Esq., Office of the Solicitor, U.S~ 

Department of Labor, 4015 Wilson Boulevard, Arlinqton, VA 

22203 (Certified Mail) 

John L. Bagwell, Esq., P.C., P.O. Box 923, Grundy., VA 24614 - (Certified Mail) 

/fb 

1633 

• 
• 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

July 11, 1984 

UNITED MINE WORKERS OF 

AMERICA {UMWA), 

ON BEHALF OF 

JAMES ROWE, et al. , 

JERRY D. MOORE , 

LARRY D. KESSINGER, 

Complainants 

v. 

PEABODY COAL COMPANY, 

Respondents 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH ~ ADMINISTRATION {MSHA) , ON.BEHALF OF 

THOMAS L. WILLIAMS, 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

DECISION 

DISCRIMINATION PROCEEDINGS 

Docket No. KENT 82-103-D 

MADI CD 81-23 

Docket No. KENT 82-105-D 

MADI CD 82-05 

Docket No. KENT 82-106-D 

MADI CD 82-04 . 

Eastern Division Operations 

Docket No. LAKE 83-69-D 

VINC CD 83-04 

Eastern Division Operations 

Appearances: Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C. on behalf of Complainants James Rowe, et al., Jerry D. Moore 

and Larry D •. Kessinger;-. 

Before: 

Frederick W. Moncrief, Esq., Office of the 

Solicitor, Arlington, Virginia, on behalf 

of Complainant, Thomas L. Williams; 

Michael o. McKown, Esq., Peabody Coal Company, 

St. Louis, Missouri, for Respondent. 

Judge Merlin. 

These cases are before me pursuant to the Commission's 

order dated June 18, 1984. 
Introduction 

These cases present the question whether under section 

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

(hereinafter referred to as "the Act"), 30 U.S.C. § 815(c), 

the operator discriminated against laid off miners by violating their statutory rights regarding training set forth 

in section 115 of the Act, 30 U.S.C. § 825, and Part 48 of 

the Regulations, 30 C.F.R., Part 48. 

The Act and the regulations set forth certain training 

which miners must receive. In determining which laid off 

miners to recall to work, the operator gave preference to 

miners who met the training requirements of the Act and 

regulations. The Complainants contend that under the Act, 

it was the operator's responsibility to provide the necessary training and that by not doing so with respect to laid 

off miners and then taking their lack of training into 

account in deciding who to put back to work, the operator 

discriminated by violating the statutory right to training. 

LAKE 82-69-D is a complaint of discrimination brought 

by the Secretary of Labor under section 105(c) (2) on behalf 

of Thomas L. Williams, a laid off miner. KENT 82-105-D and 

KENT 82-106-D are complaints of discrimination brought by 

the United Mine Workers (hereinafter referred to as the 

"UMW") under section 105(c) (3) on behalf of Jerry D. Moore 

and Larry D. Kessinger, respectively, both of whom are laid 

off miners. KENT 82-103-D is a complaint of discrimination 

filed by the union as a class action on behalf of Peabody's 

Eastern Division laid off employees. 

Statutory Provisions 

Section 115 of the Act, supra, provides as follows: 

Sec. 115. (a) Each operator of a coal or other mine 

shall have a health and safety training program which 

shall be approved by the Secretary. The Secretary 

shall promulgate regulations with respect to such 

health and safety training programs not more than 180 

days after the effective date of the Federal Mine 

Safety and Health Amendments Act of 1977. Each training program approved by the Secretary shall provide as 

a minimum that -

(1) new miners having no underground mining experience shall recei~e no less than 40 hours of 

training if they are to work underground. Such 

training shall include instruction in the statutory rights of miners and their representatives 

1635 
under this Act, use of the self-rescue device and 

use of r~spiratory devices, hazard recognition, 

escapeways, walk around training, emergency pro- cedures, basic ventilation, basic roof control, 

electrical hazards, first aid, and the health and 

safety aspects of the task to which he will be 

assigned1 

(2) · new miners having no surface mining experience shall receive no less than 24 hours of training if they are to work on the surface. Such 

training shall include instruction in the statutory rights of miners and their representatives under this Act, use of the self-rescue device 

where appropriate and use of respiratory devices 

where appropriate, hazard recognition, emergency procedures, electrical hazards, first aid, walk 

around training and the health and safety aspects of ·the task to which he will be assigned; 

(3) all miners shall receive no less than eight hours of refresher training no less frequently than once each 12 months, except that miners 

already employed on the effective date of the 

Federal Mine Safety and Health Amendments Act of 

1977 shall receive this refresher training no more 

than 90 days after the date of approval of the 

training plan required by this section; 

(4) any miner who is reassigned to a new task in 

which he has had no previous work experience shall 

receive training in accordance with a training plan approved by the Secretary under this subsection in the safety and ~ealth aspects specific 

to that task prior to performing that task; 

(5) any training required by paragraphs (1) , (2) , or (4) shall include a period of training as 

closely related as is practicable to the work in 

which the miner is to be engaged·. 

(b) Any health and safety training provided under 

subsection (a) shall be provided during normal working hours. Miners shall be paid at their normal rate of 

compensation while they take such training, and new 

miners shall be paid at their starting wage rate when 

they take the new miner training. If such training shall be given at a location other than the normal 

place of work, miners shall also be compensated ~or the 

additional costs they may incur in attending such 

training sessions. 

* * * * * * * * * * * 

1636 
Part 48 of 30 C.F.R. sets forth the training requirements for underground mines (Subpart A) and surface mines 

(Subpart B) • 

Section lOS(c) of the Act, supra, provides as follows: 

(c) (1) No person shall discharge or in any ·manner 

discriminate against or cause to be discharged or cause 

discrimination against or 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 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. · · 

(2) Any miner or applicant for employment or representative of miners who believes that he has been 

discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection 

may, within 60 days after such violation occurs, file a 

complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the 

respondent and shall cause such investigation.to be 

made as he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt of 

the complaint, and if the Secretary finds that such 

complaint was not frivolously brought, the Commission, 

on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the 

miner pending final order on the complaint. If upon 

such investigation, the Secretary determines that the 

provisions of this subsection have been violated, he 

shall immediately file a complaint with the Commission, 

with service upon the alleged violator and the miner, 

applicant for employment, or representative of miners 

1637 
alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an opportunity for a hearing; (in 

accordance with section 554 of title 5, United States 

Code, but without regard to subsection (a) (3) of such 

section} and thereafter shall issue an order, based 

upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or directing 

other appropriate relief. Such order shall become final 30 days after its issuance. The Commission shall 

' have authority in such proceedings to require a person 

committing a violation of this subsection to take such 

affirmative action to abate the violation as the Commission deems appropriate, including, but not limited 

to, the rehiring or reinstatement of the miner to his 

former position with back pay and interest. The 

complaining miner, applicant, or representative of 

miners may present additional evidence on his own 

behalf during any hearing held pursuant to this paragraph. 

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

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

writing, the miner, applicant for employment, or representative of miners of his determination whether a violation has occurred. If the Secretary, upon investigation, determines that the provisions of this subsection 

have not been violated, the complainant shall have the 

right, within 30 days of notice of the Secretary's determination, to file an action in his own behalf before 

the Commission, charging di'scrimination or interference 

in violation of paragraph (1). The Commission shall 

afford an opportunity for a hearing (in accordance with 

section 554 of title 5, United States Code, but without 

regard to subsection (a) (3) of such section) , and 

thereafter shall issue an order, based upon findings of 

fact, dismissing or sustaining the Complainant's charges and, if the charges are sustained, granting such 

relief as it deems appropriate, including, but not 

limited to, an order requiring the rehiring or reinstatement of the miner to his former position with back 

pay and interest or such remedy as may be ap~ropriate. 

Such order shall become final 30 days after its issuance. Whenever an order is issued sustaining the 

complainant's charges under this subsection, a sum 

equal to the aggregate amount of all costs and expenses 

(including attorney's fees} as determined by the Commission to have been reasonably incurred by the miner, 

applicant for employment or representative of miners 

for, or in connection with, the institution and prosecution of such proceedings shall be assessed against 

1638 
the person committing such violation. Proceedings 

under this section shall be expedited by the Secretary 

and the Commission. Any order issued by the Commission 

under this paragraph shall be subject to judicial review in accordance with section 106. Violations by any 

person of paragraph (1) shall be subject to the provisions of sections 108 and llO(a). 

Factual and Procedural Background 

On June 19, 1981, the operator sent a letter to all 

laid off employees in its Eastern division, advising them 

that Federal and state law required that they meet minimum 

standards prior to resuming work after having been laid off. 

Effective immediately, if laid off from any Peabody facility, it was their responsibility to keep their training 

current. If they failed to do so, they would be bypassed 

for recall in favor of panel members whose training was 

current. 

The "panel" referred to in the operator's letter was 

established by Article XVII(d) of the National Bituminous 

Coal Wage Agreement of 1981 to which the operator was a 

party and which provides in pertinent part as follows: 

Employees who are idle because of a reduction in the working force shall be placed 

on a panel from which they shall be returned to employment on the basis of seniority as outlined in section (a). A 

panel member shall be considered for every 

job which he has listed on his layoff form 

as one to which he wishes to be recalled. 

Each panel member may revise his panel 

form once a year. 

Article XVII(a) of the 1981 Agreement defines seniority 

as "length of service and ability to step into and perform 

the work of the job at the time the job is.awarded." 

Pursuant to its letter dated June 19, 1981, the operator bypassed a laid off miner, who would otherwise be recalled for a job under the 1981 Agreement, if the operator 

determined that such miner required training under 30 C.F.R. 

Part 48, before he could "step into and perform the work of 

the job.·· 

In December 1982, Joseph Lamonica, MSHA's administrator 

for Coal Mine Safety and Health advised the Director of 

Training for Peabody that the operator's policy of requiring 

up-to-date training status under Part 45 was inconsistent 

1639 
with the ·Act. In April 1983, MSHA revoked approval of the 

operator's training plans and issued appropriate citations. 

The operator then discontinued its policy and the citations 

were terminated. 

The parties have divided laid off miners involved in 

these suits into three categories. Category I consists of 

those individuals who, as a result of the operator's policy, 

obtained training on their own time and at their own expense, and were then recalled to work by the operator. The 

operator subsequently agreed to pay Category I individuals. 

On November 4, 1983, a Decision Approving Settlement was 

issued granting a monetary judgment for named miners in 

Category I and dismissing all suits regarding Category I 

with prejudice. 

Category II is comprised of individuals who were bypassed on the recall panel because the operator determined 

they would need additional training under Part 48 to fill 

the job, and therefo~e were not considered experienced 

miners under the regulations. It is agreed that the named 

plaintiffs suing for themselves all fall within Category II, 

i.e., laid off miners who were "bypassed" as described 

above. In LAKE 83-69-D, the Complainant, Thomas L. Williams, was an experienced underground miner who, upon being 

laid off, was placed on a recall panel and indicated·an 

interest in surface mine positions. Because Mr. Williams 

had not received the training for a surface miner required 

by section 115 and Part 48, the operator bypassed him in 

favor of a miner with fewer years of service. In KENT 83-

105-D, the Complainant, Jerry D. Moore, also was a laid off 

underground miner who wanted a surf ace mine job but was 

bypassed by the operator because he did not satisfy the 

training requirements of section 115 and Part 48 of the 

regulations for surface mines. Similarly, the Complainant 

in KENT 83-106-D, Larry D. Kessinger, was a laid off underground miner who was bypassed for a surface job because 

the surf ace training he had was insufficient to meet the 

training requirements of the Act and regulations. 

Category III is composed of individuals who, as a result of the operator's policy, obtained training on their 

own time and at their own expense, but whose names were not 

reached on the recall panel because of their relatively 

shorter length of service. 

KENT 82-103-D is a suit by the union on behalf of all 

laid off Peabody employees in the Eastern Division. This 

includes Category II and Category III miners only since 

Category I was settled. It names James Rowe, a UMW official 

at the time KENT 82-103-D was filed, as a representative of 

all laid off miners in the operator's Eastern Division. 

1640 
Summary Decision 

All parties have moved for summary decision under 

Commission Rule 64, 29 C.F.R. § 2700.64, which provides that 

a motion for summary decision shall be ~ranted if the entire 

record shows that there is no genuine issue as to any 

material fact and that the moving party is entitled to 

summary decision as a matter of law. 

In the cases brought by the union, the union and the 

operator have entered into and submitted 68 stipulations. 

Although the stipulations contain material which does not 

belong in sets of factual stipulations, I conclude that the 

stipulations set forth agreed-upon facts sufficient to 

enable me properly to render summary decision. They also 

make clear that what is involved is a question of· law. In 

the case brought by the Secretary, the operator responded to 

the Secretary's Request for Admission of Facts by admitting 

the relevant circumstances and showing that the issues of 

law involved are the same as those in the other cases. 

Accordingly, here too, I conclude that summary decision 

would be proper. 

Class Action 

In KENT 83-103-D, the United Mine Workers seeks to 

bring a class action on behalf of all laid off Peabody employees, Eastern Division. The procedural rules of the 

Commission do not specifically provide for class actions, 

but under 29 C.F.R. § 2700.1(,b), the Commission or Administrative Law Judge is to be guided so far as practicable by the Federal Rules of Civil Procedure as appropriate. 

Rule 23 of the Federal Rules of Civil Procedure provides in pertinent part as follows: 

(a) Prerequisites to a Class Action. One or more 

members of a class may sue or be sued· as representative 

parties on behalf of all only if (1) the class is so 

numerous that joinder of all members is impracticable, 

(2) there are questions of law or fact common to the 

class, (3) the claims or defenses of the representative 

parties are typical of the claims or defenses of the 

class, and (4) the representative parties will fairly 

and adequately protect the interests of the class. 

(b) Class Actions Maintainable. An action may be 

maintained as a class action if the prerequisites of 

subdivision (a) are satisfied, and in addition: 

1641 • 
(1) the prosecution of separate actions by or 

against individual members of the class would 

create a risk of 

(A) inconsistent or varying adjudications 

with.respect to individual members of the 

class which would establish incompatible 

standards of conduct for the party opposing 

the class, or 

(B) adjudications with respect to individual 

members of the class which would as a practical matter be dispositive of the interests 

of the other members not parties to the 

adjudications or substantially impair or 

impede their ability to protect their interests; or 

(2) the party opposing the class has acted or 

refused to act on grounds generally applicable to 

the class, thereby making appropriate final injunctive relief or corresponding declaratory 

relief with respect to the class as a whole; or 

(3) the court finds that the questions of law or 

fact common to the members of the class predominate over any questions affecting only individual 

members, and that a class action is superior to 

ot~er available methods for the fair and efficient 

adjudication of the controversy. The matters 

pertinent to the findings include: (A) the interest of members of the class in individually 

controlling the prosecution or defense of separate 

actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the 

desirability or undesirability of concentrating 

the litigation of the claims in the particular 

forum; (D) the difficulties likely to be encountered in the management of a class action. 

As set forth above, a settlement has been reached with 

respect to Category I. The union's attempt to br~ng a class 

action for Categories II and III remains. 

The burden is on the party who seeks to utilize the 

class action to establish his right to do so. Zeidman v. 

McDermott, 651 F.2d 1030 (5th Cir. 1981). After due consideration, I conclude that the union has failed to satisfy 

several important requirements of Rule 23 . 

• 
The only named Complainant in KENT 82-103-D, which is 

brought by the union on behalf of all laid off Peabody employees, Eastern Division, is James Rowe. The union's 

motion in opposition to the operator's motion to strike 

admits Mr. Rowe is not a laid off miner (p. 7-8, UMW's 

Opposition to Motion to Dismiss}. At the time suit was 

filed, Mr. Rowe was employed by the union but as of December 

30, 1982, he had returned to his job at a Peabody surface 

mine. The union argued in its motion that since Mr .. Rowe is 

a miner at a Peabody mine, he will be subjected to all Peabody policies, including the policy at issue in this case. 

Following the union's rationale, every active Peabody 

employee would be a party to this suit, although they do not 

fall within the class of laid off employees, as delineated 

by the union itself. 

Assuming the union's description of Mr. Rowe's present 

status is correct, it does not provide a basis upon which he 

can serve as a representative of the specified class. 

Rule 23 requires that a class representative be a part of 

the class and possess the same interest and suffer the same 

injury as the class members. E. Texas Motor Freight System, 

Inc. v. Rodriguez, 431 U.S. 395 (1977}. Mr. Rowe cannot 

qualify as a representative of the class merely because he 

worked in the Union Safety Division where his duties were 

concerned with improving the health and safety of union 

members. His job duties at the union, even if they had 

continued, would not put him in the situation of a laid off 

employee. Since Mr. Rowe was not a laid off miner, he could 

not have the same interest nor did he suffer the same 

injury as the putative class. Mr. Rowe must be stricken as 

a representative example of the class of laid off employees. 

Moreover, the union itself cannot adequately and fairly 

represent either Category II or Category III complainants. 

In its motion to oppose the operator's motion to dismiss, 

the union asserts that because it "is an organization whose 

very purpose is to protect the interests of the miners it 

represents," it will fairly represent the interests of the 

class (pp. 7-8, UMW's Opposition to Motion to Dismiss}. 

However, the dilemma of union's counsel in trying to decide 

what kind of relief to seek demonstrates the inability of 

the union to represent the diverse and conflicting interests 

of all members of the bypassed class. Union counsel could 

not decide whether to seek reinstatement of bypassed miners 

since such action could require "bumping" a union member 

with less seniority (Tr. 80-82, Hearing October 13, 1983}. 

In Airline Stewards & Stewardesses Ass'n Local 550 TWU, AFLCIO, v. American Airlines, 490 F.2d. 636 (7th Cir. 1973} the 

court held that a labor union, presumably largely under 

control of present employees, is not a proper representative 

1643 
of all separated and present employees in an action charging 

discriminatory separation and seeking, inter alia, reinstatement, since there are obvious antagonistic interests 

among the class. 

It is further clear from the "bumping" issue that not 

only is the union unable to represent the class but also 

that there are conflicting claims between the members of the 

class themselves. The Supreme Court has pointed out that to 

the extent that persons have dual and potentially conflicting interests, they cannot be regarded as in the same class. 

Hansberry v. Lee, 311 U.S. 32 (.1940). 

The union also has not met the requirements of Rule 

23(a)(l) because it has failed to show that the members of 

Categories II and III are so numerous that joinder would be 

impracticable. As support for the class action, the union 

relied upon the affidavit dated August 9, 1981, of Mike 

Turner, a Peabody employee, which stated that since June 19, 

1981, there had been 1000 layoffs and 380 recalls, but that 

it was impossible to identify instances of bypassed miners. 

With respect to Category II, therefore, the Turner affidavit 

expressly states there is no information. With respect to 

Category III, the figures in the affidavit are two years old 

and more importantly, it is not clear upon what they are 

based. Moreover, the information the union itself furnished 

strongly militates against allowance of a class action. 

Counsel for UMW.has asserted that both Categories II and III 

have a finite number of members. This would appear to be 

so, especially since the operator has discontinued the challenged policy. At the hearings, union counsel stated that 

eight members of Category. II and six members of Category III 

had been identified (Tr. 32, 56, Hearing, October 13, 1983; 

Tr. 6-9, Hearing, July 5, 1984). In proposed stipulations, 

she listed seven in Category II and six in Category III (UMW 

letter to Peabody counsel, dated October 3, 1983). Having 

fixed the class membership at such a small number of people who are readily identifiable, she has demonstrated the practicability of joinder and the lack of need for a class 

action. 

Since Mr. Rowe must be stricken as a representative, 

and since the union itself does not qualify and finally 

because the purported class has not been shown to satisfy 

the requirements of Rule 23, the complaint in KENT 82-103-D 

must be dismissed. No class action is allowed. Because the 

case does not qualify as a class action and because the individuals mentioned by union counsel were never joined although it was possible to do so, they are not before me and 

cannot be granted relief. The claims of the individually 

named Category II complainants survive in the other docket 

numbers. 

1644 
Discrimination and Right to Training in Lay Off Situation 

Section 115 quoted supra, establishes the right of mine 

employees to receive basic safety training and the obligation of the operator to provide that training for them. 

Those classified as new miners are to receive 40 hours of 

training prior to underground assignment or 24 hours before 

surf ace assignment. The training is designed to cover the 

primary hazards of each and is to be as mine-related as 

possible. Operators are required to provide miners with at 

least 8 hours of refresher training once every 12 months and 

to provide miners with training in specific safety and 

health aspects of the work they are assigned. 

The legislative history makes clear that the financial 

responsibility and economic burden of providing training are 

placed solely upon the operator and not upon the individual 

miner or the government. The Senate Report unequivocally 

states in this respect as follows: 

It is not the Committee's contemplation that 

the Secretary be in the business of training 

miners. This is clearly the responsibility 

of the operator, as long as such training 

meets the Act's minimum requirements. S.REP. 

NO. 95-181, 95th Cong., 1st Sess. SO (1977), 

reprinted in LEGISLATIVE HISTORY OF THE 

FEDERAL MINE SAFETY AND HEALTH ACT OF 1977, 

95th Cong., 2nd Sess., at 638 (1978) hereinafter referred to as "Leg. Hist."). 

The discussion surrounding s. 717 (the Senate version 

of the 1977 Act) further demonstrates that the operators 

were expected to assume the costs associated with the training requirements. 

MR. WILLIAMS. There are certain aspects of 

the cost that will arise from this legislation that we feel can be quite precisely estimated. There is, at long last, a clear 

precise demand for training of new employees 

coming to work in the mines. This· has been 

one of the great failures, as I see it, in 

the preparation of workers for their jobs in 

a very hazardous industry, preparation that 

will contribute to a safer work place. We do 

have a clear demand for training-- - as a matter of fact, 40 hours for new underground 

miners, 24 hours for surface miners, and 8 

hours of annual retraining for experienceq 

miners. This is one of the large figures 

that went into the total estimate of new cost 

to industry. 

1645 
We estimated it this way: With training at $75 a day, for the annual retraining 

of 478,000 miners for 1 day, that multiplies 

out to $35,875,000. 

I mentioned the new surface miners. There 

is a demand that they be trained. The training 

of 15,000 new surface miners at 3 days will total $3.375 million. 

Training 10,000 new underground miners 

this is the 40-hour training provision. That 

is 5 days. It comes to $3.750 million. The 

total for this training will be $43 million. 

123 CONG. REC. S. 10219 (daily ed. June 20, 1977). 

The legislative history of section 105(c) shows that 

the anti-discrimination provisions apply to the training 

provisions. The Senate Report states in this respect: 

The Committee also intends to cover within 

the ambit of this protection any discrimination against a miner which is the result of 

the safety training provisions of section 

* * * [115] or the enforcement of those provisions under section* * * [104(g)]. Leg. 

Hist. at 624. 

The Act and the legislative history do not specifically 

address the situation of the laid off miner. The operator's 

position is, therefore, plain and simple. Its responsibility for training under the policy in effect at the pertinent time ran only to those individuals who were actually 

performing work for it. The operator asserts that it had 

the right to hire (or rehire) individuals who had the requisite training over those who did not. The union and the 

Secretary argue, however, that based upon certain rights 

accorded laid off miners under the National Bituminous Coal 

Wage Agreement of 1981, those who would have been recalled 

but were instead bypassed because they did not have the 

training required by the Act and regulations, fall within 

the scope of sections 115 and 105(c). 

As set forth above, Article XVII(d) of the Agreement 

establishes recall panels for laid off miners from which. 

they are to be returned to employment on the basis of seniority. "Seniority" is defined in section (a) of Article 

XVII as length of service and the ability to step into and 

perform the work of the job at the time the job is awarded. 

In addition, section (f) of Article XVII provides that employees on layoff status continue to accrue seniority while 

1646 
they are on the recall panel. Section (c) of Article XIV 

includes periods of layoff as part of one's continuous 

employment with a particular employer. 

I adhere to the view that it is not the principal pro- . vince of the Administrative Law Judges of this Conimission to 

interpret provisions of the collective bargaining agreement. 

However, I also believe that the status and rights of individuals under the Mine Safety Act must not be viewed in a 

vacuum when to do so would stand the Act on its head by 

perversely transforming its protections into unforeseen and 

crippling liabilities. 

The three named complainants in KENT 82-105-Di KENT 82-

106-D, and LAKE 83-69-D were reached on recall panels for 

jobs to which they.were entitled and which they would have 

been given but for the training requirements of the Act and 

regulations. As appears from the legislative history quoted 

supra, because of the hazardous nature of mining which over 

the years had caused a series of appalling disasters, Congress enacted the training provisions of section 115 to 

protect miners by making sure that operators adequately 

trained them. However, under Peabody's policy which is at 

issue here, the effect of the training requirements on laid 

off miners would not be to help and protect but rather to 

hurt and harm. 

The record in the instant cases contains several 

decisions rendered by arbitrators in grievance proceedings 

brought under the 1981 Agreement by laid off miners who had 

been denied jobs because they lacked the required Federal 

training. The arbitrators denied the grievances, reasoning 

that the complaining miners did not have the ability to step 

in and perform the jobs as required by the 1981 Agreement 

because they were not adequately trained in accordance with 

the Mine Act. In response to the miners• assertion that 

under the Act the operator should have provided the training, the arbitrators held that it was not up to them to 

interpret the Federal law. Thus, the very.training provisions designed to protect miners became the reason for their 

continued unemployment under the collective bargaining agreement. If in interpreting the Mine Act, I now were to 

ignore the status and rights given laid off miners under the 

collective bargaining agreement, they would end up in a 

legal "no-man's-land" between the two. I will not adopt 

such an unfair and unrealistic approach. 

Accordingly, I conclude that in interpreting the Act in 

these cases, account must be taken of the provisions of the 

collective bargaining agreement insofar as they affect the 
status of laid off miners. As set forth above, the collective bargaining agreement gives the laid off miner several 

very important rights, including placement on a recall panel, the right to opt for certain jobs, and the right to invoke the grievance procedure. Also, accrual of seniority 

continues as does continuous employment with one employer. 

I have considered arbitration decisions which are in conflict .over whether the employment relationship continues or 

is severed in the lay off situation. I do not find them 

particularly useful or instructive and in any event, I 

believe that the instant cases should be decided in light of 

the purposes and goals of the Mine Act. I conclude that the 

laid off miner is certainly in a position far different and 

more advantageous than just anyone seeking employment in the 

mines. Moreover, some of the laid off miners' rights such 

as accrual of seniority and computation of continuous employment with one employer go beyond giving-preference in 

applying for a job. The laid off miner clearly is more than 

just a preferred job applicant. I conclude that the rights 

accorded a laid off miner under the collective bargaining 

agreement contain indicia of an ongoing employment relationship sufficient for him to be considered a miner within the 

purview of sections 115 and 105(c) of the Act. I have not 

overlooked the definition of "miner" in section 3(g) of the 

Act. In view of the pertinent provisions of the collective 

bargaining agreement and the overriding purposes of the 

training provisions of the Act, I conclude that for present 

purposes, the laid off miner must be considered an individual working in a coal mine. That is where he would be if 

not for an interruption caused through no fault of his own. 

I have, of course, considered the decision of the Commission in Secretary of Labor v. Emery Mining Corporation, 

5 FMSHRC 1391 (1983) which has been discussed· and analyzed 

at length by the parties. That decision which the Commission itself confined to the facts presented, is distinguishable from these cases because it involved miners who 

were "strangers" in that they had no previous relationship 

with the industry or the employer. 

To the extent that the conclusions expressed herein may 

be inconsistent with the Judge's decision in United Mine 

Workers of America, etc. v. Peabody Coal· Company, 4 FMSHRC 

1338 (1982) , I decline to follow it. 

Accordingly, I conclude that the operator ·discriminated 

against the named Complainants in KENT 82-105-D, KENT 82-

106-D, a~d LAKE 83-69-D, by violating their statutory rights 

regarding training. These Complainants must now be given 

the jobs they originally would have been given (or comparable jobs) and must be awarded appropriate damages. 

1648 
In LAKE 82-69-D, the Secretary declined to file a 

motion for temporary reinstatement on behalf of Mr. Williams. In light of the finding for Mr. Williams on the 

merits, this issue now becomes moot; but as the analysis 

already set forth makes clear, the Secretary should have 

sought temporary reinstatement and erred in not doing so. 

As set forth above in the discussion regarding class 

actions, no valid complaint has been made out with respect 

to Category III Complainants. However, in order that this 

matter be as comprehensively handled as possible for the 

benefit of the Commission, I deem it appropriate to express 

my views on the merits regarding Category III. Category III 

like Category II is composed of laid off individuals. There 

is, however, a difference which is crucial for present purposes. The Category II people have been reached on the recall panel and the Category III people have not. The rights 

given under the collective bargaining agreement and the Act 

regarding rehiring and training actually exist with respect 

to Category II, but are merely inchoate for Category III. 

As set forth herein, the right to a job cannot be denied for 

a lack of training, but the right to a job itself is predicated upon being reached on the recall panel. If there is 

no right to a job, there is no right to training. Whether 

an individual will be reached on a recall panel depends upon 

a multiplicity of unpredictable factors, including the state 

of the coal industry and the well-being of the entire economy. Indeed, an individual may never be reached. Under the 

circumstances, the right to training which depends on being 

recalled is too speculative to be allowed for Category III 

individuals. Finally, since, as held herein, Category II 

persons are entitled to training, those in Category III are 

not in any way jeopardized since they will be entitled to 

the jobs and any necessary training when they are reached on 

the recall panel. 

ORDER 

It is Ordered that the complaint in KENT 82-103-D be 

Dismissed. 

It is further Ordered that the complaints of discrimination in KENT 82-105-D, KENT 82-106-D, and LAKE 83-69-D be 

Allowed. 

It is further Ordered that the operator place the named 

Complainants in KENT 82-105-D, KENT 82-106-D, and LAKE 83-

69-D in the jobs they would have been given if they had not 

been bypassed, or in comparable jobs, together with all 

necessary training. 

1643 
It is further Ordered that on or before July 23, 1984, 

the parties submit a statement setting forth the amounts of 

agreed upon monetary relief for each of the named Complainants. 

It is further Ordered that if agreement is not reached 

on monetary relief, the parties appear before me at 10:00 

a.m., July 24, 1984, at 1730 K Street, N.W., Washington, DC 

20006. 

Finally, it is Ordered that on or before July 23, 1984, 

the Solicitor file petitions for the assessment of civil 

penalties in KENT 82-105-D, KENT 82-106-D, and LAKE 83-69-D. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Michael o. McKown, Esq., P.O. Box 235, St. Louis, MO 63166 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th Street, N.W., Washington, DC 20005 (Certified Mail} 

Frederick w. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail} 

/nw 

1650 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

. 1;,-ff'f.'P UL 11 _,_ 198" Alf 

JAMES L. DOWDELL; 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. LAKE 83-96-D 

CONSOLIDATION COAL COMPANY, 

Respondent 

MSHA Case No. VINC CD 83-11 

Appearances: 

Before: 

DECISION 

James L. Dowdell, Scio, Ohio, pro se; 

Jerry Palmer, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint 

filed by the complainant against the respondent pursuant to 

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

1977, 30 u.s.c. § 801 et seq. The initial complaint was 

filed with the Secretary of Labor, Mine Safety and Health 

Administration CMSHA), on July 25, 1983. Following an investigation, MSHA advised the complainant by letter dated 

August 24, 1983, that MSHA's investigation failed to disclose any violation on section 1051c). 

Following receipt of MSHA's notification that it would 

not pursue his claim further, the complainant filed his 

pro se complaint with the Commission on September 9, 1983. 

In response to further orders issued by the Commission's 

chief judge, the complainant furnished additional statements 

concerning his complaint, and these statements included allegations of discrimination on the part of five of respondent's 

management employees. 

Issue 

The critical issue presented in this case is whether 

Mr. Dowdell's discharge was in any way prompted by his engaging in any protected activity under section lOSCc) of the 

Act, or whether it resulted from a violation of company 

policy against fighting on mine property, as claimed by the 

respondent. 

1651 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et seg. 

2. Sections 105Cc)(l), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. §§ 815(c)(l), (2) 

and (3). 

3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

DISCUSSION 

Complainant's Testimony and Evidence 

James L. Dowdell, the complainant in this case, testified that until his discharge in June 1983, he was employed 

by the respondent for approximately 12 years. At the time 

of his discharge, he was employed as a shuttle car operator 

at the Oak Park No. 7 Mine, and he earned the regular union 

pay of $10 to $11 an hour. He stated that he has been 

unemployed since his discharge, and that he has received 

unemployment benefits from the State of Ohio (Tr. 6-9). 

Mr. Dowdell asserted that there was consumption of beer 

and alcohol in the underground mine, as well as fighting 

among miners, and that mine superintendent Matkovich would 

do nothing about it. With regard to his fight with 

Mr. Thompson, Mr. Dowdell stated that it took place off mine 

property on State Road 9 and that Mr. Thompsom pulled a 

knife.· Mr. Dowdell stated that the police were not called 

and that Mr. Thompson "got skinned up a little bit" (Tr. 

14). 

Mr. Dowdell admitted that he was wrong in fighting, but 

he insisted that the fight did not violate company rules 

because it took place off mine property. He asserted that 

he cannot read and write, and that at the time of his discharge, he had learned that he and other miner's were being 

laid off. He went to the mine to retrieve some clothing, 

and when he arrived he asserted that Mr. Thompson "started 

hollering and calling me all kinds of names and stuff, and 

pulled a knife on me" (Tr. 15). 

Mr. Dowdell confirmed that his discharge was arbitrated 

under the union-management contract (Tr. 16-18). He was 

discharged for fighting with Mr. Thompson, and they were not 

drinking (Tr. 19). Mr. Dowdell alluded to several prior 

fights between other miners which he claimed occurred "a few 

years back," and one which occurred a month or two before 

1652 
his fight with Mr. Thomspon, and he claimed that no one was 

disciplined for these fights (Tr. 21). 

Mr. Dowdell alleged that miners were drinking beer on 

the job and that nothing was done about it CTr. 27). When .. asked why the safety committee was never apprised of the 

alleged drinking and fighting, Mr. Dowdell' stated "most 

union men that sees another fight don't just go out and tell 

on_ another union man" CTr. 25), and "they're union men, the 

safety men, and they see them fill it up, and see them drink 

it. Now who am I going to report it to?" CTr. 29). 

Mr. Dowdell asserted that he was assigned certain job 

tasks which were not safe, .including the shoveling of coal 

on the belt slope CTr. 32) and working in dust CTr. 32-36). 

However, he conceded that after complaints were made about 

the shoveling on the belt slope, and the dust, the matters 

were resolved and the conditions were corrected (Tr. 37). 

He also confirmed that when he complained, he was assigned 

to other work CTr. 37). 

Mr. Dowdell alluded to the fact that he was called into 

the mine manager's office to discuss the matter of conversation over the mine phone, including the use of profanity 

(Tr. 43-44). He claimed that mine foreman Sikora accused 

him of speaking over the phones and that he threatened to 

fire him over the matter CTr. 45-46). He also alluded to 

the fact that shift foreman Cristini has also threatened to 

fire him over the conversation on the mine phones (Tr. 47). 

He also alluded to an incident concerning the removal of a 

scoop from the mine, and Mr. Dowdell believed that the procedures· used by Mr. Cristini for removing the scoop were 

unsafe C Tr. 48-54). ·· Mr. Dowdell alluded to instances when 

he was taken. off different job tasks. and assigned to others, 

and while he believed that this was 'improper, he never filed 

any grievances (Tr. 69). 

On cross-examination, Mr. Dowdell confirmed that he 

fought with Mr. Thompson and struck ·him in the face. However, he asserted that Mr. Thompson had a knife and that he 

was simply defending himself, and that the fight took place 

on State highway No. 9 (Tr. 72-76). Mr. Dowdell also mentioned some previous fights among miners which he claimed 

took place underground, and he also claimed that he had complained about some bad brakes on a shuttle car. He claimed 

that he complained to the safety committee about the brakes, 

and as a result of his complaints, he was taken off the 

shuttle car and someone else was assigned that task CTr. 78). 

He also claimed that he had complained to a Federal inspector, and he confirmed that the brake calipers were repaired 

and that no citations were issued CTr. 80-81). 

1653 
Ronald Taylor testified that he has been employed by 

the respondent for approximately a year as an unskilled 

laborer, and that he has been intermittently laid off from 

time to time. ----~He was last called back to work on March 1, _ .1984. Mr. Taylor stated that he did not know what the present case was about other than the fact that the complainant 

had a fight with Mr. Thompson. As for any fighting by other 

miners and drinking on the job, Mr. Taylor stated that n1 

wasn't working there at the time, you know, it's all 

hearsay" (Tr. 82-87). 

Mr. Taylor stated that the complainant did complain to 

mine management about Mr. Thompson's insistance on using a 

certain aisle in the wash house to reach his dressing area, 

and that this is what precipitated the fight with the 

complainant (Tr. 89). Mr. Taylor confirmed that he was not 

at the mine when the fight took place (Tr. 90). Mr. Taylor 

stated further that the complainant took the matter of 

Mr. Thompson insisting on using an aisle where other miners 

dressed to the safety committee because Mr. Thompson would 

bump other miners with his clothes basket, and he (Taylor) 

believed this was a safety issue. Mr. Taylor indicated that 

he too complained to a member of the safety committee CTr. 

94). The safety committee member spoke to mine management, 

and the superintendent and shift foreman spoke to Mr. Thompson 

about the matter (Tr. 95). 

Mr. Taylor stated that he has personally never observed 

any miners fighting, and that he never observed any miners 

drinking on the job, nor has he ever heard of anyone having 

liquor- in· the mine (Tr. 96). Moreover·, he knows of other 

miners, including himself, who drank beer on the parking lot 

and in the wash house after their shift was over, and thatthese areas were on company property' (Tr. 96-97). 

Mr. Taylor alluded to an encounter-at the mine between 

Mr. Dowdell and one Ray Tubble. He _indicated that it started 

as "a joke" with the two pushing each other, and Mr. Tubble 

got mad and upset when his belt was broken, and Mr. Dowdell 

offered to buy him a new one (Tr. 96, 99). He also alluded 

to nhearsayn of a fight between Mr. Tubble and one Tank 

Stall, but he did not witness the alleged incident (Tr. 101). 

Mr. Taylor also alluded to an asserted nproblemn about 

shovelling coal on the slope. Moreover, he indicated that 

the matter was resolved between mine management and the 

safety committee. Mr. Taylor indicated that Federal inspectors come to the mine, and after it was determined where it 

was safe to shovel, the matter was mutually resolved. 

Mr. Taylor also stated that he was never required to shovel 

1654 
where he believed it was unsafe, and he could not recall 

whether Mr. Dowdell was part of the crew which complained 

about the shovelling on the slope (Tr. 106). He also indicated that he was never assigned to shovel on the slope as 

"punishment," '·and he conceded that this was part of his job 

(Tr. 107). 

Mr. Taylor indicated that he had no knowledge about 

Mr .. Dowdell being assigned to shovel on the slope after the 

other crew which complained was taken off that job CTr. 107). 

On cross-examination, Mr. Taylor stated that he did not 

know whether Mr. Dowdell or Mr. Thompson complained to mine 

management about their fight, nor did he know whether 

Mr. Stall or Mr. Tubble informed management about their 

alleged fight CTr. 109). 

Ronald Stall testified that he never engaged in any 

fights in the mine with Ray Tubble. He "has heard" about 

fights, including an alleged incident in 1970 involving a 

foreman, but ~r. Stall was not at the mine at that time (Tr. 

130). He also alluded to an incident which he characterized 

as "horseplay," but could furnish no other details (Tr. 

121). 

When asked if he knew what this case was about, 

Mr. Stall responded "Well, he got fired. That's all I know. 

I know he's got a discrimination case--some kind" (Tr. 122). 

Mr. Stall confirmed that he was not at the mine when 

Mr. Dowdell and Mr. Thompson got into a fight CTr. 125). 

Dan Hoffman testified that he has been employed at the 

mine for approximately 14 years as a mechanic. He could not 

recall Mr. Dowdell being taken off his regular job as a 

shuttle car operator and being assigned to laborer's work, 

and while he "has heard" about fights in the mine, he had no 

personal knowledge about any of them (Tr. 132). 

Although he alluded to an alleged bad brake condition 

on a shuttle car, Mr. Hoffman had no recollection of anything specific (Tr. 134). Further, while he "has heard" 

about the fight between Mr. Dowdell and Mr. Thompson, 

Mr. Hoffman was not at the mine when the incident occurred, 

and he had no personal knowledge about the matter (Tr. 134). 

When asked about his understanding of Mr. Dowdell's complaint in this case, Mr. Hoffman stated that "my understanding is that the fight didn't happen on company property--

that's the only thing I've heard. I don't really know" (Tr. 134). . 

1655 
George Armstrong testified that he is employed by the 

respondent as a continuous-miner operator. He stated that 

he had no knowledge of any trouble between Mr. Dowdell and 

Mr. Thompson other than "walking through the aisle" in the 

wash house. Mr. Armstrong also stated that he has .. never .. observed any fights at -the mine (Tr. 137), and he confirmed 

that he did not witness the fight between Mr. Dowdell and 

Mr. Thompson CTr. 143). 

Respondent's Testimony and Evidence 

Joe Matkovich mine superintendent, testified that he 

hired Mr. Dowdell sometime in 1981 or 1982. He confirmed 

that he considered his complaints concerning Mr. Thompson· 

and other miners in the bathhouse. One complaint concerned 

Mr. Thompson's insistance on using a certain aisle to walk 

to his dressing locker, and the other complaint concerned a· 

complaint by Mr. Thompson that men were throwing pop cans at· 

him in the bathhouse (Tr. 177-182). 

Mr. Matkovich stated that he first learned about the 

fight between Mr. Dowdell and Mr. ~hompson when he received 

a telephone call at his home from acting shift foreman Don 

Vanscay on the evening of June 23, 1984. Mr. Vanscay 

advised him that the fight took place in the bathhouse. The 

mine had officially gone on lay-off status that evening, and 

during the next few days while the mine was idle Mr. Matkovich 

conducted an inquiry to ascertain the facts surrounding the 

fight (Tr. 18 3) • 

Mr. Matkovich stated that his inquiry into the fight 

.established that Mr. Dowdell struck Mr. Thompson in the mouth 

as he got out of his car in the area by the back doors of the 

bathhouse. As Mr. Thompson stumbled through the bathhouse · doors, Mr. Dowdell kicked him in the rear. Mr. Dowdell claim 

that the fight took place on the State Highway road No. 9, 

after Mr. Dowdell confronted Mr. Thompson and invited him 

there. Mr. Dowdell claimed that Mr. Thompson drew a knife, 

and that he kicked it out of Mr. Thompson's hand and punches 

were exchanged. Mr. Matkovich stated that a search was 

conducted by five or six foremen and a represenative of the 

company's industrial relations office, but that no knife was 

found (Tr. 183-185) •. 

Mr. Matkovich confirmed that he made the decision to 

discharge Mr. Dowdell for violating company policy against 

fighting, and he identified Exhibit R-1, as a copy of the 

discharge letter given to Mr. Dowdell. The letter should 

have been dated July 8, 1983, and the June date is simply a 

typographical error (Tr. 188). Mr. Matkovich also identified Exhibit R-2, as a copy of the company employee conduct· 

1656 
rules which are posted at the mine and which served as the 

basis for the discharge (Tr. 191). 

Mr. Matkovich confirmed that at no time during his 

inquiry into the fighting incident did anyone ever.mention . any safety activities engaged in by Mr. Dowdell. He also 

confirmed that Mr. Dowdell appealed his discharge through 

the regular union-management contract, and after a hearing 

before an arbitrator, the discharge was sustained (Tr. 192, 

Exhibit R-3). 

Mr. Matkovich stated that he has investigated past complaints of employees fighting at the mine, and in one 

instance his discharge of an employee in late 1981 or early 

1982 was upheld after it went to arbitration (Tr. 194). As 

for drinking on the job, Mr. Matkovich stated that he was 

not aware of any drinking on mine property and that no one 

ever made any complaints to him about such conduct (Tr. 196). 

Mr. Matkovich also indicated that he had no knowledge that 

Mr. Dowdell received unemployment compensation after his 

discharge (Tr. 196). 

