June 1981 

Commission Decisions 

6-11-81 

6-23-81 

'6-24-81 

6-29-81 

6-29-81 

6-29-81 

Sewell Coal Co. 

so'lar Fuel Co. 

Capitol Aggregates, Inc. 

Penn Allegh Coal Co., Inc. 

Sewell Coal Co. 

King Knob Coal Co. 

Administrative Law Judge Decisions 

6-01-81 

6-02-81 

Consolidation Coal Co. 

UMWA ex rel Norman Beaver v. North American 

Coal Corp. 

Ralph Foster & Sons 

Trail Mountain Coal Co. 

Climax Molybdenum Co. 

Southern Ohio Coal Co. 

Phelps Dodge Corp. 

Missouri Gravel Co. 

Freeman United Coal Mining Co. 

Radiant Coal Co., Inc. 

Union Carbide Corp. 

Virginia Pocahontas Co. 

Paramont Mining Corp. 

Western Nuclear Inc. 

American Materials Corp. 

Kaiser Aluminum & Chemical Corp. 

Island Creek Coal Co. 

United Nuclear-Homestake Partners 

Ozark-Mahoning Co. 

United Castle Coal Co. 

HOPE 78-744-P 

PENN 79-142 

DENV 79.-163-PM 

PITT 78-97-P 

WEVA 79-31 

WEVA 79-360 

WEVA 81-270 

LAKE 81-55-D 

WEST 79-397-M 

WEST 80-451-D 

WEST 81-130 DM 

LAKE 81-17-R 

CENT 79-370-M 

LAKE 79-215-M 

LAKE 81-91 

SE 79-25-D 

WEST 80-401-M 

VA 79-136-R 

VA 81-44-D 

WEST 80-289-DM 

LAKE 79-9-M 

CENT 81-35-DM 

WEVA 80-580-D 

CENT 79-251-M 

LAKE 80-253-RM 

VA 79-141-D 

6-02-81 

6-02-81 

6-02-81 

6-03-81 

6-04-81 

6-09-81 

6-10-81 

6-10-81 

6-10-81 

6-11-81 

6-11-81 

6-11-81 

6-12-81 

6-15-81 

6-15-81 

6-16-81 

6-16-81 

6-16-81 

6-18-81 Bradford Coal Co, Inc. Fuel Fabricators, 

Indiana Steel & Fabricating Co. 

Inc. 

6-19-81 

6-22-81 

6-19-81 

6-24'-81 

6-24-81 

6-24-81 

6-25-81 

6-25-81 

6-25-81 

6-25-81 

6-25-81 

6-25-81 

6-26-81 

6-29-8\1. 

6-29-81 

6-30-81 

6-30-81 

Haviland Brothers Coal Co. 

Haviland Brothers Coal Co. 

Johnny Howard v. Martin-Marietta Corp. 

Ron Coal Co. 

Subreg Corp. 

Ducharme Sand & Gravel 

Missouri Portland Cement Co. 

Big Three Coal Co. 

Pikeville Coal Co. 

V and M Mining Co. 

Elkins Energy Corp. 

Westmoreland Coal Co. 

Leslie Coal Mining Co. 

Aearth Development Inc. 

United States Fuel Co. 

Capitol Aggregates, Inc. 

Asarco Inc. 

PENN 80-2'67 

VINC 79-93-P 

VINC 79-93-P 

SE 80-24-DM 

BARB 78-362-P 

WEVA 80-668-D 

YORK 80-55-M 

DENV 79-346-M 

KENT 80-289 

KENT 81-i2 

KENT 81-49 

VA 80-166 

WEVA 80-614 

KENT 79-375-R 

.CENT 81-40 

WEST 79-81-R 

CENT 79-059-M 

WEST 79-124-M 

Pg. 1380 

Pg. 1384 

Pg. 1388 

Pg. 1392 

Pg. 1402 

Pg. 1417 

Pg. 1426 

Pg. 1428 

Pg. 1443 

Pg. 1445 

Pg. 1447 

Pg. 1449 

Pg. 1458 

Pg. 1465 

Pg. 1470 

Pg. 1472 

Pg. 1490 

Pg. 1493 

Pg. 1513 

Pg. 1514 

Pg. 1524 

Pg. 1539 

Pg. 1545 

Pg. 1552 

Pg. 1563 

Pg. 1564 

Pg. 1567 

Pg. 1574 

Pg. 1590 

Pg. 1599 

Pg. 1607 

Pg. 1610 

Pg. 1611 

Pg. 1618 

Pg. 1620 

Pg. 1630 

Pg. 1636 

Pg. 1640 

Pg. 1646 

Pg. 1648 

Pg. 1653 

Pg. 1656 

Pg. 1684 

Pg. 1691 

Commission Decisions 

JUNE 

The following cases were Directed for Review during the month of June: 

Delmont Resources v. Secretary of Labor, MSHA, PENN 80-268-R; (Judge Cook, 

April 23, 1981). 