Mr. Matkovich confirmed that he had received a complaint 

in August 1982, from some miners about shovelling coal on the 

slope belt. Miner Karen Overheart had reportedly been hit on 

her hard hat by a lump of coal, and the miners complained 

that shoveling on the slope belt was unsafe. As a result of 

this complaint, the safety committee and Federal inspectors 

visited the belt area and certain belt areas were designated 

as areas where shovelling could be done while the belt was 

idle or on a weekend (Tr. 197-199). Mr. Matkovich·could not 

recall· whether Mr. Dowdell was among the group of miner's who 

complained (Tr. 200). He confirmed that prior to his discharge, he had never had any problems with Mr. Dowdell concerning safety or his work (Tr. 208)~ 

Carl Kelly testified that he is employed by the 

respondent as a rock duster, and th~t on June 23, 1983, he 

worked at the mine during the 4:00 p.m. to 12:00 afternoon 

shift. He stated that while in the bathhouse at the end of 

his shift he heard some commotion at the back door and as he 

turned around he saw Mr. Thompson on his hands and knees 

inside the bathhouse. He observed Mr. Dowdell "more or less 

hollering at Fred," and saw Mr. Dowdell kick Mr. Thompson in 

the rear as he was getting up. He later observed them talking to each other, and he then left the area <Tr. 210-2121 

214-218). Mr. Kelly confirmed that he testified at the arbitration in Mr. Dowdell' case (Tr. 213). 

Frederick c. Thompson testified that he reported for 

work on June 23, 1983, and as he got out of his car and 
started for the bathhouse, Mr. Dowdell attacked him and 

struck him in the face. Mr. Thompson stated that he did not 

strike back because he had his dinner bucket and thermos in 

one hand and his car keys in the other. Prior to striking 

him, Mr. Dowdell told him that a member of the mine safety . committee had informed -him that he (Dowdell) was responsible 

for harassing Mr. Thompson (Tr. 223). · 

_ Mr. Thompson stated that after he was struck by 

Mr. Dowdell, he went down and someone kicked him from the 

rear, but that he did not see who did it (Tr. 224). He then 

entered the bathhouse and went to the shift foreman's room 

to tell him what happened (Tr. 225). Mr. Thompson denied 

that he was ever on the bathhouse floor, and he denied that 

he had a knife with him or that he ever pulled a knife on 

Mr. Dowdell (Tr. 225). 

Mr. Thompson stated that he was later interviewed by 

the mine superintendent and told him what had happened, and · that he also testified at the arbitration hearing in 

Mr. Dowdell's case. He also indicated that as a result of 

being struck by Mr. Dowdell, his lip and denture plate were 

broken (Tr. 226). 

Mr. Thompson stated that Mr. Dowdell had never hit him 

with a clothes basket, push him out of the way as he made 

his way down the aisle of the bathhouse, nor did he ever 

throw pop cans at him. He also confirmed that he had never 

had any trouble with Mr. Dowdell in the bathhouse and he 

stated that "I don't know how this all came about" (Tr. 237). 

Mr. Thompson stated that he did not seek to prosecute 

Mr. Dowdell, and that he has not seen him since his arbitration case (Tr. 242). 

James J. Cristini, shift foreman, testified that he 

worked the afternoon shift at the mine on June 23, 1983. He 

confirmed that he has known Mr. Dowdell .. since 1972, and met 

him at another mine operated by the .respondent, but he never 

directly supervised him. He has supervised him from timeto-time at the Oak Park No. 7 Mine (Tr. 249). 

Mr. Cristini confirmed that Mr. Dowdell and two other 

miner's helped him load and remove a scoop from the mine so 

that it could be repaired. Mr. Cristini stated that proper 

procedures were followed in taking out the scoop and 

Mr. Dowdell said nothing about these procedures (Tr. 253). 

Mra Cristini stated that on June 23, 1983, he heard 

Mr. Dowdell comment that "if Fred (Thompson) shows up, I'll 

get him" (Tr. 256). A few minutes later Mr. Thompson and 

Mr. Dowdell came to his office, and Mr. Thompson's shirt was 

1658 
torn and "his lip was busted." He stated that Mr. Dowdell 

had "sucker-punched him out in the parking lot." Mr. Cristini 

stated that he gave a statement to mine management concerning 

his knowledge of the incident, but that he did not participate 

in the investigation (Tr. 257). 

Mr. Cristini denied that he ever threatened to fire 

Mr. Dowdell because of his alleged derogatory comments about 

him over the mine phone CTr. 266). He also confirmed that 

the incident concerning the phone occurred in 1980 (Tr. 267). 

He denied that he ever asked Mr. Dowdell to do anything 

which was unsafe or that he ever had any problems with 

Mr. Dowdell other than the phone incident (Tr. 272). 

Jerry L. Truschel, section foreman, confirmed that 

Mr. Dowdell worked under his supervision as a shuttle car 

operator shortly before his discharge, but that he was not 

on his crew at the time he was discharged. He could not 

recall Mr. Dowdell ever complaining about the brakes on the 

shuttle car, or ever refusing to operate a car. Mr. Truschel 

confirmed that due to absenteeism on one day, Mr. Dowdell was 

re-assigned to operate a scoop and a cleanup man was assigned 

to operate the shuttle car (Tr. 277). 

Mr. Truschel was at the mine on June 23, 1983, and 

Mr. Thompson walked into the foreman's office. His mouth 

was bloody, his shirt was torn, and his arms were scraped. 

He stated that Mr. Dowdell struck him when he got out of his 

car on the parking lot. Mr. Dowdell then came into the 

office and stated that he struck Mr. Thompson, but insisted 

that the incident occurred on the highway and not on mine. 

property CTr. 278). Mr. Truschel stated that he did not 

participate in the investigation of the incident (Tr. 279). 

Mr. Truschel denied that Mr. Dowdell ever advised him 

that a reel cage was falling off his shuttle car and cutting 

eight or nine cables a day (Tr. 280). He also denied that 

he told Mr. Dowdell to operate his shuttle car with no 

brakes (Tr. 283). · 

Thomas A. Sikora, mine foreman, testified that 

Mr. Dowdell worked for him for a short while for 2 or 

3 months when an old section of the· mine was being readied 

for active production. He never had any problems with 

Mr. Dowdell, and Mr. Dowdell never made any safety complaints to him (Tr. 285). 

Mr. Sikora did confirm that he spoke to Mr. Dowdell 

about his talking over the mine phone, but that he never 

disciplined him about the matter and simply had an informal 

talk with him (Tr. 286). 

1653 
With regard to the matter concerning shovelling on the 

slope belt, Mr. Sikora stated that the matter came up 2 years 

ago, and that after meeting with the miner's who believed · that shovelling in certain areas was unsafe, the matter was 

.resolved by the implementation of safe working instructions 

for the belt ~reas in question (Tr. 288). Mr. Sikora denied 

that he ever assigned Mr. Dowdell to shovel under unsupported 

roof or in any areas marked unsafe (Tr. 289). 

Mr. Sikora confirmed that he participated in the management inquiry concerning the fight between Mr. Dowdell and 

Mr. Thompson. At no time was the matter of Mr. Dowdell making safety complaints ever mentioned (Tr. 289). The decision was made to discharge Mr. Dowdell for striking 

Mr. Thompson on mine property (Tr. 290). 

Mr. Sikora had no knowledge of any prior fighting at 

the mine, and he denied any knowledge of Mr. Dowdell 

shovelling by himself on the slope belt for 6 months (Tr. 

291). He indicated that no one was ever assigned to that 

belt for 6 months (Tr. 292). 

Mr. Sikor.a denied ever stating that he was going to 

fire Mr. Dowdell, and he indicated that he did not participate in the decision to discharge Mr. Dowdell for fighting 

(Tr. 295) • 

Findings and Conclusions 

For the sake of clarity, and in order to insure that 

the Commission's task of review is not needlessly complicated in the event this case is appealed, and in keeping 

with the Commission's admonition as stated in a recent 

opinion in Roger E. Sammons v. Mine Services Co., SE 82-15-D, 

June ~' 1984, I feel it advisable to reiterate the basic 

analytical precedent guidelines established by the Commission 

in the area of discrimination law, a~d these guidelines 

follow below. 

In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining 

miner bears the burden of production and proof to establish 

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

adverse action complained of was motivated in any part by 

that activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co. v. Marshall, 2 FMSHRC 2786, 2799-2800 

(October 1980), rev'd on other grounds sub .!!2!!!• Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981>1 and 

Secretary on behalf of Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 817-18 (April 1981). The operator may rebut 

lSGO 
the prima facie case by showing either that no protected 

activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut 

the prima facie case in this matter it may nevertheless affirmatively defend by proving that Cl> it was also motivated by 

-the miner's unprotected· activities, and (2) it would have 

taken the adverse action in any event for the unprotected 

activities alone. · The operator bears the burden of proof 

with regard to the affirmative defense. !!!!2, v. Maga Copper 

Co., 4 FMSHRC 1935, 1937 (November 1982). The ultimate 

burden of persuasion does not shift from the complainant. 

Robinette, 3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC, 

719 F.2d 194 C6th Cir. 1983>; and Donovan""V. Stafford constr. 

co., Nos. 83-1566, D.C. Cir. (April 20, 1984) (specifically 

approving the Commission's Pasula-Robinette test). The 

Supreme Court has approved the National Labor Relations 

Board's virtually identical analysis for discrimination cases 

arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp.,~- U.S.~-' 76 L.Ed. 2d 

667 (1983). ' 

The parties were afforded an ·opportunity to file posthearing arguments in support of their respective positions. 

Mr. Dowdell filed a one-page letter in which he reiterates 

the assertion that Mr. Thompson was armed with a knife at 

the time of their encounter. He also alluded to the fact 

that miners had been known to drink on mine property. While 

I may sympathize with the fact that Mr. Dowdell brought this 

action_ prose, and do not dispute the fact that he may not 

be totally literate, his arguments simply do not constitute 

a case of discrimination under the Act. 

Respondent's arguments, filed by its legal counsel, 

conclude that Mr. Dowdell's conduct was not protected activity, that he was not the victim of disparate treatment, that 

great weight should be given to the arbitrator's determina• 

tion that his discharage for fighting was appropriate, and 

that he simply has not made out a pr.ima facie case of 

discrimination. 

On the facts presented in this proceeding, there is no 

credible evidence to suggest or support any theory that 

Mr. Dowdell's discharge was in any way connected with any. 

protected safety activities on his part. There is no evidence of any protected work refusals or retaliation for those 

asserted activities, nor is there any evidence that 

Mr. Dowdell made any safety complaints to mine management or 

to MSHA or to state mining officials concerning safety 

matters peculiar to his particular working environment, or 

that mine management retaliated against him by discharging 

him. The thrust of his complaint is that his discharge was 

1661 
arbitrary in that Mr. Thompson was the aggressor and was 

armed with a knife during their fight. Mr. Dowdell obviously 

believes he was.treated unfairly by the respondent when he 

was discharged, and the basis for this conclusion is his 

assertion that-~he was simply defending himself and that the 

fight t;ook place of.f mine property. 

After careful review of all of the evidence and testimony adduced in this case, the respondent has established by 

a preponderance of the evidence and testimony adduced at the 

hearing, including the testimony of witnesses called by 

Mr. Dowdell, that Mr. Dowdell's attack on Mr. •rhompson was 

unprovoked, that Mr. Thompson was not armed with a knife, 

and that the fight did in fact take place on mine property. 

Given the fact that fighting was a dischargeable offense 

under the respondent's rules of conduct, I cannot conclude 

that the respondent acted arbitarily when it discharged 

Mr. Dowdell. Although one may sympathize with Mr. Dowdell 

for losing his job after years of satisfactory service with 

the respondent, absent any showing of a connection with 

protected safety activities under the Act, I believe that 

employee disciplne should be best ·left to the respondent. 

In this case, Mr. Dowdell availed himself of all of the 

rights afforded him under the applicable labor-management 

contract and grievance procedures, and the decision to 

discharge him was solely within the discretion of mine 

management. 

With regard to the question of disparate treatment, 

after careful review of the record here, I cannot conclude 

that Mr. Dowdell has established that he was treated differently from other employees who may have been similarly situated. Although given a full opportunity to present and 

develop his case, even over the objections of respondent's 

counsel that I somehow was acting as' his advocate, Mr. Dowdell 

was unable to substantiate his charges in this regard. All of 

the witnesses called on his behalf, while apearing to me to be 

honest and straightforward, still cquld not substantiate his 

charges. Their accounts of past fights between miners' on mine 

property were lacking in credibility and specific facts, and 

were so far removed in time from the. time of Mr. Dowdell's 

encounter with Mr. Thompson and his discharge as to render any 

sinister motive for the discharge as totaly· lacking in 

credibility. 

With regard to Mr. Dowdell's charges of drinking on the 

job by miners, as well as the implication by the testimony 

of several witnesses that tempers were short and that miners 

at times armed themselves with various weapons to protect 

themselves from other miners, I can only conclude that these 

alleged incidents .have not been shown to have any bearing on 
Mr. Dowdell' s complaint. Further, if such allegations a·re 

true, I believe they are best left to the managerial talents 

of those individuals charged with the responsibility of 

operating the mine. Since the mine has a safety committee, 

and since it is regulated· by MSHA, I would expect that any .. such complaints which may affect the safety of the work 

force at the mine will and should be addressed by these 

entities rather than a Commission Judge assuming the role of 

a policeman. 

Conclusion and Order 

In view of the foregoing findings and concJusions, and 

after careful consideration of all of the evidence and 

testimony adduced in this case, I conclude and find that the 

complainant has failed to establish a prima f acie case of 

discrimination on the part of the respondent. Accordingly, 

the complaint IS DISMISSED, and the Complainant's claims for 

relief ARE DENIED. 

~~f.ti~ Admi~~rative Law Judge · 

Distribution: 

Mr. James L. Dowdell, 41240 New Rumbley Road 2, Scio, OH 

43988 (Certified Mail) 

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/fb 

1663 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 11 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA); Docket No. PENN 83-121 . Petitioner A.C. No. 36-00970-03516 

v. 

. . Docket No. PENN 83-128 

A.C. No. 36-00970-03517 

U.S. STEEL MINING CO., INC., 

Respondent 

. . Docket No. PENN 83-136 

A.C. No. 36-00970-03519 

Appearances: 

Before: 

. . 

. 

. 

. . 

Maple Creek No. 1 Mine 

Docket No. PENN 83-129 

A.C. No. 36-03425-03522 

Docket No. PENN 83-137 

A.C. No. 36-03425-03524 

: Maple Creek No. 2 Mine 

DECISIONS 

Janine c. Gismondi, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Petitioner; 

Louise Q. Symons, Esq., u.s. Steel Mining Company, 

Pittsburgh, Pennsylvania, for Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed by 

the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

820(a), seeking civil penalty assessments for 12 alleged violations of certain mandatory safety standards promulgated pursuant 

to the Act .• 

Respondent contested the proposed civil penalties, and 

pursuant to notice duly served on the parties, hearings were 

held in Uniontown, Pennsylvania. The petitioner filed posthearing briefs, and the arguments and proposed findings and 

conclusions recited therein have been considered by me in 

the course of these decisi~ns. Respondent opted not to filP 

any briefs. 
Issues 

The principal issue presented in these proceedings are 

(1) whether respondent has violated the provisions of the Act 

and implementing regulations as alleged in .the proposal for 

assessment ·of .civil penalty filed, and, if so, (2) the 

appropriate civil penalty that should be assessed against the 

respondent for the alleged violations based upon the criteria 

set forth in section llO(i) of the Act. Additional issues 

raised are identified and disposed of where appropriate in 

the course of these decisions. Included among these issues is 

the question as to whether the cited violations were "significant and substantial." 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the 

following criteria: (1) the operator's history of previous 

violations, (2) the appropriateness of such penalty to the . size of the business of the operator, (3) whether the operator 

was negligent, (4) the effect on t~e operator's ability to 

continue in business, (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting 

to achieve rapid compliance after notification of the violations. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977J 

Pub. L.95-164, 30 u.s.c. §801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. S820(i). 

3. Commission Rules, 29 C.F.R. S2700.l et se~. 

Stipulations 

The parties stipulated that the respondent owns and 

operates the Maple Creek No. l. and No. 2 Mines, and that the 

respondent and the mines are subject to the Act and to the 

jurisdiction of the Commission and the presiding judge. 

The parties also stipulated that the respondent is a 

large mine operator and that the proposed civil penalty 

assessments will not adversely affect the respondent's ability 

to continue in business (Tr. 5). 

lGG~ 
Findings and Conclusions 

Docket No. PENN 83-121 

This case .concerns two section 104(a) "S&S" citations 

issued by MSHA Inspector Francis E. Wehr on. December 15-, 1982, 

and January·l2, 1983. The first citation, No. 2102682, asserts 

that 73 roof bolts.were installed in the roof at two overcasts 

which had been shot down, but that no washers were provided 

between the 6x6 inch bearing plate and the 6-foot conventional 

roof bolt. The inspector believed that this was a violation 

of the roof control plan and mandatory safety standard 30 CFR 

75.200. 

The second citation, No. 2102696, asserts that a crosscut 

used as a shelter hole 'for the track haulage was obstructed 

with three SS-gallon oil drums and 22 stacked bags of rock 

dust. The inspector believed that a person would have trouble 

getting into the crosscut for shelter upon the approach of 

any haulage equipment, and he cited a violation of mandatory 

safety standard 30.CFR 75.1403. 

During the course of the hearing, petitioner's counsel 

advised me that after further consultation with the inspector, 

citation No. 2102682 cannot be supported, and that the citation 

will be vacated (Tr. 6). Petitioner's counsel presented a 

full and complete argument in support of this action (Tr. 

504-505). 

With regard to citation No. 2102696, petitioner's 

counsel stated that upon further reflection, the inspector 

was now of the view that the violation was not "significant 

and substantial," and that he has agreed to delete that 

finding from the violation notice as originally issued. 

Petitioner's counsel presented a full argument in support of 

this proposed action by the inspector (Tr. 506-511). 

Respondent's counsel asserted that the crosscut being 

used as a shelter hole was 17-feet wide and that there was 

room for persons to manuever in and out. Counsel pointed 

out that the only person in that area is a switchman, and 

that the chances that he will have to use the shelter are 

very slim (Tr. 508). Petitioner's counsel agreed that there 

was room enough for persons to manuever between the stated 

obstructions, and that is the reason why she believes the 

violation is not "significant and substantial" (Tr. 509) • 
After careful consideration of the argument presented, 

I affirm the inspector's vacation of citation No. 2102682, and 

that portion of the petitioner's civil penalty proposal seeking 

a penalty assessment for this citation IS DISMISSED, and 

the citation IS VACATED. 

With regard to citation· 2102696, I take note of the 

fact that the.citation cites a violation of section 75.1403, 

which provides as follows: 

Other safeguards adequate, in the judgment of 

an authorized representative of the Secretary, to 

minimize hazards with respect to transportation of 

men and materials shall be provided. 

Inspector Wehr cited a previous safeguard notice, No. 

391170, issued by Inspector Eugene w. Beck on March 1, 1979, 

to support the citation which he issued. The previous safeguard notice required that all shelter holes and crosscuts 

used as shelter holes be kept clean of loose coal, rock, 

supplies, and debris. 

On the facts of this case, the respondent has not 

rebutted the fact that the crosscut in question was used as 

a shelter. Further, the respondent concedes that the obstructions as stated by the inspector on the face of his citation 

were in fact present. Accordingly, I conclude and find that 

the petitioner has established the fact of violation by a 

preponderance of the evidence. The previous safeguard notice 

served on the respondent required the respondent to maintain 

any shelter holes, or crosscuts used as shelter holes, free 

of debris and other materials so as to provide ready access 

into the shelter. Since this was not done here, petitioner 

has established a violation, and the citation IS AFFIRMED. 

The "S&S" finding IS VACATED. 

Docket No. PENN 83-129 

This docket concerns six section 104(a) "S&S" citations 

issued by MSHA Inspector Alvin L. Shade at the respondent's 

Maple Creek No. 2 Mine, and the conditions or practices cited 

are as follows: 

Citation 2102605. The energized trolley wire at . 

2 Flat 6 Chute track switch was not adequately guardedwhere men are required to travel under regularly, as 

guard boards were broken off the width of track 

haulage. Mine was idle at time observed. 
Citation 2106208. The continuous mining machine serial 

no. JM 3476 approval no. 2 G-3227 A-00 in 4 Flat right section was not maintained in permissible condition 

as the fluorescent light opposite the GM operator was 

not securely fastened to the machine as there were 

two bolts missing in mounting bracket. 

Citation 2102609. The approved roof control plan was 

not being complied with in A entry 1 to 2, 4 Flat 

section, as temporary roof supports (jacks) were 

not installed according to the roof control plan as 

center jack was installed first and installed two 

jacks at same time. 

Citation 2102611. The energized power wires serving 

power to the indicator lights for reek latch, and 

track haulage switch signal lights at mouth of 6 Flat 

A track switch were in contact with combustible 

material as reek latch lights were hung on wooden 

post and had wires taped to same. Also, switch signal 

lights were in contact with wooden cribs, wooden 

plank used to saddle beams, and roof coal. 

Citation 2102618. The twin boom Fletcher roof bolter, 

serial no. 14242 approval no. 29-2607A-3 in 6 Flat 19 rm 

section was not maintained in permissible condition 

as there were two lights on the operator's side which 

were not secured to the machine as bolts were missing in the mounting. 

Citation 2102619. There was a violation of the 

approved ventilation, methane and dust control plan in 20 rm 32 split 6 Flat 19 rm section as there 

was only 2400 c.f.m. of air reaching the end of the 

line curtain as measured with an anemometer while coal 

was being mined with a continuous mining machine and 

plan calls for 5,000 c.f.m. 

Inspector Shade confirmed that he issued citation 2102605 

after observing that an energized overhead trolley wire was 

not guarded at a point where it crossed over the main track 

where the locomotives, jeeps, and port-a-buses passed under 

(Tr. 14), The trolley wire at this point is approximately five to five and one-half feet above the ground, and it is 

usually guarded on both sides by boards to prevent anyone from 

coming in contact with the wire. The guard board had broken 

off at the point where the wire crossed the main track, 

thereby leaving the unguarded wire exposed and unprotected 
for a distance of approximately six to eight feet (Tr. 16). 

The wire carries 550 DC volts, and at the time he observed 

the condition, the section was idle arid coal was not being 

mined (Tr. 16). However, section foremen, mechanics, pumpers, 

and rock dust crews would be "in the area," and they would 

pass under the trolley wire since that was the normal way to 

get to the section (Tr. l7)._ · 

Inspector Shade testified that if anyone came into 

contact with the unguarded wire, they would likely suffer 

shock or burns. He also indicated that fatalities have · occurred in cases where miners contacted such wires under 

-"just the right conditions." He indicated that most of the 

trolley wires in the places he cited were lower than in 

other places, and that someone could ·contact a wire by 

walking under it or when getting out of equipment which has 

stopped in the area. He stated that he, as well as pre-shift 

examiners, walk under the wire at the location that he cited. 

He also indicated that during his inspection, the union 

walkaround representative advised him that someone at a 

neighboring mine had come in contact with an unguarded trolley 

wire and was taken out of the mine, but that the person was · "all right." The inspector also alluded to two fatalities 

at another mine that he was aware of which were caused by 

persons coming into contact with unguarded trolley wires (Tr. 

21). He identified the mine as the Mathies Mine, and confirmed 

that the accidents occurred about a year prior to his issuance 

of the citation here in question (Tr. 22). 

On cross-examination, Mr. Shade conceded that 95% of the 

trolley wire in the mine is not required to be guarded, and 

while it may be true that miners are aware of the locations 

and hazards associated with trolley wires, they sometimes 

become complacent. Mr. Shade confirmed that an insulated 

hard hat would protect someone from .shock if they came in 

contact with the wire with the hat (Tr. 29). He conceded 

that it is not necessary to stop a piece of machinery under 

the unguarded wire, and that there are other areas where the 

wire crosses the track where equipment can stop without any 

problems (Tr. 31). Someone sitting in a vehicle passing 

under the wire would be about two feet from it, but if he 

stands up for some reason, he may contact the wire (Tr. 32-

33) • 

Respondent's Testimony 

Respondent's counsel made a proffer that if called, 

Wayne Croushore would testify that the person performing the pre~shift examination in the area cited by Inspector Shade 1 
would be riding in a vehicle rather than walking, and that 

Mr. Croushore would be of the opinion that during the time of 

the inspection it would be highly unlikely that anyone would 

ever be injured by a trolley wire (Tr. 374). He would also 

testify that he has no personal knowledge of anyone at the 

mine ever coming in contact with a trolley wire (Tr. 376). - -

Mr. Croushore testified in connection with a similar 

citation issued in Docket No. PENN 83-137, and his testimony 

there was that when he is in a piece of equipment traveling 

under a wire, he will duck his head to avoid contact with 

the overhead trolley wire. He indicated that he has heard 

of people "being hit" by such a wire, and when asked what 

injuries would result from one coming in contact with a 

550 volt trolley wire, he responded "it would depend on how 

they hit it" (Tr. 381). He also admitted that he would not 

be surprised to learn that someone could be injured or 

killed after coming in contact with a 550 volt trolley wire, 

and he conceded that this was a lot of power and "you respect 

it" ( Tr • 3 8 2 ) • 

Mandatory safety standard section 75.1003, requires in 

pertinent part that trolley wires be adequately guarded at 

any point where men are required to work or pass regularly 

under such wires. On the testimony and evidence adduced 

here, it seems clear to me that the portion of the overhead 

trolley wire which Mr. Shade cited was not adequately 

guarded. The guard boards usually in place had apparently 

fallen off and were not in place. It also seems clear to me 

that the location where the trolley wire passed over the 

track was in fact where men and equipment regularly traveled 

while going into the section, and that during this travel, 

men and equipment passed under the wire, either on foot or 

in a piece of equipment. I conclude and find that the 

petitioner has established a violat~on, and citation· 2102605 

IS AFFIRMED. . 

With regard to the two permissibility violations, citations 2102608 and 2102618, petitioner's counsel stated that 

Inspector Shade has agreed to delete his "significant and 

substantial" findings on the ground that he has now determined 

that the cited lights on the continuous mining machine and 

roof bolter in question were "instrinsicly safe" under MSHA's 

permissibility guidelines. Under the circumstances, MSHA's 

counsel was of the view that it was not reasonably likely 

that an accident or injury would occur as the result of the 

missing bolts on the mounting brackets for the lights in 

question (Tr. 73-80; 285). 

The respondent does not dispute the fact that the conditions or practices ~tated in citations 2102608 and 2102618, 

lfti'O 
constituted violations of the permissibility requirements 

stated in mandatory safety standard section 75.503. Under the 

circumstances, .the citations ARE AFFIRMED. 

Inspector Shade confirmed that he issued citation 2102611 

for a violation of section 75.516, after observing that certain 

signal lights which were hung up·were in contact with wooden 

cribs, a wooden plank, and roof coal. He described the reek 

latch switch lights as a string of lights used to indicate wh~re a derail device is located (Tr. 390). The lights were 

hung on a post and were strung down along side of the post, 

and the wire and lights were taped to the wooden post (Tr. 

391). The wires were single insulated wires carrying 550 volts 

od DC power, and this was also true of the lights used for the 

track haulage signal (Tr. 393). 

Mr. Shade stated that the reek latch lights in question 

.are usually installed and hung on.insulators, but that in 

this case he speculated that they had been torn down and 

someone simply put them back up by using plastic tape' to tape 

them to the post (Tr. 393). As for the signal lights, they 

were hung where they usually are, but the wire was strung 

through the cribs used to support the roof, and the wire was 

strung over the crib plank and was in contact with the crib 

as well as the roof coal, and it too carried 550 volts DC 

power (Tr. 394). 

Mr. Shade stated that the wires being in contact with 

the wooden cribs and roof coal presented a fire hazard, 

and that in the event of a broken wire, damaged·insulation, 

or a short there would be such a hazard (Tr. 395). A trolley 

pole could jump off and damage the wires, although he conceded 

that it would not happen in the area where he found the wires 

in question (Tr. 395). He confirmed that the conditions were 

abated by hanging the reek lights on insulated hooks, and 

taking the other lights off the cribs and hanging those on 

insulated hooks also (Tr. 399). 

On cross-examination, Mr. Shade stated that he believed 

the mine was idle when he issued the citation. However, 

there was power on the wires, and the wires were fully insulated. However, even so, he believed there is always a hazard 

because wires can be damaged by falling materials or the 

insulation could be damaged. However, he couldn't say whether 

there was any tension on the wires, and he did not observe that 

the wires were rubbing in any way (Tr. 401). He confirmed 

that the area was a haulageway on intake air, and that in the 

event of a fire it would have attracted someone's attention 

downstream of the air. He also confirmed that the area is 

1671 
subject to a weekly electrical examination, and he had no 

reason to believe that the condition would not have been discovered at the next weekly examination (Tr. 404). 

Mr. Shade admitted that he did not check the pre-shift books, 

and he had no idea how long the cited conditions existed (Tr. 421). 

He admitted that he is not an electrician, and he found no break 

in the wire in~ulation (Tr. 409). 

Mandatory safety standard section 75.516, requires that all 

_power wires be supported on well-insulated insulators and that 

they not contact combustible material, roof, or ribs. In this 

case, it seems clear from the unrebutted testimony of Inspector 

Shade that the wires on which the lights in question were strung 

were in fact touching wooden cribs, planks, and the roof coal, 

all of which is combustible material. Further, the reek 

lights were not hung on insulators, but were merely taped to 

a wooden post. Under the circumstances, I conclude and find 

that the pe~itioner has established a violation, and citation 

2102611 IS AFFIRMED. 

With regard to citation 2102619, Inspector Shade confirmed 

that he issued it after determining that only 2,400 cubic feet 

of air per minute was reaching the end of the line curtain 

where coal was being mined with a continuous mining machine. 

The ventilation plan, exhibit P-8, required that 5,000 cubic 

feet of air per minute be maintained (Tr. 443-445). The purpose 

of the air requirement is to sweep the face of any gases or 

dust (Tr. 446). 

Mr. Shade stated that when he first arrived on the section, 

he and the foreman (Andy Peters) determined that there was 

3,600 cubic feet of air at the end of the line curtain. 

However, since coal was not being mined at that time, this was 

not a violation. However, Mr. Shade' reminded the foreman that 

he had to maintain 5,000 cubic feet of air when mining began, 

and the foreman knew this (Tr. 446). Mr. Shade then left the 

area. However, when he returned, coal mining had begun, and 

he noticed that dust was rolling back over the continuous 

miner operator. Mr. Peters informed him that he had 5,700 

cubic feet of air, and Mr. Peters then left the area. Mr. Shade 

waited until the operator was finished loading, and after 

asking him to back the miner out, Mr. Shade took an air 

reading with an anemometer at the end of the line curtain and 

found 2,400 cubic feet per minute (Tr. 449). 

Mr. Shade stated that after taking his reading, Mr. Peters 

repaired the line curtain, but he still got only 3,750 cubic 

feet of air. Mr. Peters then discovered that part of the line 

1672 
curtain was against a rib, and after "framing it out," 

Mr. Shade took another reading and got 5,700 cubic feet of 

air (Tr. 451). 

Mr. Shade testified that the mine liberates methane, and 

that it is on a ·section 103(i) inspection cycle. He had no 

knowledge as to how long· the·mine had been under such an 

inspection cycl~, nor did he have any knowledge as to a 

purported previously issued order for methane accumulations 

(Tr. 457). He did confirm that he had previously issued a 

citation for methane accumulation, but could supply no 

-details, and he had no knowledge whether it was on the same 

section or not (Tr. 460). 

Mr •. Shade confirmed that he made a methane check, and 

found· one-tenth of one percent methane, and he conceded that 

it was not possible for a methane ignition to occur with 

this amount of methane present. He indicated that the 

explosive range of methane is five to ten percent (Tr. 463). 

He conceded that the time time he issued the citation there 

was no hazard of a methane ignition, and that he had no 

knowledge as to' how much of the dust that he observed was 

"respirable dust" (Tr. 463) • 

Respondent's Testimony 

Andrew Peters, Assistant Section Mine Foreman, testified 

as to the events which occurred at the time the violation in 

question was issued. He testified that he examined the face 

area, took methane readings, and found 4,000 and 5,000 

cubic feet per minute at the place where mining was to 

begin. After receiving a complaint from the continuous 

miner operator with respect to dust rolling back over his 

machine, he took an air reading behind the curtain, and 

found less than 5,000 cubic feet per minute. He found that 

the air was being short-circuited, ahd he instructed that 

repairs be made. After this was done, he measured the 

required 5,000 feet and left the area (Tr. 486). He later 

determined that some brattice curtain had.been knocked down, 

and that the air was interupted, and he believed that the 

miner operator and his helper should have been aware of this 

situation (Tr. 497-499). He had no opinion as to whether it 

was likely that an injury would occur as a result of the 

cited conditions (Tr. 491). 

On cross-examination, Mr. Peters confirmed the air 

readings taken by the inspeotor to support the citation, and 

he even conceded that the inspector gave him the benefit of 

1873 
the doubt by using a correction factor on his anemometer 

(Tr. 493-494). He also explained the circumstances surrounding the abatement efforts made to correct the cited 

condition (Tr. 496-500). Mr. Peters admitted to "a few 

methane ignitions" at the Maple Creek No. 2 Mine, but he 

indicated that they were face ignitions which did not result 

in any explosions {Tr. 500). 

After consideration of all of the testimony and evidence 

here adduced, I conclude and find that the petitioner has 

established a violation by a preponderance of the evidence. 

Accordingly, citation no. 2102619 IS AFFIRMED. 

Inspector Shade confirmed that he issued citation no. 

2102609, because the respondent violated its approved roof 

control plan when it installed two roof support jacks 

simultaneously inby unsupported roof after a center jack 

had been installed in an entry. The roof control plan does 

not permit the simultaneous installation of two jacks because 

it places the men under unsupported roof (Tr. 99). Mr. Shade 

identified exhibit P-3, drawing No. 2 as the particular roof 

control provision which he claims was violated (Tr. 102). 

He explained that the roof jacks are installed after the 

particular cut has been mined out, and that when he arrived 

on the section, a "short cut" had been mined, and the jacks 

were installed in preparation for roof bolting (Tr. 103). 

Mr. Shade explained the roof control drawing, and he 

confirmed that the jacks labeled A, B, and C were in place, 

and he explained the sequence for installing the remaining 

ones (Tr. 105-107). He explained that with the A, B, and 

C jacks in place, the men next installed jack No. 2, the 

center jack, and then walked inby unsupported roof and 

installed jacks Nos. 4 and 6. This violated the plan, since 

jacks Nos. 1 through 6 should have been installed in sequence 

(Tr. 108; 111). The proper procedure ·is to install one jack, 

and then go to the next one. Here, the men installed two at 

a time, and they were exposed to more unsupported roof than 

was necessary (Tr. 109). He confirmed that the distance 

between the No. 4 and No. 6 jacks was.approximately 9-1/2 feet 

(Tr. 110) • 

Mr. Shade described the roof as "abnormal," and that it 

had "potted in different places," and this is the reason why 

a "short cut" of approximately 12 feet had been mined. He 

also indicated that the roof in the entire section had "clay 

veins," and "they had slips which passed through a loose 

roof that fall out at any time" (Tr. 112). He believed that 

the respondent knew the roof was bad and that is why 12-foot 

1674 
cuts were being mined (Tr. 113). Mr. Shade was aware of a 

roof fatality which occurred at the Maple Creek No. 1 Mine 

last summer, but he is not aware of any at the No. 2 mine 

(Tr. 115) • 

Mr. Shade stated that abatement was achieved by installing 

the jacks according to the plan, but he could not recall if 

the section foreman was present when the jacks were installed 

(Tr. 118). Mr. Shade confirmed that he observed the men 

walk in with the number 4 and 6 jacks and he called them back 

_out of the area with the jacks, and he reviewed the installation plan with them (Tr. 119). 

On cross-examination, Mr. Shade conceded that the roof 

control plan does not specifically state that two men may 

not install roof jacks at the same time, but that it does 

provide for a particular sequence in which the jacks have to 

be installed. He also indicated that one can only go under 

unsupported roof for a distance of five feet and that the 

plan provides "that you can only use the people to install 

jacks that you need to install jacks" (Tr. 127). 

Mr. Shade confirmed that at the time he issued the citation, three jacks (A, B, C), were in place. The men then 

install~d jack no. 2, then walked into the entry with jacks 

4 and 6, and that is when he called them back out and advised 

them that they were out of compliance (Tr. 133, 139). He 

confirmed that when jack No. 2 was installed, it was within 

5-1/2 feet of the last row of roof bolts, and that since a 

12-foot cut was being mined, jack No. 2 would have been 

6-1/2 feet from the face (Tr. 134). He stated that had 

the men installed jacks 1, 2, and 3 before going inby to 

begin installing jacks 4, 5, and 6 there would not have 

been a violation (Tr. 135). 

Mr. Shade conceded that he made no measurements at the 

time he issued the citation, and he conceded that the men 

being four feet beyond the center jack would have been within 

2-1/2 feet of the face (Tr. 140). He· confirmed that at the 

time the citation issued, the area had been mined, and the 

roof was being supported in preparation for roof bolting. He 

conceded that it was possible that the reason a 12-foot cut 

was taken was that time ran out on the last shift, and that 

it was possible that the. 12-foot cut had nothing to do with 

the roof conditions (Tr. 150). 

1675 
Mr. Shade agreed that the roof control plan permits 

someone to go under unsupported roof to install temporary 

supports, and after the first row of jacks are installed, the 

roof is no longer unsupported, and a person may then go 5-1/2 

feet inby the last support to install the next one (Tr. 153). 

He further expla.ined the violation, as follows (Tr. 154): 

Q. So the man who set the center jack was in 

violation of the plan? 

A. Yes, he was. 

Q. Because he was beyond five and a half feet? 

A. Because he set that in the center of the entry. 

If he would have started with five and three, it 

wouldn't have been in violation; but he started in 

the center, which didn't put him within five feet of 

a rib or another jack. 

Q. If the two men setting No. 4 and No. 6 jack, 

what you call No. 4 and No. 6 jack, were within five 

and a half feet of the last row of bolts, there was 

no violation? 

A. Well, then they set both of these jacks, you· 

sent more people in that is necessary and you cannot 

do this. 

In response to further questions, Mr. Shade testified 

as follows (Tr. 160-163): 

Q. Mr. Shade, now, you testified that the first 

jack you actually observed being installed was . jack No. 2 on Drawing No. 2 and 1 then you next 

observed that two miners were going to install 

jacks No. 4 and 6. 

Now, how do you know that? What specifically did you see them do that led you to conclude that 

they were going to install jacks 4 and 6? 

A. I saw them going in there. 

Q. With what did they have with them? 

A. Two jacks. Each had a jack. They started to 

install them. They had them up in the roof and 

they pulled the jack and came back out. 

1676 
Q. They actually started the installation process? 

A. Yes. 

Q. At the locations that you have already identified? 

A. Well, they went in there with both jacks. What 

they do _.:.. · 

JUDGE KOUTRAS: Were the jacks set? 

THE WITNESS: They weren't secured against the 

roof. 

JUDGE KOUTRAS: Did they bring the jacks back out 

with them --

THE WITNESS: Yes. 

JUDGE KOUTRAS: when you called them back out? 

THE WITNESS: I asked them what they were doing. I 

said they're in violation. 

JUDGE KOUTRAS: What if they would have had the jacks 

already set, would you have forced them to take them 

back out? 

THE WITNESS: No, I wouldn't have forced anybody. 

JUDGE KOUTRAS: They had not installed it? 

THE WITNESS: No. 

JUDGE KOUTRAS: When you called'them back out, did 

they carry the jacks back out? 

THE WITNESS: Yes, that's what I have on my drawing. 

BY MS. GISMONDI: 

Q·. Now, Mr. Shade, what specifically, to the 

best of your recollection, what was done to 

terminate this violation? 

A. Well, in the first place, they got to have 

three jacks and the first -- really three jacks, 

they installed those three jacks and then they 

went in and installed the other jacks. 

1677 
Q. So they installed jacks 1 and 3? 

A. Yes. 

Q. Then they installed the row 4, 5, and 6; is 

that correct? 

A. Yes. 

Respondent's Testimony and Evidence 

Joseph Skompski, assistant section foreman, testified as 

to his experience, and he confirmed that he was familiar with 

the mine roof control plan. He confirmed that he accompanied 

Inspector Shade during his inspection, and after referring 

to drawing No. 2 of the roof control plan, he stated that 

jack No. 2 was installed, and the men then "grabbed jacks 1 

and 3 and they was going to set them and they went inby 2 a 

little bit" (Tr. 175). Mr. Shade then withdrew the men and 

discussed the roof control plan (Tr. 176). 

Mr. Skompski stated that jack Nos. 2, 1, A, B, and C were 

in place at the time the citation issued, and it was his 

understanding that the violation was issued because two jacks 

were installed at the same time (Tr. 176). Mr. Skompski 

conceded that the roof plan requires that the roof supports 

be installed "in sequence, row by row" (Tr. 178). He stated 

that the men who were installing the jacks were experienced 

miners, and that it was his understanding that they intended 

to install jack Nos. 1 and 3, and he estimated that the 

center jack was 5 to 5-1/2 feet from the last row of roof 

bolts (Tr. 181). 

On cross-examination, Mr. Skompski conceded that the roof 

conditions on the section "weren't the best conditions" (Tr. 

182). He confirmed that under the approved roof control plan, 

temporary roof jacks are to be installed "rib-to-rib" (Tr. 183). 

He stated that he observed two men carrylng jacks, and that they 

were going to install them at positions 1 and 3, as shown on the 

diagram, and that this would have placed them in line with jack 

No. 3 (Tr. 185). Referring to the diagram, Mr. Skompski confirmed 

that if two men started at jack No. 2 and installed jack 

Nos. 1 and 3 from either side of No. 2, they would be in 

compli'ance with the roof control plan as long as they stayed 

within 5-1/2 feet of jack No. 2 (Tr. 193) • 

Samuel L. Cortis, respondent's chief mine inspector, 

testified that part of his job is to prepare roof control 

plans for submission to MSHA. He identified drawing No. 2, 

and stated that it depicts two sets of roof control plans. 

He stated that during the mining phase, roof control is 

1878 
accomplished by installing jacks A through D, 1, 4, and 7, 

as shown on the diagram (Tr. 214). Once mining is completed, 

and roof bolting begins, there is an eight-jack temporary 

roof support plan that is put into operation, and he explained 

this procedure (Tr. 214-217). He explained that drawing No. 1 

depicts where temporary roof jacks are to be installed during 

certain sequences in the mining cycle, and he explained the 

procedures and confirmed that the ribs may be used as additional roof protection while installing the jacks (Tr. 220). 

He further explained how the jacks could be installed, and he 

indicated that they need not be installed in numerical 

sequence, as long as the distances between the jacks are 

maintained (Tr. 222). 

On cross-examination, Mr. Cortis confirmed that as long 

as the next jack is kept within five feet of a person for 

protection, other jacks may be installed, regardless of the 

sequence (Tr. 223). He explained the procedures followed 

in the mine for the instalLation of jacks (Tr. 223-229), 

and he confirmed that the maximum allowable distance that 

anyone can go inby the last row of permanent roof supports 

to install temporary roof jacks is 5-1/2 feet (Tr. 237). 

Petitioner's counsel acknowledges that under the roof 

control plan, a person may go out under unsupported roof to 

install temporary roof jacks as long as they are within 

5-1/2 feet of the last temporary support. Counsel's understanding of the plan is that there are "two variables" that 

come into play with regard to how far a person may venture 

out under unsupported roof. Counsel asserted that one may 

go inby the last row of permanent supports (roof bolts) , towards the face, for a distance of 5-1/2 feet. However, at 

all times, one must remain within five feet laterally of 

either rib or the next adjacent later.al jack (Tr. 230-231). 

I 

Referring to drawing no. 2, Mr. Cortis was asked certain 

questions regarding his interpretation o! the jack installation sequence and he responded as follows (Tr. 241-246): 

JUDGE KOUTRAS: She asked you, Counsel has asked 

you a question before, what the maximum distance 

someone can walk under an unsupported roof and you 

said five and a half feet. Now, does that mean 

under five and a half feet from permanent supports 

or from temporary supports or both he can walk 

out from? 

1679 
THE WITNESS: From both. It would be either 

permanent or temporary. 

JUDGE KOUTRAS: What I have a problem understanding 

here is if a fellow walks out starting at the last 

row of supports and walks out from nine and a half 

feet to set post No. 4,· he would be in violation 

of the rule that says you cannot be more than five 

and a half feet inby permanent supports; correct? 

THE WITNESS: He would be, in that case. 

JUDGE KOUTRAS: But wouldn't he be within five and 

a half feet of C, which is a temporary roof support? 

THE W~TNESS: That's correct. 

JUDGE KOUTRAS: Then how is he in violation? 

THE WITNESS: Well, only in, I guess, in what our 

interpretation of the plan would be. 

JUDGE KOUTRAS: Now, Ms. Gismondi, did you follow 

that? Is he in violation? 

MS. GISMONDI: Yes, I believe he is. 

JUDGE KOUTRAS: Why? 

MS. GISMONDI: As I said, it is my understanding that 

there are maximum allowable distances both from, you 

know, working both laterally, that is, how far you are 

from either the rib or the next adjacent lateral 

support and how far inby are you. 

I mean, as I said, I think there are two variables 

going on. You have got to have protection to either 

side of you, you have to have protection behind you. 

JUDGE KOUTRAS: Well, now, that is the point. Look, 

this second drawing, I have got permanent roof bolts 

nine and a half between the arrows. 

MS. GISMONDI: Correct. 

JUDGE KOUTRAS: Depending on how this man -- let's 

assume he starts at point A and walks out here 

(indicating) . Nine and a half feet with a jack over 

1680 
his shoulder, he is going nine and a half feet out 

in unsupported roof in this direction and that 

violates the plan? 

MS. GISMONDI: As far as the Secretary is concerned, , yes. 

JUDGE KOUTRAS: Because it is more than five and a 

half feet. 

MS. GISMONDI: Regardless of how close to the rib 

he is. 

JUDGE KOUTRAS: But if you've got temporary roof 

C set and the man walks under A and B and walks 

from this point, he is not under unsupported roof 

at any time, if you consider the permanent jack 

in place within five and a half feet? 

MS. GISMONDI: I would say, yes, he is, Judge, 

because, again, he may have support to his left but 

he doesn't have any support behind him. 

JUDGE KOUTRAS: My hypothetical says he got this 

far and that support and the rib is there (indicating) • 

MS. GISMONDI: He is still more than five and a half 

feet. As I said, I think there --

JUDGE KOUTRAS: From this reference point? 

MS. GISMONDI: Right, which is the permanent bolt, 

right. 

JUDGE KOUTRAS: That is what the parties understand Drawing No. 2 in this Roof Control is all 

about? 

MS. GISMONDI: That is what I understand it to be. 

JUDGE KOUTRAS: Is that your understanding, 

Mr. Cortis? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: That is your understanding? 

THE WITNESS: It is my understanding that we have 

to be within five and a half feet of support, 

permanent or temporary. 

1681 
Inspector Shade was called in rebuttal, and he identified 

a copy of the notes he made at the time the citation issued 

(exhibit P-5; Tr. 254). He quoted from his notes, and he 

indicated that they reflect that the jacks identified as 

A, B, and C, were in place when he arrived, that jack 2 was 

then next installed while he observed the scene, and that 

the note "short cut installed both at once" confirmed that 

"they started installing" jacks 4 and 6 (Tr. 256). He believed 

that the miners who were going to install the 4 and 6 jacks 

were in beyond jack 2 further than four feet (Tr. 257). 

Referring to roof plan drawing no. 2, Mr. Shade indicated 

that under the plan, miners may go 5-1/2 feet inby permanent 

roof supports to install temporary jacks, and that after 

that they may go four feet inby the temporary jacks to install 

the next row of temporary jacks (Tr. 258). He confirmed that 

the maximum allowable distance that a miner may go laterally 

from either the next adjacent rib or support is five feet 

(Tr. 258). On cross-examination, Mr. Shade further explained 

his notes, markings, and the observations which he made at 

the time the citation issued (Tr. 259-282). 

Citation No. 2102609 charges the respondent with a violation of its approved roof control plan. Exhibit P-4 is a copy 

of the applicable complete roof control plan, and exhibit P-3 

contains copies of pages from the plan, and in particular 

two pages labeled "Drawing No. 1 11 and Drawing No. 2." Although 

Inspector Shade failed to include in the-citation a specific 

reference to the applicable roof control provision which he 

believed was violated, he testified that Drawing No. 2 was 

the particular plan provision which was violated. His contention is that the installation of two temporary roof jacks, 

simultaneously, is a violation of the plan because it exposes 

the miners installing those jacks to unsupported roof. 

Apart from any roof control violation, mandatory section 

75.200 prohibits anyone from proceeded beyond the last permanent roof supports unless adequate temporary support is 

provided. Thus, the question here presented is (1) whether 

the respondent has violated any specific portion of its 

approved roof control plan, and (2) absent a violation of 

the plan, was there a violation of section 75.200, when the 

two miners proceeded to install the two jacks in question. 

The testimony in this case concerning the applicable roof 

control plan is most confusing. Drawings 1 and 2 are used 

1682 
interchangeably, and respondent's witness Cortis, the man 

who drafted the plans for MSHA's approval, even went so far 

as to testify that Drawing No. 2 contains "two plans." By 

failing to state on the face of the citation the precise 

roof control plan provision allegedly violated, the inspector 

contribute.a to the confusion. Although the citation states 

that two jacks were installed simultaneously, the inspector 

conceded that there is nothing in the plan to prohibit this 

per se. Although the inspector characterized the roof condition as "abnormal," and indicated that this explained why a 

"short cut" was being taken, on cross-examination he conceded 

that it was possible that a "short cut" was taken because of 

a time factor rather than because of the roof conditions. 

Further, although the question of distances is critical here, 

the inspector conceded that he made no measurements, and his 

contemporaneous notes (exhibit P-5), shed no light on this. 

The notes simply reflect that one jack was installed first, 

and two others were installed at the same time. 

Inspector Shade testified that three jacks were installed 

along the left rib of the entry in question, and these have 

been identified as jacks A, B, and C. He also testified 

that jack No. 2, which is the middle jack of three temporary 

jacks, was also installed at the time he viewed the area in 

question. Jack No. 2 was inby the row of permanent roof 

bolts which had been installed. Inspector Shade was concerned 

over the fact that two miners proceeded inby jack No. 2 to 

simultaneously install two additional jacks, which have been 

identified as Nos. 4 and 6. In the inspector's view, when 

this was done, the miners who were installing those jacks 

were under unsupported roof. 

After careful review and consideration of all of the 

evidence and testimony adduced in this case, I cannot conclude 

that the petitioner has established:by a preponderance of the 

evidence that the respondent violated its roof control plan. 

With respect to the question as to whether the two miners who 

started to install the two roof jacks in question were under 

unsupported roof, I can only conclude that the miner who 

intended to install roof jack No. 6 would have been under 

unsupported roof. Insofar as the other miner was concerned, 

I conclude that the rib jacks and permanent roof supports 

provided him ample protection when he ventured out into the 

entry to install roof jack No. 4. As. for the miner who walked 

out with the intent to install roof jack No. 6, while he was 

protected on the diagonal by roof jack No. 2, he was not protected by any roof support outby and towards.the permanent 

supports, nor was he protected by any roof support laterally. 

Accordingly, to that extent he was in fact under unsupported 

1683 
roof, and it is on that basis that I affirm the citation. In 

short, I conclude and find that one of the two miners who 

simultaneously installed the two jacks in question within the 

view of the inspector, was under unsupported roof. Under the 

circumstances, this was a violation of section 75.200,- and to 

that extent tne citation· IS AFFIRMED. ' 

Docket No. PENN 83-128 

Section 104(a) "S&S" Citation No. 2103081, charges that 

-a Kersey battery-powered scoop was not maintained in a permissible condition in that an opening in excess of .005 inches 

(plane flange joint), was present in the lower right hand 

corner of the contactor compartment located in the operator's 

compartment. The inspector cited a violation of mandatory 

safety standard 30 CFR 75.503. 

MSHA Inspector Okey H. Wolfe confirmed that he issued 

the violation in question, and explained why he did so (Tr. 

511-516). He indicated that he found an opening between 

the cover and the contactor compartment of the scoop in 

question, and that the opening was .005, as measured by a 

feeler guage, and the allowable limit is .004 (Tr. 517). He 

described the batteries on the scoop as 240 volt DC, and he 

believed that the hazard presented by the violation was that 

the opening could be an ignition source for methane. He 

took methane readings, and detected none present (Tr. 520). 

He did confirm that the mine is on a "30l(i) spot inspection 

status," which indicates that it liberates more than one 

million cubic feet of methane in a 24-hour period (Tr. 520). 

He explained the purpose of the permissibility requirements of 

the cited standard as follows (Tr. 520-522): 

Q. Mr. Wolfe, what is the purp~se of the 

permissibility regulations providing that there 

be an opening no greater than .004 i.nches? 

A. Well, the idea of that is that these 

explosion-proof enclosures, none of them are 

air tight, and when a piece of equipment is in 

operation, it tends to warm up, which causes 

expansion of the air that's in the compartment, 

and therefore when it cools, it has a tendency 

to pull whatever atmosphere it happens to be in 

back into the compartment, and should that 

atmosphere contain an explosion mixture of methane, 

the idea of opening it is to provide a flame path, 

so that if methane were drawn back into the 

1684 
compartment during the cooling stage and ignited 

by the arcing and sparking inside that compartment, 

that it would prevent it from getting to the outside atmosphere. It would be cooled sufficiently 

that it would not ignite methane once it exited 

the boss or enclosure. 

Q. Now, is that purpose served where you have 

an opening in excess of .005 inches? 

A. No, it is not. 

Q. What would happen if methane were drawn 

into this piece of equipment as it exited when you 

issued the Citation? 

A. In all likelihood, if once it was ignited within 

that compartment, it would escape to the outside 

atmosphere. 

Q. Do you know whether or not there have ever 

been any excessive methane accumulations at Maple 

Creek No. l? 

A. There have been 107(a) orders issued for 

methane in excess of 1.5. 

Q. What type of injury would result in the event 

of an explosion or a fire occurring as a result 

of this violation? 

A. Well, the injuries that could result of a 

methane explosion would be concussion, burns, 

asphyxiation. 

On cross-examination, Mr. Wolfe 'denied that at the time 

he issued the citation in question he was instructed that all 

permissibility violations should be cons·idered as "significant 

and substantial" {Tr. 524). He explained his instructions 

in determing whether a violation was "S&S" or not, and he 

confirmed that at the time he issued the citation, he detected 

no methane in the area, there was adequate ventilation, and 

the scoop in question was three crosscuts outby the last 

open crosscut (Tr. 524-526). He conceded that there is a 

state law requiring a methane check at the face before any 

electrical equipment is taken there (Tr. 527). 

Mr. Wolfe could not state whether anyone ever intended 

to use the scoop at the face on the day that he cited it, 

1685 
but he did indicate that the scoops are normally used "to 

clean up and carry supplies around" (Tr. 529). He could not 

state how long a scoop would normally spend in the face 

area, and he has observed a scoop in operation during the 

entire cleanup cycle (Tr. 530). 

. . 

Mr. Wolfe could not state how the opening in question 

was created, and he confirmed that abatement was achieved 

by merely tightening up the bolt. He confirmed that the 

equipment in question should be examined weekly, but he had 

_no way of knowing how long the condition existed, and he had 

no reason to believe that the condition would not have been 

corrected during the next weekly examination (Tr. 531). 

Mr. Wolfe stated that anytime there is mining in the 

Pittsburgh coal seam, there is a definite possibility that 

methane will be encountered, and he confirmed that the 

mine in question has only experienced face ignitions which 

did not result in any personal injuries or damage to property 

(Tr. 532). He further explained his concerns as follows 

(Tr. 533-534). 

Q. Now, didn't you testify that the ventilation 

on this section was perfectly adequate? 

A. Yes, ma'am. 

Q. Did you have any reason to believe this scoop 

was going anywhere but this particular· section? 

A. No. 

Q. So, what led you to believe that there was 

going to be an accumulation of methane to the 5 to 

15 percent range on this section? 

A. Well, methane can accumulate ... There are a 

lot of reasons why methane can accumulate. I mean, 

at the time I was there, everything was fine as 

far as the ventilation was concerned and so on and 

so forth, but I don't know what is going to happen 

in the next hour or the next day or the next week. 

Q. Did you have any opinion as to what period of 

time it would take for this occurrence to take 

place? 

A. No, I did not. 

1686 
Q. Did you have any opinion as to how likely it 

was to happen before the next weekly electrical 

examination? 

A. No. 

Q. If you considered the factors that were 

present when you examined the scoop and considered .. the history of the mine and assumed that the condition would be corrected at the next permissibility 

examination, would you consider this violation 

to be significant and substantial? 

A. Those are not my instructions. I do not 

consider just that mine. 

When asked why he believed the scoop would be used inby 

the last open crosscut, Mr. Wolfe replied that it was standard 

procedure in the mine to use such scoops for cleaning up the 

face areas and the returns, and his "guess" was that it was 

last used on the idle shift or on the last production shift, 

possibly to carry supplie• to the face (Tr. 542-543). 

Respondent's Testimony 

Jose~h Ritz, ventilation foreman, testified as to his 

responsibilities, and they include the examination of air 

courses, bleeders, and methane examinations in the returns. 

He confirmed that he has 13 years of mining experience, 

holds a degree in mining from Penn State University, and has 

been an active member of the mine rescue team for several 

years (Tr. 546). 

Mr. Ritz stated that he was familiar with the mine ventilation plan, and he described the amount of air induced into 

the mine ventilation system, and the amount of methane taken 

out (Tr. 547). Since 1974, he could recall only one methane 

face ignition at the Maple Creek No. 1 Mine, and he described 

it as a frictional ignition where a miner cutting coal ignited 

a pocket of methane, and he indicated "it flashed and was out 

probably about as quick as it happened" (Tr. 548). He was 

of the opinion that the chances of a scoop igniting any methane, 

with the opening described, was remote (Tr. 548). He could 

recall no section 107(a) orders ever being issued at the mine 

for excessive accumulations of methane (Tr. 549). 

On cross-examination, Mr. Ritz agreed that mine ventilation can be interrupted and there was no "guarantee" that 

this will not happen (Tr. 551). However, he explained the 

1687 
various safeguards and systems in effect at the mine to 

indicate when ventilation ,is interrupted. He stated that the 

mine in question liberated under a million cubic feet of 

methane per 24-hours, but that this will vary as conditions 

change (Tr. 553-556). 

When asked whether ·he had any doubts as to whether.or 

not the scoop in question would be used inby the last open 

crosscut, Mr. Ritz stated that the use of the scoop varies, 

ana that he had no way to determine whether it would be used 

on the next shift, or whether it was used on the previous 

shift. He was only sure that it was used on the shift when 

it·was observed by the inspector (Tr. 558). Although he 

denied that the scoop is used primarily inby the last open 

crosscut, he conceded that it is so used at times for cleanup, 

and that it is also used to haul supplies outby (Tr. 559). 

He did confirm that on the day of the inspection, the mine 

was active, and that the cited scoop was the only scoop available for cleaning up at the face area (Tr. 560). He also 

agreed that the scoop had not been "tagged out" (Tr. 561). 

When asked his view on the opening found in the equipment 

by the inspector, Mr. Ritz agreed that it was not wise to 

leave the condition uncorrected, that he would insure that it 

was fixed if he found the condition, and he conceded that in 

any permissibility violation, "Murphy's Law" applies. He 

explained by stating that "if it can happen, it will happen" 

(Tr. 565) • . 

After careful consideration of all of the testimony and 

evidence adduced here, I conclude and find that the petitioner 

has established a violation by a preponderance of the evidence. 

Mandatory safety standard section 75.503, requires that all 

electric face equipment taken or used inby the last open 

crosscut be maintained in a permissible condition. Here, the 

respondent does not dispute the fact that the cited piece of 

equipment was not maintained permissible. As for the question 

of whether or not it was "used or intended to be used inby 

the last open crosscut," I conclude and find that the petitioner 

has established that this was the case. Respondent's own 

witness (Ritz), admitted that the scoop was, in the normal 

course .of business, used inby the last open crosscut, and that 

it was the only scoop available to perform cleanup of the face 

areas. Absent any evidence to the contrary, I conclude and 

find that the preponderance of the evidence establishes that 

the scoop in question "was used or intended to be used inby 

the last open crosscut." Under the circumstances, Citation No. 

2103081 IS AFFIRMED. 

1688 
Docket No. PENN 83-137 

In this case, MSHA Inspector Francis E. Wehr issued a 

section 104(a), "S&S" citation on December 14, 1982, citing 

a violation of ~andatory safety standard 30 CFR 75.1003. 

The condition or practice cited is as follows: 

Adequate guarding was not provided for the 

energized trolley wire and trolley feeder, at the 

37 crossover switch off C track haulage road. The 

guards on the inside were knocked down and lying 

on the mine floor on B track haulage. 

Inspector Wehr confirmed that he issued the citation in 

question after finding that the overhead energized trolley 

wire at the c track cross-over switch was inadequately guarded. 

He stated that the guarding had been knocked off, and that he 

found it lying on the mine floor. The guarding was missing 

along a six-foot area which he described as the "V" intersection, at the point where the C track haulage and a cross-over 

from the B track haulage intersected. He identified exhibit 

P-1 as a copy of the citation, and the second page is a copy 

of his notes, including a rough sketch of the cited location 

(Tr. 319-329). 

Mr. Wehr stated that the trolley wire ~as approximately 

five and one-half to six feet off the floor, and that it was a 

550-volt DC wire. He confirmed that abatement was timely 

achieved by re-installing the section of guarding which was 

not in place. He also confirmed that the trolley wire 

guarding has been a problem in the mine in that it is often 

knocked off by the trolley "harps," particularly at the 

track switch-over locations. He also indicated that mine 

management is aware of the problem and makes an effort to 

constantly keep after the work force to be alert to the 

problem. ' 

Mr. Wehr indicated that his principal concern was that 

the locomotive or mantrip operators who regularly passed 

under the wire would come in contact with the unguarded 

wire. If they did, it was his opinion that it was reasonably 

likely that a serious injury would occur. He confirmed that 

he was aware of the fact that· past accidents or fatalities 

have occurred in the mining industry when miners came in 

contact with unguarded trolley wires similar to those which · he cited in this case. Although he could not document any 

recent accidents at the mine, he did indicate that he had 

1689 
heard that someone had recently come in contact with a 

trolley wire at the mine, but he had no specific details 

about the incident. 

Mr. Wehr described the different types of vehicle conveyances which used the track haulage, and he believed that it was 

possible for a miner operating this equipment to come in contact 

with the overhead wire while in the equipment. Although he 

conceded that he did indicate on the face of his citation that 

only one person would be affected by the conditions he cited, 

he emphasized that under certain circumstances other persons 

would be in the area where he found the unguarded trolley wire, 

and he identified them as foremen, company inspectors, and pumpers 

(Tr. 333-334) • 

Mr. Wehr did not know how long the guarding had been 

down, and he stated that he checked the pre-shift books 

but found no notations that the guard was down. He also 

indicated that guards do get knocked down when a power pole 

jumps off the wire (Tr. 337). 

On cross-examination, Mr. Wehr conceded that trolley 

guarding is a mine maintenance item and that it is not 

physically possible to keep up with it all the time (Tr. 342). 

He confirmed that at the Maple Creek No. 2 Mine, two men are 

regularly assigned to replace trolley guarding that has been 

knocked down (Tr. 346). He also conceded that persons riding 

a locomotive wear protective hats, and that these hat's provide 

electrical protection (Tr. 351). 

Respondent's Testimony 

Paul Gaydos, construction foreman, testified that in his 

opinion, while it was possible that someone could be. injured 

because the trolley guard board was,down, it was not probable. 

He indicated that a small area of wire was unguarded, and 

that through training, safety meetings, .. and inspections, 

everyone is made aware of these situations (Tr. 354-356). 

Mr. Gaydos identified the types of equipment which would pass 

under the wire, and he indicated that he was six-foot-three 

and had often passed under the wire, but has not come very 

close to it (Tr. 357). He conceded that if one were in the 

largest piece of equipment, a 54-ton locomotive, his head may 

be 5-1/2 feet off the ground level (Tr. 358). 

Mr. Gaydos stated that it is very unlikely that a power 

pole would come off the trolley wire at the crossing chute 

1690 
location in question, and this is because one is not moving 

fast. If the pole does come off, one could stop the vehicle• 

and retrieve the pole (Tr. 359). He indicated that the mine 

must be pre-shifted three hours preceding the next operating 

shift, and that this includes the trolley wire guards (Tr. 

359-360) • He could not remember how long the guard in 

question was down (Tr. 361). Mr. Gaydos could not state how 

serious an injury would result if one were to simply brush 

the wire, but conceded that he "respects it," and would not 

like-to back into it (Tr. 364). 

On cross-examination, Mr. Gaydos confirmed that short 

of someone committing suicide by intentionally grabbing 

the wire, he could not imagine anyone suffering fatal injuries 

while riding in a piece of equipment under the wire. He 

stated that it was his practice to duck his head while 

approaching an overhead wire, and he would expect that an 

experienced motorman would do the same (Tr. 365-366). He 

conceded that it was possible that the guards were knocked 

off by a pole coming off the wire, and he confirmed that under 

State law the trolley guard boards extend two inches below 

the wire (Tr. 370). 

After carefuly consideration of all of the testimony and 

evidence adduced here, I conclude and find that the petitioner 

has established by a preponderance of the evidence that the 

guarding for the cited energized trolley wire at the location 

in question was inadequate, and that this constitutes a violation of section 75.1003. Accordingly, Citation No. 2102681 

IS AFFIRMED. 

PENN 83-136 

MSHA Inspector Okey H. Wolfe confirmed that he issued· 

Citation No. 2103084, on February 8, ,1983, for a permissibility 

violation on a Fletcher roof bolter after finding that one of 

the bolts which secured the ~id to the main contactor compartment was missing (Tr. 579). The function of the compartment 

is to distribute power to various parts of the machine after 

it comes in from the power source. He believed the mine was 

active the day the citation issued, and the bolter was 

required to be maintained in permissible condition. All 

bolts must be in place so as to preclude methane from 

entering the compartment or to confine any methane ignition 

inside the compartment (Tr. 581). 

The parties agreed to incorporate by reference Mr. Wolfe's 

prior testimony concerning the methane liberation history of 

• 

1691 
• 

the mine, as well as his rationale for finding that the violation was significant and substantial (Tr. 582). Mr. Wolfe was 

sure that the ~oof bolter was used inby the last open crosscut 

and that it was the only one available on the section (Tr. 583). 

The parties· agreed.to proffer the testimony of Mr. Joseph 

Ritz on behalf of .the respondent, and that if called he would 

testify that the cited roof bolter was parked two blocks outby 

the last open crosscut, there was no opening in the contactar 

compartment, the section was wet and well rock dusted, the 

ventilation was good, and there was no methane detected anywhere in the section (Tr. 592-593). Petitioner's counsel 

added that she would ask the witness to confirm that interruptions to the· ventilation are always possible (Tr. 593). 

While ·it may be true that the roof bolter was parked at 

the time it was cited by Inspector Wolfe, I find his testimony 

that it was used on the section for roof bolting to be 

credible. Respondent has offered no testimony or evidence to 

the contrary, nor has the respondent rebutted the fact that 

the missing bolt on the contactor panel was a permissibility 

violation. I conclude and find that the petitioner has 

established the fact of violation, and Citation No. 2103084 

IS AFFIRMED. 

Inspector Wolfe confirmed that he issued Citation No. 

2103085 on February 8, 1983, citing a violation of section 

75.606 after observing a shuttle car run over its own trailing 

cable ·(Tr. 594-595). The car was in operation and was coming 

off the loading point, and it ran over the cable one time. The 

cable-is a 440-volt AC cable, and Mr. Wolfe issued the citation 

to Mr. Ritz as soon as he observed the car run over the cable • 

Mr. Wolfe stated that the power was reduced, arid the cable 

was inspected for damage. However, no visible damage to the 

cable or to the outer insulation was found (Tr. 596). Mr. Wolfe 

stated that the danger presented was a ··possible fire hazard 

due to cable damage not readily observable, and a possible shock 

hazard. He indicated that the cable is handled from time to 

time, and while he could not recall whether the area was wet, 

but he believed that the area was "normally pretty wet" (Tr. 

597). His concern for a fire hazard stemmed from the fact 

that if there were internal cable damage, two leads could 

come together which would cause the cable to "blow," and 

that while AC cables are protected, "you would still have a 

momentary flash that would be pretty hot" (Tr. 598). 
Mr. Wolfe believed that cable damage will result from a 

heavy machine running over it, and that "if it would continue, 

it is definitely going to cause damage to it eventually" JTr. 

598). He admitted that when he operated a shuttle car, there 

were times when he ran over his own cable, and normally, an 

operator can observe when this happens (Tr. 600). In the 

instant case, he had no way of knowing whether the operator 

had run over the cable prior to his observing it, nor did he 

know that the machine operator was even aware that he had 

run over his cable (Tr. 601). 

Mr. Wolfe conceded that he was more concerned with a fire 

hazard rather than a shock hazard, and if a fire occurred, 

miners underground would be exposed to smoke inhalation and 

burn hazards. Also, toxic fumes could be given off from the 

burning insulation or neoprene cable jackets. He was aware 

of a previous fire in another mine caused by cable damage-. 

A short circuit occurred in the cable, and when it was reeled 

up, it caught the car on fire. However, he did not know 

whether the short circuit was caused by the car running over 

the cable 1 and it was possible that the cable was damaged by 

fallen rock. The resulting fire filled the section with smoke 

(Tr . 6 0 3-6 0 5) • 

On cross-examination, Mr. Wolfe conceded that it "could 

well be possible" that the incident in question was a: "freak 

accident" in that the cable got caught between the.cable 

compartment lid and the side of the shuttle car, and that 

"perhaps" the operator did not realize what had occurred 

(Tr. 605). He also conceded that he permitted the car to 

continue in operation after the cable was inspected, and that 

it was not taken out of service (Tr. 606). 

Respondent's Testimony 

Joseph Ritz testified as to the circumstances surrounding 

the shuttle car operator's cutting of his own trailing cable. 

He stated that it happened when the 9ar operator slowly 

drifted off the loading ramp while bac~ing up and he and the 

inspector were standing nearby observing him (Tr. 633). 

Mr. Ritz indicated that the operator "d:i::;ifted back" and the 

cable did not "pick up" on the reel because the hydraulic 

motor did not engage, and as a result "he just ran onto the 

cable" (Tr. 633). Mr. Ritz believed that the operator was 

aware of the presence of the inspector, and simply did not 

pay close attention to what he was doing (Tr. 634). Mr. Ritz 

immediately de-energized the machine, and he, the inspector, 

and the section mechanic, visually inspected the cable and 

found no visible damage. The power was put on again, and the 

shuttle car was put back in service (Tr. 635). 

"'·· 
Mr. Ritz was of the opinion that there was no problem 

with the cable, and he personally has never observed a fire 

on an AC cable such as the one in question. Once the cable 

is put in service, he does not believe that anyone would 

handle it, and he did not understand why the inspector issued 

the citation (Tr. 688). The operator was admonished to watch 

out for his cable, and he continued operating the car after 

the cable was inspected (Tr. 639). Mr. Ritz stated that the 

section was wet (Tr. 631). He also indicated that had there bee~ any critical damage to the interior of the cable the 

ground fault system would likely "kick out the power" and 

_de-energized the cable (Tr. 643). 

Respondent does not dispute the fact that the cited 

shuttle car ran over its own trailing cable. Petitioner 

affirmed that the theory of its case lies in the fact that 

the cited standard requires that trailing cables be adequately 

protected to prevent damage by mobile equipment (Tr. 646). 

Further, petitioner's counsel was of the view that the manner 

in which the car operator was operating the shuttle car at 

the time the inspector observed him run over the cable 

constituted the gist of the violation (Tr. 647, 651). As 

concisely stated by counsel, "the cable is supposed to be 

protected from damage. When you run over it, it is not 

protected from damage" (Tr. 651). 

Mandatory safety standard section 75.607 requires that 

trailing cables be adequately protected to prevent damage by 

mobile equipment. In the instant case, it seems clear to me 

that the trailing cable in question was in fact run over by 

the shuttle car operator as he drifted back off the loading 

station in question. Since this happened in the full view 

of the MSHA inspector who was standing nearby with a company 

foreman, the inspector immediately informed the foreman that 

he was issuing a citation, the machin.e was de-energized., and 

the cable was visually inspected for damage. Since no 

damage to the exterior of the cable was detected, the inspector 

permitted the shuttle car to continue operating and "abatement" 

was achieved by merely instructing the machine operator to be 

more careful and to observe his cable. · 

The inspector here conceded that "it was possible" that 

the incident was a "freak" occurrence. As a matter of fact, 

during his testimony, he had no recollection as to how the 

incident occurred. Further, there is no evidence to suggest 

that the cable reel was defective, and although the inspector 

testified that it was not an unusual occurrence for a trailing 
cable to "catch" between the cable compartment lid and the 

side of the shuttle car, he took no action to insure that 

this would not occur again. It seems to me that if this 

type of "cable hang-up" occurs frequently, the inspector 

should have required the respondent to take some preventive 

measures to insure that the cable was protected against any 

such future·"hang-ups." In short, he required no physical 

alterations to the machine or to the cable-reeling device to 

insure against other cable ·"hang-ups." As a matter of fact, 

when asked this precise question, the inspector responded 

-that "I honestly don't remember" (Tr. 611). 

After careful consideration of the record in this case, 

I cannot conclude that the running over of the cable in 

question was other than an isolated one-time occurrence. 

Further, based on the testimony and evidence of record, I 

cannot conclude that the incident resulted from a failure by 

the respondent to insure that the cable was adequately protected against damage. Aside from the fact that the petitioner 

has not established that the cable was damaged, there is no 

credible evidence to establish that apart from the operator's 

inattention or failure to prevent the machine from drifting, 

there is no evidence that the respondent here failed to 

provide adequate protection to prevent damage to the cable. 

Further, there is absolutely no evidence that this respondent 

has a history of running over trailing cables, and there is 

no evidence to support any conclusion that the machine 

operator has done this in the past. 

Inspector Wolfe was asked to explain what could have 

caused the cable to catch on the machine compartment. His 

initial response was that he had no notes on the incident 

(Tr. 623). Although he speculated that the incident may have 

occurred due to the lack of proper tension on the cable, he 

could not support this "theory," even though it happened 

right before his very eyes. As a matter of fact, he candidly 

admitted that he couldn't state precisely what caused the 

"hang-up," other than the machine "drifting" (Tr. 624). When 

asked whether he spoke with the machine operator, the inspector 

stated that "I don't remember" (Tr. 626). The machine operator 

was not called to testify by either side. 

After careful review and conside~ation of· all of the 

evidence and testimony adduced here, I conclude ~nd find that 

the cable incident in question was a one-time inadvertent 

incident, and that the petitioner has failed to establish 

that the respondent failed to provide adequate protection 

to insure against cable damage. Accordingly, Citation 

No. 2103085 IS VACATED. 

16.95, 
Neglig~nce and Gravity Findings and Conclusions 

PENN 83-121 

Negligence 

I find that the respondent should have been aware of the 

fact that the cited shelter hole was obstructed with oil drums 

and rock dust bags as noted by the inspector. A preshift 

examination should have detected these conditions, and the 

failure by the respondent to take the corrective action in 

·advance of the inspector's arrival on the scene was due to a 

lack of reasonable care. Accordingly, I find that violation 

No. 2102696 resulted from ordinary negligence. 

Gravity 

The inspector testified that the shelter hole was 17 feet 

wide and there was room for a person to manuever in and out. 

MSHA's counsel pointed out that there was only one person in 

the area and that the chances of his having to use the shelter 

were slim. Under all of these circumstances, I find that this 

violation was nonserious. 

PENN 83-129 

Negligence 

Inspector Shade was of the opinion that Citation No. 

2102605 resu1·ted from moderate negligence, and he s.tated that 

mine management usually guarded the overhead wires as soon as 

possible after that particular condition is brought to its 

attention. However, he did not know whether the guards were 

down at the time of the preshift examination (Tr. 24). 

I find that Citation No. 2102605 resulted from the 

respondent's failure to take reasonable care to insure that 

the overhead trolley guards which were down were promptly 

discovered and the condition corrected before the inspector 

arrived on the scene. I conclude that the violation resulted 

from ordinary negligence. 

With regard to Citation No. 2102619, the testimony and 

evidence presented by MSHA and the respondent is not in dispute. 

While it is true that the required amount of air was not 

reaching the end of the line curtain at the time the citation 

was issued, the facts show that the foreman in charge of mining 

was aware of the problem and was in the process of taking 

corrective action while the inspector was on the section. In 

1696 
the circumstances, I believe that the foreman was taking 

reasonable steps to correct the problem and that the violation 

did not result from any negligence on the part of the responden't·. 

With regard to Citation No. 2102609, I conclude and 

find that the violation resulted from the respondent's 

lack of reasonable care to in·sure that the miner who was 

under unsupported roof was aware of that fact, and was aware 

of the provisions of the roof control plan. While I have 

commented that the roof control plan is rather confusing, 

it is the respondent's responsibility to insure that miners ~re aware of the plan provisions, particularly that portion which prohibits anyone from walking out under unsupported 

roof. I find that the violation resulted from ordinary negligence. 

With regard to Citation No. 2102611 concerning the 

energized light power wires which the inspector found were 

not properly hung, the respondent should have been aware 

of the cited standard prohibiting the wires from coming into 

contact with combustibles. I find that the violation resulted 

from the respondent's failure to e~ercise reasonable care, 

and that this constitues ordinary negligence. 

I conclude and find that all of the violations which 

have been affirmed in this docket were serious. In each 

instance, except possibly for the two permissibility citations (2102608 and 2102618), where the inspector found that 

the lighting circuits on the cited machines were "intrinsicly 

safe," the inspector found a hazard associated with each of 

the cited conditions (Tr. 38-41; 120). While it may be true 

that the permissibility standards in question are specifically 

intended to guard against loss of illumination, as ! observed· 

during the hearing, the missing bolt brackets in question 

could have caused the light fixtures: to fall o~ "t,he q·perators 

of the equipment in question while it was tramming, and in 

this event they would probably sustain injuries (Tr. 286-309). 

Under these circumstances, I conclude that these two citations were also serious. 

PENN 83-128 

Negligence 

I find that Citation No. 2103081 resulted from the 

respondent's failure to take reasonable care to insure that 

the opening in the battery powered scoop was discovered and 

corrected. Accordingly, I conclude that this permissibility 

violation resulted from ordinary negligence by the respondent. 

1697 
Gravity 

Respondent's ventilation foreman conceded that mine 

ventilation could be interrupted, that methane is liberated 

in the mine, and that the opening found in the scoop contactor 

compartment is a condition which should have been attended to. 

He also conceded that in·any·permissibility violation of 

this kind, "Murphy's Law" would apply. Accordingly, I find 

that this violation was serious. 

PENN 83-136 

Negligence 

I find that Citation No. 2103084 resulted from the 

respondent's failure to take reasonable care to insure that 

the missing bolt from the contactor compartment of the 

cited roof bolter was discovered and corrected. A preoperational check should have discovered the missing bolt. I 

find that the violation resulted from ordinary negligence. 

Gravity 

For the same reasons that I found Citation No. 2103081 

to be serious in PENN 83-128, I find the violation here is also 

serious. While.it is true here that the section may have been 

wet and well rock dusted, and no methane was detected, the 

missing bolt which caused the permissibility violation presented a hazard of possible arcing an~ sparking in the contactor 

compartment when the machine was in operation. 

PENN 83-137 

Negligence 

Inspector Wehr stated that the violation resulted from 

a moderate degree of negligence, and he indicated that he has 

spoken with mine management about the trolley wire guards so 

that they may institute a program of prompt reporting of the 

situation. I conclude and find that the violation resulted 

from the respondent's failure to exercise reasonable care, 

and that this constitutes ordinary negligence. 

Gravity 

The missing trolley wire guards in question presented a 

possible shock hazard in an area where miners and equipment 

would have been present during the ordinary course of business. 

Accordingly, I conclude and find that this violation was 

serious. 

1698 
Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a large 

mine operator and that the proposed civil penalties will not 

adversely affect its ability .to remain in business. I adopt 

these stipulations as my findings on these issues, and I 

further conclude that the penalties which I have assessed 

wil~ not adversely affect the respondent's business • 

.]iistory of Prior Violations 

Exhibit P-9 is a computer print-out summarizing the 

number of violations assessed and paid by the respondent for 

violations issued at the Maple Creek No. 2 Mine for the 

period December 1, 1980 to November 30, 1982. The printout also reflects the number of assessed and paid violations 

before December 1, 1980. The information on the printout is 

summarized by reference to the specific mandatory health and 

safety standard violated, rather than by any specific violation number. The printout reflects that for the two-year 

period noted, the respondent paid $81,036 in civil penalties 

for 485 violations. Fifty-two of the violations were for 

violations of mandatory standard section 75.200 (roof control), 

48 were for violations of section 75.400 (accumulations of 

combustibles), and 81 were for violations of section 75.503 

(permissible electric fact equipment) . 

Exhibit P-10 is a computer printout summarizing the 

number of assessed and paid violations at the respondent's 

Maple Creek No. 1 Mine for the same time periods noted above 

for the No. 2 Mine. The information reflects that for the 

period December 1, 1980 to November 30, 1982, the respondent 

paid $82,571 for 435 violations. Forty-three citations 

were for violations of section 75.200, 41 for violations of 

section 75.400, and 52 were for violations of section 75.503. 

While I take note of the fact that.the computer 

printout information for the violations issued at the No. 1 

and No. 2 Mines prior to December 1, 1980, reflect that most 

of them were for violations of section 75.200, 75.400, and 

75.503, absent any specific time frames or details concerning 

the listed violations, I am unable to conclude that this prior 

history reflects a good or poor compliance record by the 

respondent. Given the size of the respondent's business, 

its compliance record for the periods December 1, 1980 to 

November 30, 1982, insofar as the bulk of the standards 

noted are concerned does not appear to indicate a significantly 

poor record. However, I do take note of the number of permissibility and roof control violations and have taken this 

1699. 
into account in the civil penalties assessed by me for the 

violations which I have affirmed in these proceedings. 

Good Faith Compliance 

The testimony and evidence adduced in all of these 

proceedings reflects that al'l of the cited violations were 

timely abat·ed by the respondent in good faith. Accordingly, 

I have taken this into consideration in the assessment of 

the civil penalties for the violations which have been 

affirmed1 (Tr. 3401 497-4991 522-523). I 

"Single Penalty" Assessment Arguments 

During the course of the hearing, respondent's counsel 

argued that in those instances where a "significant and 

substantial" finding is rejected by the judge, a $20 civil 

penalty must be assessed by the judge. As an example, respondent's counsel argued that had MSHA's district manager 

not been following a policy that all permissibility violations are "significant and substantial," Citation No. 2102608 

would have been assessed as a "single penalty" of $20 (Tr. 

82). Counsel argued that since the "S&S" finding has been 

withdrawn, the civil penalty should "automatically" be 

assessed at $20, and that I must give deference to the Labor 

Department's regulations for assessing such penalties (Tr. 

87-89) • 

Section llO(i) of the Act specifically authorizes the 

Commission to assess all civil monetary penalties provided 

in the Act. Section llO(i) mandates that in assessing these 

penalties, the Commission shall consider the six statutory 

criteria set forth in that section. While the last sentence 

of section 110 (i) vests discretion in th.e Secretary of Labor 

to pro~ose civil penalties based upon "a summary review of 

the in ormation available to him," and does not require him 

to make findings of fact concerning the six statutory 

criteria, this discretion does not apply to the Commission, 

nor is it controlling in cases docketed before the Commission and adjudicated by its judges. 

In any contested civil penalty case, including "single 

penalty" assessments, the Commission and its judges apply 

the six statutory criteria, and in exercising their respec- tive independent adjudicatory authority, may do so without 

consideration of the Secretary 1 s Part 100 regulations. 

MSHA's revised Part 100 procedures for proposing civil 

penalties under the Act became effective on May 21, 1982, 

1700 
47 Fed. Reg. 22286-22297. In the explanatory discussions 

concerning the Secretary's creation of the "$20 single 

penalty" concept as promulgated under 30 C.F.R. 100.4, the 

following statements appear at 57 Fed. Reg. 22291: 

This is a new.section. It provides for the 

assessment of a $20 single penalty for violations 

which are not reasonably likely to result in reasonably serious injury or illness. Single penalt¥ 

violations which are paid in a timely manner will 

not be included in the operator's history (emphasis 

added). ***Under this proposal, this section 

was designated as the "minimum penalty" assessment 

procedure. In the final rule, MSHA has substituted 

the term "single penalty assessment" to clarify that 

$20 is the onl enalt an o erator could receive 

under this section (emphasis added • 

As proposed, this section provided for the 

assessment of a fixed single penalty of $20 for 

violations involving low level gravity and no 

negligence (emphasis added). In the notice of 

public hearing, MSHA included a refinement of the 

proposed single penalty provision which would apply 

the single penalty to those violations which are 

not reasonably likely to result in a reasonably serious injury or illness. 

In promulgating and adopting.the "single penalty" final 

rule now found in section 100.4, an assessment of $20 may be 

imposed by MSHA as a civil penalty where the violation is not 

reasonably likely to result in a reasonably serious injury or 

illness, and is abated within the time fixed by the inspector. 

If the violation is not abated within the time fixed by the 

inspector, the violation is not eligible for the $20 single 

penalty assessment. Thus, it appears that the only requirements for the "automatic" assessment of a $20 penalty is that 

the violation be one which is not reasonably likely to result 

in a reasonably serious injury or illness, and that the violation is timely abated within the time fixed by the inspector. 

It would further appear that the prior proposed additional 

finding of no negligence as a condition precedent for such 

a $20 assessment has been deleted from section 100.4. Thus, 

even if an inspector were to find that there was negligence, 

regardless of the degree, the violation would still be 

assessed an automatic $20, as long as the two elements noted 

above were present (non S & Sand timely abatement). 

1701 
The Secretary's rationale for apparently deleting any 

consideration of negligence by the operator is found at the 

following discussion which appears at 47 Fed. Reg. 22292: 

* * * when the gravity factor is low and good faith 

is established through abatement, MSHA does not 

believe that an individualized analysis of the negligence, size and history criteria is appropriate or 

necessary. 

Thus, in any given case where a violation qualifies for 

-a $20 single penalty assessment, even if the inspector finds 

that the violation resulted from gross negligence, which is 

defined as "conduct which exhibits the absence of the slightest 

degree of care," the penalty will still result in an automatic 

$20 assessment by MSHA, even though the standard of care 

established under the Act imposes on an operator a responsibility for a high degree of care. 

MSHA's promulgation and appliqation of the singlepenalty provision found in section 100.4, totally negates 

and ignores the statutory criteria of negligence and history 

of prior violations. Theoretically, a mine operator who has 

paid any number of "non-S & S" violations which resulted 

from gross negligence, could continue doing so with impunity, 

as long as they are timely abated. 

Respondent's arguments that I am bound by MSHA's "single 

penalty" assessment regulations are rejected. See: Secretary 

of Labor v. United States Steel Mining Co., PENN 82-328, 

decided May 31, 1984. 

"Significant and Substantial" Arguments 

In Secretary of Labor v. Cement Division, National Gypsum 

Co., 3 FMSHRC 822 (April 1981), the Commission held that a 

violation of a mandatory safety or health standard significantly 

and substantially contributes to the cause and effect of a 

mine safety or health hazard when "there exists a reasonable 

likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature," 3 FMSHRC at 

825. 

, In National Gypsum, the Commission noted that the Act 

does not define the term "hazard," and it construed the term 

to "denote a measure of danger to safety or health," 3 FMSHRC 

at 827. The Commission also stated that a violtion "'significantly and substantially' contributes to the cause and effect 

1702 
of a hazard if the violation could be a major cause of a 

danger to safety or health. In other words, the contribution 

to cause and effect must be significant and substantial." 

In Mathies Coal Co., 6 FMSHRC, PENN 82-3-R, etc. 

(January 6, 1984), the Commission noted that in order to 

establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: 

(1) the underlying violation of a mandatory 

safety Standard; 

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

measure of danger to safety -- contributed 

to by the violation; 

(3) a reasonable likelihood that the hazard 

contributed to will result in injury; 

(4) a reasonable likelihood that the injury in 

question will be of a reasonably serious 

nature. 

During its rulemaking on the revised regulatory criteria 

used by MSHA for proposed assessments of civil penalties, the 

rulemakers made the following statements with respect to the 

application of the term "significant and substantial": 

MSHA does not believe that further specific language 

governing the inspector's evaluation of hazardous 

conditions should be incorporated into the final 

rule. 

* * * MSHA will carefully review its policy for 

uniform application and consistency with this 

rulemaking (47 Fed. Reg. 22292, May 21, 1982). 

Respondent's counsel asserted that MSHA's District Office 

has acted arbitrary in applying an interpretation of the term 

"significant and substantial" which goes far beyond the Commission's definition of that term as it was articulated in 

Secretary of Labor v. Cement Division, National G¥psum Co., 

supra. Counsel asserted that the inspectors who issued the 

violations and found that they were "significant and substantial," followed certain policy directives and instructions 

from their MSHA district manager. Respondent's counsel 

indicated that this policy is included in the comments made 

1703 
the Secretary's rulemakers during the considerations which 

preceded the promulgation of the revised Part 100 criteria 

and procedures for proposed civil penalty assessments. 