Secretary of Labor, MSHA v. Eastover Mining Company, VA 80-145; (Judge Kennedy, 

April 30, 1981). 

Review was Denied in the following cases during the month of June: 

Secretary of Labor, MSHA v. Brown Brothers Sand Company, SE 80-124-M; (Judge 

Koutras, May 1, 1981). 

Secretary of Labor, MSHA v. Cement Division, National Gypsum Company, 

VINC 79-154-PM; (Judge Broderick's May 20, 1981 Order - Petition for Interlocutory Review). 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SEWELL COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 11, 1981 

Docket No. HOPE 78-744-P 

DECISION 

This is a civil penalty proceeding arising under section llO(a) of 

the Federal Mine Safety and Health ~ct of 1977, 30 U.S.C. §801 et~· 

(Supp. III 1979)(the Mine Act). J:j The issue is whether the administrative law judge erred in vacating two notices of violation on the 

ground that co~pliance was impossible because of a manpower shortage. 

For the reasons that follow, we reverse. 

In February 1978, a federal mine inspector conducted an inspection 

of Sewell Coal Company's Meadow River No. 1 Mine. The mine contains six 

sections,. and 25 miles of entries and crosscuts. The roof above the 

coal seam is of a glassy shale type, and is therefore fragile and 

subject to fracture. The mine is also very wet, accumulating about 

500,000 gallons of water per day. The mine floor undulates, which 

creates places for water to accumulate. 

As a result of the inspection, Sewell was cited for a violation of 

30 CFR §75.1704. ]:./ The notice alleged that Sewell failed to maintain 

in safe condition a designated intake escapeway to insure the passage of 

any person at all times, including disabled persons. The notice was 

issued because water accumulations, of varying depths up to 16 inches, 

existed for approximately 40 feet in the designated escapeway. 

1/ The inspector issued the notices of-violation here on February 13 

and 14, 1978, under section 109(a) of the Federal Coal Mine Health and 

Safety Act- of 1969, 30 U.S.C. §801 et~· (1976)(the Coal Act). The 

Secretary filed his petition for assessment of civil penalty after the 

effective date of the Mine Act. 

]:__/ 30 CFR §75.1704 states in part: 

[A]t least two separate and distinct travelable passageways 

which are maintained to insure passage at all times of any person, 

including disabled persons, and which are to be designated as 

escapeways, at least one of which is ventilated with intake air, 

shall be provided from each working section ••• and shall be 

maintained in safe condition and properly marked. 

81-6-~ 
Sewell also was cited for a.violation of 30 CFR §75.200. l_/ The inspector 

testified taat "there were slips and cracks in the mine roof and some of 

the rock had already fallen to the mine floor and other rock was ready 

to fall." 

At the time the notices were issued, employees at the mine represented by the United Mine Workers of America had been on strike for 

over two months. Sewell normally employs 203 people, both union and 

s~pervisory personnel, for underground work at the mine. During the 

strike, however, only 33 supervisory personnel worked in the mine. 

Sewell's division.safety director testified that 50 or 60 men would be 

needed to prevent any conditions which might constitute violations of 

the Act during an idle period. He also stated that the strike effectively 

prevented the hiring of any additional personnel. No coal was mined 

during the strike and the 33 working supervisory personnel limited their 

activity to correcting hazardous conditions. !:!_/ However, the natural 

deterioration of the 25 miles of mine, combined with the scarcity of 

workers, precluded the correction of all conditions that might constitute violations of the Act. The conditions cited in the two notices 

were the result of natural deterioration. Sewell conceded the existence 

of the cited conditions, but contended that they were impossible to 

prevent because of insufficient maintenance personnel. 