Respondent's counsel pointed out that MSHA's policy 

concerning "S & S" findings is articulated at 47 Fed. Reg. 

22292, May 21, 1982, as follows: 

MSHA inspectors already make a determination 

as to which violations of the Act are of a 

serious nature. In making this determination, 

inspectors first evaluate whether an injury 

or illness is reasonably likely to occur if 

the violation is not corrected. Next, the 

inspector must evaluate whether the injury or 

illness, were it to occur, would be reasonably 

serious. In these areas, inspectors use their 

experience, background and training together 

with an evaluation of the actual circumstances 

surrounding the violation to arrive at an 

independent judgment. Where a violation is not 

reasonably likely to result in a reasonably 

serious injury or illness, a summary review and 

analysis of the condition or practice is conducted. However, when the gravity factor is 

low and good faith is established through abatement, MSHA-does not believe that an individualized 

analysis of the negligence, size and history 

criteria is appropriate or necessary. 

Inspector Shade explained his interpretation of an 

"S&S" violation as follows (Tr. 64-71): ' 

ADMINISTRATIVE LAW JUDGE KOUTRA;S: Let me ask 

the inspectors up front. What instructions, 

if any, do you receive from your district 

off ice as to how you interpret S&S? 

THE WITNESS: When we find a violation and we 

see it is reasonably likely that an accident 

would occur, that an accident would occur and 

it is reasonably likely that the accident 

would be serious before it could be terminated. 

* * * * * 

Q. Mr. Shade, isn't it true that your instructions are that you are to assume every violation 

will never be corrected? 
A. Before it can be terminated, before it can 

be corrected, if we find a violation and we see 

that this violation will not be corrected in 

one night, we issue a citation. 

Q. Isn't it tru~ yo~ are supposed to base 

your determination as to what is a significant 

and substantial violation on an assumption 

that the condition will never be corrected? 

A. This was one of the criteria of S&S, but -

ADMINISTRATIVE LAW JUDGE KOUTRAS: I do not 

understand how anybody can come to the conclusion of an assumption that a violation found 

by the inspector will never be corrected. 

"MS. SYMONS: I don't, either, but that is what 

they have been instructed to do. 

THE WITNESS: They said before it can be corrected, 

if we wouldn't find.this violation, they assumed 

that this violation would not be corrected, so it 

would stay in the same position as if it wasn't 

found. 

When asked to explain the procedures he follows in making 

a determination as to whether a violation is "S&S," Inspector 

Shade testified in pertinent part as follows (Tr. 423-433): 

THE WITNESS: Well, we see a violation, and we 

usually have an escort with us, and we discuss 

the violation with the escort, but as far as 

information on it, whenever we have a violation 

that we think could cause an accident before this 

could be corrected or if it weren.' t corrected, 

then we have to mark S&S. These are our 

instructions. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Ms. Gismondi, 

I just don't understand that. Their instructions are, when they find a violation, they act 

under the assumption that had the inspector not 

found it, the mine operator would find it and 

likely not do anything about it, and therefore, 

since the inspector caught it and forced them 

to correct it through the citation process, that 

it is S&S •. 

1705 
The citation process itself requires the operator to abate. He is subject to withdrawal order, 

and if he doesn't abate it, then he is given a 

$1,000 a day penalty. I just don't understand 

this theory. 

* * * * * 

MS. GISMONDI: I don't think it's so much a 

question, Your Honor, that the inspector assumes 

that the violation is not going to be corrected. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: That's what 

he just said. 

MS. GISMONDI: Well, what I'm trying to say it, 

I think that the significant and substantial 

determination is intended to be and is, in fact, 

keyed into the facts of the violation and the 

facts that are in existence at the time that it 

is cited and that can reasonably be expected. 

* * * * * 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Shade, what 

are your instructions as you understand them on 

S&S? What is your understanding of how you are 

to approach marking a violation S&S? 

THE WITNESS: If this violation is reasonably 

likely to cause an accident. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Now, what 

instructions do you have to determine whether 

or not it is reasonably likely? 

THE WITNESS: Let me finish. It is reasonably 

likely that it could cause an accident and that 

it is reasonably likely that it would be a 

serious accident if it were not corrected. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: If it were 

not corrected? 

THE WITNESS: That's right. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: What does 

that mean? What is your understanding of "if 

it is not corrected"? 

170G 
THE WITNESS: If the violation wasn't corrected. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Well, how 

can it not be corrected if you are there citing 

it? How is it not going to be corrected? How 

can the operator refuse to correct a violation 

that you have cited? 

THE WITNESS: Well, they don't refuse to correct 

it as far as that goes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: How does that 

language play. 

THE WITNESS: Well, to me it means that if it 

weren't corrected at any time. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: That presupposes that it existed for some period of 

time; isn't that true? 

THE WITNESS: Yes, or that it would exist for 

some period of time. To me,'that is what it 

means. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: So, in 

this case, had you not been there on January· 

13th to issue this citation, you are telling 

me that that violation probably existed that 

day and the next day, and then when you went 

in there and, let's assume you went in there 

on the 15th and found it, that you would find 

it S&S, because it hadn't been corrected? 

THE WITNESS: Yes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Do you 

understand, Miss Gismondi, what that means? 

MS. GISMONDI: I'm not sure I understood just 

that little bit of dialogue. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: He said 

that his instructions are he marks S&S on 

the theory that the violation would not be 

corrected. That's part of the formula. 

What does that mean? 

1707 
MS. GISMONDI: Well, I think that is the 

general terminology that is used in MSHA 

policies, but probably unfortunate, I think, 

that what it means --

ADMINISTRATIVE LAW JUDGE KOUTRAS: Tell me 

what it means •. There is enough bureaucratic 

policies around that you and I don't understand. Is it written someplace? I want to 

know what it means. 

MS. GISMONDI: I'm sure there is some kind of 

letter or statement of what the policy is 

written somewhere. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Tell me 

what it means in your mind. 

MS. GISMONSI: What it means in my mind is that 

you make an S&S determination on the 

basis of the condition that you observe 

and that you cite. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: All right. 

MS. GISMONDI: Now, obviously when you observe 

it and when you cite it, it is not corrected. 

I think that the inspector is, you know, this 

stuff about whether or not it's going to 

remain uncorrected forever, I think is misleading. 

I think that the question is, you know, what 

is the likely effect of this ~iolation as 

I'm looking at it, you know, a,s I cite it. As 

I said, obviously as you are citing it, it is 

not corrected. It is what it is ... 

ADMINISTRATIVE LAW JUDGE KOUTRAS: And is it 

S&S at that point? 

MS. GISMONDI: I think it depends on the factors 

that we are talking about. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: What could 

happen if the inspector didn't appear and cause 

him to correct it? 

1701; 
MS. GISMONDI: Exactly. 

THE WITNESS: . As far as S&S is concerned, it 

is not necessarily permissibility. we have 

to look at it, first of all, is it a violation? If it's a violation, either the condition at the time or in our own knowledge 

through training and experience and using the 

entire country, you know, things that have 

happened throughout the entire country, let's 

put it that way, if the event should occur 

that we are citing, could it cause an injury 

or an illness? 

Now, if it passes that test .that we feel that 

it could create an illness or an injury, 

which we have also been instructed that that 

means that should a person lose one day's work 

or have to be reassigned for one day from his 

normal duties, then it would be considered 

a significant or substantial type injury, then 

it becomes S§iS. 

BY MS. SYMONS: 

Q. So that any violation which could result 

in an injury over any period of time is 

significant and substantial? 

A. Well, I left that out, I'm sorry. When 

we look at the violation, we also must in our 

own mind say, if the condition were left 

uncorrected--

Q. Okay, are you supposed to, give any effect 

to the surrounding circumstances? 

A. Well, there is some consideration given to 

the condition that we. find, yes. 

PENN 83-129 

Additional Findings and Conclusions 

Significant and Substantial Violations 

Citation No. 2102605 

Inspector Shade made his "S&S" determination because of 

the lack of overhead guarding on the trolley wire at the 
"A Flat 6 Chute track switch." He determined that the violation was "S&S" because the wire was energized, it was 

five and one-half feet off the ground, and was located 

where the locomotives, jeeps, and other personnel carriers 

passed under the unprotected overhead wire. His concern 

was that someone standing up in the carriers, or alighting 

from the carriers, could contact the unguarded wires. 

Respondent does no~ dispute the fact that the guarding 

normally in place for the overhead wires had fallen or been 

knocked down, and that the trolley wire in question was not 

guarded or protected. 

On the basis of all of the evidence adduced here, I 

conclude and find that the inspector's "S&S" finding is 

clearly supportable. The overhead trolley wire was not 

guarded, men and equipment regularly ran under it, and it 

would not be too difficult for a miner to reach up and 

contact the wire or inadvertently come into contact with it 

while riding in a conveyance or alighting from it when it 

stopped under the unguarded wire. Here, the inspector's 

"S&S" finding is rational and supportable, and IT IS AFFIRMED. 

Citation No. 2102611 

In this instance Inspector Shade found that the violation was "significant and substantial" because he believed 

that the light wires which were in contact with the wooden 

cribs and roof coal presented a fire hazard. In his view, 

in the event of a roof fall, the wire could be broken or 

damaged, and a short would result, thereby posing a fire 

hazard. 

Inspector Shade believed that the mine was idle at the 

time the citation was issued. While he is not an electrician, 

he confirmed that the wires were fully insulated, he 

observed no breaks, and the wires were not rubbing in any 

way. He could not state whether there. was any tension on 

the wires, and he conceded that he had no reason to believe 

that the cited conditions would not have been discovered 

during the regular weekly electrical inspection. He 

admitted that he did not check the preshift examination 

books, and had no idea how long the cited conditions had 

existed. 

I conclude and find that Inspector Shade's belief that 

the roof would fall at some unspecified time in the future, 

thereby possibly damaging the wire and causing a fire is 

l '710 
speculative and unsupported. Given the aforementioned conditions which the inspector observed, I cannot conclude that 

it was reasonably likely that the wire resting on the crib 

or in contact with the roof presented the likelihood of an 

injury or hazard. While I have affirmed a violation of the 

cited safety standard, and have concluded that it was 

serious, I cannot conclude that it was significant and 

substantial. Accordingly, the inspector's finding IS 

REJECTED, and IT IS VACATED. 

Citation No. 2102609 

On the facts surrounding this particular violation, I 

cannot conclude that the inspector's "S&S" findings are ~, supportable. Here, the area was roof bolted and additional 

support was provided along the left rib by means of roof 

jacks. The period of time which the miner spent under 

unsupported roof was at most a few seconds. When he walked 

out to install a jack, he was in full view of the inspector 

and a foreman, and he was immediately called back out. 

Given the fact that MSHA itself concedes that miners must 

go under,unsupported roof to install roof supports, 

critical factors which must be considered include the 

amount of time a miner is under unsupported roof, the overall roof conditions, and whether or not the immediate area 

is supported. Here, I am convinced that the inspector made 

an "automatic" "S&S" finding simply because it involved 

roof support. Given the facts here, I find that the 

inspector's finding of "S&S" is unsupportable, and IT IS 

REJECTED and VACATED. 

Citation No. 2102619 

In this case, prior to the start of mining, the 

inspector and the foreman on the scene were both aware of 

the fact that the amount of air at the end of the line 

curtain was less than the required amount. The foreman 

took immediate remedial steps to insure compliance, and 

based on his air readings, more than the required amount 

of air was achieved and the inspector left. However, when 

he returned, an interruption to the air flow, caused by 

a collapsing curtain, and which had not been detected by 

the miners in the work area, caused the air flow to diminish. 

When informed of this fact, the foreman immediately discovered the problem and corrected it. Given these circumstances, I cannot conclude that the violation was "S&S." 

Given all of the prevailing circumstances, I fail to understand how the inspector could conclude that an injury or 

1711 
accident was likely to occur. Here, both the inspector 

and the foreman were both aware of the problem from the 

outset, and steps were quickly taken to correct the problem. 

I am convinced that the inspector here found an. "S&S" 

violation on the basis of his belief that all such violations 

are "S&S." This theory of "S&S" is rejected. I conclude 

and find that the inspector must consider the prevailing 

conditions as well as the fact that the operator is on top 

of the problem and is attempting to make corrections. 

_Accordingly, on the facts here presented, the inspector's 

"S&S" finding IS REJECTED, and IT IS VACATED. 

PENN 83-128 

Citation No. 2103081 

In this case, Inspector Wolfe found that the citation 

was "significant and substantial" because he believed that 

the opening in the contactor compartment of the scoop which 

was cited posed a potential hazard of a methane ignition. 

Mr. Wolfe "believed" that no methane was detected in the 

area, that the ventilation was good, and that "it could 

well be" that the scoop was three crosscuts outby the last 

open crosscut. However, the scoop was often used for cleanup 

details and the hauling of supplies, and was used at the 

face. Given these variety of uses, as well as the fact that 

the scoop was required to be examined weekly, I believe it 

was reasonably likely that the loosened bolt which rendered 

the machine non-permissible would have gone undetected. 

Coupled with the fact that the mine had previously experienced methane face ignitions, and the fact that the mine is 

on a section-30l(i) "spot inspection status" because of the 

amount of methane liberated, I cannot conclude that the 

inspector's "S&S" finding is unsupportable. As a matter of 

fact, in this instance, respondent's ventilation foreman 

Ritz expressed concern about an uncorrected permissibility 

violation of this kind, and he confirmed that ventilation 

can be interrupted at any time, and that the presence of 

methane is unpredictable. The "S&S" finding by Inspector 

Wolfe IS AFFIRMED. 

PENN 83-137 

Citation No. 2102681 

Inspector Wehr made an "S&S" determination on the basis 

of his belief that an unguarded trolley wire could be contacted by a miner during the course of his regular travel in 

1712 
the mine, whether it be by motorized conveyance or on foot. 

The guarding which was normally in place had been knocked 

down, an~ the inspector was concerned that a miner riding in 

one of the conveyances which normally passed under the wire 

could come in contact with-the wire. 

Inspector Wehr testified that he was concerned that a 

person running a locomotive could come in contact with the 

overhead unguarded wire while passing under it, and that 

shock or fatal- injuries could result (Tr. 338). He also 

indicated that.with the amount of traffic passing under the 

-wire, it was reasonably likely that someone could come in 

contact with the unprotected wire (Tr. 339) • 

While it may be true that trolley poles do become dislodged from track haulage equipment from time-to time and 

that overhead guarding for trolley wires is a constant 

problem in the mine, the fact is that the respondent here 

does not dispute the fact that the cited trolley wire was 

not guarded. Further, based on the credible testimony by 

the inspector, which has not been rebutted by the respondent, 

it seems clear to me that men do pass regularly under the 

wire which was not guarded at the time the inspector observed 

and cited it. Given the fact that someone could readily 

contact or reach the unguarded energized wire, I conclude 

and find that the inspector's finding of "S&S" is supported. 

Accordingly, his finding in this regard IS AFFIRMED. 

PENN 83-136 

Citation No. 2103984 

In this case, Inspector Wolfe issued the citation after 

finding that one of the bolts which secured the lid to the 

main contactor compartment of a roof bolter was missing. 

With regard to his "S&S" finding, the parties agreed to 

incorporate Mr. Wolfe's prior testimony .. regarding the permissibility violation concerning a scoop (Citation No. 

213081), in support of his "S&S" finding concerning the roof 

bolter. 

In defense of the citation, the parties agreed to 

accept a proffer by respondent's witness Ritz that the roof 

bolter in question was parked two blocks outby the last 

open crosscut when the inspector cited it, and that at the 

time the inspector observed the cited condition the section 

was wet and well rock dusted, that the ventilation was good, 

and that no methane was detected on the section. 

1713 
In the previous scoop violation, the facts established 

that there was an opening in the contactor compartment which 

could have admitted methane, thereby sparking an ignition. 

In the instant case concerning the roof bolter, Mr. Wolfe 

confirmed that there was no opening present (Tr. 583) •. 

However, he believed that with the use of the machine, the 

heating and cooling process would allow methane to be drawn 

into the compartment. When asked how this was possible if 

th~re were no opening, Mr. Wolfe alluded to a possible 

warping process caused by "an ignition inside the compart-

- men t" (Tr • 5 8 5 ) • 

In response to further questions, Mr. Wolfe could not 

state how many bolts were required to be on the compartment. 

He "guessed" at a number between 18 and 24. While explaining 

his "flame path" theory, he "guessed" that the flame path for 

the particular compartment size in question was an inch and 

one-half, but he was "not sure," and simply stated that "it 

was close enough" (Tr. 586). 

Further examination of the record with regard to this 

citation leads me to conclude that Inspector Wolfe made his 

"S&S" finding on the basis of his general belief that methane 

ignitions have resulted from permissibility violations. He 

conceded that in making his "S&S" determinations, he does 

not necessarily consider the particular prevailing mine conditions, and in fact conceded that he had no idea as to those 

conditions which may have prevailed when he issued the 

citation (Tr. 587-589). 

On the facts in this case, I am convinced that Inspector 

Wolfe made his "S&S" determination on the assumption that 

this particular permissibility violation was per se "S&S," 

and that he did so on the speculative assumption that all 

permissibility violations cause methane ignitions. Given 

these circumstances, and the facts surrounding this particular citation, his "S&S" conclusions are simply not supportable. 

Accordingly, his finding in this reg~rd IS REJECTED, and his 

"S&S" finding IS VACATED. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I conclude and find that the following civil penalty . 

assessments are appropriate for the citations which have been 

affirmed: · 
PENN 83-121' 

Citation No. 

2102696 

PENN 83-129 

Citation No. 

2102605 

2102608 

2102618 

2102611 

2102619 

2102609 

PENN 83-128 

Citation No. 

2103081 

PENN 83-137 

Citation No. 

2102681 

PENN 83-136 

Citation No. 

2103084 

Date 30 CFR Section 

1/12/83 75.1403 

Date 

1/7/83 

1/12/83 

1/24/83 

1/13/83 

1/24/83 

1/12/83 

30 CFR Section 

75.1003 

75.503 

75.503 

75.516 

75.316 

75.503 

Date 30 CFR Section 

1/19/83 75.503 

Date 30 CFR Section 

12/14/82 75.1003 

Date 30 CFR Section 

2/8/83 75.503 

ORDER 

Assessment 

$115 

Assessment 

$205 

125 

150 

120 

75 

125 

Assessment 

$300 

Assessment 

$225 

Assessment 

$125 

Respondent IS ORDERED to pay civil penalties assessed 

by me for the violations in question, in the amounts shown 

above, and payment is to be made to MSHA within thirty (30) 

days of the date of th~se decisions and Order. Upon receipt 

of payment, these proceedings are dismissed • 

• 

/A ,;/L-- ./>~tu/,~ ,/Admin 

r2~g strative ~ ~fras f ~ Law Judge 

L 1 1115 
Distribution: 

Janine C. Gismondi, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market St., Philadelphia, PA 

19104 (Certified Mail) . . 

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 

600 Grant St., Pittsburgh, PA 15230 (Certified Mail) 

/ejp 

1716 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 111984 

WESTMORELAND 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. 

WESTMORELAND COAL COMPANY, 

Respondent 

DECISIONS 

CONTEST PROCEEDING 

Docket No. WEVA 83-260-R 

Order No. 2147582; 8/10/83 

Hampton No. 3 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 84-75 

A.C. No. 46-01283-03530 

Hampton No. 3 Mine 

Appearances: Kevin McCormick, Esq., U.S. Department of 

Labor, Office of the Solicitor, Arlington, 

Virginia, for Petitioner/Respondent; 

F. Thomas Rubenstein, Esq., Westmoreland 

Coal Company, Big Stone Gap, Virginia, for 

Contestant/Respondent. 

Before: ·Judge Koutras 

.. 

Statement of the Proceedings 

These consolidated proceedings concern a proposal for 

assessment of a civil penalty filed by MSHA against 

Westmoreland Coal Company pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

820(a), seeking a civil penalty assessment for an alleged 

v.iolation of mandatory safety standard 30 CFR 75. 523. The 

alleged violation was stated in a section 104(d) (2) Order 

served on Westmoreland by MSHA Inspector Vaughan Garten 

on August 10, 1983. 

1717 
Westmoreland Coal Company contested the civil penalty 

proposal, and also filed a separate notice of contest pursuant 

to section lOS{d) of the Act challenging the validity of the 

order. The cases were consolidated for trial in Madison, West 

Virginia. The parties were afforded an opportunity to file 

post hearing arguments, and they have been considered by me in 

the course of these decisions. ~/ 

Issues 

The issues presented in these proceedings include the 

validity of the order, whether the alleged violation resulted 

from an unwarrantable failure by Westmoreland Coal Company to 

comply with the cited mandatory standard, and whether or not 

the violation was significant and substantial. 

Assuming the alleged fact of violation is established by 

a preponderance of the evidence, the question next presented 

is an appropriate civil penalty to be assessed for the violation taking into account the criteria found in section llO{i) 

of the Act. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 

u.s.c. 301, et seq. 

2. Sections llO{a), llO(i), 104{d), and lOS{d), of the 

Act. 

3. Commission Rules, 29 CFR 2700.1, et seq. 

Stipulations 

The parties stipulated to the following: 

1. Westmoreland Coal Company is subject to the 

jurisdiction of the Commission and the Act, and 

the presiding judge has jurisdiction to hear and 

decide these cases. · 

2. MSHA Inspector Vaughan Garten is a duly 

authorized representative of the Secretary of 

Labor, MSHA, and acted in this capacity when he 

served the contested order on a representative 

of the contestant/respondent. 

3. The subject contested order was properly 

served, and a copy may be admitted as a part of 

the record in these proceedings. 

*/ MSHA filed a brief, but Westmoreland opted not to. 

1718 
' 4. Westmoreland Coal Company is a large mine 

operator. It's overall coal production for 

the year 1982 was approximately 12,642,000 

tons. The 1982 coal production for Westmoreland's 

Hampton No. 3 Mine was approximately 490,000 

tons. 

5. The proposed ·civil penalty for the contested 

violation will not adversely affect Westmoreland's 

ability to continue in business. 

6. The conditions cited as a violation were timely 

abated in good faith by the respondent/contestant. 

7. The history of prior violations for the 

Hampton No. 3 Mine is reflected in a computer 

print-out, exhibit G-2, and it may be admitted as 

part of the record in these proceedings. 

Counsel for Westmoreland stated that he does not now 

challenge the fact that the required precedent underlying 

section 104(d) citations or orders to support the order 

issued in these proceedings were issued by MSHA inspectors. 

Accordingly, counsel stipulated that the contested order 

was procedurally valid. However, he indicated that he 

was not waiving or otherwise admitting his contention that 

the violation did not constitute an unwarrantable failure 

and a significant and substantial violation. 

Discussion 

Section 104(d) (2) Order No. 2147582, 10:20 a.m., 

August 10, 1983, citing a violation of 30 CFR 75.523, 

states the following condition or practice: 

The panic bar provided for the No. 19 

Joy Standard drive shuttl'e car operating 

in the 018-1 7 Left Section was not 

being maintained in an operative condition 

in that when tested said-device would not 

deenergize said shuttle car in the event 

of an emergency. 

The inspector found that the violation was "significant 

and substantial," ~nd ordered the withdrawal of the shuttle 

car from service. 

1719 
The inspector cited a previous order, No. 2140708, 'issued 

on February 18, 1983, as the "initial action," underlying the 

order which he issued on August 19, 1983. 

Order No. 2147582 was abated at 11:25 a.m., August 10, 

1983, and the abatement action states: 

. . 

Panic bar was repaired and now will deenergize said equipment. 

MSHA's Testimony and Evidence 

MSHA Inspector Vaughan Garten testified as to his duties, 

experience, and training, and he confirmed that he has worked 

as a mine foreman and holds mine foreman's and fire boss certificates issued by the West Virginia Department of Mines. He confirmed that he is familiar with the subject mine, that he was 

assigned to inspect it for approximately a year beginning in 

October 1982, and he described the mine as a slope and deep mine. 

Coal is mined with continuous miners and a beltline, and the 

mine ha.s five active sections. The roof averages six-feet high, 

and spot inspections for methane are conducted at the mine (Tr. 

9-13). 

Mr. ·Garten confirmed t~at he conducted an inspection at the 

mine on August 10, 1983, and the inspection was a continuation 

of a general inspection which began on August 1, 1983. After 

arriving at the mine on August 10, he met with the mine superintendent, mine foreman, and chairman of the union safety committee, 

checked the pre-shift, on-shift, and weekly equipment books for 

the 7 left section, and he then proceeded to that area. Upon 

arrival, the section foreman asked him if he was going to inspect 

any equipment, and when Mr. Garten answered in the affirmative, 

the foreman requested him to check the Nos. 17 and 19 shuttle 

cars which were on the section (Tr. 13~15). 

Mr. Garten stated that upon inspection of the No. 19 shuttle 

car he found that the panic bar was inoperative in that it could 

not be pressed down to deenergize the machine. 'The panic bar 

was located alongside the operator's shoulder or lower part of 

his arm, and Mr. Garten explained that the bar should be able to 

deenergize the machine by the operator leaning over against it 

or hitting it with his hand. Fifteen pounds of pressure are required to deenergize the machine, and the bar should only travel 

about two inches for this to occur. He found that the bar was 

"fouled" by a piece of metal at one end, and this would not allow 

the bar to go in the downward motion when it was hit. In order 

to activate the bar one had to reach and pull the bar forward, 

then "mash it down" (Tr. 15-17). 

Mr. Garten stated that the section foreman and the union 

safety committeeman were with him when he tested the panic bar, 

1720 
and when they both tried it and observed that it would not work 

and could not operate it the way it was designed to operate, 

Mr. Garten then issued the order, and served it on Ted Forbes 

(Tr. 1 7-18) • 

Mr. Garten stated that the No. l~ shuttle car was energized 

and inby the section dumping point at the time the violation was 

issued, and that the section was not active and coal was not being mined (Tr. 18, 23). However, he stated that the section was 

preparing to mine coai, and that from speaking to other miners, 

he determined that coal was mined on the previous shift. He 

also confirmed that the section was an active pillar section, 

and although the prior shift was not a production shift, and he 

could not state why coal would have been mined on this prior 

shift, Mr. Garten stated that "due to it being a pillar section, 

you cannot let a pillar section set idle for a period of time" 

(Tr. 2 0-21) • 

Mr. Garten stated that the shuttle car is a self-propelled 

electric car which is in the active workings of the mine, and 

that it is not equipped with a substantially constructed cab. 

He also indicated that the respondent has not applied to MSHA 

for approval of a device in lieu of the panic bar to deenergize 

the shuttle car. In his opinion, the car which he cited did not 

have a panic bar which allowed for a quick deenergization of 

the machine (Tr. 21). 

Mr. Garten stated that the problem was corrected by cutting 

the metal from the area which fouled the panic bar, and after 

this was done it performed the way it was designed to (Tr. 22). 

Mr. Garten confirmed that the shuttle car was used on a 

regular basis in a heavily worked or frequently traveled area, 

and he believed that the condition should have been discovered 

by the required weekly electric haza~ds examination •. He also 

believed that the electrician or section ·foreman should have 

been aware of the condition because the electrician should have 

checked all of the working components of .. the car. However, 

Mr. Garten confirmed that he found no notation of the condition 

in the electrical examination book (Tr. 23). 

Mr. Garten believed that the violation was unwarrantable 

because the condition should have been known to mine management. 

He confirmed that the machine operator should have checked the 

car and reported the condition to management (Tr. 23). 

Mr. Garten noted that the respondent's negligence was 

"moderate" because "management should have·been aware of this 

condition, but there could be mitigating circumstances behind 

it" (Tr. 24). He believed that it was reasonably likely that 

the cited condition would lead to an accident, and that any 
resulting injuries "could be permanently disabling or maybe 

fatal" (Tr. 24). He confirmed that the purpose of the panic 

bar is to stop the shuttle car in the event of an emergency, 

and he believed that the operator or a miner working in the 

section would be affected if an accident were to occur. The 

operator could be crushed against a rib, and miners could be 

run over if the machine "got away" and could not be stopped 

(Tr. 26) • 

On cross-examination, Mr. Garten state_d that on prior inspections he would have examined the shuttle car in question, 

:Qut that the panic bar was operating properly. The only difference he found on August 10, 1983, was the piece of metal 

which had been welded on and which prevented the bar from working (Tr. 27). He did not observe the metal piece during prior 

inspections, -and he believed that it had been added since the 

time he last inspected the car. 

Mr. Garten confirmed that he tested for methane on 

August 10, 1983, and found none present. He stated that he 

did not test the panic bar, but asked the machine operator to 

test it while he observed him and he confirmed that the operator 

did deenergize the machine at that time, and he clarified his 

previous direct testimony as follows (Tr. 29-30): 

Q Did you not earlier testify that the panic 

bar was totally inoperative, the piece of metal 

would prevent it from actuating? 

A The piece of metal did prevent it from 

working properly. The way he designed it, or would 

test it -- he'd pull the bar forward, then mash it 

down. I talked to that man and told him that wasn't 

the way it was designed to work. 

Q Your testimony is the panic bar would somehow slide? 

A Yes. 

Q How did the piece of metal cause it to not 

work if the bar was sliding? Was there only one 

particular spot it would get in and not work? 

A The piece of metal, the way it was situated, 

it would prevent the bar from going in a downward 

motion. Now, you could slide the panic bar forward 

and it would free itself from the piece of metal. 

Then you could mash it down. 

Q What would cause the bar to slide back and 

forth? Aren't those things fairly rigid? 

1722 
A The majority of them, right. 

Q What position would the bar normally be 

in? 

A What are you referring to? 

Q Would it not oftentimes be operative if it 

was slid away from where the piece of metal would 

catch? 

A There would be circumstantial factors that 

plays in that, because a lot of times a panic bar 

designed on a piece of equipment will slide forward 

and slide back, but they have a piece of metal 

welded on so when it comes down, it comes in contact with the switch --

Q How big is that switch? How big's the 

piece of metal in width that we're talking about?· 

A I'd say two to three inches. 

Q So we're talking about a two to three inch 

area? In that particular area, the panic bar woμld 

work? The piece of metal would not prevent it from 

operating. It would have to be within the range of 

that two to three inch area? 

A Right. 

Mr. Garten stated that the piece of metal behind .tne bar 

was approximately 2 to 3 inches and that the bar would have to 

be in this area for it not to operate properly (Tr~ 36). He 

stated that maintenance foreman Harold.Vanhorn came to the 

machine after it was cited, and the panic bar would not operate. 

Mr. Garten stated that he advised Mr. Vanhorn that the bar would 

have to be repaired so that it deenergized the machine by someone's body simply coming into contact with it and without the 

necessity of someone making any other kind of motion to activate the bar. Although Mr. Garten did not point out the p!ec~ 

of metal to Mr. Vanhorn, Mr. Garten·stated that Mr. Vanhorn observed the problem and that he cut the metal off with a torch 

(Tr. 31) • 

Mr. Garten stated that the piece of metal which impeded 

the bar served no other purpose than to prevent the bar from 

working. He has never observed a Joy standard drive shuttle car 

which could also be deenergized by means of a rear lever which 

could activate the emergency car braking system (Tr. 32). 

1723 
• 

Mr. Garten indicated that if the car operator knew of the 

condition o.f the panic bar this would constitute mitigating circumstances, but that he had no reason to believe that this was 

the case (Tr. 32). He also indicated that the shuttle car's 

movement is limited to an area within its 500 foot cable (Tr. 32). 

In response to further questions, Mr. Garten stated that he 

also inspected the No. 17 car but found no piece of metal impeding the panic bar, and that it worked properly (Tr. 33). 

And, at (Tr. 36-37): 

Q Did you actually climb into the equipment 

yourself to test the panic bar? 

A Right. I showed him the operator himself -- I showed him how the panic bar was supposed 

to work by just le·aning into it. 

Q So once it became disengaged or pulled away 

from the metal .piece that.was there, then you could 

lean into it and it would go down and do what it 

was supposed to do? 

A That is if you held it up, slid it forward, 

Your Honor. 

Q · I'm saying once it was away from the metal, 

once someone pulled it away from there, then you 

could lean into it and it would deenergize it? 

A No. You had to keep holding it forward. 

Once you let go of it, it would slide back. 

Q Did you ever determine whqt that was all . about? I mean, did someone deliberately weld a 

piece of metal on there to allow someone to manipulate the panic bar in the way you described it? 

A I hope not. I don't think. 

Q Well, how did the metal mysteriously appear 

on that particular machine when it wasn't on the 

other one? 

A I don't know, Your Honor • 

Q You don't.know what it did, what its function was? 

A No, sir. 
Q Did anyone from management offer any explanation as to what that piece of metal was doing 

there? 

A One of them -- I' think it was Harold Vanhorn 

stated maybe they used that as some kind of a stop. 

Now, so far as what he was referring to, I could not 

Q Is that panic bar -- I mean it's right in 

the cab, right, right next to the operator? 

A Yes, sir. 

Respondent/Contestant's Testimony 

William Roberts testified that he is employed at the mine 

as a union electrician, and that his duties include performing 

electrical and mechanical maintenance on mine equipment. He confirmed that he was familiar with the No. 19 Joy standard drive 

shuttle car which is the subject of these proceedings, including 

the panic bar. He stated that he personally checked the panic 

bar in question the day before the violation was issued, and 

when he checked it with the car energized, the panic bar worked 

(Tr. 51). 

Mr. Roberts explained the operation of the panic bar, and 

he confirmed that the car also contained a valve in the car deck 

which automatically locked when the machine lost power. The 

valve was activated by a metal flap welded on the panic bar itself, and it was always on the cars used at the mine. Mr. Roberts 

confirms that he never received any complaints from car operators 

concerning inoperative panic bars (Tr. 53). 

On cross-examination, Mr. Roberts confirmed that he checked 

the panic bar in question while seated in the cab, and after 

starting the pump motor he pushed down on the bar and it operated. He stated that he checked the car during the day shift. 

He could not recall testing the bar by simply leaning into it, 

and he remembered simply pushing the bar down by simply hitting 

it down (Tr. 55). He did not check the No. 17 car because he is 

assigned only to the No. 19 car. However, he stated that he has 

observed the No. 17 car and that it has a metal lip on the bar 

(Tr. 56). The purpose of this piece of metal or "lip" is to 

serve as an alternative method of activating the emergency braking system, and that this was also the reason why it was on the 

No. 19 car (Tr. 56). 

Mr. Roberts stated that he has observed car operators 

activate panic bars by ·leaning against them with their arms and 

he has never seen anyone pulling it in any direction and then 

depressing it (Tr. 57). 
Mr. Roberts identified Exhibit C-1 as pages from the electrical equipment examination book of August 5, 1983, but he 

could not confirm his signature, nor could he recall whether 

he reported anything that day (Tr. 59). He also identified his 

signature ort the report for August 12, 1983, and he again confirmed that he inspected the No. 19 car on that day (Tr. 60). 

In response to further questions, Mr. Roberts stated as 

follows (Tr. 65-69): 

BY JUDGE KOUTRAS: 

Q Mr. Roberts, let me ask you a hypothet~cal 

question now. Okay? You climb into a particular 

shuttle car to examine it one day, you're sitting 

there and you decide to check the panic bar. Okay? 

A Yes, sir. 

Q You reach over and slide it and lift it and 

then hold it down and it deenergizes the equipment, 

okay? 

A Got it. 

Q In your mind, is that panic bar functioning 

properly? 

A No, sir. 

Q Why? 

A Because you've got to go straight down position with it before it will deenergize the switch 

and the braking system. 

Q What does that mean to you now, straight 

down? 

A It means it's working. 

Q Didn't it go straight down in my hypothetical? 

A No, not if you have to pull on it and push 

to get it in ~osition. 

Q All right. Were you there when the inspector 

in this ca~e issued this particular order on August 10? 

A I was on the section, not at the buggy. 

1'i26 
Q Do you have any idea why he issued this 

order? 

A No, sir. 

Q Has anyone ever told you why he issued 

this order? 

A That it wouldn't work. 

Q Did they tell you why it wouldn't work? 

A I don't think so. 

Q But you're the man that's responsible for 

checking it? 

A Yes, sir. 

Q On this, the same 'shift he issued the 

citation on? 

A Yes, sir. 

Q And your curiosity wasn't aroused? 

A No, sir. 

* * * 

Q Were you involved in the abatement of this 

particular citation? 

A No, sir, I don't think so~ 

* * * 

Q The lip wouldn't keep the ba-r from going 

down to touch the actual deactivation device? 

A Well, it's a possibility it could have got 

something happened to it in twenty-four hours~ 

but like I say, the day before, the panic bar was 

checked because I personally checked it. 

Q You leaned into .:it and there was no problem? 

A .I don't remember if I leaned into it or how 

I shut it off, but anyhow, I just shoved it or leaned 

into it, or whatever, and it went off. 
Q But you don't remember specifically how you 

did it? 

A No, sir, but I remember that it worked like 

it's required to work. 

Q What is your. idea about how it's required 

to work? 

A Just push down on it and it deenergizes 

the motor. 

Harold Vanhorn, assistant maintenance foreman at the subject 

mine, testified that he was responsible for the supervision of 

maintenance on the 7 Left Section on August 10, 1983, and he confirmed that he was summoned to come to the area after the violation was issued. He stated that he got into the shuttle car after 

energizing it, and that the panic bar operated properly and deenergized the car when he used it (Tr. 72). He indicated that 

Mr. Garten got into the car and tried the panic bar, but because 

of his height when he leaned against it, it did not work. 

Mr. Vanhorn then adjusted the spring so that the panic bar 

"would be down a little bit for him." When the bar hit the piece 

of metal, which was a lever for a park brake, Mr. Vanhorn removed it (Tr. 72-73). 

Mr. Vanhorn testified that the lever in question was an 

alternate method of setting the parking brake, and that it was 

always attached to the panic bar (Tr. 74). He confirmed that 

the No. 17 car had a similar lever, and that both cars came 

equipped that way (Tr. 75). Mr. Vanhorn stated that after he 

adjusted the spring on the bar to lower it to suit Mr. Garten's 

height, and he indicated that individual car operators always 

wanted to adjust the bars to suit their own height and that this 

was a "big controversy" (Tr. 75). Howt?ver, as long as the bar 

was not altered so that it could not deenergize ·the car, operators were allowed to adjust them to suit their individual 

height (Tr. 76). 

Mr. Vanhorn was not aware of any previous problems with the 

panic bars on shuttle cars, and he indicated that the piece of 

metal has to remain in alignment so that when it is depressed 

it will activate the hydraulic valve (Tr. 78). 

On cross-examination, Mr. Vanhorn described what he did to 

check the shuttle car after the violation was issued. He confirmed that when Inspector Garten tried it, it did not operate 

but that when Mr. Vanhorn lengthened the spring, it did. However, Mr. Vanhorn indicated that the panic bar would deenergize 

the car when one reached out or up and hit it (Tr. 79). He indicated that the car operators are instructed to test their 

equipment before operating it, and that the operators are more 

or less the same height (Tr. 80). 

1728 
In response to further questions, Mr. Vanhorn stated as 

follows (Tr. 83-89) : 

Q And did you speak with the inspector? 

A Yes, sir. I asked him, I said, "Just what 

is wrong with the machine?" 

Q And what did he tell you? 

A And he showed me, he got in it and showed 

me what was wrong with it. 

. Q What did he show you? Do you remember? 

A When he got in it, he pushed against it, 

and it went up. 

Q What do you mean it went up? 

A It pivots down on-, say, a forty-five degree angle over a set.of switches; and tne boy had 

a spring up here and it raised it up a little more 

than center. You know what I mean? And when he 

come against it, you know what I mean, it went up. 

It fouled again. It went up. 

* * * 

Q It went up? 

A It come up, instead of going down. But 

the motion of it is to go down. 

Q How did he finally get.it to work, the 

inspector? 

A I lengthened the spring on. it to lower it 

more. 

Q And then he got it working? 

A As far as I know, it worked for him. It 

suited him, and they run the buggy. 

* * * 

Q I'm told that lip is what caused the problem in that it would cause the panic bar to.hang up 

somehow and the operator would have to get in, slide 

the panic bar, then push it down before it would 

deactivate. 

1729 
A I did not have no indication·of that with 

it. 

Q Now, this panic bar is designed so that 

anyone, by depressing it, could deactivate the 

machine, right? 

A Yes, sir. 

Q Is that panic bar supposed to be at one 

particular position? 

A No, sir. 

Q And it can be raised or lowered, depending 

upon what, the size of the operator? 

A Well, it's a matter of figures, you know. 

They might come up with a certain travel space ·on 

the panic bar, or weightwise, or something; but do 

energize it. Do you fo·llow me? 

Q Right. But I'm talking about accessibility. 

A As long as you're supposed to be inside the 

cab of it, you're supposed to be able to hit it. 

Q The next question is how are you supposed 

to hit it? What would you do to hit it? 

A I approximately would use my shoulder or my 

hand. It would depend if I was in a hurry. In a 

quick reflex, you don't know what you'd do. 

Q In a shuttlecar, you're steering the machine 

with your left hand, are you not? 

A Yes, sir. 

Q And the panic bar is on that side, isn't it? 

A Yes, sir. 

Q So if you use your hand to do it, you 

wouldn't let go. You'd reach over with your right 

hand? 

A Well, you could. 

Q If you were going to use your hand? 

A It would be a matter of quickness. I'd 

probably do it with my shoulder. 

1730 
Q With your left shoulder? 

A Yes. I'd just go against it. Left or 

right, whichever way you'd be traveling. There's 

a left and right machine. 

* * * 

Q Did that piece of metal in any way impede 

or keep the panic bar from doing its job? 

A When I tried it, no. 

Q How about if somebody else tried it? 

A Well, now 

Q If the inspector tried it, did it? 

A It might have, but it did not when I 

tried it. 

Inspector Garten was called in rebuttal, and he could not 

explain the presence of the metal lip on the panic bar, nor 

could he dispute the testimony of the respondent's witnesses 

regarding that device (Tr. 101). In response to further questions, Mr. Garten testified that when he tested the panic bar 

he had to push it approximately one-half inch forward and then 

down, and he explained his citation further as follows (Tr. 107-

108) : 

Q If there's an operator sitting there and he 

pushes it a half an inch and down, is it altogether 

possible that he believed it was operating all right? 

A He could have. 

Q And yet when you did it, you didn't think 

it was, because --

A The panic bar is designed 

downward pressure, not sideways. 

for two-inch play when you hit it 

down into contact. 

two-inch play 

It was designed 

for it to come 

Q So it's altogether possible then the reason 

you issued this citation is that you were strictly 

applying Subparagraph (c), which says, Any part of 

the body leaning into it has to de-energize it? 

A Yes, sir. 

1731 
Q Whereas, the operator you saw was having a 

little difficulty because he had to move it a half 

an inch and then put a little more pressure down. 

And in your view, that wasn't in compliance with 

the standard? 

A No, sir, because. the standard calls for the 

fifteen pound pressure on your body in a downward 

direction. 

And, at Tr. 109: 

JODGE KOUTRAS: Half an inch, gentlemen -- how big is this panic bar? 

MR. RUBENSTEIN: Three-and-a-half feet long? 

THE WITNESS: Three-and-a-half or four feet. 

It depends on the length of the deck. 

JUDGE KOUTRAS: So the question of whether the 

fellow leans into it or moves it half an inch, really 

MR. McCORMICK: I take issue with that, Judge. 

It's not that. He said when you leaned into it, it 

didn't work. So half an inch might be a small amount 

of distance, but you have to move it half an inch and 

then i.t would work: but if you leaned into it without 

moving it forward with your hand, it wouldn't work. 

So the half inch, I think, is significant. Not so 

much the distance. It's the fact you had to do something before the panic bar would automatically work 

the way it's supposed to. 

Findings and Conclusions 

In this case the respondent is charged with a violation of 

the provisions of mandatory safety standard section 30 CFR 

75.523, which provides as follows: 

[Statutory Provision] 

An authorized representative of the Secretary 

may require in any mine that electric face equipment be provided with devices that will permit the 

equipment to be deenergized quickly in the event 

of an emergency. 

The citation i~sued by Inspector Garten asserts that the 

panic.bar on the cited shuttle car was not maintained in an operative condition in that when it was tested it would not deenergize the machine in the event of an emergency. 

1732 
Regulatory standard section 75.523-1 requires that electric 

face equipment must be provided with a device that will quickly 

deenergize the equipment in the event of an emergency. The 

parties stipulated that the exception found in subsection (b) of 

this standard, which does not require such a device when a machine is equipped with a substantially constructed cab, does not 

apply in this case. 

Regulatory standard section 75.523-2 states the performance 

requirements for the deenergization device in question, and subsection (b) and (c) state as follows: 

(b) The existing emergency stopswitch or 

additional switch assembly shall be actuated by a 

bar or lever which shall extend a sufficient distance in each direction to permit quick deenergization of the tramming motors of self-propelled 

electric face equipment from all locations from 

which the equipment can be operated. 

(c) Movement of not more than 2 inches of the 

actuating bar or lever r~sulting from the application of not more than 15 pounds of force upon contact with any portion of the equipment operator's - body at any point along the length of the actuating 

bar or lever shall cause deenergization of' the 

tramming motors of the self-propelled electric face' 

equipment. 

The inspector here· did not include a reference to sections 

75.523-1 and 75.523-2 as part of his citation. While it would 

have made the citation more specific and detailed as to precisely 

what was being charged, I do not believe that his failure to include these sections renders the citation procedurally defective. 

I conclude that all of these sections must be read together in 

order to make any sense as to what is required under section 

75.523. Subsections (b) and (c) of section 75.523-2 state the 

performance requirements necessary to maintain compliance with 

section 75.523, to insure that the deenergization device- "will 

permit the equipment to be deenergized quickly in the event of an 

emergency" • 

In its post-hearing brief, MSHA takes the position that the 

uncontradicted testimony of Inspector Garten clearly establishes 

that the panic bar in question did not operate in conformity with 

the requirements of the applicable standards noted above. · MSHA 

asserts that when Mr. Garten examined the shuttle car, the operator had difficulty activating the panic bar, and that before the 

bar would deenergize the machine, the operator had to slide the 

bar up and then press it down. Given these circumstances, MSHA 

concludes that the car operator was unable to activate the panic 

1733 
bar by using any portion of his body, and that it was only after 

he went through a special manuever was he able to work the bar 

properly. 

In further support of the violation, MSHA points out that 

when Inspector Garten attempted to activate the panic bar himself 

he was unable to deenergize the shuttle car because the bar could 

not be smoothly pressed down. MSHA concludes that Mr. Garten correctly determined that this additional step of pulling the panic 

bar pefore it could be pressed down to deenergize the car did not 

satisfy the requirements of the standard for a quick deenergization in the event of an emergency because a metal lip on the 

panic bar prevented the bar from moving smoothly in a downward 

direction. Finally, MSHA points to the fact that neither the 

mine foreman (Forbes) nor the Chairman of the Safety Committee 

(Gunoe), both of whom were present with the inspector when the 

machine was examined, were able to deenergize the car by simply 

pressing down on the bar, and that the testimony by Mr. Garten 

in this regard was not refuted. 

In defense of the citation, the contestant/respondent presented the testimony of electrician William Roberts and assistant 

maintenance foreman Harold Vanhorn. Although Mr. Roberts indicated that he had checked the panic bar the day before the inspection and that it worked properly, he confirmed that he was not 

present at the shuttle car when the inspector issued his citation 

on August 10, 1983. He also stated that he had no idea why the 

0° .. dar was issued, and that no one told him why the panic bar 

would not work. 

Mr. Roberts was not involved in the abatement of the citation, and when asked how he had tested the bar the day befpre the 

citation issued, he stated that he had "hit it" or "pushed down" 

on it, but he could not recall whether he activated the bar by 

simply leaning into it. In response .to a hypothetical question 

as to whether a panic bar which had to be activated by someone 

sliding it, lifting it, and then pushing it down would be functioning properly, Mr. Roberts answered that it would not. 

Mr. Vanhorn was summoned to the shuttle car area after the 

citation issued, and he stated that when he tested the panic bar 

it operated properly and deenergized the car. However, he conceded that when the inspector tested it in his presence by simply 

leaning into it, the device would not operate properly and did 

not deenergize the machine. Mr. Vanhorn also conceded that the 

device is designed to function by someone simply depressing it, 

and in order to quickly deenergize the machine, he would probably 

use his shoulder. 

After careful review and consideration of all of the testimony and evidence adduced in this case, I conclude and find that 

MSHA has established the fact of violation. I find the inspector's 
testimony in support of the violation to be credible, and the 

contestant/respondent's testimony, while possibly mitigating the 

offense, has not rebutted the credible testimony presented by 

MSHA in support of the violation. Accordingly, the violation 

IS AFFIRMED. 

Unwarrantable Failure 

The violation in this case was set out in a section 104(d) (2) 

"unwarrantable failure" order issued by Inspector Garten. Although I have affirmed a finding of a violation of the cited 

§afety standard in question, there still remains the issue as to 

whether or not the violation constitutes an "unwarrantable failure" by the contestant/respondent to comply with the requirements 

of section 75.523. Contestant/respondent has stipulated that it 

does not challenge the procedural underpinning for the order, and 

it concedes that the precedent underlying section 104(d) citation 

and order "chain" was validly issued (Tr. 48). However, contestant/respondent preserved its challenge to the "unwarrantable 

failure" finding by the inspector. 

As correctly stated by MSHA in its brief, the test for "unwarrantable failure" is whether "the operator involved has failed 

to abate the conditions or practices constituting such violation, 

conditions or practices the operator knew or should have known 

existed or which it failed to abate because of lack of due diligence", Zeigler Coal Company, 7 IBMA 280, 295-296 (1977). 

MSHA did not produce copies of the underlying section 104(d) 

citation and order, and I have no way of knowing why they were 

issued. In support of its argument that the violation here was 

an unwarrantable failure, MSHA relies on the testimony of Inspector Garten. He believed that the violation was unwarrantable because he "felt this condition should have been known by mine 

management" (Tr. 23). In support of this conclusion,.Mr. Garten 

was of the opinion that since the machine is on the section all 

of the time, and since there is a qualified electrician present 

who is required to inspect the equipment .. during his weekly examination, the condition should have been discovered. Further, 

Mr. Garten was of the view that the machine operator is required 

to check the machine daily before he operates it, and if he finds 

any condition that is out of compliance, he is required to report 

it (Tr • 2 2-2 3) • 

Neither party called the shuttle car operator as a witness, 

nor did they take his deposition. As a matter of fact, no testimony was elicited from the inspector as to whether he even interviewed the machine operator or obtained any statement from him 

as to whether or not he had examined the car in question prior to 

operating it, or whether he believed the condition "was obvious 

or easily discernible", as claimed by the inspector. Further, 

1735 
when asked his opinion as to the negligence of the operator, Inspector Garten was of the view that _it was "moderate"~ In reply 

to a question as to whether or not mine management should have 

been aware of the condition, Mr. Garten replied "there could be 

mitigating circumstances behind it" (Tr. 24). 

Inspector Garten asserted that he had no reason to believe 

that the shuttle car operator was aware of the condition of the 

panic bar (Tr. 32). This leads me to conclude that prior to the 

inspector's arrival on the scene, the car operator either did not 

check it out or thought nothing of it. As a matter of fact, when 

q_alled in rebuttal, Mr. Garten admitted that when he tested the 

panic bar he had to push it approximately one-half inch forward 

and then down before the machine would deenergize. When asked 

whether the car operator, given these same circumstances, could 

have concluded that the device was operating properly, Mr. Garten 

replied "he could have" (Tr. 108). 

As for Mr. Garten's testimony that he examined the very same 

car "a month, maybe longer" prior to August 10, 1983, and found 

that the panic bar operated properly, and that he observed no 

metal lip impediment, contestant/respondent's post-hearing information suggests that it may have been added in May 1979 when the 

car was rebuilt. Thus, any inference that the metal lip may have 

been added after Mr .. Garten's prior inspection is simply not supportable. As a matter of fact, Mr. Garten appeared to be totally 

ignorant as to the function of the impediment described as a 

"metal lip". Further, there is no evidence of any past complaints 

by machine operators concerning any problems with the panic bar, 

and Mr. Vanhorn's testimony that no prior complaints were ever 

brought to his attention remains unrebutted. Although the computer print-out of prior violations for the mine shows that four 

prior citations for violations of section 75.523 were issued in 

1982, and in March and June of 1983, MSHA presented no evidence or 

testimony as to what those were about •. 

After careful scrutiny of the record in this case, I cannot 

conclude that MSHA has established that this violation was caused 

by an unwarrantable failure by the contestant/respondent to comply with the requirements of section 75.523. MSHA has produced 

no credible evidence to support any conclusion that the weekly 

examination had not been conducted, and I take official notice of 

the fact that August 10, 1983, the day the citation issued, was a 

Wednesday. Further, respondent's electrician Roberts' testimony 

that he examined the panic bar the day before the citation issued 

and found it operating properly has not been rebutted by MSHA. 

Maintenance foreman Vanhorn's testimony concerning the adjustments that are required to be made in the panic bar to take 

into account the height of the car operator has merit, and leads 

1736' 
me to conclude that it is altogether reasonable that what may 

appear to one individual as an "obvious or easily discernible" 

condition could very well depend on the subjective judgments and 

observations of someone else. As a matter of fact, Mr. Garten 

conceded during his rebuttal testimony that he strictly applied 

the standard requirement that the panic bar be capable of deenergizing the machine by the.operator simply leaning his body against 

it (Tr. 107-108). 

In view of the foregoing findings and conclusions, I conclude 

and !ind that MSHA has failed to establish by a preponderance of a~y credible evidence or testimony that the violation constituted 

an unwarrantable failure by the contestant/respondent to comply 

with the requirements of the cited safety standard. Accordingly, 

Inspector Garten's finding in this regard IS VACATED, and the section 104(dd) (2) order IS MODIFIED to a section 104(a) citation. 

Significant and Substantial 

In support of its contention that the violation is "signifi- . cant and substantial" (S&S), MSHA asserts that the unrefuted testimony of Inspector Garten established not only that there was a. 

reasonable likelihood that the failure of the panic bar to deenergize the shuttle car would lead.to an accident, but that if an 

accident did ocqur, it would reasonably be expected to result in 

at least one and possibly two employees being permanently disabled 

or fatally injured (Tr. 25). This was true, argues MSHA, because 

a shuttle car like No. 19, which could freely roam in the mine for 

up to 500 feet, could easily crash against a rib in the mine seriously injuring the operator or crush anyone in its path if the 

panic bar was inoperative (Tr. 25-26, 33). MSHA points to the 

fact that neither Mr. Roberts nor Mr. Vanhorn questioned Inspector 

Garten's statements as to the potential harm that can be caused by 

an inoperative or malfunctioning panic bar. 

Although Inspector Garten confirmed that coal was not being 

produced at the time the violation was cited, and while he did not 

specifically know when the car was last used, he did confirm that 

the section was an active pillar section which does not remain 

idle for very long, and that the shuttle car was used during a coal 

production cycle. He also confirmed.that the car would be used on 

a regular basis in the pillar section in areas which are heavily worked or frequently traveled (Tr. 21-22). While the testimony of 

the shuttle car operator himself would have been the best and most 

direct evidence of any hazard concerned with the cited panic bar, 

I still find the inspector's testimony to be credible, and Westmoreland has not rebutted it. 

I believe it is reasonable to conclude that given the violation in this case, in the event of a collision caused by the inability of the shuttle car operator to quickly deenergize the 

1737 
machine by simply leaning his shoulder into the panic bar, personal injuries or equipment damage would likely result. Accordingly, I conclude and find that the violation is significant and 

substantial, and the inspector's finding in this regard IS 

AFFIRMED. 

Size of Business and the .Effect of the Civil Penalty on the 

Respondent's Ability to Continue in Business. 

_ The parties stipulated that Westmoreland Coal Company is a 

large mine operator and the civil penalty assessed in this case 

will not adversely affect its ability to continue in business. I 

adopt these stipulations as my findings and conclusions on these 

issues. 

Good Faith Abatement 

The parties stipulated that the cited conditions were timely 

corrected and abated in good faith, and I adopt these as my conclusion on this issue. 

Negligence 

The inspector here believed that the violation resulted from 

a moderate degree of negligence. I conclude and find that the 

violation resulted from Westmoreland's failure to exercise reasonable care, and that this constitutes ordinary negligence. 

Gravity 

I conclude and find that the violation here was serious. 

Failure of the car operator to be able to quickly deenergize the 

shuttle car by leaning against the panic bar during an emergency, 

unexpected traffic, or other obstacles in its path while the machine is in operation presents a real _potential for accidents and 

injuries. 

History of Prior Violations 

Westmoreland's history of prior violations for the mine in 

question is contained in a computer print-out submitted by MSHA 

(exhibit G-2). For the period August 10, 1981, through August 9, 

1983, the mine was assessed for a total of 290 violations, four 

of which were previous citations of section 75.523. The information also reflects that since October 20, 1978, the mine has received 126 "S&S" violations, and I assume that these are among 

those listed in the print-out. 

Although Westmoreland is a large mine operator with a 1982 

annual production of over 12 million tons of coal, for that same 

year the Hampton No. 3 Mine produced 490,000 tons. Assuming that 

1738 
same production for 1983, the number of violations at the mine, 

in comparison to its production, appears to be high. However, 

absent any further analysis or supportive arguments from MSHA, I 

cannot conclude that the prior history warrants any additional 

civil penalty increase, and I am persuaded by the fact that the 

mine has had only four prior citations for violations of section 

75.523. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the Act, 

I conclude and find that a civil penalty assessment of $175 is 

appropriate for the violation in question. 

ORDER 

Respondent Westmoreland Coal Company IS ORDERED to pay a 

civil penalty assessment of $175 within thirty (30) days of the 

date of this decision, and upon receipt of payment by MSHA, these 

proceedings are dismissed. 

Distribution: 

_g:~~e~ ~~A. Koutras 

Administrative Law Judge 

F. Thomas Rubenstein, Esq., Westmoreland Coal Company, P. o. 

Drawer A & B, Big Stone Gap, VA 24219 (Certified Mail) 

Kevin C. McCormick, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

1739 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 16 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

PAULS. SEDGMER, JR., 

EDWARD J. BIEGA, AND 

DENNIS R. GORLOCK, 

Complainants 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 82-105-D 

MSHA Case No. VINC CD 82-16 

Reclamation Services No. 60 

Mine 

DECISION 

Appearances: Patrick M. Zohn, Esq., Office of the Solicitor, 

u. s. Department of Labor, Cleveland, Ohio, for Complainants~ 

Before:. 

Robert M. Vukas, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Moore 

On the first day of the hearing Mr. Gorlock and Mr. Sedgmer 

completed their testimony. Since their memories differ in some 

respects from the other witnesses, I will summarize their testimony first. Considering that the events took place in April 1982, 

that the depositions were taken in November of 1983 (the reporter 

apparently lost the notes because the depositions were not transcribed until March 1984) and that the trial took place in March 

of 1984, it is not surprising that memories differ as to details. 

Both witnesses testified essentially as follows. They 

were reinstated as pan (a pan and scraper are the same thing) 

drivers after a lay-off on April 12, 1982. On April 15, 1982, 

they were both in a crew operating in a loop or a circle where 

they would pick up dirt from one area and deposit it in another. 

Mr. Taylor, the superintendent, stopped them and asked them ±f 

they could go a little faster. Both replied that they could not 

.under the conditions and Mr. Gerlock mentioned that he had injured his back earlier and did not intend to do it again. 

Mr. Sedgmer was told by Mr. Taylor something like "I know you 

had trouble in the preparation plant and came out here thinking 

it would be easy •• well, I'm going to tame you." Mr. Sed9mer 

considered this a threat. Both witnesses thought it was unusual 

1740 
that Mr. Taylor was out on the job so often. Usually a superintendent was somewhere else, not out with the pan crew. Both 

thought that a tramming or deadheading operation, and they had 

both engaged in many such operations, was not a valid indication 

of the pan operator's ability to produce. Pan operators deadheaded only 1% or 2% of the time and such operations were not 

similar to their normal productive activity. 

on April 23, 1982, a deadhead was scheduled to an area known 

as the 46-C Pit. · The deadhead would begin at a place where the 

various pans or scrapers had been parked, and on the way to the 

46-C Pit they would first pass, in either a mile or a half-mile, 

the Gem Haulroad Bridge, then the Spade Haulroad Bridge, and 

thereafter the 46-C Pit. On the bus from the 46-C Pit to the place 

the scrapers were located it was very dusty in the back of the 

bus. There were times when the witnesses could not see Foreman 

Busby in his pickup truck ahead of the bus. When the bus stopped, 

Mr. Busby got on and said th:at because of the dusty conditions 

and the traffic of the darts on the road, which was expected to 

be heavy, a different than normal deadhead system would be used. 

This time the men would start off individually with 5-miriute 

intervals between them. The men had been assigned various 

scrapers that had been lined up in a row and Mr. Biega, Mr. Sedgmer, 

Mr. Hornyak and Mr. Gerlock were at the tailend of the procession. 

The first nine were waved on over the hill and both witnesses 

assumed that they would go over the hill and then line up and 

leave at 5-minute intervals. About twenty minutes later, however, 

Mr. Busby signaled the last four to start moving and when they 

got to the brow of the hill they could not see the others lined 

up for a 5-minute interval start like they expected. Everybody 

had left. At some point after they had left the Spade Haul.road 

Bridge, but before they got to the 46-C Pit, a Mr. Lane stopped 

them all and then pulled Mr. Hornyak off to the side for an 

alleged brake problem. In getting going again, Mr. Gorlock, 

who originally started out last, went ahead of Mr. Sedgmer. Both 

witnesses testified that from the Quonset hut on, about 25% of 

the total move, the area had been watered. When these two, and 

Mr. Biega were almost finished with the deadhead, Mr. Davis pulled 

them off to the side of the road. Mr. Taylor and Mr. Lane were · 

there. They were asked if they had any safety or mechanical 

problems and they said No. They then were directed to return to_ 

their cabs and stay there. They stayed there for about 6 hours. 

During that time Mr. Davis was asked what was going on and he 

said he did not know what Mr. Taylor had up his sleeve this time. 

During the whole time Mr. Davis sat across the haul road from the 

three pans operated by Mr. Gerlock, Mr •. Sedgmer, and Mr. Biega •.. 

The three p~n operators were not allowed to talk to each other. 

For most of the deadhead they had operated in second or third 

gears and both had the new pans which had six gears instead of 

four and thus operated slower in the middle gears than the older 

pans. They both testified that they knew of no one who had been 

1741 
fired for going too slow in the pans but knew of some who had been 

disciplined and warned about going too fast. 

Both had made many deadheads and said that the normal way 

was to leave in a convoy with a supervisor and his radio in front 

and a supervisor and his radio behind the convoy. Normally, the 

way was clear to them so that there was no problem with the darts 

(haulage trucks). The foreman had always said that there was plenty 

of work for them so even though they had recently been laid off 

they were not concerned about running out of work at this time. 

Other witnesses who had participated in the deadhead testified, and while there was some discrepancy as to the manner in 

which they departed and while one witness testified that the 

Quonset hut was in a different location from that testified to 

by the others there was no essential difference. The' company 

stipulated that in all past moves a convoy had been used and 

that the move on April 23 wa$ the first time they had ever attempted to set the pans off in 5-minute intervals. Mr. Barron, 

a pan operator who had been involved in at least a hundred deadheads, testified that on a deadhead the pans were not allowed to 

pass each other. 

In addition to the three complainants, five of the other 

participants in the April 23 deadhead testified. Mr. Bintz, 

classified as a first-class mechanic, Mr. Carpenter, classified 

as a 'dozer operator, Mr. McKeen, classified as a 'dozer operator, 

and Mr. Bonfini, a pan operator, and Mr. Hornyak, a first-class 

mechanic all gave similar testimony. Pan operators that were not 

involved with the April 23 deadhead: Scott, Barron, and Boggs 

also testified. All were of the opinion that only the operator 

of the equipment can judge the proper speed for that piece of 

equipment. Only the operator knows the conditions of the road 

when he is traveling on it, the 1extent of dust suspended in the 

air, and the condition of his machine. The government, prosecuting for the three complainants, contends that the operator of the 

equipment has absolute discretion as to how fast he operates. 

All of the participants in the April 23 deadhead heard 

Mr. Busby describe the new procedure of leaving at 5-minute 

intervals. Some of them, including complainant Biega, heard 

him say that plans had been changed and they were no longer 

intending to use the 5-minute interval system. , Some of them,_ 

however, went to their scrapers still thinking that they would 

be leaving at 5-minute intervals. · 

Unbeknownst to the scraper operators and to most of .the 

foremen, a time and motion study had been secretly set up for 

the April 23 deadhead. Superintendent Taylor made the decision 

as to the order in which he wanted the pans to depart the Gem 

Pit, and he told Mr. Cyrus to set up the study. Mr. Cyrus and 

1742 
two assistants stationed themselves at points along the haulroad 

known as the Gem Haulroad Bridge, the Spade Haulroad Bridge, and 

the 46-C Pit. As each scraper passed one of these three points, 

its number and the time of passage to the nearest minute was noted. 

The results of that time and motion study are set forth in complainants•· exhibit 3. ·From the starting point of the study, the 

Gem Haulroad Bridge, it was 6.4 miles to the Spade Haulroad Bridge 

and 3.3 miles thereafter to the 46-C Pit (the actual study ended 

at the 'dozer pit, which is near the 46-C Pit), a total of 9.7 

miles. 

The first four scrapers to leave the Gem Haulroad Bridge and 

the ones that finished the entire trip with an average time of 

29.25 minutes were operated by the miners who were not classified 

as pan operators. Two were first-class mechanics and two were 

'dozer operators. There was convincing testimony that non-pan 

operators generally run fas~er than regular pan operators. One 

possible explanation is that since they do not operate pans on a 

regular basis they enjoy the change of pace and like to run fast. 

Another possible explanation is that since they do not have to put 

up with the jarring motion of the pan all day like the pan operators do, they run faster and take more punishment. The pan operator on the other hand, knowing that he is going to be driving that 

pan for a full shift, tends to take it easy on himself. Regardless of what the reason may be, the time and motion study bears 

out this evidence. The first four regular pan operators to finish 

the deadhead did so in an average time of 38.6 minutes. The 

complainants covered the same distance at an average time of 

68.3 minutes. 

The secret time and motion study was obviously a set-up 

or "sting" operation. The suspected malingerers along with the 

mechanic, Hornyak, who may or may not have been a target, were 

put at the tailend of the procession and the drivers who could 

be expected to be the fastest, were put in front. Mr. Taylor 

also testified that he likes to get his mechanics and 'dozer 

operators to the scene of a new operation first; but if he had 

expected the entire group to travel as a convoy, the time difference between the first arrivals and the last arrivals should have 

been insignificant. There was also the suggestion that the front~ 

runners were driving the older pre-1977 scrapers and that these 

old scrapers are faster than the newer ones. Inasmuch as nobody 

ran at full speed, 32 m.p.h., it hardly matters which pans were 

faster. 

There is considerable controversy about how dusty it was on 

the day in question. Some of the witnesses said~that dust was a 

problem and others said it was not. Mr. Sedgmer, father of one 

of the complainants, was driving a water wagon that day and he 

put the first water on the haul road in the vicinity of the 

Quonset hut and it had not been previously watered. The Quonset 

1743 
hut is fairly near the Spade Haulroad Bridge w~ich, from respondent's exhibit 7 would appear to be about 6 miles after the start 

of the time and motion study. According to the study, the watering 

of the Quonset hut area would have taken place before any of the 

thirteen pans involved in the deadhead got to that area and at 

about the time that the last four pan operators passed the Gem 

Haulroad Bridge where the study began. Mr. Sedgmer's watering of 

the Quonset hut area took place at 7:50 A.M. 

If, on April 23, the unwatered portions of the haul road 

had been extremely dusty with no cross wind to carry the dust 

away, it would be obvious that the last pans in line would have 

had more dust to contend with than the scrapers near the front 

of the line. And if the dust was hanging in the air the cumulative effect of the dust being thrown off by the coal haulage 

trucks would be worse for the last pan operators in line •. I can 

not find, however, that the road was as dusty as the conditions 

I have just described. The complainants testified that at the 

speed they were driving dust was not a problem. The front-runners 

all testified that they were not having a problem with d~st but 

that the road conditions would be worse for those trailing behind. 

It was speculated that the ones behind would have not only more 

dust but more truck traffic to contend with. 

Some of the witnesses thought that there was dew on the 

ground and while it is fairly clear that the dust settling effect 

of the dew would be dissipated as more and more scrapers rolled 

by, there is no evidence of a traumatic change in the road conditions between 7:38 A.M. when the first scraper passed the Gem 

Haulroad Bridge and 9:09 A.M. when the last scraper passed the 

finish line. The superintendent, Mr. Taylor, and the other foreman traversed the deadhead route several times during the move 

and observed both the leading pans and the last four. They 

testified that the dust and traffic conditions as well as the 

road surface conditions were not significantly different for 

the different operators. 

After listening to the testimony of the complainants, 

Mr. Biega, Mr. Gerlock and Mr. Sedgmer, I can not believe that 

they were involved in a deliberate slowdown designed to hamper 

the company's operation and avoid a layoff. Avoiding a layoff 

by engaging in a slowdown, thus prolonging the available work, 

has been suggested as the motive for complainant's actions. -I 

do not find that the complainants engaged i~ such a slowdown. 

I believe that Mr. Hornyak ·and the three complainants took 

a leisurely :trip relying upon the belief that all equipment 

operators seem to hold to the effect that they are the only ones 

who can determine the speed at which the equipment will operate. 

To the extent that the pan operator or any other equipment operator, has his feet on the brake and accelerator and is in charge 
of the gear shifting mechanism the operator is obviously the one 

who determines the speed at which the equipment is operated. I 

can not find, however, that he has unlimited discretion in this 

respect as the government contends. Mr. Biega himself was the 

cause of a citation being issued against the company because he 

was following another scraper too close. Drivers have been disciplined for going too fast and a Mr. Scott, who testified for 

the complainants, was disciplined (a letter of reprimand) for 

going too slowly. I heard a case in Texas, Secretary of Labor 

vs. Garrett Construction Company, 4 FMSHRC 2202 (December 13, 

1982) in which two scrapers were going in opposite directions 

at 30 m.p.h. each and collided. One operator was killed and the 

other was seriously injured. Those drivers undoubtedly thought 

they had discretion to operate at approximately full speed. I 

hold that the speed at w~~ch a scraper is supposed to be operated 

is not in the sole discretion of the operator himself. 

Both parties devote a portion of their briefs to the question of good faith belief, on the part of complainants, that they 

were operating at a safe reasonable speed. I do not consider the 

driver's belief a controlling factor. The question is· whether 

respondent had a good faith belief that the three drivers were 

engaged in a slowdown. It is the determination of the motivation 

of the employers that is crucial. 

While I have held that I do not believe the complainants 

were engaged in a slowdown, I also hold that from the results of 

the time and motion study, respondent had every right to think 

that they were so engaged and, in fact, did think that. Taking 

the first 6.4 mile leg of the test, only a small portion of which 

had been watered at the time of the deadhead, complainants average 

speed was 8.2 m.p.h. Disregarding the faster speed of the 

mechanics and 'dozer operators, the five regular pan operators 

had a speed over that first leg of 14.6 miles per hour. That 

is 6.4 miles per hour faster than the complainants. It took an 

average of 26.2 minutes for the five regular pan operators to 

cover that leg, and it took the complainants an average of 47 

minutes to cover that same distance. The last of the regular pan 

operators passed the Spade Haulage Bridge at 8:12 A.M. It was 

19 minutes later before the first of the complainants got to 

that check point. The time and motion study justifies a belief 

by respondent that complainants were engaged in a slowdown. 

The complainants did make safety compl&ints from time 

to time and there is evidence that they were outspoken in regard 

to safety matters, but there was no evidence that their safety 

complaints had any connection with the disciplin~!Y action taken. 1/ 

1/ Complainants were all given notices of suspension with intent 

to discharge. The matter went to arbitration and the decision of 

the arbitrator was that complainants should be suspended for 30 

days, but not discharged. The complainants were thus suspended 

for 30 days and then put back to work. 

1745 
Complainants were suspected of being malingerers and a trap 

was set up to provide evidence of that fact. The trap did provide 

Mr. Taylor with the evidence he wanted and the result was exactly 

as he expected it to be. If extremely dusty conditions had existed 

on April 23, 1982, on the haul road, I would have found this time 

and motion study to be unfair because of the way the scrapers were 

lined up. I do not find that such extremely dusty conditions 

existed, and I can not find that the time and motion study was 

unfair. Considering the fact that Mr. Biega finished the entire 

run approximately 25 minutes before Messrs. Sedgmer and Gerlock, 

together with the fact that Mr. Gerlock passed Mr. Sedgmer, I can 

not find that any of the complainants were being held up by one 

of the other complainants. Pan operators are allowed to pass 

each other although some of them (Mr. Barron for example) do not 

think they are supposed to pass. There was evidence to the effect 

that a rubber-tired front end loader overtook and went around one 

or more of the complainants. 

I find for the company and the case is DISMISSED. 

Distribution: 

. 

Charles c. Moore, Jr. 

Administrative Law Judge 

Patrick M. Zohn, Esq., Office of the Solicitor, u. s. Department 

of Labor, 1240 East Ninth Street, Cleveland, OH 44199 (Certified 

Mail) 

Robert M. Vukas, Esq., Consolidation Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

1746 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR . 

WASHINGTON, D.C •. 20006 

July 17, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

·Petitioner 

v. 

LOUISIANA INDUSTRIES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 84-43-M 

A.C. No. 16-00335-05501 

Perryville Sand & Gravel 

Plant 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion to approve settlements 

in the amount of $20 apiece for the three violations involved in this matter. The Solicitor's motion contains no 

discussion regarding the circumstances of any of these 

violations. At least two of the violations indicate on 

their face that some degree of gravity might be involved. 

Citation No. 2236638 was issued for an unsecured oxygen 

cylinder and acetylene cylinder. Citation No. 2236640 was 

issued because the catloader was not provided with a fire 

extinguisher. 

It is now well established that the Commission and its 

administrative law judges have de novo authority to assess 

penalties under the Act. Unitea---stat:"es Mining Co., Inc., 

FMSHRC Docket No. PENN 82-328, Slip. Op. (May 31, 1984). 

See also, Sellersburg Stone Co., v. Federal Mine Safety 

and Health Review Commission, F. 2d (7th Cir. 

1984), aff'g, 5 FMSHRC 287, 291 (March 1983); Knox County 

Stone Co., Inc., 3 FMSHRC 2478, 2480-81 (November 1981); 

Tazco, Inc., 3 FMSHRC 1895, 1896-98 (August 1981); Shamrock Coal Co., 1 FMSHRC 469 (June 1979), aff •d, 652---P:-2d 59 

(6th Cir. 1981). 

The Solicitor must therefore explain why $20 penalties 

are justified for these three citations. 

In order to expedite the handling of this matter, 

including the setting of this case for hearing, if appropriate, this case is hereby assigned to Administrative Law 

1747 
Judge Michael A. Lasher. All future communications regarding this case should be addressed to him at the following address: 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges 

Two Skyline Place, Suite 1000 

S203 Leesburg Pike 

Falls Church, VA 22041 

Telephone: 703-7S6-6220 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, U.S. 

Department of Labor, SSS Griffin Square, Suite SOl, Dallas, 

TX 7S202 (Certified Mail) 

Mr. James E. Mercer, Regional Personnel Safety Manager, 

Louisiana Industries, 4600 Lee Street, P.O. Box S472, Alexandria, LA 71301 (Certified Mail) 

/nw 

1748 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 17, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

COBRA RESOURCES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-54 

A.C. No. 15-12628-03501 

Cobra Tipple 

DECISION DISAPPROVING SETTLEMENT 

ORDER OF ASSIGNMENT 

On March 27, 1984, the Solicitor filed his response to 

the Order to Submit Information issued in the above-captioned case. At issue is one violation, the proposed settlement of which is for $20, the originally assessed amount. 

Citation No. 2054981 was issued for violation of 30 

C.F.R. § 77.1605(b) because adequate brakes were not provided on a 125 Michigan Front End Loader being used for 

moving cars to be loaded on track. The Solicitor represents 

in his motion that the brakes on the front end loader were 

worn but not completely out. It was equipped with an operative emergency brake and in addition it could use its front 

blade in the event that it needed to stop suddenly. The 

Solicitor also states that this front end loader was being 

used to move railroad cars on level ground and was not being 

used to load the coal into the hopper. For the above enumerated reasons, the Solicitor asserts that gravity was low 

and negligence was moderate. I cannot approve a $20 settlement in this case. $20 denotes a lack of gravity. Thus, 

although the degree of seriousness of this violation may be 

somewhat mitigated by the facts described by the Solicitor, 

it did constitute a definite safety hazard. One can only 

wonder at the process which produced a $20 penalty in this 

instance. 

This case is hereby assigned to Assistant Chief Administrative Law Judge Gary Melick. 

All future communications regarding this case should be 

addressed to Judge Melick at the following address: 

1749 
Federal Mine Safety and Health 

Review Commission 

Off ice of Administrative Law Judges 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone: 703-756-6261 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor·, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

Mr. John T. Mongoven, Vice President, Cobra Resources, Inc., 

P.O. Box 1166, Madisonville, KY 42431 (Certified Mail) 

/nw 

1750 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

July 18, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

BUCKEYE COAL MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 84-2 

A.C. No. 33-01357-03502 

West Point Strip Mine 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion for approval of settlement for the two violations in the above captioned action. The original assessments were for $20 apiece and the 

Solicitor seeks approval in the amount of $15 each. 

One violation was for the absence of a fire extinguisher on a bulldozer and the other was for the absence of 

a fire extinguisher on the drag line. The Solicitor advises 

that "The probability of occurrences of the event against 

which the violated standard is directed is improbable. The 

gravity of protected injury was slight. The number of 

affected persons was one. * * * This violation only concerns the failure to install portable fire extinguishers on 

a bulldozer and a dragline pursuant to 30 C.F.R. § 77.1109 

(c) (1) and § 77.1109-2. Therefore, there was little likelihood of danger to any of Respondent's miners." 

The Solicitor does not explain why the failure to 

install fire extinguishers means that there was little 

likelihood of danger. The absence of fire extinguishers 

would appear to pose some risk of injury and if this was not 

so, then the Solicitor should specifically tell why. Even 

more importantly, the original assessed penalties of $20 

apiece were very low. In absence of some compelling circumstance, further reduction would make a mockery of the 

Act. 

In light of the foregoing, the proposed settlements are 

disapproved. 

1751 
This case is hereby assigned to Assistant Chief Administrative Law Judge Gary Melick. All future communications regarding this case should be addressed to him at 

the following address: 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges Two Skyline 'Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone: 703-756-6261 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

F. Benjamin Riek III, Esq., Office of the Solicitor, U.S. 

Department of Labor, 881 Federal Office Building, 1240 East 

Ninth Street, Cleveland, OH 44199 (Certified Mail) 

Mr.· Ed Browne, Buckeye Coal Mining Company, Inc., P.O. Box 

1, Lisbon, OH 44432 (Certified Mail) 

/nw 

1752 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

EMILIANO ROSA 

v. 

PUERTO RICAN 

.INC., 

Appearances: 

Before: 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR . 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 .JU l .,, :·.< t:).;·J t;\ 

CRUZ, . . DISCRIMINATION PROCEEDING 

Complainant . . 

. . Docket No. SE 83-62-DM . • 

CEMENT· COMPANY, MSHA Case No. MD 83-44 . • 

Respondent . . 

DECISION 

Julio Alvarado Ginorio, Esq., Ponce, Puerto 

Rico, for. Complainant1 

Daniel ·R. Dom.inguez, Esq., Dominguez and 

Totti, Hato Rey, Puerto Rico, for Resp9ndent. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from his 

job as a hydrator because he complained to the Mine Safety 

and Health Administration about safety conditions in the 

plant. Respondent contends that Complainant was discharged 

for chronic absenteeism. 

Pursuant to notice, the case was heard on the merits in 

Hato Rey, Puerto Rico on March 30, 1984. Emiliano Rosa 

Cruz, Roberto Padua Vasquez and Jorge Marcucci Cruz testified on behalf of Complainant. Rene Vargas Lizardi and 

Pedro Rodriguez Morales testified on behalf of Respondent. 

Counsel for both parties have filed posthearing briefs. 

Based on the entire record and considering the contentions 

of the parties, I make the following decision. 

FINDINGS OF FACT 

Complainant worked for Respondent for more than 18 

years before he was discharged on April 25, 1983. He began 

working as a laborer, was later classified as a lab techni~ 

cian assistant, then as a mill worker. In approximately 

1975, he was promoted to the position of hydrator. At the 

time of his discharge he was earning $5.03 per hour, and 

worked 40 hours per week. 

On December 13, 1979, Complainant was suspended for 7 

days "for reason of absences from work without notifying 

1753 
same and because you were found by your supervisors reading 

a newspaper without attending to your work." (Respondent's 

Exh. 1). On March 30, 1981, Complainant was sent a notice 

from the personnel off ice that he had been absent from work 

121 days in the year 1980. This did not include vacation 

time but did '·include authorized sick leave. Similar notices 

were sent for 1981.(Complainant was absent 78 days) and 1982 

(Complainant w~s absent 49 days). 

_ On January 25, 1982, Complainant was suspended from 

January 25 to February 8, 1982, "for having been absent from 

* * * work on Saturday, January 23 * * *, despite the fact 

that you were aenied.permission to be absent and thus acting 

insubordinately." (Respondent's Exl;l. 2). On April 26, 

1982, Complainant was notified that he was discharged because of frequent absences from work. After discussions 

between union and company officials, the discharge was 

changed to a 2-week suspension from April 27, 1982 through 

May 10, 1982. The reason for the suspension was "frequent 

absences from work and * * * unsatisfactory record of attendance." (Respondent's Exh. 3). The notice of suspension 

contained a warning that "[the] next time you are absent 

from work without a valid and satisfactory justification for 

the company, you shall be dismissed from your employment." 

(Id.) 

An inspection of Respondent's facility was conducted by 

Federal Mine Inspector Perez on April 5 and 6, 1983. During 

the .course of this inspection, Complainant told the inspector that the hydrator floor was broken and presented a stumbling or tripping hazard to employees; a leak in the ceiling 

or roof caused hot water to come through, and on one occasion this caused burns to an employee; a chair in the control room had a broken leg. A close out conference, attended by Inspector Perez; the company safety director, 

Mr. Calish; the plant manager, Mr.' Pedro Rodriguez; and the 

Union President, Mr. Marcucci, was held following the inspection. Apparently no citations or orders were issued as a 

result of the inspection. 

On or about April 6, 1983, Mr. Tim Perez, an administrative assistant to the plant manager Pedro Rodriguez, told 

Complainant that he (Complainant) "was hot * * * [and] was 

goin_g to be f ir~d * * * because * * * he had commented or 

made comments to the MSHA people about * * * the condition 

of the equipment and some safety conditions." (Tr. 39-40). 

Perez told Complainant that "the next time Rodriguez catches 

you he is going to suspend you." (Tr. 8). This warning was 

overheard by Roberto Padua, a lab technician for Respondent. 

Several days later, Perez repeated this threat to Complainant. 

1754 
On April 22, 1983, Complainant was scheduled to work 

from 6:00 a.m. to 2:00 p.m. He testified that heftid not 

report for work that morning because he was ill. Complainant did not have a telephone and "had to wait for my neighbor to get up·•• (Tr. 11) before calling the company.at 9:05 

a.m., to notify it.of his inability to work. The collective 

bargaining agreement requires that an employee who cannot 

attend his work shall notify the employer no later than 8:00 p~m. on the previous day "except in the case of unforeseen 

circumstances" (Respondent's Exh. 6, Art XVII). A letter to 

Complainant was prepared by Rene Vargas of the personnel 

off ice and del1v~red by a guard to Complainant at his home, 

directing him to report to the personnel off ice before returning to work (Respondent's Exh. 9). A company nurse was 

also sent to Complainant's home at 3:25 p.m. the same day. 

She reported that Complainant advised that he was ill. with 

the flu and was taking Contac. She took his temperature 

which was 373oc. (Respondent's Exh. 8). Later the same 

day, Complainant went out in a car driven by a f~iend and 

stopped to collect some money owed him and then went to the 

drug store to buy some medicine. He was seen by the plant 

manager at a machine shop where his debtor was. 

On April 27, 1983, Complainant was notified that he was 

discharged effective April 25, 1983, because of excessive 

absences. (Respondent's Exh. ·14). The decision to discharge Complainant was made by the company assistant personnel manager Rene Vargas, plant manager Pedro Rodriguez, personnel director Guillermo Rios, and benefits supervisor 

J. E. Rosich. 

Complainant filed a claim for unemployment benefits 

which was denied because of a finding that he was dismissed 

due to excessive absences. Prior to the hearing on his.unemployment claim, Vargas stated that Complainant threatened to 

kill him because his benefits had been withheld. . 

After leaving Respondent, Complainant worked from January 1, 1984 to February 18, 1984, as a watchman on a farm. 

He earned $3.35 per hour. He was not working at the time of 

the hearing. . 

STATUTORY PROVISION 

Section 105Cc> of the Act provides in part as follows: 

(c)(l) No person shall discharge or in 

any manner discriminate against or cause to 

be discharged or cause discrimination against 

1755 
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 appliaant for employment • • • has filed 

or made a complaipt 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 alleg~d danger or safety or health 

violation in· a coal or other mine ••• or 

because m'"'tbe exercise by such miner, repre-. 

sentative of miriers or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

(2) Any.miner or applicant for employment or representative of miners who believes 

that he has been discharged, interfered with, 

or otherwise discriminated against by any 

person in violation of this subsection may, 

within 60 days after such violation occurs, 

file a complaint with the Secretary alleging 

such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy 

of the complaint to the respondent and shall 

cause such investigation to be made as he 

deems appropriate. 

* * * * * * * 

(3) Within 90 days of the receipt of a 

complaint filed under paragraph (3), the Secretary shall notify, in writing, the miner, 

applicant for employment, or representative 

of miners of his determination whether a violation has occurred. If the Secretary, upon 

investigation, determines that the provisions 

of this subsection have not been violated, 

the complainant shall have the right, within 

30 days of notice of the Secretary's determination, to file an action in his own behalf 

before the Commission, charging discrimination or interference in violation of paragraph Cl>. The Commission shall afford an 

opportunity for a hearing Cin accordance with 

section. 554 of title 5, United States Code, 

but wfthout regard to subsection Ca)(3) of 

such section), and thereafter shall issue an 

1756 
order, based upon findings of fact, dismissing or sustaining the complainant's charges 

and, if the charges are sustained, granting 

such relief:· as it deems appropriate, including but not limited to, an order requiring 

the reh±·ring or reinstatement of the miner to. 

his former position with back pay and interest or such remedy as may be appropriate. 

Such order shall become final 30 days after 

its issuance. Whenever an order is issued 

sustaining the complainant's charges under 

this subsection, a sum equal to the aggregate 

amount or all costs and expenses (including .. attorney's fees> as determined by the Commission to have been reasonably incurred by the 

miner, applicant for employment or representative of miners for, or _in coppection with, 

the institution and prosecution of such'proceedings shall be assessed against the persdn 

committing such violation. Proceedings under 

this section shall be expedited by the Secretary and the Commission. Any order issued by 

the Commission under this paragraph shall be 

subject to judicial review in accordance with 

section 106. Violations by any person of · paragraph Cl> shall be subject to the provisions of section 108 and llO(a). 

ISSUES 

1. Whether Complainant was discharged for activity 

protected under the Mine Act? 

2. If he was, to what relief is he entitled? 

·coNCLUSIONS OF LAW 

In order to establish a prima facie case of discrimination under section lOSCc> of the Mine Act, a complaining 

miner bears the burden of production and proof to establish 

Cl) that he engaged in protected.activity and (2) that the 

adverse action complained of was motivated in any part by 

that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., ~ FMSHRC 2786, <·1980), rev'd on other grounds 

sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

C3d Cir. 1981); and Secretary on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (1981). The operator 

may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action·was 

in no way motivated by protected activity. If an operator 
cannot rebut the prima facie case in this manner it may 

nevertheless affirmatively defend by proving that (1) it was 

also motivated by the miner's unprotected activities, and 

(2) it would have taken the adverse action in any event for 

the unprotected activities alone. The operator bears the 

burden of pro6f with regard to the affirmative defense. 

Haro v. Magma Copper co., 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the Complainant. Robinette, supra. See also Boich v. FMSHRC, 719 F.2d 

194 (6th Cir. 1983); and Donovan v. Stafford Constr. Co., 

No. 83-1566, D.C. Cir. (April 20, 1984) Cspecificallyapproving the Commission's Pasula-Robinette test). See also 

NLRB v. Trans.port._ation Management Corp., __ u.s;· , 76 

L.Ed. 2d 667 (1983). 

PROTECTED ACTIVITY 

There is no dispute that Complainant reported certain 

deficiencies in the workplace to an MSHA inspector on April 

5, 1983. Although Mr. Rodriguez, the plant manager, denied 

that these reports had anything to do with safety, I credit 

the testimony of Complainant, of Mr. Padua who is a disinterested witness, and of Mr. Marcucci, the union representative, each of whom stated that the conditions reported to 

the inspector did indeed involve safety matters. The fact 

that citations were not issued does not establish otherwise. 