The administrative law judge vacated both notices of violation, 

finding that: 

[T]he burden of establishing that comp1iance with the safety 

standards is impossible.rests of course on the mine operator 

charged. Here, as the proponent of the rule, Respondent 

clearly carried its burden and established a prima f acie case by 

its. evidence [l] that the mine was idled by an economic strike, 

[2] that the mine deteriorates rapidly when idle due to nqtural 

forces, [3] that the two violations charged occurred as a result 

of such natural deterioration, [4] that the small complement· of 

men (33 management personnel) available was insufficient to correct 

conditions in such a large mine (25 miles of entries and crosscuts), 

[5] and that the realities of labor-management relations made it 

impossible to hire additional personnel to keep the mine violationfree during the prolonged period of its idleness.[.2_/] 

11 30 CFR §75.200 states in part: 

Each 9perator shall undertake to carry out on a continuing 

basis a program to improve the roof control system of each coal 

mine and the means and measures to accomplish such system. The 

roof aμd ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise controlled 

adequately to protect persons from falls of the roof or ribs. 

!±/ Sewell opted not to seal the mine during the strike because natural 

mine deterioration could have caused massive roof falls as well as 

flooding. 

2/ The judge noted that impossibility of compliance was recognized by 

the Interior Department's Board of Mine Operations Appeals. Itmann 

Coal Co., 4 IBMA 61 (1975), and Buffalo Mining Company, 2 IBMA 226 

(1973). In both cases the notices were vacated because of the unavailability of required equipment in the marketplace. 
The Secretary does not contest these factual findings and the 

record as a whole supports them. Rather, the Secretary challenges the 

judge's conclusion from those facts, that compliance was impossible. 

The Secretary submits that the operator had discretion; it could assign 

its 33 management personnel to whatever tasks it deemed important. He 

argues that although it may have been difficult to do a complete examination 

of the mine so as to detect all violative conditions, such action was not 

impossible. To the extent violative conditions are found that cannot be 

corrected promptly, the operator could, argues the Secretary, danger-off 

and post such areas so as to prevent miner access and exposure. §_/ 

We agree with the Secretary that the facts relied on by the judge 

do not support a ·finding that compliance with the cited standards was 

impossible. In fact, the violation was abated by the operator very soon 

after the citations were issued. When, as here, compliance is difficult 

but not impossible, the appropriate consideration of such mitigating 

circumstances is in the assessment of the penalties. 

In sum, we hold the judge erred in recognizing an affirmative 

defense of impossibility of compliance in this case. Accordingly, the 

notices of violation are reinstated and affirmed and the case is 

remanded for the assessment of civil penalties. 

I I 

A. E. 

Marian Pearlman Nease, Commissioner 

!2_/ In his brief, the Secretary contends that "the proper place for 

consideration of the argument raised by Sewell--that it could not. comply 

with the Coal Act because it had limited manpower--is in assessment of 

the civil penalty. The fact that most employees were on strike may well 

mitigate the gravity and negligence associated with the violations." 

1382 
Distribution 

Michael McCord, Esq. 

Office of the Solicitor 

U.S~ Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

C. Lynch Christian, Esq. 

Jackson, Kelly, Holt & O'Farrell 

P.O. Box 553 

Charleston, West Virginia 25322 

Gary W. Callahan, Esq. 

Sewell Coal Company 

Lebanon, Virginia 24266 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

Falls Church, Virginia 22041 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

SOLAR FUEL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 23, 1981 

Docket No. PENN 79-142 

DECISION 

This penalty proceeding arises under section 110 of the 1977 Mine 

Act, 30 U.S.C. §801 et~· (Supp. III 1979). The administrative law 

judge issued a summary decision in which he concluded that Solar Fuel 

Company had not violated 30 CFR §75.503 1./ and vacated two section 

75.503 citations against it. ];_/ On August 1, 1980, the Commission 

directed review on its own motion. The issue before the Commission is 

whether electric face equipment stipulated to be in nonpermissible 

condition and intended for use inby the last open.mine crosscut, was 

in violation of section 75.503 when located outby the last open crosscut. 

The parties stipulated to the following facts. On May. 3, 1979, an 

MSHA inspector issued a citation charging Solar with a violation of 

section 75.503. The citation stat.ed that a continuous mining machine, 

located outby the last open crosscut, was not in permissible condition. 