Rodriguez was very defensive in his testimony and his credibility is suspect. Reporting safety problems in the workplace to a federal inspector is the first and most obvious 

kind of activity protected under the Mine Act. 

ADVERSE ACTION 

On the day of the close out conference following the 

inspection, Complainant was told by the plant manager's administrative assistant that the plant manager was going to 

fire Complainant because of his safety complaints to MSHA. 

Less than 3 weeks later Complainant was fired. 

MOTIVATION FOR ADVERSE ACTION 

The stated reason for Complainant's discharge was excessive absenteeism. The record shows that Complainant was off 

work a considerable number of days back at least as far as 

1979. An inordinate number of his absences occurred on the 

day before and after weekends and holidays. Complainant 

testified that his absences were caused by illness and injury. However, he was terminated in 1982 because of absenteeism (the penalty was reduced to a suspension in the.grievance proceeding), and was warned on a number of occasions 

1758 
that he would be disciplined for being absent. On April 22, 

1983, he was absent and failed.to call in before his shift 

began. This record persuades me that one motive for discharging Complainant was his absenteeism. However, the 

statement of Tim Perez concerning Pedro· Rodriguez's reaction 

to the compla·ints made to MSHA persuades me that part of the 

motive for the discharge was Complainant's report to the 

MSHA inspector. Tim Perez's statement was overheard by an 

apparently disinte~ested witness, Roberto Padua. There is 

no doubt in my mind that Perez made the statement. Perez is 

still employed in a supervisory position by Respondent, but, 

and I consider this fact significant, he was not called as a 

witness. I cnficlude ~hat Perez was repeating to C~mplainant 

what Rodriguez in fact said. I do not credit Rodriguez's 

denial that he made such a statement. This also damages 

Rodriguez's credibility generally. I conclud~ that Complainant was discharged in part because of activity protected 

under the Act. Therefore, he had made out a prima facie 

case of discrimination under section lOSCc) of the Act. 

AFFIRMATIVE DEFENSE 

Respondent does not overcome a prima facie case of discriminatory discharge by showing that it had adequate nondiscriminatory reasons under its contract or otherwise to terminate Complainant. Were that enough, 'it would clearly have 

met its burden here. But the burden is a more difficult, 

more subtle one: it must show that in fact it would have 

discharged Complainant solely for unprotected activities, 

this is, in this case for absenteeism. I conclude that it 

did not carry that burden. The incident which ostensibly 

precipitated the discharge was failure to call the personnel 

office prior to being off work for illness. The collective 

bargaining agreement apparently requires reporting 10 hours 

in advance Cno later than 8 p.m. the day before for an employee beginning to work· at 6: 00 a•.m. >, which is an odd requirement for sick leave notification. Complainant was apparently ill: he was in bed when the.nurse arrived and his 

temperature was slightly elevated C37.3oc = 99.14oF.) He 

was taking medication. I conclude that Respondent Cin the 

person of Rodriguez) was awaiting an excuse to fire Complainant because he reported safety problems to MSHA, and that it 

seized upon his abs.ence on April 22, 1983, as a plausible 

reason to let him go. Respondent has not established that 

it would have discharged Complainant for his absence on 

April 22, 1983, or for excessive absenteeism. 

1759 
COMPLAINANT'S THREAT OF VIOLENCE 

Respondent argues that Complainant loses the protection 

of the Act because he threatened the life of Respondent's 

assistant personnel manager, Mr. Vargas. The alleged 

threats were l'tlade at an unemployment compensation hearing 

some months after Complainant was discharged. I conclude 

that any threats made subsequent to Complainant's discharge 

are not relevant ·to this proceeding. I do not hereby determine whether the alleged threats were in fact made. 

CONCLUSION 

I conclude that Respondent discharged Complainant, a 

miner, because he made complaints related to the Mine Safety. 

Act. Respondent therefore, violated section 105Cc)(l) of 

the Act. 

RELIEF 

Based on the above findings of fact and conclusions of 

law, Respondent is ORDERED 

1. To reinstate Complainant to the position from which 

he was discharged on April 25, 1983, or to a comparable position at the same rate of pay and with the same non wage 

benefits1 

2. To remove from Complainant's records all references 

to his discharge on April 25, 19831 

3. To pay Complainant his regular wages from April 25, 

1983, to the date of his reinstatement with interest thereon 

using the formula set out in the case of Secretary/Bailey v. 

Arkansas-Carbona, 5 FMSHRC 2042 (1983). CA copy of the 

Arkansas-Carbona decision is appended hereto.) 

4. To pay reasonable attorney's··fees and costs of litigation incurred by Complainant in the prosecution of this 

case. 

ORDER 

1. Complainant shall file a statement on or before 

August 17, 1984,.· showing the amount he claims as back pay 

.and interest to the date of this decision. 

2. Complainant shall file a statement on or before 

August 17, 1984, showing the amount he claims as attorney's 

fees and necessary legal expenses. The attorney's hours and 

rates shall be set out in detail. 

1760 
3. Respondent shall file a reply on or before Septem•' ber 12, 1984, and if it objects to the amounts claimed as 

back pay or attorney's fees, shall state its objections with 

particularity. ~ ' 

4. Unti':l' the issues of the amount due as ·back pay and . interest, and the amount due as attorney's fees are det·ermined, the decision is not final. · ~· 

Distribution: 

. ..., .. rb( L .#L ~/;i~t:·-S .~ltl~1/f.~ James A. Broderick 

Administrative Law Judge 

Julio Alvarado Ginorio, Esq., P.O. Box 1771, Ponce, .P.R. 

00733 (Certified Mail) 

Daniel R. Dominguez, Esq., Dominguez & Totti, P.O. Box 1732, 

Hato Rey, P.R. ~0919 (Certified Mail) 

/fb 

1761 
attachment to SE 83-62-DM 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, . 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 12, 1983 

On behalf of MILTON BAILEY Docket No. CENT 81-13-D 

v •. 

ARKANSAS-CARBONA COMPANY 

and 

MICHAEL WALKER 

DECISION 

This discrimination case presents four issues: whether the Commission's 

administrative law judge abused his discretion in severing the Secretary of 

Labor's request for.a civil penalty from the complaint of discrimination; 

whether the judge erred in awarding 6% interest on the back pay award; 

whether he. erred in tolling the back pay award on the date the Secretary 

filed a complaint on Bailey's behalf; and whether he erred in refusing to 

award Bailey tuition and certain miscellaneous expenses. 

For the reasons that follow, we hold that the judge did not abuse his 

discretion in this case when he severed the request for a civil penalty from 

the discrimination complaint, but we also announce our intention to amend 

Commission Procedural Rule 42, 29 C.F.R. § 2700.42, to end the need for such 

severance in future cases. We adopt as the Commission's interest rate formula 

for back pay awards the interest formula used by the National Labor Relations 

Board--that is, interest set at the "adjusted prime rate".announced semiannually by the Internal Revenue Service for the underpayment and overpayment of taxes. We hold that the judge erred in assessing 6% interest on the 

back pay award and remand for recalculation of the award pursuant to the 

computation rules announced in this decision. We reverse the judge's order . 

t~lling back pay on the date of the Secretary's complaint on behalf of Bailey. 

We continue the award until the date Bailey informed the Secretary he did not 

wish reinstatement, and additionally remand for determination of the date when 

that notification occurred. Finally, we affirm the judge's holding that 

Bailey was not entitled to payment of college tuition and related expenses. 

1762 
I. Factual and procedural background 

We briefly summarize the facts, which are undisputed, as background 

for our discussion of this case. Arkansas-Carbona Company, a joint venture, 

operated a small surface anthracite coal mine in Dardanelle, Arkansas at 

the relevant time. Milton Bailey was employed by Arkansas-Carbona from 

May 13, 1980, until his discharge on June 27, 1980. Bailey was the company's 

safety director and he earned $1,000 per month. Michael Walker was the 

president of one of the firms comprising the Arkansas-Carbona joint venture, 

and after June 13, 1980, took over control of mine operations at the mine 

site. On June 27, 1980, Bailey complained to Walker that the mine's first 

aid kit, which had been moved from the main office to a screened porch, 

should remain in the office to prevent its exposure to dust. Walker contended the kit was in a dustproof container. An argument ensued which 

resulted in Bailey's discharge. 

On October 20, 1980, the Secretary of Labor filed a discrimination complaint before this independent Commission on behalf of Bailey against 

Arkansas-Carbona and Michael Walker. 1/ His complaint alleged that Bailey was 

unlawfully discharged for exercising rights protected by section lOS(c)(l) of 

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

(1976 & Supp. V 1981). The relief sought included back pay with~% interest, 

and reinstatement on the same shift with the same or equivalent duties at a 

rate of pay "presently proper" for the position. The Secretary's complaint 

also requested "an order assessing a civil penalty of not more than $10,000 

against [the operator] for [the] violation of section lOS(c) of the Act." 

30 U.S.C. § 815(c)(Supp. V 1981). On January 22, 1981, the Secretary filed 

a motion to amend his discrimination complaint. The motion stated in part: 

"Subsequent to his filing of the complaint the Secretary was informed by 

complainant Bailey that he did not wish to be reinstated by respondents and 

that in lieu of reinstatement he would accept tuition for one year of 

college plus an allowance for expenses." 

The Commission's administrative law judge first held that Bailey's 

complaint concerning the first aid kit on the day of his discharge was 

protected activity and that Bailey's discharge was motivated in part by 

that protected activity. Thus, the judge held that a prirna facie case of 

discrimination, that is, adverse action motivated in part by protected 

activity, was proved. 3 FMSHRC 2313, 2318-19 (October 198l)(ALJ). The 

judge then examined each non-discriminatory ground the operator presented 

as the cause of Bailey's termination and concluded, "Neither singularly 

nor in combination do Respondents' contentions establish that Respondents 

would have discharged Complainant for the reasons given." 3 FMSHRC at 2319. 

Therefore, the judge determined that Arkansas-Carbona's discharge of Bailey 

violated section lOS(c)(l) of the Mine Act. 30 u.s.c. § 815(c)(l). 

The judge awarded Bailey back pay with 6% interest from the date 

of discharge until October 19, 1980, one day before the Secretary's 

complaint was filed. 3 FMSHRC at 2323. Because the complaint on behalf 

of Bailey was amended January 22, 1981, to request one year's college 

tuition and related expenses in lieu of reinstatement, the judge applied 

1./ We refer to the respondents collectively as "the operator." 

1763 
Rule 15(c), Federal Rules of Civil Procedure, and concluded that the 

amendment related back to October 20, 1980, the date of the Secretary's 

complaint, 2/ Therefore, the judge concluded that Bailey did not request 

reinstatement from that date and that, accordingly, the obligation for 

back pay ceased on that date, 3 FMSHRC at 2321, The judge also declined 

to order the payment of one year's college tuition and expenses because 

Bailey "failed to establish any entitlement to an award of 1 y~ar of 

college tuition." 3 FMSHRC at 2322, The judge also ordered expunging 

of all references to "this matter" from Bailey's employment record, 

In addition, the judge severed MSHA's proposed assessment of a 

civil penalty from thi~ proceeding, and he ordered MSHA to proceed under 

Commia1ion Procedural Rule 25, 29 C.F.R, § 2700,25, 3/ At the outset of 

the administrative hearing, the judge explained the reason for the severance: 

"I will sever the civil penalty proceeding because there has not been.the 

required administrative processing of the proposal through the notification 

to the respondents of the amount of the proposed penalty or the opportunity 

to discuss this matter with the District Manager's office," Tr. 4. 

II. Severance of the civil penalty from the proceedings 

involving the complaint of discrimination 

We first consider the question of how civil penalties for violations of 

section lOS(c) should be proposed and assessed in cases where the Secretary 

files a complaint on behalf of a miner, and then whether the judge erred in 

severing the penalty proceeding. 

Civil penalties are assessed under the Mine Act to induce compliance 

with the Act and its standards. See, for example, s. Rep. No. 181, 95th 

Cong., 1st Sees. 40-41 (1977) ("S-:-iep. 11 ), reprinted in Subcommittee on 

Labor, Senate Committee on Human Resources, 95th Cong., 2d Sees., 

Le islative Histor of the Federal Mine Safet and Health Act of 1977, at 

628-29 1978) ( Legis. Hist."). Penalties are mandatory for violations of 

!/ Rule lS(c), Fed. R, Civ. P., provides in part: 

Relation Back of Amendments. Whenever the claim or 

defense asserted in the amended pleading arose out of 

the conduct, transaction, or occurrence set forth or 

attempted to be set forth in the original pleading, the 

amendment relates back to the date of the original pleading. 

l/ Commission Procedural Rule 25 provides: 

The Secretary, by certified mail, shall notify the operator 

or any other person against whom a penalty is proposed of: 

(a) the violation alleged; (b) the amount of the penalty proposed; and (c) that such person shall have 30 days to notify 

the Secretary that he wishes to contest the proposed penalty. 

If within 30 days from the receipt of the Secretary's notification or proposed assessment of penalty, the operator or other 

person fails to notify the Secretary that he intends to contest the proposed penalty, the Secretary's proposed penalty 

shall be deemed to be a final order of the Commission and 

shall not be subject to review by the Commission or a court. 

1764 
the Act and its standards. The Act separates the procedures for civil · 

penalty assessment between the Secretary and the Commission. The 

Secretary proposes the penalty he wishes assessed for a violation and 

the Commission assesses a penalty of an appropriate amount. See 

Sellersburg Stone Co., 5 FMSHRC 287, 290-92 (March 1983), pet:-for 

review filed, No. 83-1630, 7th Cir., April 8, 1983; Tazco, Inc., 

3 FMSHRC 1895, 1896-98 (August 1981). !!./ 

. This bifurcation of functions is set forth in sections 105 and 110 of 

the Act. 30 u.s.c. §§ 815 & 820 (Supp. V 1981). Section 105(a) requires the 

Secretary to take certain steps to notify an operator of the civil penalty 

"proposed to be assessed under section llO(a) for the violation cited .• " 

30 U.S.C. § 815(a). Section llO(a) provides, in turn, for penalty assessments 

of not more than $10,000 per violation. 30 U.S.C. § 820(a). Section llO(i) 

provides, "The Commission shall have authority to assess all civil penalties 

provided in this Act." 30 U.S.C. § 820(i). After listing the six statutory 

penalty criteria, section llO(i) concludes, "In proposing civil penalties under 

this Act, the Secretary may rely upon a summary review of the information 

available to him and shall not be required to make findings of fact concerning 

the above [six] factors."_ 1/ 

Section 105(a) states that the civil penalty proposal procedures set forth 

for the Secretary therein are only invoked "[i]f, after an inspection or 

investigation, the Secretary issues a citation or order under section 104 

[30 u.s.c. § 814]." 30 u.s.c. § 815(a). 6/ The Secretary must notify an 

operator "within a reasonable time" of the penalty he proposes. If the 

operator chooses to contest a proposed penalty, the Secretary must 

"immediately advise" the Commission so that a hearing can be scheduled .. 

30 u.s.c. § 815(d). The statutory procedures for prompt notification 

!:../ When penalties proposed by the Secretary are not contested, however, 

a proposed civil penalty is not actually assessed but is deemed to be a 

final order of the Commission, as if the Commission had assessed it. 

30 u.s .. c. § 815(a). See also Commission Procedural Rule 25 (n. 3 supra). 

5/ The words "shall be assessed a civil penalty by the Secretary" in 

section llO(a) must be read in pari materia with sections 105(a) and 

llO(i). Although section llO(a) uses the language "shall be assessed a 

civil penalty by the Secretary," the express language of sections 105(a) 

and llO(i) makes clear that this Secretarial function is one of proposal, 

not disposition. The legislative history hears out this reading of 

section llO(a). Conf. Rep. No. 461, 95th Cong., 1st Sess. 58 (1977) 

reprinted in Legis. Hist. 1336; s. Rep. 43, 45-46; reprinted in Legis. 

Hist. 631, 633-34. Thus, the reference to "shall be assessed,.in 

section llO(a) means "shall be subject to a proposed assessment of a 

civil penalty by the Secretary." See Sellersburg Stone Co., supra. 

§.! Section 104, 30 u.s.c. § 814 (Supp. v 1981), contains the procedures 

through which an operator's violations of the Act or its standards are 

enforced. Section 104(a) makes clear that citations shall be issued for 

violations of "this Act, or any mandatory health or· safety standard, rule, 

order, or regulation promulgated pursuant to this Act." 30 u.s.c. § 814(a). 

1765 
and contest of a proposed civil penalty assessment reflect Congress' belief 

that penalty.assessment had lagged under the 1969 Coal Act, 30 u.s.c. § 801 

et seq. (1976)(amended 1977), and its consequent desire to speed the process. 

ThuS,the thrust of the penalty procedures under the Mine Act is to reach a 

final order of the Commission assessing a civil penalty for violations 

without delay. 

Cases involving violations of the d~scrimination provisions, however, 

are not initiated with the issuance of a citation or order under section 

104 but, rather, with filing of special complaints before the Commission 

under sections lOS(c) (2) or 105(c) (3). 30 U .s .c. §§ 815(c) (2) & (3). 

These two statutory subsections provide for complaint by the Secretary 

if he believes discrimination has occurred, or complaint by the miner 

if the Secretary declines to prosecute. 

It is clear that a penalty is to be assessed for discrimination in 

violation of section 105(c)(l). The last sentence of section 105(c)(3) 

states, "Violations by any person of paragraph (1) shall be subject to 

the provisions of sections 108 [30 U.S.C. § 818] and section llO(a)." 

30 U.S.C. § 815(c)(3). 7/ Section llO(a) requires the Secretary to 

propose penalties to be-assessed for violations of the Act. Neither 

section 105(c) nor section llO(a), however, states how and when the 

Secretary is to propose a penalty for a violation of section 105(c)(l). 

The Secretary's regulations in 30 C.F.R. Part 100 set forth "criteria 

and procedures for the proposed assessment of civil penalties under section 

105 and 110 of the [Mine Act]." 30 C.F.R. § 100.1. 8/ Section 100.5 lists 

a number of "categories [of violations which] will be individually reviewed 

to determine whether a special assessment is appropriate" including 

"discrimination violations under section 105(c) of the Act." !ii 

In spite of this reference to discrimination cases, none of the Part 100 

regulations specifies how the Secretary shall propose a civil penalty when he 

files the complaint of discrimination, and it does not appear that the 

Secretary contemplated that his administrative review procedures for proposed penalties should apply to a determination that an operator had violated 

7/ Section 108 permits injunctive relief and is not relevant to the 

Tssues presented in this case. 

8/ In this analysis, for convenience, we will refer to the current 

Part 100 regulations, which became effective May 21, 1982. They are 

substantially similar to those in effect when the judge's decision 

issued. The changes made do not affect our analysis, and we would 

reach the same conclusions under either version. 

9'/ A review of the discrimination cases adjudicated by this Commission indicates that the Secretary has used the section 100.5 special 

assessment procedure in discrimination cases only when the miner has 

proceeded on his own behalf pursuant to section 105(c)(3) of the Act 

and prevailed, or when, as here, the judge has severed the penalty 

proceedings from the discrimination case. In other discrimination 

cases, the Secretary has requested a penalty in his complaint of 

discrimination. 

1766 
section 105(c)(l). Similarly, the Commission's procedural rules do not 

specifically address penalty procedures for alleged violations of section 

105(c)(l). Our rules more generally require the Secretary to notify the 

operator of "the violation alleged" and the penalty proposed and to afford 

the operator 30 days in which to notify the Secretary if it wishes to contest 

the proposal. Commissibn Procedural Rule 25 (n. 3 supra). See also 

Commission Procedural Rules 26 through 28, 29 C.F.R. §§ 2700.26 through 28. 10/ 

The Secretary argues that the penalty proposal procedures in section 

105(a) of the Mine Act and Commission Procedural Rule 25 apply only to 

citations and orders issued under section 104. Violations of the discrimination section, the Secretary urges, are subject only to the provisions expressly mentioned in section 105(c) itself." The Secretary relies 

on the last sentence in section 105(c) (3) ,· which states that violations 

of section 105(c)(l) "shall be subject to the provisions of sections 108 

[injunctions] and llO(a)." 30 U.S.C. § 815(c)(3). He argues that because 

section llO(a) contains no reference to section 104 or to section 105(a), 

the assessment proposal procedures required therein need not be applied 

in penalty proposals under section 105(c)(3). 

Thus, from the language of sections 105(c)(3) and llO(a), the Secretary 

argues that it is not necessary to have separate penalty proceedings in 

discrimination cases. Rather, he contends that penalties should be assessed 

by Commission judges when liability is determined--that is, when an operator 

is found in a discrimination proceeding to have violated section 105. The 

Ses:retary asserts he is "always" prepared to provide the information on the 

penalty criteria in section llO(i), and that an administrative law judge will 

never be more competent to decide the penalty question than at the close of 

a discrimination case in which the judge has determined the existence of a 

violation. 

10/ Commission Procedural Rules 40 through 44 (29 C.F.R. §§ 2700.40 

through 44) deal with discrimination complaints, but do not res.olve the 

issue of how a penalty is to be proposed. Rule 42 requires that a 

discrimination complaint include, among other things, "a statement of 

the relief requested." The rule tracks section 105(c)(2) of the Act, 

which requires the Secretary in his complaint to "propose an order 

granting appropriate relief." 30 u.s.c. § 815(c)(2). The Secretary 

contends that a civil penalty is part of the "relief" he may request 

in the complaint, and that inclusion of such a request in a complaint 

conforms to Rule 42 and section 105(c)(2). We conclude, however, that 

"relief" as used in section 105(c) and Rule 42 indicates only those 

remedies available to make the discriminatee whole. Section 105(c)(3) 

states in part, "The Commission shall ••• issue an order ••• granting ••• 

relief ••• including ••• rehiring or reinstatement ••• with backpay and 

interest or such remedy as may be appropriate." 30 U.S.C. § 815(c)(3). 

The legislative history also supports this reading of "relief." See 

Secretary on behalf of Dunmire and Estle v. Northern Coal Company~ 

4 FMSHRC 126, 142 (February 1982), citing to S. Rep. 37, reprinted in 

Legis. Hist. 625. A civil penalty, on the other hand, is not intended 

to compensate the victim but rather to deter the operator's future 

violations. 

1767' 
We agree with the Secretary that it is desirable to adjudicate in one 

proceeding both the merits of the discrimination claim and the civil penalty. 

The Mine Act emphasizes, "Proceedings under [section lOS(c)] shall be 

expedited by the Secretary and by the Commission." 30 U.S.C. § 815(c)(3). 

Because the last sentence of section 105(c)(3) refere~ces penalty proposals 

under section llO(a), we conclude that penalty proposals for section lOS(c) 

violations are to be expedited as well. The express statutory intent to 

expedite these proceedings is furthered by having the Secretary avoid dual 

proceedings and incorporate his penalty proposal in his discrimination 

complaint. 

We also conclude, however, that it is incumbent upon the Secretary in a 

combined proceeding to set forth in the discrimination complaint the precise 

amount of the proposed penalty with appropriate allegations concerning the 

statutory criteria supporting the proposed amount. Experience makes us 

somewhat skeptical about the Secretary's assertion that he has "always" been 

prepared to present evidence on penalty criteria. Formal penalty allegations 

in the complaint better afford operators adequate notice of penalty issues in 

discrimination cases. Because the Secretary may "rely on a summary review of 

the information available to him" in proposing penalties (30 U.S.C. § 820(i)), 

the penalty allegations in the discrimination complaint may be stated in summary 

fashion. 

In this case, the Secretary's naked request in his complaint for a penalty 

of "up to $10,000" is scarcely a penalty proposal at all. Henceforth, we shall 

require in these cases that the Secretary propose in his complaint a penal~ in 

a specific dollar amount supported by information on the section llO(i) criteria 

for assessing a penalty. This new rule shall apply to cases pending with our 

judges as of the date of this decision or filed with the Commission as of, or 

after, the date of this decision. Leave to amend complaints to add the penalty 

allegations shall be freely granted. Thus, the operator will be informed not 

only of the dollar amount proposed, but also the basis therefor. The parties 

will then be better prepared to litigate at the hearing any disputes concerning 

the penalty sought. 

Because the Secretary did not provide in his complaint sufficient notice 

to the operator of the amount of the penalty sought and the basis therefor, we 

cannot say that the judge erred in severing the penalty proposal in order to 

provide such notice to the operator. Nor do we see the utility of a remand 

to allow the Secretary to amend his complaint. The judge's approach to the 

Secretary's inadequate proposal is consistent with the Act's notice requirements and with the position we now enunciate. Accordingly, we affirm the 

judge's severance of the penalty proposal from the underlying discrimination 

complaint • .!.!./ 

.!.!/ We are presently in the process of adopting an interim amended Rule 42, 

which will reflect our resolution of the penalty issue. We also note that 

this case does not raise, and we do not reach, the question of how penalties 

should be proposed when the Secretary does not file a discrimination complaint 

on the miner's behalf and the miner files his own complaint under section 

lOS(c) (3). 

176'8 
III. The rate and computation of interest on back pay awards 

The next question in this case is whether the judge erred in assessing 

6% interes.t on the back pay award. The' remedial goal of section lOS(c) is to 

"restore the [victim of illegal discrimination] to the situation he would have 

occupied but for the discrimination." Secretary on behalf of Dunmire and 

Estle v. Northern Coal Co., 4 FMSHRC at 142. As we have previously observed, 

"'Unless compelling reasons point to the contrary, the full measure of relief 

should be granted to [an improperly] discharged employee."' Secretary on 

behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982), 

quoting Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962). 

Included in that "full measure of relief" is interest on an award of 

back pay. Section 105(c)(3) of the Mine Act expressly includes interest 

in the relief that can be awarded to discriminatees, while leaving it up 

to the discretion of the Commission to determine the exact contours of 

such an award. 12/ The Senate Committee that drafted the section which 

became section lOS(c) stated in its report: 

It is the Committee's intention that the Secretary 

propose, and the Commission require, all relief 

that is necessary to make the complaining party 

whole and to remove the deleterious effects of the 

discriminatory conduct including, but not limited 

to reinstatement with full seniority rights, backpay with interest, and recompense for any special 

damages sustained as a result of the discrimination. 

S. Rep. 37, reprinted in Legis. Hist. 625 (emphasis added). 

Our judges have awarded interest at rates varying from 6% per 

annum to 12.5% per annum and have used a variety of methods to compute 

interest awards. At least two of our judges have adopted the NLRB's rate 

of interest on back pay awards. See,~., Bradley v. Belva Coal Co., 

3 FMSHRC 921, 925 (April 198l)(ALJ) aff din part, remanded in part on 

other grounds, 4 FMSHRC 982 (June 1982); Secretary on behalf of Smith et al. 

v. Stafford Construction Co., 3 FMSHRC 2177, 2199 (September 198l)(ALJ) aff'd 

in part, rev'd in part on other grounds, 5 FMSHRC 618 (April 1983), pet• for 

review filed, No. 83-1566, D.C. Cir., May 27, 1983. The experience of our 

12/ Section 105(c)(3) provides in part: 

The Commission ••• shall issue an order, ••• if the 

charges [of discrimination] are sustained, granting 

such relief as it deems appropriate, including, but 

not limited to, an order requiring the rehiring or 

reinstatement of the miner to his former position 

with back pay and interest or such remedy as may 

be appropriate. 

30 u.s.c. § 815(c)(3). 

1769 
judges in this area has greatly aided our evaluation of different methods 

of assessing interest. It has also led us to the conclusion that it. is time 

to adopt a uniform method of computing interest so that all discriminatees 

will be treated uniformly when they are awarded back pay under the Mine Act. 

The miner has not only lost money when he or she has not been paid in 

violation of section 105(c), but has also lost the use of the money. As the 

NLRB has stated with regard to interest on back pay awards under the National 

Labor Relations Act, "The purpose of interest is to compensate the discriminatee 

for the loss of.the use of his or her money." Florida Steel Corp., 231 NLRB 

651, 651 (1977). Thus, in selecting an interest rate, we have considered the 

potential cost to the miner both as a "creditor" of the operator, and as a 

potential borrower from a lending institution under real economic conditions. 

We have therefore sought a rate of interest that compensates the discriminatee 

fully for the loss of the use of money. In addition, we have attempted to 

select a rate of interest flexible enough to reflect economic and market 

realities, but not so complex in application as to place an undue burden on 

the parties and our judges when attempting to implement it. 

For all of these reasons we adopt the interest rate formula used by the 

NLRB: interest set at the "adjusted prime rate" anno_unced semi-annually by the 

Internal Revenue Service under 26 U.S.C.A. § 6621 (West Supp. 1983) as the 

interest it applies on underpayments or overpayments of tax. The "adjusted 

prime rate" of the IRS is the average predominant prime rate quoted by 

commercial banks to larger businesses as determined by the Federal Reserve 

Board and rounded to the nearest full percent. 26 U.S.C.A. § 6621 (West 

Supp. 1983). Under the Tax Equity and Fiscal Responsibility Act of 1982, 

Pub. L. 97-248, § 345, 96 Stat. 636 (to be codified at 26 U.S.C. § 6621), 

the adjusted prime rate must be established semi-annually: by October 15 

based on the prime rates from April 1 to September 30, and by April 15 

based on the prime rates from October 1 to March 31. The rate announced 

in October becomes effective the following January 1, and the rate 

announced in April becomes effective the following July 1. 

We agree with the NLRB that the IRS adjusted prime rate comes closest 

to compensating the miner fully for loss of the use of money. On the one 

hand, if the miner had the money, he or she could invest it or save it and 

probably earn less than the prime rate. On the other hand, if the miner has 

to borrow money because he or she is deprived of a paycheck, the rate of 

interest most likely would be higher than the prime rate. In these 

circumstances, we concur with the NLRB that the IRS formula "achieves 

a rough balance between that aspect of remedial interest which attempts to 

compensate the discriminatee or charging party as a creditor and that which 

attempts to compensate for his loss as a borrower." Olympic Medical Corp., 

250 NLRB 146, 147 (1980). This "rough balance" in our view achieves the goal 

of making the miner whole for the loss of the use of money. 

The IRS adjusted prime rate is also attractive for pragmatic reasons. 

It is a per annum rate adjusted semi-annually, based on the prime rates for 

the six months preceding its calculation. In this way, the rate reflects 

economic conditions with reasonable accuracy. Its announcement well in 

advance of the effective date offers notice to all parties and our judges. 

Cf. Olympic Medical Corp., supra. 
The relevant adjusted prime rates, which we adopt as the Commission's 

remedial interest rates, are: 

January 1, 1978 to December 31, 1979 ••• 6% per year (.0001666% per day) 

January 1, 1980 to December 31, 1981. •• 12% per year (.0003333% per 

January 1, 1982 to December 31, 1982 ••• 20% per year (.0005555% per 

January 1, 1983 to June 30, 1983 ••••••• 16% per year (.0004444% per 

July 1, 1983 to December 31, 1983 .••••• 11% per year (.0003055% per 

January 1, 1984 to June 30, 1984 ••••••• 11% per year (.0003055% per 

Because the IRS rates of interest are announced as annual rates, it is 

necessary, as explained below, to convert them to daily rates to calculate interest on periods of less than one year. ];l/ 

day) 

day) 

day) 

day) 

day) 

There must also be a uniform method of computing the interest on 

back pay awards under the Mine Act. We have considered a number of 

possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's 

general back pay methodology is sound and has met with judicial approval. 

The labor bar is familiar with this system. We conclude that rather 

than expending administrative resources in attempting to devise a new 

system, we will best, and most efficiently, effectuate the remedial 

goals of section 105(c) of the Hine Act by adopting the major features 

of the NLRB computational system. We are satisfied that this system 

will do justice to the miner, avoid unnecessary penalization of the 

operator, and not prove unduly burdensome for our judges and bar to 

apply. 

We therefore announce the following general rules for the computation of inter'est on back pay. 

Back pay and interest shall be computed by the "quarterly" method. 

See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289 

(1950), approved NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953). 1:!!.I 

13/ Prior to the passage of the Tax Equity and Fiscal Responsibility 

Act of 1982, the IRS announced the adjusted prime rate in the October 

'of the appropriate year to take effect the following February. For ease 

of administration under the Mine Act, however, we have bounded certain 

interest periods at December 31 and January 1 rather than at January 31 

and February 1. (The NLRB's General Counsel has followed the same 

simplifying approach. NLRB Memorandum GC 83-17, August 8, 1983.) 

14/ Back pay is the amount equal to the gross pay the miner would have 

earned from the operator but for the discrimination, less his actual 

interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC 982, 994-95 (June 

1982). The first figure, the gross pay the miner would have earned, is 

termed "gross back pay." The third figure, the difference resulting ::rorn 

subtraction of actual interim earning from gross back pay, is "net back 

pay"--the amount actually owing the discriminatee. Interest is awarded 

on net back pay only. 

In a discrimination case where, as here, there has been an illegal 

discharge, the back pay period normally extends from the date of the 

discrimination to the date a bona fide offer of reinstatement is made. 

(As we conclude below, the period may also be tolled when the discriminatee waives the right to reinstatement.) 

1771 
Under this method (referred to as the "Woolworth formula," after the 

NLRB's decision in the case of the same name, supra), computations are 

made on a quarterly basis corresponding to the fQur quarters of the 

calendar year. Separate computations of back pay are made for ~of 

the calendar quarters involved in the back pay period. Thus, in each 

quarter, the gross back pay, the actual interim earnings, if any, and 

the net back pay are determined. See n. 14. 

Interest on the net back pay of each quarter is assessed at the 

adjusted prime interest rate or rates in effect, as explained below. 

Like the NLRB, we will assess only simple interest in order to avoid 

the additional complexity of compounding interest. Interest on the 

amount of net back pay due and owing for each quarter involved in the 

back pay period accrues beginning with the-Ia'st day of that quarter 

and continuing until the date of payment. See Florida Steel Corp., 231 

NLRB at 652. In calculating the amount of interest on any given quarter's 

net back pay, the adjusted prime interest rates may vary between the last 

day of the quarter and the date of payment. If so, the respective rates 

in effect for any quarter or, combination of quarters must be applied for 

the period in which they were operative. The interest amounts thus accrued 

for each quarter's net back pay are then summed to. yield the total interest 

award. 

For administrative convenience, we will compute interest on the basis 

of a 360-day year, 90-day quarter, and 30-day month. Using these simplified 

values, the amount of interest to be assessed on each quarter's net back pay 

is calculated according to the following formula: 

Amount of interest = The quarter's net back pay x 

number of accrued days of interest (from the last 

day of that quarter to the date of payment) x daily 

adjusted prime rate interest factor. 

The "daily adjusted prime rate interest factor" is derived by dividing 

the annual adjusted prime rate in effect by 360 days. For example, the 

daily interest factor for the present adjusted prime rate of 11% is 

1772 
.0003055% (.11/360). The daily interest factors are shown in the list of 

adjusted prime rates above. A computational example is provided in the 

accompanying note. 12_/ 

15/ The mechanics of the quarterly computation system may be illustrated 

by the following hypothetical example, in which a miner is discriminatorily 

discharged on January 1, 1983, and offered reinstatement on September 30, 

1983. Payment of back pay and interest is tendered on October 15, 1983. 

After subtraction of the relevant interim earnings, the net back pay of 

each quarter involved in the back pay period is as follows: 

The 

The 

First quarter (beginning January 1, 1983) 

Second quarter (beginning April 1, 1983) 

Third quarter (beginning July 1, 1983) 

Total net back pay 

adjusted prime interest rates in effect in 1983 

$1,000 

§1,000 

$1,000 

$3,000 

are: 

16% per year (.0004444% per day) from January 1, 

June 30, 1983; 

1983, 

11% per year (.0003055% per day) from July 1, 1983, to 

December 31, 1983. 

interest award on the net back pay of each of these quarters 

(1) First Quarter: 

(a) At 16% interest until end of second quarter of 1983: 

$1,000 net back pay x 91 accrued days of interest 

(last day of first quarter plus the entire second 

quarter) x .0004444 = $40.44 

Plus, 

(b) At 11% interest for entire third quarter through the 

date of payment: 

to 

is as follows: 

$1,000 net back pay x 105 accrued days of interest (the 

third quarter plus 15 days) x .0003055 = $32.07 

(c) Total interest award on first quarter: 

$40.44 + $32.07 = $72.51 

(2) Second Quarter 

(a) At 16% interest for the last day of the second quarter 

$1,000 x 1 accrued day of interest x .0004444 = $.44 

Plus, 

(b) At 11% interest for the entire third quarter through date 

of payment: 

$1,000 x 105 accrued days of interest x .0003055 = $32.07 

(c) Total = $.44 + $32.07 = $32.51 

(3) Third Quarter: 

At 11% interest for the last day of the third quarter 

through date of payment: 

$1,000 x 16 accrued days of interest x .0003055 = $4.88 total 

(4) Total Interest Award: 

$72.51 + 32.51 + 4.88 = $109.90 

This amount is added to the total amount of back pay ($3,000), for a total 

back pay award of $3,109.90. 

1773 
The major alternative computational approach would involve awarding 

interest on the total lump sum of net back pay from the date of discrimination to the time of payment. We recognize that this method would involve 

less complex calculations. We reject the lump sum method, however, because 

it would penalize the operator by assuming that the entire amount of the 

back pay debt was due and owing on the first day of the back pay period. 

We will carefully monitor the experience of our judges and parties in 

applying the computational system announced in this decision. We will 

modify the system if that experience over time demonstrates the 

desirability of adjustment. 

In discrimination cases, our judges should advise the parties of the 

methodology for calculating back pay and interest. The parties shall submit 

to the judge the requisite back pay figures and calculations, and are urged 

to make as much use of stipulation as possible. The burden of computation 

of interest on back pay awards should be placed primarily on the parties to 

the case, not the judge, in order to comport with the adversarial system. 

We apply the foregoing principles in this proceeding because the issue 

of the appropriate rate of interest in discrimination cases arising under 

the Mine Act was squarely raised on review. As a matter of discretionary 

policy in judicial administration, we will otherwise apply these principles 

only prospectively to discrimination cases pending. before our judges as of 

the date of this decision or filed with the Commission as of, or after, the 

date of this decis~on. We do not mean to intimate that any previous awards 

of interest by our judges in other cases, based on different computational · 

methods, are infirm. 

Applying our formula to the present case, we conclude that reversal 

is necessary. The judge's award of 6% interest is so disparate from the 

adjusted prime rates in effect from the date of Bailey's discharge on 

June 27, 1980, as to raise questions concerning whether the complainant 

would truly be made "whole" if the judge's award stands. Accordingly, 

we hold that the judge erred in awarding 6% interest, and will remand 

for recalculation of interest pursuant to the interest formula and 

computational methods announced in this case. 

IV. Tolling of t~e back pay award 

The judge concluded that Bailey was not entitled to back pay after 

October 20, 1980, the date on which Bailey's complaint was filed. That 

complaint requested reinstatement, but it was amended January 22, 1981. 

The amended complaint sought back pay and requested the Commission to 

"order respondents to pay Mr. Bailey $900.00 for one year college tuition 

plus $400.00 book and maintenance expense allowance in lieu of reinstatement at respondents' mine." The accompanying motion to amend stated: 

Subsequent to his filing of the complaint the Secretary 

was informed by complainant Bailey that he did not wish 

to be reinstated by respondents and that in lieu of reinstatement he would accept tuition for one year of college 

plus an allowance for expenses. 

1774 
The judge granted the motion to amend and, when determining the 

back pay award, applied Rule lS(c), Fed. R. Civ.P., and tolled the award 

on October 20, 1980. Rule lS(c) provides that where a claim or defense 

in an amended pleading arises out of the same circumstances set forth 

in the original pleading, the amendment relates back to the date of 

the original pleading. Relation back has been generally permitted where 

the movant seeks to enlarge the basis or extent Qf a demand for relief. 

See, for example, Goodman v. Poland, 395 F. Supp. 660, 682-86 (D. Md. 

1975)(change of theory of recovery from equity to law permitted); 

Wisbey v. Amer. Community Stores Corp., 288 F. Supp. 728, 730-32 (D. 

Neb. 1968)(amendment seeking additional damages in FLSA action permitted). 

We do not believe that the restrictive application of relation back 

by the judge was appropriate in this case. 

Rather, in determining when back pay should terminate, we look to the 

date when Bailey informed the Secretary he no longer sought reinstatement 

at Arkansas-Carbona. We agree with the judge's related conclusion: "It 

would be unfair and improper to require a mine operator to pay a former 

employee back pay for a period of time when the employee has unequivocally 

stated that he does not want to return to his former employment." 3 FMSHRC 

at 2321. In a case involving similar issues, this judge compared a miner's 

lack of desire to be reinstated to a rejection of an offer of reinstatement 

under the National Labor Relations Act. Secretary on behalf of Ball v. 

B&B Mining, 3 FMSHRC 2371, 2378 (October 198l)(ALJ). We concur with the 

NLRB rule that an employer is released from his back pay obligations when 

the employee rejects an appropriate offer of reinstatement, and consider 

the analogy to the facts of this case appropriate. See, for example NLRB v. 

Huntington Hospital, 550 F.2d 921, 924 (4th Cir. 1977); NLRB v. Winchester 

Electronics, Inc., 295 F.2d 288, 292 (2d Cir. 1961); Lyman Steel Co., 246 

NLRB 712 (1979). 

Tolling the back pay award on the date Bailey informed the Secretary 

that he no longer desired reinstatement effectuates the preceding principles, 

while the judge's relation back to the original complaint needlessly and 

unfairly penalizes Bailey. Therefore, we reverse the judge's relation back 

to the date of the original pleading. The present record does not reveal 

the date Bailey informed the Secretary of his waiver of reinstatement. 

Accordingly, we additionally remand for determination of that date in order 

that the back pay period may be established and the necessary computations 

properly made. 

V. College tuition and related expenses. 

Bailey's remaining contention concerning the award is that the judge 

erred in not granting him tuition and miscellaneous college expenses. The 

judge held, "Complainant failed to establish any entitlement to an award of 

1 year of college tuition plus $400 book and miscellaneous expense.allowance." 

3 FMSHRC at 2322. We affirm the judge on this point. 

The Secretary argued in his brief before the judge that Bailey would 

not have paid tuition and expenses, but for his accepting the position at 

Arkansas-Carbona. J!!..I The judge. found that, prior to his employment with 

16/ The Secretary did not raise this issue on review and, although 

Bailey hriefly raised it in his petition for review, he did not file 

a brief before us. 

1775 
Arkansas-Carbona, Bailey worked as a campus security guard at Arkansas Tech, 

and as a fringe benefit of that campus job did not pay tuition. 3 FMSHRC 

at 2315. (The judge made no finding on whether Bailey's campus job also 

entitled him to college expenses.) After Bailey accepted a position at 

Arkansas-Carbona, and resigned from his campus job, he paid his own tuition. 

The remedial goal of section lOS(c) of the Act is to return the miner 

to the status quo before the illegal discrimination. Secretary on behalf 

of Dunmire and Estle v. Northern Coal, 4 FMSHRC at 142. Had Bailey not been 

discharged illegally, he would have been working at Arkansas-Carbona and 

would have had to pay tuition for his classes. We do not see how ArkansasCarbona can be held responsible for a fringe benefit Bailey did not receive 

from that company. Although at times we may need to seek alternative 

remedies to make a miner whole for illegal discrimination (for example, 

where reinstatement is impossible or impractical), such considerations are 

not present in this case. 

Accordingly, we affirm the judge's refusal to award tuition and 

college expenses. 

VI. Conclusion 

For the foregoing reasons, we affirm the judge's severing of the 

request for a civil penalty from the merits of the discrimination case, 

and hold that in future case~ the Secretary must propose in his discrimination complaints a specific penalty supported by allegations 

relevant to the statutory penalty criteria. As we have stated above, 

we are accordingly in the process of amending our Procedural Rule 42 to 

provide for unified proceedings in the future. 

We reverse the judge's assessment of 6% interest on back pay, and remand 

to the Chief Administrative Law Judge for assignment _to a judge for calculation of back pay and interest according to the principles and methodology 

announced in this decision. ]]_/ We reverse the judge's tolling of the back 

17/ The judge who decided this case has left the Commission. 

177G 
pay award on the date the complaint was filed, and additionally remand for 

determination of the date Bailey informed the Secretary he no longer wished 

reinstatement. Finally, we affirm the judge's denial of Bailey's request 

for college tuition and related expenses. 

~~ L. Clair/ Nelson, Commissioner 

1777 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 . 

July 20, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

INDUSTRIAL MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 84-69 

A.C. No. 33-00945-03506 

Rogers Pit Mine 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion to approve settlements 

for the three violations involved in this matter. Each violation was originally assessed at $54 and the Solicitor 

moves for settlements in the amount of $40 apiece. 

The Solicitor's motion advises that the operator is 

small in size, a history of prior violations is low, and the 

negligence was moderate. I accept these representations. 

I cannot, however, accept the Solicitor's representations regarding gravity. The Solicitor advises "These violations involve the failure to provide 200 feet of berms on 

a roadway into a pit in violation of § 77.1605(k) (Citation 

No. 02326985); the failure to provide safety belts on a pan 

loader equipped with a roll over protective structure in 

violation of § 77.170l(i) (Citation No. 02326986), and an 

accumulation of oil and grease on the motor and transmission 

of a front-end loader in violation of § 77.1104 (Citation 

No. 02326987). Therefore, there was little likelihood of 

any danger to Respondent's miners." 

The mere recitation of the facts of each violation 

does not support the conclusion that there is little likelihood of danger. Moreover, there is no explanation of the 

Solicitor's proposed conclusions that the probability of 

occurrences of the event against which the violated standard 

were directed was unlikely and that the gravity of projected 

injury would be slight. On the contrary, all of the violations appear to involve a signifi.cant degree of gravity, in 

light of which, the originally assessed penalties of $54 

apiece are modest. 
In light of the foregoing, I am unable to approve the 

recommended settlement. 

Thie case is hereby assigned to Assistant Chief Administrative Law Judge Gary Melick. All future communications regarding this case should be addressed to Judge 

Melick at the following address: 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone: 703-756-6261 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

F. Benjamin Riek III, Esq., Office of the Solicitor, U.S. 

Department of Labor, 881 Federal Office Building, 1240 East 

Ninth Street, Cleveland, OH 44199 (Certified Mail) 

Mr. Ed Browne, Industrial Coal Mining Company, Inc., P.O. 

Box 1, Lisbon, OH 44432 (Certified Mail) 

/nw 

1779 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

LEE LIME CORPORATION, 

Respondent 

July 20, 1984 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 84-9-M 

A.C. No. 19-00018-05503 

Lee Quarry and Mill 

DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion for approval for 

settlement for the one citation involved in this matter. 

The Solicitor asserts that the assessment sheet which 

he has submitted contains findings concerning the size of 

Respondent's business, the health or safety standards violated, prior history, negligence, gravity, and good faith. 

This is a single penalty assessment and contrary to the 

Solicitor's representations, the assessment sheet has no 

information whatsoever on it. I do not, therefore, have 

before me the information necessary to make a de novo penalty assessment as authorized by section 110 ofthe Act. 

Moreover, the Solicitor states that the "excessive nuisance dust condition cited was not known to the operator nor 

was it caused by its negligence." The dust condition may 

not have been known to the operator, but this does not mean 

that it should not have known. Based upon what the Solicitor has told me, I would not be warranted in finding that 

the operator was not negligent. 

I am also surprised that the Solicitor recommends 

reducing the proposed penalty from $20 to $10. $20 denotes 

a lack of gravity; For a further reduction in this minimal 

penalty to be warranted, there must be additional justification such as imposition of the original penalty would impair 

the operator's ability to continue in business. The Solicitor has submitted no such information •. 

In light of the foregoing, therefore, it is Ordered 

that within 30 days, the Solicitor submit an amended motion 

for settlement which complies with the requirements of the 

Act. 

Paul Merlin 

1780 Chief Administrative Law Judge 
Distribution: 

David L. Baskin, Esq., Office of the Solicitor, U.S. De- . 

partment of Labor; John F. Kennedy Federal Building ·Government Center, Room 1607, Boston, MA 02203 (Certified Mail) 

Frank McQuade, Vice President, Lee Lime Corporation, Box 

250, Lee, MA 02138 (Certified Mail) 

/nw 

1781 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

LOCAL UNION 2274 COMPENSATION PROCEEDING 

DISTRICT 28, UNITED MINEWORKERS OF AMERICA, 

Complainant 

Docket No. VA 83-55-C 

McClure No. 1 Mine 

v. 

CLINCHFIELD COAL COMPANY, 

R.espond.ent 

RULING ON MOTION FOR SUMMARY JUDGEMENT 

Before: Judge Moore 

In ruling on a Motion for Summary Decision it is 

appropriate to view the facts in the light most disf avorable 

to the moving party. Assumptions I make for the purpose of 

ruling on this Motion, are therefore not binding regarding 

any other ca·se that may arise due to the explosion of the 

McClure No. 1 Mine on June 21, 1983. I am assuming for 

example that the safety standard violations which MSHA says 

existed prior to the explosion, did in fact exist and did 

lead to the explosion which killed seven miners. 

In this action United Mine Workers is seeking one week's 

compensation for each of the miners idled by the explosion 

and subsequent orders issued by MSHA. Section 111 of the 

Federal Mine Safety and Health Act of 1977 provides in part 

as follows: 

If a coal or other mine or .area of such mine 

is closed by an order issued under section 104 

or section 107 of this title for a failure of 

the operator to comply with any mandatory health 

or safety standards, all miners who are idled 

due to such order shall be fully compensated 

after all interested parties are given an 

opportunity for a public hearing, which shall 

be expedited in such cases, and after such 

order is final, by the operator for lost 

time at their regular rates of pay for such 

time as the miners are idled by such closing, 

or for one week, whichever is the lesser. 

Viewed in the light most favorable to the United Mine 

Workers of America, the events following the explosion 

1782 
were as follows. At 3:42 A.M. on June 22, 1983, an MSHA 

inspector issued a withdrawal order pursuant to section 

103(k) of the Act. At 2:00 P.M. on the same day he issued 

an imminent danger order pursuant to section 107(a) of 

the Act. Neither order alleged or referred to a violation 

of a health or safety standard. 

MSHA's comprehensive underground investigation lasted 

from June 25, 1983 to August 12, 1983, and various interviews 

were conducted in July and August of that year. According 

to the accident report, which is not a part of the record. 

in this case but which I nevertheless have, the transcripts 

of all testimony_taken were released to the general public 

on September 9, 1983. I can not find anything in that accident 

report, however, that indicates when it was published. In 

any event it was not intil March o.f 1984 that MSHA issued a 

section 104(d) citation and four section 104(d) orders all 

alleging violations of safety standards that led to the 

explosion. It is noted that the citation bears the number 

2352610 but each of the four orders refers to it as number 

2352601. I assume that was a clerical error. The original 

section 107(a) imminent danger order was not modified. 

On December 16, 1983, I denied Clinchfield's original 

motion for summary decision (I referred to it as a motion 

to dismiss) relying for the most part on the Commission's 

decision in United Mine Workers of America v. Westmoreland 

Coal Company,5 FMSHRC, 1406 (August 1983). At that time 

MSHA had not released its accident report and the posture 

of the case was thus very similar to the situation before 

the Commission in the We·stmoreland case. The Commission 

remanded the Westmoreland case to Judge Steffey with 

directions that he retain it on his docket until MSHA had 

completed its investigation and taken whatever action it 

deemed necessary. The Commission expressed no opinion 

as to whether MSHA could legally am~nd the section 107(a) 

order to allege a violation or whether such an amendment 

would entitle the miners to the week's compensation involved. 

It said these questions should be first·· resolved by the 

judge after the investigation. 

As I have stated previously, the MSHA investigation 

report is not a part of the official record in this case. 

It is, however, an official public document of the United 

States Department of Labor and as such it is entitled to 

"official notice" status and under the summary decision 

criteria statements therein detrimental to Clinchfield could 

be "officially noticed". I am including a copy of that 

1783 
report with the material forwarded to t~e Commission in 

this case for whatever use it wishes to make of the report. 

After the parties had rebriefed the issues, I asked 

the Solicitor if it wished to express a v~ew. The Solicitor 

did write a letter in which it agreed with the United 

Mine Workers' arguments and stated, 

"as the instant 107(a) order was terminated 

by the time the accident report was issued, 

no thought was given to issuing a modification 

of the terminated order to tie it formally 

to the 104(d) orders issued with the 

report;" 

I would have thought that after the Commission's Westmoreland 

decision and my ruling herein of December 16,· 1983, that 

some thought would have been given to the question of 

modification. Clinchfield has moved to strike the Solicitor's 

letter but inasmuch as I invited the Solicitor's views 

I can hardly strike his compliance with my request. 

The issue before me in this case presents a very close 

question. I sympathize with the. arguments of the United 

Mine Workers of America and the Solicitor, but I believe 

that the law is to the contrary. The mine was closed 

because an inspector thought an imminent danger existed 

not because he thought there was "a failure of the operator 

to comply with any mandatory health or safety standards." 

The fact that the .explosion that led to the order was 

actually, in accordance with my assumptions, caused by 

the violations does not affect the fact that the inspector 

did not issue the order "for a failure of the operator 

to comply with • • • safety standards".· 

The Motion is GRANTED 

Distribution: 

and~.~ D;:; Ot 

Charles c. Moore, Jr., 

Administrative Law Judge 

Joyce A. Hanula, Legal Assistant, United Mine Workers of 

America, 900 15th Street, NW., Washington, D.C. 20005 

(Certified Mail) · 

Timothy M. Biddle, Esq., Crowell and Moring, 1100 Connecticut 

Avenue, NW., Washington, D.C. 20036 (Certified Mail) 

/db 

1784 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 41984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 84-38 

A.C. No. 11-00599-03548 

v. 

Orient Mine No. 6 

FREEMAN UNITED COAL MINING 

COMPANY, : 

Appearances: 

Before: 

Respondent 

DECISION 

Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

for Petitioner; 

Harry M. Coven, Esq., Gould & Ratner, Chicago, 

Illinois, for Respondent. 

Judge Kennedy 

The captioned penalty proceeding came on for an evidentiary 

hearing in Chicago, Illinois on May 17, 1984. The 104(a) S&S 

citation charged a violation of 30 C.F.R. 75.304,.failure to 

make an adequate onshift examination for hazardous conditions. 

During examination of the inspector it became apparent 

that the violation charged could not in fact have occurred. 

Whereupon, counsel for the Secretary moved to vacate the 

citation and dismiss the proposal fpr penalty. There.being 

no opposition the motion was granted and the case dismissed. 

The premises considered, it is ORDERED that the bench 

decision in this matter be, and h"by is, AFFIRMED and the 

matter DISMISSED. 

.J I l l .: 

~~· Kenn~dfJyr.11..IM~~w--....... Administrative Law 

1785 
Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 340 S. Dearborn St., 8th Fl., Chicago, IL 

60604 (Certified Mail) 

Harry M. Coven, Esq., Gould & Ratner, 300 W. Washington St., 

Suite 1500, Chicago,. IL 60606 (Certified Mail) 

/ejp 

1786 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 .JUL 2 4 1984 

VESTA MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

VESTA MINING COMPANY, 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. PENN 83-212-R 

Order No. 2104660; 6/16/83 

. Docket No. PENN 83-225-R 

Order No. 2105163-02; 7/25/83 

Vesta Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-230 

A.C. No. 36-00962-03552 

Vesta Mine 

Appearances: Barbara L. Krause, Esq., Smith, Heenan, 

Althen and Zanolli, Washington, D.C., for 

Contestant/Respondent; 

Before: 

James Crawford, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Respondent/ 

Petitioner. 

Judge Kennedy 

The captioned review-penalty proceedings are before me on 

the parties' motion to approve settlement of tw9 of the three 

·violations charged and to vacate the 104(d) (2) Order involving 

an alleged roof control violation. 

The matters were first considered at a prehearing/settlement 

conference that resulted in an agreement to settle the sanding 

devices (Order No. 2105135) and the shelter holes (Order No. 

2105163) charges at the amounts initially assessed, $750 and 

$130 respectively. 

Thereafter, the roof control violation (Order No. 2104660) 

came on for an evidentiary hearing in Pittsburgh, Pennsylvania, 

on March 14, 1984. At the close of the solicitor's case, the 

operator moved to dismiss for failure to prove a prima facie 

case. For reasons best appreciated by reading the transcript, 

• 
• 

the solicitor did not oppose. Whereupon the trial judge 

vacated the order and dismissed the proposal for penalty. 

The premises considered, therefore, it is ORDERED that 

(1) the motion to approve settlement be, and hereby is, 

GRANTED and the contest of the shelter holes order (Docket 

PENN 83-225-R) DISMISSED, (2) the contest of the roof control 

order (Docket PENN 83-212-R) is GRANTED, and (3) the order 

is vacated and the proposal for the penalty thereon are 

DISMISSED. It is FURTHER ORDERED that the operator pay the 

amount of the penalty ag~eed upon, 880, allocated as 

initially assessed, on or before F August 3, 1984. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Barbara L. Krause, Esq., Smith, Keenan, Althen & Zanolli, 

1110 Vermont Avenue, N.W., Washington, D.C. 20005 (Certified 

Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

/ejp 

1788 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE V..W JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 84-151 

A. C. No.· 15-03881-03520 

Pyro No. 9 Slope 

William Station 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

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

for Petitioner; 

William M. Craft, Assistant Safety Director, 

Sturgis, Kentucky, for Respondent. 

Before: Judge Steffey 

An expedited hearing was held on February 28, 1984, in 

Evansville, Indiana, pursuant to section 105(d), 30 u.s.c. § 

815(d), of the Federal Mine Safety and Health Act of 1977 with 

respect to two notices of contest filed by Pyro Mining Company 

in Docket Nos. KENT 84-87-R and KENT 84-88-R. I rendered a 

bench decision, but the final decision containing the bench decision was not issued until May 15, 1984, because the transcript of the expedited hearing was not received until May 1, 

1984. 

The hearing with respect to the issues raised in the contest proceeding was consolidated with the civil penalty issues 

which would be raised when the Secretary of Labor filed a proposal for assessment of civil penalty seeking to have penalties 

assessed for the two violations which had been cited in the 

orders of withdrawal which were the subject of the notices of 

contest. I stated on page one of the decision issued in the 

contest proceeding that I would decide the civil penalty issues 

on the basis of the record made in the contest proceeding after 

I had received the civil penalty case pertaining to the violations involved in the contest proceeding. The civil penalty 

case was thereafter assigned to me on June 27, 1984, in the 

above-entitled proceeding, and if the Secretary of Labor's proposal for assessment of civil penalty had requested that penalties be assessed for only the two violations cited in the two 

orders already considered at the hearing held in the contest 

1789 
proceeding, this supplemental decision would be able to dispose 

of all issues raised in Docket No. KENT 84-151. The proposal 

for assessment of civil penalty seeks, however, to have a penalty assessed with respect to a third violation alleged in a 

citation which was not the subject of the hearing held in the 

contest proceeding. Therefore, this decision will dispose of 

only the two violations involved in the· contest proceeding in 

Docket Nos. KENT84--87-R and KENT 84-88-R. 

For the reason stated in the preceding paragraph, a prehearing order will be issued with respect to the third violatioq involved in Docket No. KENT 84-151 and a subsequent hearing will be held with respect to the issues pertaining to that 

citation if the parties do not settle all issues concerning the 

third violation involved in Docket No. KENT 84-151. 

Issues 

In most civil penalty cases, the issues are whether violations occurred and, if so, what civil penalties should be 

assessed, based on the six criteria set forth in section llO(i) 

of the Act. In this proceeding, however, Pyre Mining Company 

(hereinafter referred to as Pyro) stipulated at the hearing held 

in the contest proceeding that the violations occurred and that 

the only issue it was raising was whether the inspector had properly issued the orders under unwarrantable-failure section 104 

(d) (1) of the Act (Tr. 4; 133). 1/ I held in my decision issued 

May 15, 1984, in Docket Nos. KENT 84-87-R and KENT 84-88-R that 

Order No. 2338185 was properly issued under section 104(d) (1) 

and that Order No. 2338186 was not properly issued under section 

104(d) (1) of the Act. Paragraph (B) of my decision vacated 

Order No. 2338186 insofar as. it purported to have been issued 

under section 104(d) (1) of the Act and modified the order to a 

citation issued under section 104(a) of the Act with a check 

mark in the "significant and substantial" block shown on such 

citation. 2/ · 

1/ All references to transcript and exhibits are to the record 

made at the hearing held in Docket Nos. KENT 84-87-R and KENT 

84-88-R. 

2/ In Consolidation Coal Co., 6 FMSHRC 189 (1984), the Connnission held that an inspector may properly designate a violation 

cited pursuant to section 104(a) of the Act as being "significant and substantial" as that term is used in section 104(d) (1) 

of the Act, that is,· that the violation is of such nature that 

it could significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard. 

1790 
Since Pyro has already stipulated that the violations occurred, the only issue remaining for me to consider in this supplemental decision is what civil penalty should be assessed for 

each violation. Four of the six assessment criteria set forth 

in section llO(i) of the Act may be given a general evaluation 

which will be applicable to both violations. The proposed assessment sheet in Docket No. KENT 84-151 shows that Pyro produces about 1,665,000 tons of coal annually at the Pyro No. 9 

Slope and produces over 3 million tons of coal annually on a 

company-wide basis. Those figures support a finding that Pyro 

is a large operator and that penalties in an upper range of magnitude should be assessed in this proceeding to the extent that 

they are determined under the criterion of the size of the operator's business. 

Pyro did not introduce at the hearing any evidence pertaining to its financial condition. The Commission held in Sellersburg Stone co., 5 FMSHRC 287 (1983), aff'd Sellersburg Stone Co. 

v. FMSHRC, F.2d , 7th Circuit No. 83-1630, issued 

June 11, 1984;-that if an operator fails to present any evidence 

concerning its financial condition, that a judge may presume 

that the operator is able to pay penalties. Therefore, I find 

that payment of civil penalties will not adversely affect Pyro's 

ability to continue in business. Consequently, it will not be 

necessary to reduce any penalties determined pursuant to the 

other criteria under the criterion of whether the payment of penalties will cause the operator to discontinue in business. 

The criterion of whether an operator demonstrates a goodfaith effort to achieve rapid compliance after a violation is 

cited is generally evaluated on the basis of whether the operator abates the violation within the period of time given by the 

inspector. Inspectors do not provide an abatement period in. 

withdrawal orders. Since both of the violations here under consideration were cited in withdrawal orders, it is not possible 

to evaluate the criterion of good-faith abatement on the basis 

of whether Pyro corrected the violations within the time given 

by the inspector. The inspector's testimony, however, shows 

that both of the violations were abated promptly. The violation 

cited in Order No. 2338185 was abated within 30 minutes after 

the violation was cited by the hanging of red ribbons which 

serve as a warning of unsupported roof in Pyro's mine (Tr. 14; 

Exh. 1). The other violation was abated in a period of 2 hours 

and 25 minutes by installation of two rows of roof bolts in an 

area of unsupported roof. The inspector remained at the site 

of the unsupported.roof until the bolts had been installed and 

he believed that Pyre had done the necessary abatement work as 

rapidly as it could have been accomplished in view of the fact 

that a mechanic was working on the roof-bolting machine's brakes 

and also was repairing the machine so as to make it apply a proper amount of torque to the roof bolts being installed (Tr. 76-77). 

1791 
The evidence discussed above supports a finding that Pyro 

demonstrated a good-faith effort to achieve compliance after 

each violation was cited. It is my practice to reduce a penalty 

otherwise determined under the other criteria if an operator 

shows an outstanding effort to achieve rapid compliance and to 

increase the penalty determined under the other criteria if the 

operator fails to make a good-faith effort to achieve rapid compliance. If the operator makes a normal good-faith effort to 

achieve compliance, as occurred in this instance, I neither increase nor decrease the penalty under the criterion of goodfaith compliance. 

No exhibits were presented to show Pyro's history of previous violations, but the parties stipulated that Pyro has been 

cited for 21 previous violations of section 75.200 in the period 

between January 9, 1983, and the citing on January 24, 1984, of 

the two violations of section 75.200 here involved {Tr. 4-6). 

S. REP. NO. 95-181, 95th Cong., 1st Sess. 43 (1977), made the 

following comment about using the criterion of history of previous violations in assessing penalties: 

In evaluating the history of the operator's violations 

in assessing penalties, it is the intent of the Committee that repeated violations of the same standard, 

particularly within a matter of a few inspections, 

should result in the substantial increase in the,amount 

of the penalty to be assessed. Seven or eight violations of the same standard within a period of only a 

few months should result, under the statutory criteria, 

in an assessment of a penalty several times greater 

than the penalty assessed for the first such violation. lf 

It has been my practice to assess a part of a civil penalty 

under the criterion of history of previous violations when there 

is an indication, as there is here, that the operator has repeatedly violated the same section of the regulations which is 

under consideration. It is a fact, however, that Congress reviewed some statistics showing the amou~ts of the penalties 

which MSHA had imposed for the repeat violations referred to in 

the legislative history. In this proceeding, I only have a 

stipulation of "21 prior of 75.200" {Tr. 6) to use as .the basis 

for assessing a portion of the penalty under the criterion of • 

history of previous violations. The Commission majority in 

U. S. Steel Corp. v. MSHA, 6 FMSHRC , decided June 26, 1984, 

Docket No. LAKE 81-102-RM, et al., reduced one of my civil penalties from $1,500 to $400 because they did not think there was 

substantial evidence to support my findings. In light of the 

majority's ruling in the u. s. Steel case, I conclude that 

there is not sufficient.evidence to support findings for 

3/ Reprinted in LEGISLATIVE HISTORY OF.THE FEDERAL MINE SAFETY 

AND ijEALTH ACT OF 1977, at 631 (1978). 

1792 
assessing any part of the penalty under the criterion of 

history of previous violations. 

Order No. 2338185 

I have already considered above the four criteria of the 

size of the operator's business, the question of whether payment of penalties will cause the operator to discontinue in 

business, the operator's good-faith effort to achieve compliance, and the operator's history of previous violations. Consideration of the remaining criteria of negligence and gravity 

requires specific discussion of the violations here at issue. 

Order No. 2338185 was issued on January 24, 1984, under section 

104(d) (1) of the Act and cited a violation of section 75.200 becaus~ (Exh. 1) : 

The approved roof control plan (dated 8/12/83, see 

page 4, paragraph 12C) was not being followed on 

the No. 5 .unit, ID No. 005, in that the last open 

crosscut between Nos. 5 and 4 entries (100 feet 

inby Spad No. 1380 #5 entry) was unsupported for 

an area of approximately 15 ft. long by 20 ft. 

wide and the area had not been dangered off, so 

as to warn persons that the area was unsupported. 

In my decision issued May 15, 1984, in the contest proceeding, 

at pages 8 and 9, I upheld the issuance of Order No. 2338185 

under the unwarrantable-failure provisions of the Act beca:use 

the section foreman on the shift preceding the writing of the 

order had failed to assure that devices were installed to warn 

miners of the fact that the roof was unsupported. 

A mitigating fact6r in assessing the degree of negligence 

may be found in the fact that the preshift examiner, who inspected the crosscut here involved j,ust prior to the writing 

of the order, noticed that the roof was unsupported and indicated in the preshift book (Exh. C) that the area of unsupported roof had been dangered off. Nevertheless, mechanics 

were working on the section at the time the order was issued 

and the inspector could find no warning devices outby the . crosscut (Tr. 54; 59). The inspector said that two other roof_ 

falls had occurred in the No. 5 Unit and that his specific purpose for being in the No. 5 Unit on the day the order was 

written was to examine the site of an unintentional roof fall 

which had just been cleaned up prior to the inspector's arrival 

in the No. 5 Unit (Tr. 40; 44). 

The inspector further testified that during close-out in-. 

spection conferences held on April 22, 1983, May 12, 1983, 

June 16, 1983, and November 11, 1983, he had warned Pyre's 

1793 
supervisory personnel of the fact that the miners were failing 

to hang the required warning devices at the site of unsupported 

roof (Tr~ 82). There is considerable evidence, therefore, to 

support a finding that a high.degree of n~gligence was associated with the violation of section 75.200 cited in Order No. 

2338185. Consequently, an amount of $500 will be assessed for 

that violation under the criterion of negligence. 

The preponderance of the evidence shows that the roof in 

the crosscut was hazardous. The inspector testified that he 

saw "Nothing that would indicate to me it was fixing to fall 

in •.••• However, you had at least two falls on this section 

that I knew about" (Tr. -44). The mechanic who had been sent 

to repair the roof-bolting machine which was being used in the 

crosscut at the time the order was written testified that there 

were "heads" or "big pieces of rock that hang from the roof" 

near the site where the roof-bolting machine was working to install roof bolts in the unsupported roof and that he asked the 

operator of the roof-bolting machine to back the machine toward 

•the No. 5 entry so that it would be in a safer place than it 

was then situated for him to repair it {Tr. 102-103). 

The operator of the roof-bolting machine gave the following testimony about the condition of the roof (Tr. 114-115): 

He [the mechanic] said, "I got to work on the 

brakes." Right up above where I had put the pins, 

there was two big heads in the middle of the crosscut, and which recently I've had one to fall out 

and almost get me. So I backed the pinner up, and 

Mike said, "No, there is some bad top here." So I 

just pulled the pinner through the crosscut. 

The testimony of the inspector and two of Pyre's witnesses 

shows that the roof was very hazardous in the crosscut where 

Pyre's section foreman had failed to have the warning devices 

installed. In view of the evidence showing that the violation 

was very serious, I believe that a penalty of $1,000 should be 

assessed under the criterion of gravity. Since, however, the 

Commission majority in the U. S. Steel case, hereinbefore cited, 

have indicated that they think my assessment of civil penalties. 

is excessive, I shall reduce that amount to $500. 

Inasmuch as a large operator is involved, a total penalty 

of $1,000 does not appear to be excessive, bearing in mind that 

an amount of $500 is being assigned under the criterion of negligence and an additional amount of $500 is being assigned under the criterion of gravity. 

1794 
Citation No. 2338186 

In my decision issued on May 15, 1984, in the contest p~oceeding, I found, at page 10, that the preponderance of the 

evidence failed to show that Pyro should be held liable for the 

negligence of the operator of the roof-bolting machine when he 

acted aberrantly and pulled the roof-bolting machine through 

the area with unsupported roof in his effort to find a place 

where the mechanic could repair its brakes without being exposed 

to hazardous roof. Nacco Mining Co., 3 FMSHRC 848 (1981). At 

the end of that shift during which the roof-bolting machine's 

oper.ator had pulled it through the area of unsupported roof, 

Pyre's management issued a company citation reprimanding him 

for having done so and suspended him from work for 1 day (Tr. 

121-122). 

I also noted in my decision in the contest proceeding that 

the Commission in Southern Ohio Coal Co., 4 FMSHRC 1459 (1982), 

had distinguished between relying upon the acts of a rank and 

file miner for the purpose of finding that a violation had occurred, as opposed to relying upon the acts of a rank and file 

miner for the purpose of imputing negligence to the operator. 

In other words, an operator is liable for the occurrence of a 

violation without regard to fault (U.S. Steel Corp., 1 FMSHRC 

1306 (1979)), but the negligence of a rank and file miner should 

not be imputed to the operator for the purpose of assessing penal ties. 

For the foregoing reasons, my decision in the contest proceeding modified Order No. 2338186 to a citation issued under 

section 104(a) of the Act with a check in the block showing that 

the violation was "significant and substantial". As I have 

noted above, the Commission has already held that the negligence 

of a rank and file miner should not be attributed to the operator for assessing civil penal ties. Conse.quently, no portion of 

the penalty for the violation of section 75.200 involved in 

Citation No. 2338186 should be assessed under the criterion of 

negligence. I believe that assignment of ·no portion of the penalty under the criterion of negligen.ce is especially warranted 

in this case in view of Pyre's having cited the miner for the 

violation and its action of having suspended him for 1 day for . the unfortunate act done in haste in an effort to place .the 

roof-bolting machine in a safe place for the mechanic to repair 

it. 

The gravity of the violation involved in Citation No. 

2338186 is precisely the same as that considered above in 

assessing a penalty for the violation of section 75.200 cited 

in Order No. 2338185 because the unsupported roof under which 

the operator of the roof-bolting machine passed in trying to 

find a safe working place for making repairs is the same area 

. of unsupported roof which was involved in the violation cited 

1795 
in Order No. 2338185. There is a difference in assessing the 

penalty, however, because in the previous violation, Pyre's 

management was responsible for the fact that no device had been 

installed to warn miners to avoid passing under the unsupported 

roof in 'the last open crosscut. In this instance, while the 

unsupported roof exposed the operator of the roof-bolting machine 

to possible death from a roof fall, he was exposed to that hazard 

through no fault of Pyre's management. 

The following question and answer show that it would be 

improper to assess a large penalty under the criterion of gravity 

in this instance (Tr. 121): 

Q. Had you ever been told by anybody in management not to go under unsupported roof? 

A. Yes, sir. I knew better. I just wasn't 

thinking at the time. He didn't--! wasn't wanting 

him working under those heads, and top was bad behind him. So I just automatically pulled it through. 

And after I realized, when I got him through, realized what I had done, I turned the pinner around and 

started pinning from my way in so I wouldn't back my 

pinner back. 

It should also be noted that the pulling of the roof-bolting 

machine through the ·area of unsupported roof occurred on a nonproducing shift (Tr. 94-95), that the operator of the roof- bolt~ng machine had been sent by a foreman to the No. 5 Unit to 

do the roof bolting as "catch-up" work (Tr. 112), and that there 

was no section foreman on duty in the No. 5 Unit at the time the 

roof was being bolted (Tr. 113). 

In light of the circumstances described above, I believe 

that a minimal penalty of $25 should, be assessed under the criterion of gravity, taking into consideration that a large operator is involved and that assessment of a penalty is mandatory 

under the Act. Tazcp, Inc., 3 FMSHRC 1895 (1981). 

WHEREFORE, it is ordered: 

Within - 30 days after issuance of this decision, Pyro Mining 

Company shall pay civil penalties totaling $1,025.00 for the 

violations listed below: 

Order No. 2338185 1/24/84 § 75.200 ••••••••.•• $1,000.00 

Citation No. 2338186 1/24/84 § ·75.200 •••••••• 25.00 

Total Penalties Assessed in This Proceeding •• $1,025.00 

~O.o/;t-~ Richard c. Steffey 

Administrative Law Jud~e 

1796 
Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U. s. Department of Labor, Room 280, u. S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

William M. Craft, Assistant Director of Safety, Pyro Mining 

Company, P. o. Box 267, Sturgis, KY 42459 (Certified Mail) 

yh 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 . JUL.261984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF Z.B. HOUSER, 

Complainant 

v. 

NORTHWESTERN RESOURCES CO., 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 83-101-D 

MSHA Case DENV CD-82-34 

Grass Creek Mine 

DECISION 

Appearances: James H. Barkley, Esq., and Robert J. Lesnick, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Complainant; 

Edward Bartlett, Esq., Northwestern Resources 

Company, Thermopolis, Wyoming, 

for Respondent. 

Before: Judge Vail 

STATEMENT OF THE CASE 

This case involves a discrimination complaint brought by the 

Secretary of Labor, on behalf of Z.B. Houser (Houser) under 

section 105Cc)C2) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seg. (the Act) against Northwestern Resources Company (Northwestern). Houser alleges that Northwestern 

discriminarily·retaliated against him by recalling all of the 

other laid off mine employees except complainant after a 

production shut down of the mine in violation of section 105(c) 

of the Act. Northwestern contends that Houser was not rehired 

because of his unsatisfactory work performance and furth~r 

contends that the complaint is barred by time limitations. 

A hearing was held, pursuant to notice, on March 21 and 22, 

1984, in Thermopolis, Wyoming. Post-hearing briefs have been 

filed by both parties. Based on the evidence presented at the 

hearing and the contentions of the parties, I make the following 

decision. To the extent that the contentions of the parties are 

not incorporated in this decision, they are rejected. 

1798 
STATUTORY PROV18IONS 

Section 105(c)Cl) of the Act provides in pertinent part as 

follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment 

in any coal or other mine subject to this chapter 

because such miner, representative of miners, or 

applicant for employment has filed or made a complaint 

under or related to this chapter, including a complaint 

notifying the operator or the operator's agent, or the 

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 •••• 

Section 105Cc)(2) of the Act, provides in pertinent part as 

follows: 

Any miner or applicant for employment or representative 

of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by any 

person in violation of this subsection may, within 60 

days after such violation occurs, file a complaint with 

the Secretary alleging such discrimination. 

Section 105(c)(3) of the Act, provides in pertinent part as 

follows: 

Within 90 days of the receipt of a complaint filed 

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

writing, the miner, applicant for employment, or representative of miners of his determination whether a 

violation has occurred. If the Secretary, upon investigation, determines that the provisions of this 

subsection have not been violated, the complainant shall 

have the right, within 30 days of notice of the Secretary's determination, to file an action in his own behalf before the Commission, charging discrimination or 

interference in violation of paragraph Cl) •••• 

FINDINGS OF.FACT 

1. Northwestern has operated a surface coal mine called the 

Grass Creek Mine at a location 35 miles from Thermopolis, Wyoming 

since 1979. In conjunction with the Grass Creek Mine, it maintained a load-out facility along the railroad tracks in Kirby, 

1799 
Wyoming, which is approximately 60 m1~es from the mine. The 

'load-out facility at Kirby consisted of a parcel of land 

approximately 100 feet wide by 400 feet long. Coal was hauled by 

truck from the mine and stockpiled at the Kirby site until it 

could be loaded in railroad cars. 

2. The period of time involved in this case is from October 

1, 1981 to September, 1982. Houser was hired by Northwestern as 

a crusher operator commencing work at the Grass Creek mine on 

October 1, 1981 (Transcript at 27). On that date, there were two 

other employees at the mine, Frank Henning, a dozer operator and 

Roger Sprague, the mine foreman. Monte Steffans, mine manager, 

maintained an office in Thermopolis, Wyoming. Dick Meisinger 

worked at the Kirby load-out area loading coal on the rail cars. 

3. Harold Heeter was hired to work at the Grass Creek mine 

as a crusher operator in November, 1981 (Tr. at 154). Ralph L. 

Allen was hired as an equipment operator during the latter part 

of November, 1981 (Tr. at 185). Dennis Householder was hired 

sometime after the above date as a temporary laborer to help 

Heeter build the scale and a scale house (Tr. at 30). 

4. In December, 1982, Houser was transferred to the Kirby 

load-out area where he remained for approximately two months 

before being transferred back to the mine (Tr. at 46). Hauser's 

residence was located in Kirby, approximately 300 to 400 yards 

from the load-out site. A 992 Caterpillar Tractor equipped with 

a ten yard capacity bucket was furnished the employee at the 

load-out area to stockpile coal, keep the area clean so the 

trucks could dump their loads, and to load coal on the railroad 

cars for shipment to Northwestern's customers. Also, the 

employee assigned to this job was expected to do maintenance work 

on the tractor including lubrication. The large size of the 

bucket on this machine made it possible for the operator to clean 

up a truck load of coal and stockpile it in approximately five 

minutes. A rail car could be loaded with a hundred tons of coal 

in ten to fifteen minutes. Usually there were ten rail cars to a 

shipment (Tr. at 37, 38). Houser had considerable "free time" at 

the Kirby site which he spent greasing the tractor or sitting 

around waiting for the trucks to arrive. At times he went to his 

residence for coffee or to use the toilet and sometimes he would 

run his hunting dogs up and down the road (Tr. at 43). 

5. The trucks hauling coal from the mine to the load-out 

site were operated by independent contractors who were paid by 

the load. Hauling of coal commenced early in the morning and 

continued at times to eight or nine o'clock at night (Tr. at 41). 

1800 
Heuser's regular hours at Kirby were from 7 o'clock in the 

morning to 3:30 p.rn. with a half hour off for lunch. On some 

occasions, the truck drivers would use the loader at the mine to 

load their trucks and the loader at Kirby to clear an area to 

unload. This happened when they started early and worked beyond 

the Northwestern's employees regular working hours. 

6. There is a sharp conflict in the testimony on the 

question of whether Houser did a satisfactory job while he was 

assigned to the Kirby load-out area. I generally accept the 

testimony of Roger Sprague, Heuser's immediate supervisor, and 

Thomas c. Anderson, an independent contractor hired by the 

respondent to haul coal from the mine to Kirby during the period 

involved here. The main thrust of this testimony was that Houser 

was not always present when the trucks pulled in to unload which 

caused the drivers to wait for him to show up (Tr. at 319). 

Sprague testified that he received complaints about this from 

the truck drivers. Monte Steffans testified that he also found 

the complainant was absent from the load-out site when he was 

supposed to be there (Tr. at 221, 222). Anderson testified that 

after Meisinger replaced Houser at the Kirby site, those problems 

no longer occurred. However, he did admit that they changed the 

unloading area to a better site for their purposes (Tr. at 319). 

Sprague also testified that the loader was not maintained 

properly by Houser, that rail cars were overloaded, and Houser 

objected to using a smaller, substitute loader when the larger 

machine was not operating due to the engine being repaired (Tr. 

at 228). 

7. After Houser had worked at the load-out facility for 

approximately two to three months, he was transferred back to the 

mine to work as lead man during the night shift. Houser operated 

the loader and Allen ope~ated the crusher. The transfer occurred 

when Meisinger was involved in an automobile accident and was 

sent to the Kirby load-out area which was considered to be an 

easier job. In April of 1982, the night shift was suspended and 

Houser was transferred to the day shift (Tr. at 45-48). During 

this period, Henning continued to operate the dozer removing 

overburden and breaking up the coal (Tr. at 49). Houser loaded 

the coal in the crusher and, after it was crushed, into the 

trucks hauling to Kirby (Tr. at 50). Allen operated the crusher 

and occasionally traded off with Houser on the loader. Heeter 

was the utility man and Householder was a laborer. 

8. In the spring of 1982, Houser expressed concern to 

Sprague about the dusty conditions at the mine (Tr. at 56). 

1801 
Sprague then furnished him with painter's type paper dust 

masks. Houser did not find these satisfactory so Sprague 

furnished a better type of mask (Tr. at 57). 

9. During the spring of 1982, Houser operated a 7251 Terex 

front-end loader equipped with a cab. The glass in the side 

windows were both broken and the windshield had a gap between it 

and the frame. The rubber boots around the pedals and levers to 

keep dust out were not effective (Tr. at 55). Houser complained 

to Sprague about the coal dust that entered the cab of the loader 

(Tr. at 56). Glass in the doors of the Terex operated by 

complainant were broken several times due to the door not being 

kept latched. It was replaced as was the windshield (Tr. at 

245). 

10. In the middle of May i982, a Mine Safety and Health 

Administration CMSHA) inspector arrived at the Grass Creek mine 

and placed dust sampling devices on Houser and Allen for a dust 

test. As a consequence of the results of this test, Northwestern 

was issued a citation on May 14, 1982, alleging that the average 

concentration of respirable dust in a designated work position 

exceeded the allowable amount. Northwestern was directed to take 

corrective action to lower the concentration of dust and sample 

each normal work shift until five valid respirable dust samples 

were taken (Exh. C-1). 

11. Houser also complained on numerous occasions to Sprague 

about the steering mechanism on the Terex loader. He also wrote 

this on the machine's operator's log. Sprague's response was to 

keep on running it. After Sprague operated the loader at a later 

date, mechanics came out to the mine and repaired it (Tr. at 61, 

62). 

12. On June 10, 1982, Steffans was advised that a major coal 

customer of the Grass Creek mine was curtailing its purchases. 

Steff ans telephoned Sprague and discussed which employees at the 

mine would be "laid~off" due to the resulting reduction in coal 

production. It was decided that Henning would be retained to 

continue work on building the scale and scale house. Heeter 

would continue working operating the dozer for the stripping crew. 

Four employees were to be laid-off including Houser, Allen, 

Meisinger, and Householder. Steffens and Sprague were not 

laid-off. This was ultimately Steffan's decision although 

he discussed it with Sprague (Tr. at 356-358). 

13. On June 11, 1982, Steffans first went to his office 

1802 
where he prepared pay-checks for the four employees to be 

terminated. After getting into his vehicle to go to the mine, he 

remembered that he also had to fill out termination reports on 

each miner. He returned to the office and prepared the required 

forms (Exh. C-2). After completion of the termination forms, 

Steffans dro~e to the mine arriving around the lunch hour. 

Steffans had mistakenly signed the four forms on the line 

designated for the supervisor's signature which would be Sprague. 

Steffans showed the forms to Sprague, crossed out his signature 

and placed it on the line designated "Reviewed". Sprague signed 

the forms as "supervisor". Each employee signed the termination 

report presented to him. After reviewing the termination report, 

Houser inquired of Sprague as to why he was rated lower than the 

other employees (Tr. at 254). Also, he wanted to know what 

"initiative" meant. The term was explained to him by Steffans 

and Sprague (Tr. at 363). Steffans had rated Meisinger the best 

employee of the four terminated, followed by Allen, Houser, and 

Householder (Tr. at 365) 

14. Approximately two weeks after his termination, Houser 

met Steff ans at a grocery store in Thermopolis and had a conver-

· sation in which Steffans indicated that the mine would start 

operating again soon (Tr. at 65). On July 19, 1982, Meisinger 

and Allen were called back to work at the mine (Tr. at 65). 

Householder returned to work on approximately September 1, 1982 

(Tr. at 66). After Meisinger and Allen returned to work, Houser 

telephoned Steffans to find out when he would be going back. He 

did not remember the date but thought it was in July, 1982. 

Steff ans told Houser that he was not being called back to work 

because Sprague did not want him back. Houser went to the the 

off ice and talked to Steffans about the reasons Sprague did not 

want him back and was told that Steff ans would check further into 

the matter (Tr. at 69). 

15. In September, 1982, after Householder, who was 

originally employed as a temporary laborer, returned to work at 

the mine, Houser concluded he was not going to be called back to 

work and contacted Arthur Kunigee, the local business agent for 

the union that covered the employees at th.e mine. The agent 

contacted Mr. Neill, respondent's vice president, about the 

reason for not recalling Houser. Neill referred the inquiry to 

Steffans. In reply, Neill sent the business agent a memorandum 

from Steff ans which contained the four following reasons for not 

rehiring Houser: 

1. During the course of his employment it was found 

that the proper maintenance of equipment was not 

1803 
being performed by him: Example - loader bucket pins 

had not been lubricated one week after replacement 

resulting in them being dry and having to replace 

them again. 

2. During his tenure at the loadout site in Kirby, 

several times when the foreman went to check on how 

things were going, employee could not be found at 

the job site. It was discovered by the foreman that 

he was running his dogs during working hours. 

3. Due to the fact that he was absent from the Kirby 

area at different intervals the coal stockpile was 

not worked regularly and the trucks did not have a 

place to dump until he would show up and move and 

load coal. 

4. Direct insubordination of orders from the mine foreman. Z/B was told to load out trucks at the mine pit 

with two or three buckets of fines per truckload of 

coal, but was continually trying to load complete 

truckloads of coal with the fines materials. 

CExh. C-3)~ 

16. On September 22, 1982, Houser filed a complaint of 

discrimination with MSHA {Tr. at 73). On November 15, 1982, MSHA 

notified him by letter, with a copy to Northwestern, that a 

determination. had been made that a violation of section 105{c) of 

the Act had not occurred. On July 5, 1983, the· Secretary of 

Labor filed a complaint of discrimination on behalf of Houser 

against Northwestern. 

ISSUES 

1. Is the complaint barred by the time limitations 

contained in lOSCc) of the Act? 

2. Did Northwestern violate § 105Cc) when, after a lay off, 

it rehired other employees but not Houser? 

DISCUSSION 

Heuser's initial complaint of discrimination was filed with 

MSHA on September 22, 1982, which was approximately three months 

after he had been laid off with other employees of the Grass 

Creek mine. However, Houser did not know he was not to be recalled until the middle of July, 1982 during a conversation with 

Steffans (Finding No. 14). I find the original filin; date was 

1804 
within the 60 days provided by section 105(c)(2). After an 

investigation by MSHA, the Secretary made a determination that no 

act of discrimination had occurred and so notified Houser and 

Northwestern on November 15, 1982. However, on July 5, 1983, the 

Secretary of Labor reversed this decision and filed a complaint 

of discrimination with the Federal Mine Health and Safety Review 

Commission which was approximately 12 months after the complainant became aware he was not going to be called back. The Act 

provides in section 105(~)(2) that if the Secretary finds a 

violation, "he shall immediately file a complaint with the 

Commission." The Secretary argues in his brief that the decision 

to file the complaint in this case occurred after a re-evaluation 

of Houser's case following discovery of material evidence in a 

companion case (Complainant's Brief dated May 30, 1984). 

I conclude that none of the filing deadlines involved here 

are jurisdictional in nature. Rather, they are analogous to 

statutes of limitation which may be waived for equitable reasons. 

This determination is in line with prior decisions under the 1969 

Coal Act which held that filing deadlines in discrimination case~ 

are not jurisdictional. Christian v. South Hopkins Coal Co., 1 

FMSHRC 126, 134-36 (1979). The same result was reached under 

section 111 of the 1977 Act, which directs mine operators to 

compensate miners while withdrawn from a mine pursuant to a 

government order. Local 5429, United Mine Workers v. Consolidation Coal Co., 1 FMSHRC 1300 (1979). 