The machine was not in use when cited. The following day, May 4, the 

inspector issued another citation again charging Solar with a violation 

of section 75.503. The citation stated that a roof bolting machine, 

located in the same working area outby the last open crosscut and also 

not in use at the time, was not in permissible condition. The mine 

section where the cited equipment was located was being prepared for 

mining operations scheduled to begin shortly after each citation was 

issued. Solar intended to use both pieces of equipment inby the last 

open crosscut while performing these operations. Shortly after each 

citation was issued, the cited defects were corrected. On both days, 

coal was produced in the mine section in question after each citation 

was issued. 

1./ Section 75.503 provides: 

The operator of each coal mine shall maintain in permissible 

condition all electric face equipment required by §§75.500, 75.501, 

75.504 to be permissible which is taken into or used inby the 

last open crosscut of any such mine. 

Section 75.503 is based on section 305(a)(3) of the 1977 Mine Act, which 

reads: 

The operator of each coal mine shall maintain in permissible condition all electric face equipment required by this subsection to 

be permissible which is taken into or used inby the last open 

crosscut of any such mine. 

An identical statutory provision with the same section number was contained 

in the 1969 Coal Act. lJ The summary decision was issued on July 3, 1980. 2 FMSHRC 1732. 

81-6-8 
The judge emphasized that the Secretary had not alleged "that the 

electric face equipment involved in the ••• citations was taken into or 

used inby fihe last open crosscut." 2 FMSHRC at 1737. The judge rejected 

the Secretary's argument that Solar's admitted' intention to take the 

equipmen.t inby the last open crosscut was sufficient to prove a violation. He stated that the Secretary's position "ignores the plain 

language of section 75.503 which requires that the equipment be 

electric face equipment 'which is taken into or used inby the last open 

crosscut."' Id. at 1735-1736. He concluded that to prove a section 

7S.503 violation, the Secretary must demonstrate that an operator did 

not maintain in permissible condition equipment which "was 'taken into 

or used inby the last open crosscut"' (emphasis added) .Id. at 1736. 

He found that the Secretary had not carried his burden because the 

equipment was cited outby the crosscut. ],/ 

We reverse. The judge's holding cannot be squared with the plain 

language and stated purpose of the relevant statutory and regulatory 

provisions. 

The judge's construction renders the verbs, "is taken and (is] 

used," as tantamount to "has been or was taken/used." As the Secretary 

argues, this approach misconstrues the grammar of these provisions. The 

verbs in question are in the present tense of the passive voice, third 

person singular. Among other things, the present tense denotes continuing or habitual action as well as action which always occurs or will 

occur. Thus, from a grammatical standpoint, the proper meaning of these 

provisions is "equipment which is taken or used inby the last open 

crosscut," connoting past, present, and future conduct. In turn, this 

means that equipment habitually used or intended for use inby must be 

maintained in permissible condition and may be cited regardless of 

whether it is located inby or outby when inspected. The emphasis is not 

on where equipment is located at the time of inspection, but simply 

whether it is equipment which.is taken or used inby. 

ll .In reaching his conclusion, the judge relied on section 318(i) of 

the 1977 Mine Act, which defines "permissible" condition as regards 

electric face equipment. The judge stated: 

I find nothing. [in] the legislative history which would 

support the position of [the Secretary]. On the contrary, 

section 318(i) of the Act provides in pertinent part: 

"'Permissible' as applied to electric face equipment means 

all electr~cally operated equipment taken into or used 

inby the last open crosscut of an entry •••• " In order 

to support [the Secretary's] position I would have to find 

that tpe language "taken into or used inby the last open 

crosscut" as used in this regulation is redundant. Nowhere in the Act or regulations is there a requir~meht 

that a mine operator maintain electrical face equipment 

in permissible condition if it is "intended" to be taken 

into or used inby the last open crosscut •••• [2 FMSHRC at 

1736.] 
The judge ignored the expressly stated purpose of these provisions. 

While he did rely on the "permissibility" definition in section 318(i) 

of the 1977 Mine Act (2 FMSHRC at 1736), he did not cite the crucial 

explanation for requiring "permissibility" in the first instance: 

"[P]ermissible" as applied to electric face equipment means all 

electrically operated equipment taken into or used inby the last 

open crosscut of an entry or a room of any coal mine the electrical parts of which ••• are designed, constructed, and installed, 

in accordance with the specifications of the Secretary, to assure 

that such equipment will not ·cause a mine explosion or mine fire, 

and the other features of which are designed and constructed, in 

accordance with the specifications of the'.Secretary, to prevent, to 

the greatest extent possible, other accidents in the use of such 

equipment •••• [Emphasis added.] 