The proper test is whether tolling the filing period is 

consonant with the purposes of the statute. American Pipe and 

Construction Co. v. Utah, 414 U.S. 538, 557-58 (1974). Congress 

spoke plainly on the subject when it declared that the 60 day 

filing period "should not be construed strictly where the filing 

of a complaint is delayed under justifiable circumstances." S. 

Rep. No. 95-181, 95th Cong., 1st Sess. at 36, reprinted in, 

(1977) U.S. CODE CONG & AD. NEWS at 3436. The deadlines imposed 

on the Secretary also "are not intended.to be jurisdictional. 

The failure to meet any of them should not result in the 

dismissal of the discrimination proceedings." Id. 

The Secretary's delay in processing the complaint in this 

case cannot defeat the action in light of the legislative history 

as quoted above. Further, it is commonly held that the government is not affected by the doctrine of !aches when enforcing a 

public right. See Intermountain Electric Co., 1980 CCH OSHD 

Para. 24,202 (10th Cir. 1980>: Occidental Life Insurance Co., v. 

EEOC, 432 U.S. 355 (1977): Nabors v. NLRB, 323 F. 2d 686, 688 

(5th Cir. 1963). I find no merit in Northwestern's argument as 

to the timeliness of filing the complaint in this case and reject 

it. 

1805 

--~ 
Northwes~ern also argues that the Secretary has no authority 

to file a complaint with the Commission after it had previously 

determined that no violation of discrimination occurred. 

However, Northwestern failed to cite any authority for such a 

position and in view of the legislative history and cases quoted 

above, this position is not persuasive. Northwestern has not 

claimed that it was prejudiced in any way by this delay in filing 

the complaint but rather argues that such a factor should not be 

considered. I reject this and believe that if any defense is 

valid to such a delay, it must involve a provable prejudice. 

That has not been done here and therefore Northwestern's arguments are rejected. 

As to the merits of this case, it is necessary to consider 

the Commission's precedents in the area of discrimination law. 

The basic analytical guidelines in this field have been recited 

by the Commission in several recent cases as follows: In order 

to establish a prima facie case of discrimination under section 

105(c) of the Mine Act, a complaining miner bears the burden of 

production and proof to establish Cl) that he engaged in protected activity and (2) that the adverse action complained of was 

motivated in any part by that activity. Secretary on behalf of 

Pasula v. Consolidation Coal Co. v. Marshall, 2 FMSHRC 2786, 

2799-2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co., v. Marshall, 663 F. 2d 1211 C3rd Cir. 

1981); and Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut 

the prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no way motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner, it may nevertheless affirmatively defend by 

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

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

event for the unprotected activities alone. The operator bears 

the burden of proof with regard to the affirmative defense. Haro 

v. Magma Copper Co., 4 FMSHRC 1935, 1937 (November 1982). The 

Ultimate burden of persuasion does not shift from the complainant 

Robinette, 3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC, 719 

F. 2d 194 (6th Cir. 1983); and Donovan v. Stafford Constr. Co., 

No. 83-1566, D.C. Cir. (April 20, 1984)Cspecifically approving 

the Commission's Pasula-Robinette test>. The Supreme Court has 

approved the National Labor Relations Board's virtually identical 

analysis for discriminaton cases arising under the National Labor 

Relations Act. NLRB v. Transportation Management Corp., 

U.S. I 76 L. Ed. 2d 667 (1983). 

1·806 

~ .. 
• 

The uncontroverted evidence in this case shows that during 

the spring of 1982, Houser made several complaints to Sprague, 

the mine foreman and his immediate supervisor, about the coal 

dust ~n the pit of the Grass Creek Mine. These complaints 

resulted in Sprague furnishing paper painter's type face masks. 

After further complaints by Houser that the paper masks were n:ot 

satisfactory, Sprague secured a better type face mask (Tr. at 

54-56). During this same period of time, Houser also complained 

to Sprague several times that the steering mechanism on the Terex 

loader he was assigned to operate was defective. Sprague replied 

that Houser was not to worry and to keep running the machine (Tr. 

at 61). After Sprague operated the machine and observed the 

problem, the steering mechanism was repaired (Tr. at 62). 

I find these two actions on the part of Houser to constitute 

protected activity under the Act. The amount of coal dust 

allowed to exist in the pit and around the cab of the Terex 

loader prompted MSHA to issue a dust citation in May, 1982. This 

confirms that there was a safety problP-m and merit to Heuser's 

complaints. Also, the fact that repairs were necessary to 

correct steering problems on the Terex loader further supports 

the validity of Houser's concern about the safety of operating 

this machine. In accord with the Commission's guidelines, I find 

that the dust in the pit and the faulty steering on the Terex 

loader were proper safety concerns communicated to Northwestern 

and constituted protected activity on the part of the complainant. 

This amounts to establishing a prima facie case of discrimination. 

The specified issue to be determined, then, is whether the 

complainant established the necessary casual connection between 

these complaints and respondent's decision not to rehire him 

after the lay off. 

The evidence in this regard is in dispute. The testimony of 

the witnesses confirmed that complainant was not the only 

employee who complained about coal dust in the mine pit. Houser 

testified that other miners had also expressed concern during the 

spring of 1982 about the dust conditions to Sprague and Steffans. 

There was conversation about putting air conditioners or 

pressurizing the cabs on the crusher and loader (Tr. 143, 144). 

Henning testified that one time after a lunch period when he and 

Sprague were the last to leave the room, Sprague called Houser a 

"damn cry baby" for saying something about dust or the loader 

(Tr. at 18 4) • 

180'1 
Heeter testified that Sprague stated to him on one occasion 

that he thought it was Houser who was turning the stuff into MSHA 

add that he did not want him back CTr. at 160). Heeter also 

stated that he had expressed his concerns about the coal dust in 

the pit to Sprague and Steffans. Henning, Allen, and Meisinger 

had also discussed the dust conditions several times amongst 

themselves and also discussed it in the lunch room with Steffans 

and Sprague (Tr. at 164). 

Henning and Allen testified that everyone complained about 

the dust at the pit including Houser (Tr. at 179, 189). Also, 

that Heeter had told each of them that Sprague had told him the 

reason Houser was not called back to work after the lay off was 

because Sprague thought he was a trouble maker and the one filing 

complaints with MSHA (Tr. at 179, 190). Henning indicated that 

Heeter told him this in late July or early August, 1982 when the 

subject came up as to why Houser was not recalled. 

In his testimony at the hearing, Sprague denied he made the 

statement to Heeter as to the reasons why Houser was not recalled 

(Tr. at 284). He denied that health and safety matters were in 

any part a factor in the decision not to recall Houser (Tr. at 

287). 

This conflict in testimony relates to a material part of 

Hauser's burden of proof in that the testimony by Heeter as to 

the conversation with Sprague is the only direct evidence which 

attempts to show that Houser was not rehired because of his 

protected activity. There is no evidence in this case to show 

that Houser had contact with or complained to MSHA about safety 

and health matters at the Grass Creek mine. There is testimony 

that Steffans called the miners "cowards" for going to MSHA after 

an electrical inspection in late September or October, 1982. 

However this was after Houser no longer was working at the mine 

(Tr. at 183). The evidence shows that there were only two 

inspections at the Grass Creek mine by MSHA while Houser worked 

there including the dust inspection in May, 1982. This does not 

appear to be a sufficient number of inspections to support a 

conclusion that the retaliatory action by Sprague against Houser 

was solely based upon such a cause. I find that the facts do 

show that Houser was more vocal than the other miners about dust 

conditions in the pit and also complained to Sprague about the 

dust masks and filters furnished him. Houser also complained 

about coal dust in the cab of the Terex loader because of broken 

and misfit glass in the doors and windshield and the machine's 

faulty steering mechanism. 

1808 
Based on all the circumstances above, I conclude that Houser 

has established a prima facie case showing that Cl) he engaged in 

protected activity and C2) the adverse action complained of was 

motivated in part by the protected activity. The Commission in 

Secretary on behalf of Chacon, supra, stated" ••. that direct 

evidence of motivation is rarely encountered and that reasonable 

inferences of motivation may be drawn from circumstantial 

evidence showing such factors as knowledge of protected activity, 

coincidence in time between the protected activity and the 

adverse action, and disparate treatment. 3 FMSHRC at 2510." The 

composite of the three later factors appear to apply in this case. 

There were the complaints of dust in the pit and the cab of the 

loader, the inspection by.MSHA at about the same time, the 

failure shortly thereafter not to rehire Houser, and the 

statement to Heeter by Sprague that Houser was a "troublemaker 

and turning all this stuff into MSHA." 

Throughout this proceeding, Northwestern has taken the 

position that its reason for not rehiring Houser was not because 

of his protected activities, but instead that it made its 

decision based upon complainant's overall (poor) job performance 

CResp's Brief p. 12). These reasons were listed in Exhibit C-3,. 

page 2, as improper maintenance of equipment, poor attendance and 

running dogs during working hours at the load-out site at Kirby, 

not keeping the coal at Kirby stockpiled so trucks could dump 

their loads, and direct insubordination of orders on loading 

fines at the mine. In light of the foregoing, I find that 

respondent has presented credible evidence to establish that 

there were sufficient reasons to create an issue as to why the 

complainant was not rehired. Under the Pasula test the 

respondent has presented an affirmative defense that even though 

part of its motive was unlawful, which it denies, it would have 

taken the adverse action against the complainant in any event for 

the unprotected activities alone creating a mixed motive type of 

discrimination case. 

In Wayne Boich d/b/a W. B. Coal Company, supra, the Court 

stated as follows: 

In summary, the proper test in considering mixed 

motives under the Mine Act is that, upon Plaintiff's 

showing that an employer was motivated in any part by 

an employee's exercise of rights protected by the Act, 

the employer has the burden only of producing evidence 

of a legitimate business purpose sufficient to create 

a genuine issue of fact. The plaintiff, who retains 

the burden of persuasion at all times, may of course 

rebut the employer's evidence "directly by persuading 

the trier of fact that a discriminatory reason more 

likely motivated the employer, or indirectly by showing 

that the employer's proffered explanation is unworthy 

1809 
of credence." Burdine, 450 U.S. at 256. The plaintiff's 

ultimate burden is to persuade the trier of fact that 

he would not have been discharged "but for" the protected 

activity. 

After a careful review of all of the evidence in this case, 

I find that complainant Houser has not established that he would 

i1ave been rehired "but for" his protected activities. The basis 

for this concl~sion is that the most credible evidence clearly 

establishes by testimony of witnesses that is corroborated by 

employer's written statements that Hauser's job performance was 

unsatisfactory. 

I find that two documents entered as exhibits in this case 

reflect the opinions of Heuser's supervisors that he was less 

than a satisfactory employee. The termination report did state a 

recommendation to rehire but in the "comments" section, Steffans 

indicated Houser "could manage time more productively." Also as 

to initiative, it was written that he "could show improvement." 

The evidence shows that these forms were hurriedly prepared by 

Steffans just prior to the lay off. Steffans testified that of 

the 4 employees laid off at the mine, he would rate Houser third 

following Meisinger and Allen. Householder, the last employee 

hired on a temporary basis, was rated fourth. In that 

Householder was rehired whereas Houser wasn't raises the issue of 

disparate treatment. However, I am persuaded that there is no 

merit to such an argument. The facts show that no new employee 

was hired to replace Houser but rather that Householder remained 

on the payroll even though he previously had been considered a 

temporary employee. The fact remains that the employer decided 

to resume its operation with one less employee. Also, the union 

contract between Northwestern and the International Union of 

Operating Engineers, Local No. 800, contained no provision providing seniority CExh. C-6). 

Further evidence in support of Northwestern's defense is 

Exhibit C-3 which was the reply by Neill to an inquiry by the 

Union as to the reason for Northwestern's failure to rehire 

Houser after the lay off. This contained an attached sheet 

prepared by Steffans outlining the reasons as of August 23, 1982 

that Hauser's supervisors gave for the action they took. I find 

that the reasons given are significant for they were given 

shortly after the event occurred and not statements or testimony 

given several years later after the start of a discrimination 

action (Exh. C-3, p.2). 

In conjunction with the foregoing, various witnesses 

testified to occurrences that support Northwestern's position. 

Sprague testified that he found Houser absent from the load-out 

area at Kirby at times when he expected to find him there. Also, 

1810 
he had checked on Heuser's attendance at the site as a result of 

complaints received from some of the truck drivers hauling from 

the mine to Kirby CTr. at 221-222). Sprague stated he had to 

wait as long as 45 minutes to an hour on several occasions for 

Houser to show up (Tr. at 222). Also, that Houser did not keep 

the Kirby site in proper condition or maintain the equipment as 

requested (Tr. at 226-227). On one occasion in January, 1982, 

Houser informed Sprague that the substitute loader furnished as a 

temporary replacement for the larger Caterpillar was not large 

enough to do the job. Sprague sent Houser home and loaded the 

train himself with the smaller type loader. The next day, 

Sprague discussed this with Steffans and recommended Houser be 

discharged but Steffans wanted to give him an additional opportunity (Tr. at 239-232). 

Sprague also testified that the cars on the coal train were 

not always loaded to the proper weight by Houser which required 

sending a truck and 2 men to Greybull, Wyoming, a distance of 80 

miles from the mine, to shovel the excess coal off the cars (Tr. 

at 232). Also, that Meisinger, after a short period at the Kirby 

load-out area, seldom had an overloaded car (Tr. at 234). 

Carl Bechtold, a driver of one of the independent coal 

haulers, testified that frequently he would arrive at the Kirby 

site and find that trucks had unloaded before his arrival and 

coal had not been moved or stockpiled requiring him to wait. 

Also, that on other occasions, Houser would not be there. He 

stated this would occur approximately twice a week during the 

hours Houser was supposed to be working (Tr; at 336, 337). _ 

Thomas c. Anderson, the owner of the trucks hauling the coal 

to Kirby, testified that he had received a number of complaints 

about Houser not being at the site and the drivers having to sit 

and wait for him. Also, that after Houser was reassigned to the 

mine, the problem ceased. He did admit that a new and better 

site was acquired (Tr. 318, 319, 330). These complaints were 

related by Anderson to Sprague. Anderson further stated that 

·complainant would stop loading his trucks at the mine before the 

regular time to stop for the lunch period requiring the drivers 

to wait. That Steffans was with Anderson on one occasion when 

this occurred and told Houser to go back and load the waiting 

truck (Tr. at 323). Also, that complainant damaged sideboards on 

his trucks while loading them (Tr. at 325). 

Sprague testified that there were two reasons for reassigning Houser from the Kirby site to the mine. He felt Houser would 

be more productive if he were not working alone, and to assist 

Meisinger to recover from injuries received in an automobile 

accident (Tr. at 236). 

Sprague testified that the equipment Houser operated was not 

maintained properly. One example involved repair of the bucket 

on the loader in May, 1982. A contract mechanic was called out 

1811 
to replace the pins on a bucket and felt they had not been 

properly lubricated CTr. at 244). Also, Sprague felt that 

replacement of glass on the cab of the Terex loader was due to 

Rouser's failure to latch the door properly (Tr. at 245-247). 

Several of Heuser's fellow employees testified that they 

thought he was a good employee and careful with his equipment. 

This included Allen, Henning, and Heeter. Allen and Henning are 

both presently employed by respondent and had been subpoenaed t~ 

testify against their present employer and supervisor. I do t 

discredit their testimony but must find that their statements 

were too general in terms as to what their opinions of Houser 

were. In contrast, I find the testimony of Sprague, Steffans, 

Anderson, and Bechtold more credible as it was specific as to 

times and occurrences in which they described instances of 

Heuser's unsatisfactory job performance. 

Houser argues that Northwestern retaliated against him by 

not recalling him as a result of management's belief that he was 

responsible for the MSHA inspections and its subsequent problems. 

This is supposedly apparent from statements made by management at 

company meetings and Steffans calling the employees "cowards" 

(Pet's brief at 11). This argument is not supported by the 

evidence. The meeting in which employees were called "cowards" 

occurred after the employees were recalled and did not include 

Houser's presence. Also, it was directed at all of the 

employees and arose over an electrical inspection which is too 

remote from the situation t~at existed in May, 1982. 

From the conflicting evidence in this case, I have 

difficulty in relating the testimony of Heeter to the proven 

facts when Heeter stated that Sprague told him that he thought 

Houser was "turning all that s~ff into MSHA, and he didn't want 

him back". I do have a problem with determining what "all that 

stuff" was as the record does n t show a large number of inspections prior to the lay off.\ In fact, the dust inspection 

occurred during a regular inspection in May, 1982 and as of July, 

1982, only one citation had been received (Tr. at 280, 281). 

Although the complaints of Houser about dust and equipment safety 

are protected activity and apparently irritated Sprague, the 

evidence does not support a conclusion that this was sufficient 

cause to not rehire him. Everyorie was complaining of dust at the 

pit. No facts are presented to show Houser made a report to MSHA 

of any safety factors and the inspection in May, 1982 was not 

unusual or special to indicate a complaint from any employee at 

the mine. 

As I have determined that this is a mixed motive case, the 

specific issue is whether respondent would have rehired the 

complainant "but for" the protected activity. The Secretary 

contends in his brief that the credibility of Sprague's-testimony 

1812 
should be resolved against him and given little, if any, weight? 

(Pet's brief at 13). I do not agree. I find that much of 

Sprague's testimony is supported by specific times, dates, and 

other witnesses testimony. The fact that Houser was not always 

present during working hours at the Kirby site is supported by 

testimony from Steffans, Anderson, and Bechtold. Sprague was 

able to testify as to specific instances regarding lack of 

equipment maintenance and repairs that became necessary as a 

result of Heuser's lack of maintenance. All the employees that 

testified as to their doubting Sprague's credibility did so in 

very general terms except for the instance involving the dust 

sampling following the May, 1982 inspection. This involves the 

possible falsification of dust samples. However, this was denied 

by Sprague and factually not proven. In contrast, a local banker 

and the Wyoming Deputy State Mine Inspector, who were both 

acquainted with Sprague testified that his reputation for truth 

and honesty is beyond reproach (Tr. at 203-205, 349). 

I find that this case does not rest upon a general 

credibility question but rather on the facts that were supported 

by adequate indicia of probativeness and trustworthiness. The 

Neill memorandum of August 25, 1982, is a document that is 

closely related in time to the decision not to recall Houser and 

recites specific reasons. This is more credible than the 

testimony of witnesses given at a hearing approximately two years 

after the occurrence and stating in general terms that 

complainant "was a good worker" and "took good care of his 

equipment." Heeter admitted that he did not have first hand 

knowledge of Heuser's activities at Kirby but opined that he "was 

doing a good job" (Tr. at 156). Henning also was not able to 

observe Houser at the Kirby site as he was employed at the mine 

<Tr. at 178) . 

. Heeter left respondent's employment in July, 1983, after a 

disagreement over damage to his personal vehicle among other 

reasons (Tr. at 162, 163). Based upon this admission, Heeter's 

testimony must be weighed in light of his feelings about the 

company. 

The termination report for Houser prepared by Steff ans on 

June 11, 1982, further corroborates the testimony of Steffans and 

Sprague that they were not completely satisfied with Heuser's job 

performance (Exh. C-2). Although a part of this document states 

that Houser was recommended for rehire and quality of work was 

"good", other items referred to a need for improvement. The 

evidence shows that this document was hurriedly prepared and 

signed by Sprague without time to reflect on its contents. However, it is material to the case for its relationship to the time 

of the alleged discrimination act and supports Northwestern's 

position as to motive for failure to rehire. 

1813 
In conclusion, I find that Northwestern's proffered 

explanation for not rehiring Houser is more credible than 

Hauser's argument that it was based upon his protected activity 

alone. Therefore, complainant's case must be dismissed. 

CONCLUSIONS OF LAW 

1. Northwestern at all times pertinent to this case was the 

operator of a mine and subject to the provisions of the Federal 

Mine Safety and Health Act of 1977. 

2. I have jurisdiction over the parties and subject matter 

of the proceeding. 

3. Northwestern proved by a preponderance of the evidence 

that Houser was not rehired for reasons of unsatisfactory job 

performance. 

4. Houser failed to prove that discriminatory reasons alone 

motivated Northwestern to not rehire him and that the reasons 

given by Northwestern were unworthy of credence. 

Based 

law, IT IS 

DECISION 

upon the above findings of fact and conclusions of 

ORDERED that this proceeding is DISMISSED~ .. 

~f.~ 4i r"g i l?-(1.i'v ai 1 

Admin#tative Law Judge 

Distribution: 

James H. Barkley, Esq., and Robert J. Lesnick, Esq., Office of 

the Solicitor, U.S. Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

Edward Bartlett, Esq., Northwestern Resources Company, 40 East 

Broadway, Butte, Montana 59701 (Certified Mail) 

/blc 

1814 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR· 

WASHINGTON, D.C. 20006 

July 30, 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

Docket No. SE 84-11 

A.C. No. 01-00758-03561 

v. 

JIM WALTERS RESOURCES, INC., 

Respondent 

Docket No. SE 84-15 

A.C. No. 01-00758-03559 

Appearances: 

Before: 

DECISION 

Docket No. SE 84-16 

A.C. No. 01-00758-03560 

Docket No. SE 84-23 

A.C. No. 01-00758-03569 

No. 3 Mine 

Terry Price, Esq., Office of the Solicitor, 

U.S. Department of Labor, Bir~ingham, Alabama, for Petitioner: 

R. Stanley Morrow, Esq., and H. Thomas Wells, 

Esq., Birmingham, Alabama, for Jim Walters 

Resources, Inc., Respondent. 

Judge Merlin 

These cases are petitions for the assessment of civil 

penalties filed under section llO(a) of the Act by the Secretary of Labor against Jim Walters Resources, Inc. for 

alleged violations of the mandatory safety standards. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 5-6): 

1. Jim Walters Resources, Inc., is the owner 

and operator of the subject mine. 

2. The operator and the mine are subject to 

the jurisdiction of the Federal Mine Safety and Health Act. of 1977. 

1815 
3. The presiding administrative law judge has 

jurisdiction over these proceedings. 

4. The inspectors who issued the subject citations were duly authorized representatives 

of the Secretary. 

5. The'subject citations were properly served 

on the operator: 

6. Copies of thecitatidris may be admitted 

into evidence for the purpose of establishing their issuance but not for the 

·truthfulness: or relevancy of the statements asserted therein. 

7. Imposition of penalties will not affect the 

operator's ability to continue in business. 

8. The alleged violations were abated in a 

timely fashion. 

9. The operator's prior history is average. 

10. The operator's size is large. 

11. The inspector and the operator's witnesses 

are accepted as experts in mine health and 

safety. 

By agreement of both parties, all the docket numbers 

were consolidated for hearing and decision (Tr. 5). 

SE 84-11 

Citation No. 2192159 

During the· course of the inspector's testimony, it 

became apparent that the inspector was not familiar with the 

portion of the safeguard notice upon which his citation was 

based (Tr. 21-25). The Solicitor moved to vacate the citation and withdraw the penalty petition with respect to it. 

The motion was granted from the bench (Tr. 25). 

The citation is Vacated and no penalty is assessed. 

1816 
SE 84-23 

Citation No. 2310279 

The subject citation dated September 27, 1983, describes the condition or practice as follows: 

From the North and West V are the way 

[sic] to the end of the tail track on Section 007-0 there were [sic] material in the 

form of rails - metal bands - timbers - crib 

blocks in the required clearance along the 

track. Safeguard No. 1 T.J.I. was issued 

on 7-27-76. 

The citation was originally issued under 30 C.F.R. 

§ 75.1403-S(b). By modification dated May 18, 1984, the 

citation was changed to cite 30 C.F.R. § 75.1403-S(d), which 

provides as follows: 

(d) The clearance space on all track 

haulage roads should be kept free of 

loose rock, supplies, and other loose 

materials. 

The citation was based upon Safeguard Notice 1 TJI 

dated July 27, 1976, which stated in pertinent part as 

follows: 

The clearance space on all track haulage roads should be kept free of loose rock, 

supplies and other loose materials. 

The inspector testified that debris was present on the 

track haulage road for l 1/2 miles in the described are~ 

(Tr. 27-28). He said the concentration of debris was sporadic along the length of the track but became more cluttered inby toward the section (Tr. 28). The mantrip was 

running on the debris (Tr. 39). The operator's witness who 

accompanied the inspector disagreed that the mantrip ran 

over the materials or that the condition worsened {Tr. 41-

42) but he admitted that 5,000 feet of the track were bad 

(Tr. 43-45). I find the inspector's testimony more persuasive and accept it. The citation properly cited the 

condition as a violation under 30 C.F.R. § 1403-B(d). 

Moreover, the citation fits squarely within the terms of the 

safeguard notice quoted above. 

I accept the inspector's testimony' that a mantrip could 

hit some of the debris (Tr. 38-39). I find the testimony of 

the inspector that the mant~ip was riding over the rails 

1817 
more persuasive than the operator's contrary evidence (Tr. 

39, 41). The violation was serious. Moreover, I conclude 

the operator was negligent. The violation was significant 

and substantial because it exposed miners to the reasonable 

likelihood of a serious injury whenever they rode the mantrip. 

I have carefully reviewed the operator's arguments regarding the underlying notice to provide safeguards and find 

them to be without merit. I recognize that safeguards must 

be narrowly construed. However, the language of § 75.1403-

8(d) is plainly mandatory and the language used is easily 

susceptible of objective interpretation and uniform application. The subject citation as amended was properly 

based upon the safeguard notice. The operator had notice 

and knew exactly what it was charged with. Finally, the 

operator's argum~nts regarding the safeguard notice are 

raised for the first time in the post-hearing brief which is 

too late. If I had found any merit in the operator's assertions, the Solicitor would have been entitled to an opportunity to respond. 

The Solicitor's recommendation of a $20 penalty is unacceptable. As already set forth, the inspector's testimony 

makes clear this was a serious violation and that the operator was remiss in allowing it to exist. Thus, the representations in the Solicitor's brief that negligence was low 

and that only one person would be affected is contrary to 

the evidence the Solicitor himself introduced at the hearing. Penalty proceedings before the Commission are de novo 

and penalties must be assessed in accordance with the-srx--

statutory criteria set forth in section llO(i} of the Act. 

The original assessment made by MSHA is not binding upon 

this Commission. This is particularly true when the original assessment is one of the so-called "single penalty 

assessments" of $20 made before the hearing in a case where 

a hearing is actually held. 

A penalty of $100 is assessed. 

Citation No. 2192262 

The subject citation dated September 8, 1983, describes 

the condition or practice as follows: 

A clear·travelway of at least 24 inches 

on each side of the North Mains No. A and B 

belt was not maintained in that large rocks, 

rolls of belt, and belt structures were obstructing the walkways'. Saf~guard No. 0658641 

was issued by T.J. Ingram on 09-08-81. 

1818 
Safeguard No. 0758641 dated September 8, 1981, states 

as follows: 

24 inches of travel space was not provided 

between the No. 3 longwall belt and the right 

rib along the pillar inby No. 7 leader. 

24 inches of travel shall be provided on 

both sides of the belt. 

30 C.F.R. § 75.1403-5(g) provides: 

(g) A clear travelway at least 24 inches 

wide should be provided on both sides of 

all belt conveyors ihstal-led after 

March 30, 1970. Where roof supports are 

installed within 24 inches of a belt conveyor, a clear travelway at least 24 inches 

wide should be provided on the side of such 

support farthest from the conyeyor. 

The inspector testified that the belt in question was 

used only to transport coal and I so find (Tr. 48, 51). The 

Solicitor takes the position that 30 C.F.R. § 75.1403-5(g) 

covers coal-carrying conve~or belts and the operator argμes 

that it does not (Solicitor's Brief p. 4, Operator's ~tief 

pp. 11-13). After extensive consideration Judge Koutras 

decided this standard does not apply to coal-carrying~elt 

conveyors. Monterey Coal Company, 6 FMSHRC 4~4, 4!51-458 

(February 1984) . I believe Judge Koutras was correct. 

Section 75.1403 establishes the authority to issue safeguards "with respect to the transportation of men and materials". Section 75.1403 is contained.in Subpart o,·~hich 

is entitled "Hoisting and Mantrips", terms relating to· the 

movement of men and material. Accordingly, I do no.t believe 

coal-carrying belts are covered by the cited section. If . 

the Secretary believed coal-carrying conveyor belts properly 

could be ~overed under Subpart o, it would have been a 

simple matter for him to s~ecif ically include them. This 

was not done. I note that coal-carrying belts are spe~ifically mentioned in 30 C.F.R. § 75.303 ordering pre-sh~fts. 

Congress was explicit in making certain requirements applicable to these belts in other instances. Here, all iridic~~ 

tions are that Congress did not intend to have th~ saf~g~ard 

provisions apply to coal-carrying belts. ·· 

In .light of the foregoing, Citation No. 2192262 is 

Vacated and no penalty is assessed. ' 

1819 
SE 84-15 

Citation No. 2310262 

The subject citation dated September 20, 1983, describes the condition or practice as follows: 

The approved plan for storage of the 

S.C.S.R. rescuers was not being complied 

with in that 3 rescuers were found at the 

North tool room and no personnel wa~ at the 

location. 1 self rescuer was found hanging 

alongside of the track haulage in the North 

West Mains and no personnel was present in 

the :vicinity. 

30 C.F.R. § 75.1714-2 provides as follows: 

(a) Self-rescue devices shall be used 

and located as prescribed in paragraphs 

(b) through (f) of this section. 

(b) Except as provided in paragraph 

(c), .(d), (e), or (f) of this section, 

self-rescue devices shall be worn or 

carried at all times by each person 

when underground. 

(c) Where the wearing or carrying of 

the self-rescue device is hazardous to 

the person, it shall be placed in a 

readily accessible location no greater 

than 25 feet from such person. 

(d) Where a person works on or around 

equipment, the self-rescue device may 

be placed in a readily accessible location on such equipment. 

(e) A mine operator may apply to the 

District Manager under 30 CFR § 75.1101-

23 for permission to place the self-contained self-rescue device more than 25 

feet away·. 

(1) The District Manager shall consider the 'following factors ~n deciding whether to permit an operator to 

place a self-contained self-rescue device more than 25.feet from a miner: 

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(i) Distance from affected sections 

to surface, 

(ii) Pitch of seam in affected sections, 

(iii) Height of coal seam in affected 

sections, 

(iv) Location of escapeways, 

(v) Proposed location of self-contained 

self-rescuers, 

(vi) Type of work performed by affected 

miners, 

(vii) Degree of risk to which affected 

miners are exposed, 

(viii) Potential for breaking into oxygen 

deficient atmospheres, 

(ix) Type of risk to which affected 

miners are exposed, 

(x) Accident history of mine, and 

(xi) Other matters bearing upon the 

safety of miners. 

(2) Such application shall not be approved by the District Manager unless 

it provides that all miners whose selfcontained self-res.cuer is more than 25 

feet away shall have, in accordance 

with paragraphs (b), (c), and (d) of 

this section, at all times while underground, a self-rescue device approved 

under Subpart I of Part 11 of this 

chapter or Bureau of Mines Schedule 

14F, Gas Masks, April 23, 1955, as 

amended (Part 13, 30 CFR, 1972 ed.) 

sufficient to enable each miner to get 

to a self-contained self-rescu·er. 

(3) An operator may not obtain permission under paragraph (e) of this 

section to place self-contained selfrescuers more than 25 feet away from 

miners on mantrips into and out of 

the mine. 

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(f) If a self-contained self-rescue 

device is not carried out of the mine 

at the end of a miner's shift, the 

place of storage must be approved by 

the District Manager, a sign with the 

word "SELF-RESCUER" or "SELF-RESCUERS" 

shall be conspicuously posted at each 

storage place, and direction signs 

shall be posted leading to each storage place. 

(g) Where devices of not less than 10 

minutes and 1 hour are made available 

in accordance with § 75.1714-l(a) (3) (ii) 

or § 75.1714-l(b) (2), such devices shall 

be used and located as follows: 

(1) Except as provided in paragraphs 

(c) and (d) of this section, the device 

of not less than 10 minutes shall be 

worn or carried at all times by each 

person when underground, and 

(2) The 1-hour canister shall be available at all times to all persons when 

underground in accordance with a plan 

submitted by the operator of the mine 

and approved by the District Manager. 

When the 1-hour canister is placed in 

a cache or caches, a sign with the word 

"SELF-RESCUERS" shall be conspicuously 

posted at each cache, and direction 

signs shall be posted leading to each 

cache. 

Sec. 101, Pub. L. 91-173 as amended 

by Pub. L. 95-i64, 83 Stat. 745 as amended 

by 91 Stat . 12 91 ( 3 0 U • S • C . 811) ) • 

[43 FR 54246, Nov. 21, 1978] 

The permission which the operator received from MSHA 

regarding the placement of self-contained self-rescuers 

provides at paragraph 10 (MSHA Exhibit 3E, p. 2): 

All miners outby working sections shall 

be within ten .(10) minutes travel time of a 

self-contained self-rescuer when travelled 

at a normal pace for that general'area of the 

mine. The self-contained self-rescuer may 

1822 
be placed with their lunch containers, or in 

a designated area during the shift. At the 

end of the shift, the SCSR's for these miners 

will be left near the bottom of the elevator 

and will be stored in a designated area which 

will be identified with a conspicuous "SelfRescuer" sign. 

The inspector's testimony demonstrates that MSHA has 

failed to make its case with respect to the three selfcontained self-rescuers. in the tool room. As set forth in 

the plan, the operator is required to have the self-rescuers 

within 10 minutes' walking distance of miners who are outby 

the working sections. The inspector .testified that he 

looked up and down the track haulage which is the primary 

entrance and exit and did not see anyone {Tr. 69-70). He 

assumed that because he saw no one in the track entry, the 

individuals who left the three self-rescuers were electricians who went somewhere else more than 10 minutes away {Tr. 

81-82). This is not necessarily so. The inspector did not 

look anywhere but the track entry (Tr. 82). In particular, 

he did not look in the belt entry where he admitted there 

could have been belt cleaners working within 10 minutes' 

walking distance {Tr. 82-85). Accordingly, no violation can 

be found with respect to the three self-rescuers. 

The situation with respect to the fourth self-rescuer 

is different. The night before the inspector issued the 

citation, he saw it hanging up alongside the track haulage 

in the same place it was when he issued the citation {Tr. 

71-73). The inspector so informed the operator's safety 

inspector who accompanied him {Tr. 94). Based upon the 

evidence, the inference is warranted that the self-rescuer 

had not been moved and was in the same place the entire 

time. This violated that section of paragraph 10 quoted 

above, which requires that self-rescuers for miners working 

outby working sections must be left near the bottom of the 

elevator at the end of the shift. 

The inspector testified that in his experience, extra 

self-rescuers were not taken on the section {Tr. 114-116). 

There is one self-rescuer per miner on the section (Tr. 

117). He has been at this mine frequently and has seen this 

practice (Tr. 117}. Therefore, because one self-~escuer was 

left behind, someone must have travelled from the section to 

the bottom near the elevator without one. I accept the inspector's uncontradicted testimony that this is a gassy mine 

(Tr. 105, 107). Based upoh the foregoing, I conclude the 

violation was serious and that the operator was negligent. 

1823 
I further conclude that this violation was siqnif icant and 

substantial because traveling to the bottom near the elevator without a self-rescuer in this gassy mine would expose a 

miner to the reasonab~e likelihood of reasonably serious 

harm. 

A penalty of $125 is assessed. 

SE 84-16 

Citation No. 2310209 

The citation dated October 4, 1983, describes the 

condition or practice as follows: 

The approved plan for storage of the S.C.S.R. 

Rescuers was not being complied with in that 4 rescuers were found in a crosscut approximately 120 

feet inby the central storage area and 2 rescuers 

were found on the No. 2 section that were left after 

the shift change and no personnel was present in 

vicinity. 

The mandatory standard cited is 30 C.F.R. § 75.1714-

2(a), quoted above. That part of paragraph 10 of the plan 

quoted above, which provides that at the end of the shift 

self-rescuers will be left near the bottom of the elevator, 

was relied upon by the inspector (Tr. 109). 

The inspector testified that he found four self-rescuers lying in a cross-cut and two more hanging up on the 

section (Tr. 102). On the shift he issued the citation, the 

section was idle and no one was working or even present on 

the section (Tr. 105). The prior shift had been· a maintenance rather than a coal producing shift (Tr. 113). The 

inspector believed the self rescuers had been left from some 

previous shift but he had no idea how long the six had been 

where he found them (Tr. 103, 107-108). Given that there 

was no one on the section, the hazard was not that selfrescuers were located more than 10 minutes away from the 

miners (Tr. 103). Indeed, the inspector stated that because 

the self-rescuers were centrally located, they could have 

been reached within 10 minutes (Tr. 108). According to the 

inspector, the violation was that the self-rescuers were not 

left near the bottom of the elevator as required by paragraph 10 of the plan. 

I accept the inspector's uncontradicted testimony that 

the number of miners on the section and the number of selfrescuers were the same. The inference is that men must have 

1824 
traveled from the section to the elevator bottom without 

self-rescuers. Accordingly~ a violation exi~ted. It:was 

serious because it exposed the men in this gassy mine to 

danger for the 30 to 35 minutes it would take them to reach 

the elevator. The operator was especially negligent because 

six self-rescuers and six miners were involved. Clearly, 

the operator should be more vigilant to make sure the men do 

not leave the section without their self-rescuers. The 

violation was significant and substantial because in this 

gassy mine and on this section where there has been ignition 

after ignition, travelling to the elevator bottom without 

self-rescuers exposed miners to the reasonable likelihood of 

reasonably serious harm. 

A penalty of $250 is assessed. 

ORDER 

In accordance with the foregoing, the operator is 

hereby Ordered to pay the following penalties within 30 days 

from the date of this decision: 

Docket No. Citation Violation Penalty 

SE 84-11 2192159 30 C.F.R. § 75.1403-8(d) None 

SE 84-23 2310279 30 C.F.R. § 75 .1403-8 (d) $100 

2192262 30 C.F.R. § 75.1403-5(g) None 

SE 84-15 2310262 30 C.F.R. § 75.1714-2(a) $125 

SE 84-16 2310209 30 C.F.R. § 7 5 • 1 714-2. (a) $250 

TOTAL $475 

Paul Merlin . Chief Administrative Law Judge 

Distribution: 

Terry Price, Esq., Office of the Solic~tor, U.S. Department 

of Labor, 1929 Ninth Avenue, South, Birmingham,~AL 35256 

(Certified Mail) 

R. Stanley Morrow, Esq., and H. Thomas Wells, Esq., Jim 

Walters Resources, Inc., P.O. Box C-79, Birmingham, AL 35283 

(Certified Mail) 

/nw 

1825· 
FEDE-RAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W, COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

GLINN ARNO GATES, and 

~ETER G. JOHNSTONE, 

Respondents 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 83-31-M 

A.C~ No. 02-00850-05502 A 

Docket No. WEST 83-32-M 

A.C. No. 02-00850-05503 A 

Anamax Mining Company Twin 

Buttes Mine (Sulfide Mill and 

Related Activities) 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

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

for Petitioneri 

William G. Walker, Esq., Stompoly and Even, 

Tucson, Arizona, 

for Respondents. 

Before: Judge Vail 

The above consolidated cases arose upon complaints filed by 

the Secretary of Labor, under section llOCc) of the Federal Mine 

Safety and Health Act of 1977 Cthe Act), 30 u.s.c. § 820Cc), 

against respondents Glinn Arno Gates and Peter G. Johnstone. The 

Secretary alleged the respondents, acting as agents of Anamax 

Mining Company within the scope of section llOCc) of the Act, 

knowingly authorized, .ordered, or carried out Anamax's violation 

·of 30 C.F.R. S 55.16-14(b) cited in MSHA Citation No. 599853. 

Respondents filed answers denying the charges and the above 

matter came on for evidentiary hearing on June 6, 1984, in 

Tucson, Arizona. During a recess on the second day of the 

hearing, the parties negotiated a settlement which they presented 

for approval. Based upon the record of the case up to that time 

and the representations of the parties, the proposed settlement 

was tentatively approved subject to submission of a joint motion 

of settlement and for dismissal of these cases. 

The joint motion for settlement was received on July 20, 

1984, and represents in material parts the following: 

1. The corporate operator paid an uncontested civil penalty 

assessment of $8,000 for the violation cited in Citation No. 

599853. . 

' 1826 
2. During the hearing on June 7, 1984, the respondent's 

attorney proposed the following settlement and disposition of the 

subject cases: 

a. That, without admitting liability, respondent 

Glinn Arno Gates under Docket No. WEST 83-31-M agrees 

to pay a civil penalty assessment of $800 for the 

violation of 30 C.F.R. § 55.16-14(b);.and 

b. That the case against respondent Peter G. Johnstone, 

Docket No. WEST 83-32-M, be dismissed without a civil 

penalty assessment. 

c. This stipulation of proposed settlement by the 

parties is in keeping with the Commission's decisions 

in Secretary of Labor (MSHA) v. Central Ohio Coal 

Company, 4 FMSHRC 1000 <1982), and Secretary of Labor 

v. Amax Lead Company of Missouri, 4 FMSHRC 975 (1982). 

d. Both parties agree to bear their own respective costs 

of litigation in these cases. 

CONCLUSION 

After careful review and consideration of the pleadings, 

arguments, trial record, and submissions in support of the joint 

motion to approve the proposed settlement of these cases, I 

conclude and find that the proposed settlement disposition is 

reasonable and in the public interest. Accordingly, pursuant to 

29 C.F.R. § 2700.30, the joint motion of the parties is GRANTED 

and the settlement is APPROVED. 

ORDER 

Therefore, IT IS ORDERED 

1. That the complaint against respondent Peter G. Johnstone 

under Docket No. WEST 83-32-M is dismissed without ~ civil 

penalty assessment. 

2. Respondent Glinn Arno Gates is ORDERED to pay a civil 

penalty in the amount of $800 in satisfaction of the complaint 

filed in Docket No. WEST 83-31-M within forty < 40) days of the · 

date of this decision and order, and upon receipt of payment by 

the petitioner, this proc.eed~s DI~M~~ 

z;&-~d?~,. ' Vi~7t E. Vail 

Ad~~~strative Law Judge 

182'/ 
Distribution: 

J. Philip Smith, Esq., Office of the Solic,itor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

<Certified Mail) 

William G~ Walker, Esq., Stompoly & Even, United Bank Plaza, 

Magdalena Building, Suite 370, 120 West Broadway, Tucson, Arizona 

85701 <Certified Mail) 

/blc 

1828 
FEDERAL Ml~IS SAFETY AND HEALTH REVIEW COMMISS•ON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, . . CIVIL PENALTY PROGEEDING 

·Docket· No: PENN 83--.159 

A/O ·No: 36..:064.72-03S01 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA) , Petitioner 

. . 

. . 

v. 

. . 

. . 

. . 

. . Brownsville Mine 

CICCONI COAL COMPANY, 

Respondent 

DECISION 

Before: Judge Moore 

The civil penalty proceeding was initiated by the 

Secretary's petition filed July 5, 1983, which alleged two 

violations and sought a penalty in the amount of $40. When 

respondent did not file a timely answer, Judge Merlin issued 

a Show Cause Order in October of 1983. The respondent filed 

a hand written answer to that Show cause Order on December 7, 

1983. 

On February 7, 1984, I issued a Prehearing Order to 

which the Solicitor responded. The respondent refused to 

claim that order from the Post Office Department. On 

June 25, 1984, .I issued a Show Cause Order ordering respondent 

to show cause why it should not be held in default for its 

failure to respond to the Prehearing Order. Respondent 

failed to claim that Order to Show Cause. The two orders 

that respondent has failed to claim from the Post Office 

Department are attached to the file. 

Commission Rule 29 C.F.R. 2700.5(v) states: 

"The first document filed, and every document 

filed by a lawyer or other representative, shall 

include the parties' or other filing persons' 

address and business telephone numbers. Written 

notice shall be promptly given of any change 

of address or business telephone number". 

The purpose of the rule is so that a respondent can be 

served with process. The rul'e would be totally thwarted if 

182. x9·· . '. -· '· ·'~ 
a respondent could avoid service by merely refusing to claim 

properly addressed mail. I hold that the refusal to claim 

mail addressed to an address that a respondent has supplied, 

constitutes service. 

I therefore hold respondent in DEFAULT and order that 

he pay, within 30 days, a civil penalty of $40 to MSHA. I 

also affirm both citations. 

Distribution: 

Charles c. Moore, Jr., 

Administrative Law Judge 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Mr. C.M. Harasty, Cicconi Coal Company, 500 Middle Street, 

Brownsville, PA 15417 (Certified Mail) 

/db 

'ttU.S. GOVERNMl:N 1 PRINTING OFFICE: 1 9 8 It It 2 1 5 6 9 1 3 6 O 5 

1830