Identical language is contained in 30 CFR §75.2(i). Although sections 

318(i) and 75.2(i) define permissibility in terms of design, construction, arid installation of electric face equipment, section 305(a).(3) of 

the 1977 Mine Act and section 75.503 require that the equipment be 

maintained in such "permissible" condition. We think that the conclusion 

is inescapable that the equipment be so maintained for precisely the 

same reason--to assure against mine accidents. The purpose of "assuring 

[against] mine explosion or mine fire" militates against any interpretation of "is taken into or used inby" which would lessen that assurance. 

Plainly, the judge's interpretation does not further the purpose of 

assurance. 

Furthermore, the judge's interpretation would lead to unacceptable 

results. It would allow an operator the opportunity to operate impermissible electric face equipment inby the last open crosscut prior to a 

mine inspection, move it outby during the inspection, and then return it 

to the face once the mine inspector had left the premises. To adopt the 

judge's holding in light of those prospects would, we believe, derogate 

from Congressional intent by creating a formalistic -loophole in the 1977 

Mine Act and implementing regulations. Cf. Ideal Basic Industries, 

Cement Div., 3 FMSHRC 843, 844 (1981); Paramont Mining Co., 2 FMSHRC 

2476,' 2477 (1980)(rejecting similarly formalistic constructions of 

analogous regulations). 

For the foregoing reasons, we reverse the judge's decision and 

interpret 30 CFR 75.503 to apply not only to equipment which has been 

taken inby the last open crosscut when inspected, but also to equipment 

which is intended to be or is habitually taken or used inby, even if it 

is inspected while located outby. Accor · gly, this case is remanded 

for disposition consistent with this 

I 

I 

~ 

A. E. 

1386 

Nease, Commissioner 
Distribution 

James L. Custer, Manager 

Solar Fuel Company 

P.O. Box 488 

Somerset, Pennsylvania 15501 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd.· 

Arlington, Virginia 22203 

Administrative Law Judge James Laurenson 

FMSHRC. 

5203 Leesburg.Pike, 10th Floor 

Skyline Center #2 

Falls Church, Vir~inia 22041 

1387 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K. STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 . ·: ·..' . . 

SECRETARY OF LABOR, 

MINE SAFETY AHO HEALTH 

ADMINISTRATION (MSHA) 

v.,, 

CAPITOL AGGREGATES, INC. 

June 24, 1981 

Docket Nos. DENV 79-163-PM 

DENV 79-240-PM 

DECISION 

This civil penalty case involves the interpretation of 30 CFR 

§56.17-1, a mandatory illumination standard. In a decision issued on 

April 14, 1980, the administrative law judge found multiple violations 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et 

seq. (Supp. "111 1979) and assessed penalties. We vacated that decision 

on procedural grounds, and on remand the judge reaffirmed his prior 

decision; The ope~ator, Capitol Aggregates, Inc., filed a petition for 

discretionary review, which we granted in part. For the following 

reasons, we affirm in part and reverse in part. 

On May 17, 1978, an MSHA inspector issued Citation Nos. 169705 and 

169706 alleging violations of 30 CFR §56.17-1 in Capitol's cement plant. 

The standard provides: 

Mand?tory. 

Illumination sufficient to provide safe working conditions 

shall be provided in and on all surface structures, paths, walkways, stairways, switch panels, loading and dumping sites, and work 

areas. 

The question in this case is wha.t constitutes "[i]llumination sufficient 

to provide_ safe working conditions." Resolution requires a factual 

determination based on the working conditions in a cited area and the 

nature of illumination provided. 

Citation No. i69705 alleged a violation of the standard because the 

lights over the coke storage bin and adjacent walkways were not operable. 

In concluding that the operator violated the standard, the judge was 

persuaded by the inspector's unrebuttedtestimony. that the illumination 

was insufficient. In the absence of negligence, the judge assessed a 

$25 penalty. On remand, he saw "no reason to disturb [his] previous 

.finding •••• " We conclude that substantial evidence supports the judge's 

find.~ngs. 

1 .., f{ ~ 

·' 'l \ (. 

81-6-
The facts are undisputed. The only permanent lighting in a.30~40 

foot area was· provided by a mercury vapor light, which was not operable 

at the time of the.inspection, about 9:00 p.m. 1/ Electrical outlets, 

extension cords, and auxiliary lighting were available, however, and 

workers were equipped with flashlights. .There was little reflected 

light in this coke area. Because the coke storage bin continuou.sly 

supplied coke to the kiln, Capitol's employees might have to make repairs 

or do maintenance on the b.in/kiln system at any time, including the 

evening shift. The lack of· illumination created hazards, such as tripping 

or falling, for employees performing such work. 

We reject Capitol's argument that, notwithstanding the failure of 

the permanent lighting, there was adequate illumination to ensure safe 

working ·conditions, because it also provided electrical outlets for 

portable lighting equipment and flashlights for night work. Portable 

lighting could satisfy the standard where such lighting is accessible, 

its use is feasible and safe, and it provides adequate light under the 

circumstances. That is not the case before us, however. 

Capitol states only that it provided such lighting and outlets; it 

does not indicate where such lighting was stored or how easy it was to 

reach. Although a worker could carry a flashlight, extension cord, and 

auxiliary light in one hand, that practice may be neither safe no~ 

desirable. Capitol concedes that a worker might have to climb a ladder 

to get to the top o·f the storage bin. It does not rebut the inspector's 

testimony that climbing a ladder and performing maintenance or repairs 

require the use of a worker's hands' and do not leave the hands free for 

carrying a flashlight or extension cord with auxiliary lights. Nor has 

Capitol established the adequacy of such portable lighting equipment; it 

does not show the amount of illumination this lighting would shed. 

Similarly, Capitol fails to prove that, under these facts, a flashlight 

provided sufficient illumination. The evidence and the case law demonstrate otherwise.. The inspector testified without contradiction that a 

flashlight would not provide sufficient light if an employee were simultaneously holding a flashlight and working on equipment. The case law 

indicates that a directed beam of light such as that supplied by a cap 

lamp--or, by analogy, a flashlight--may not shed sufficiently diffuse 

light to provide a safe work area. Clinchfield Coal Co. at 3, March 

1979 FMSHRC, 1 MSHC'2027 (Chief Administrative Law Judge Broderick, 

March 12, 1979), aff'd. sub nom., Clinchfield'Coal Co. v. Secretary 

of Labor, No. 79-1306, 1 MSHC 2337 (4th Cir. 1980) (unpublished).· 

(Clinchfield involved the identical coal standard at 30 CFR §77.207). 

1/ This light failed because a photoelectric cell, which normally activated the lamp as the sun went down, malfunctioned. Although Capitol 

concedes the malfunction, it makes much of its lack of knowledge of the 

malfunction. Capitol's lack of knowledge relates only to its possible 

negligence. Because the judge found no negligence, Capitol's knowledge 

is not at issue here. Nor did we direct that issue for review. 
In the absence of evidence to the contrary, we are persuaded that · 

the judge properly credited the inspector's testimony that the lighting 

was inadequate. Clinchfield, supra; J. P. Burroughs and Son, Inc., 2 

FMSHRC 3266, 3269, 1 MSHC 1165, 1166 (Chief Administrative Law Judge 

Broderick, 1980). We hold that, under these facts, the illumination 

provided by the operator did not satisfy the standard and we thus affirm 

the judge. 

Citation No. 169706 alleged a violation of the standard because 

there was insufficient illumination in the area under the coke impact 

crusher, around the tail pulley of the C-58 conveyor belt, and by the 

tail section of the apron feeder under the coke hopper. The judge found 

that there were no lights and concluded that Capitol had violated the 

standard "[i]nasmuch as miners might have to travel in the area at 

night." In our view, his finding that minersmight have to work in the 

cited area at night is not supported by substantial evidence. Consequently, we reverse his finding of a violation and vacate the underlying citation. 

There was undisputed testimony that, when work was performed in the 

area during daytime, there was adequate light. The judge impliedly 

found that the daytime lighting was adequate, and the Secretary does not 

argue otherwise. Although the inspector testified to his belief that 

emergency nighttime repairs might be necessary, he did not observe any 

employees there at night, nor did he testify as to the likelihood of 

such nighttime repairs. By contrast, Capitol's witness testified that 

employees would not have to go into C-58 conveyor area at night because 

a bypass system provided sufficient fuel storage capacity so that the 

plant could run all night. Even if the bypass system failed at night, 

the plant had two additional days of fuel and other fuel systems 

available to substitute for the bypass system; hence any necessary 

repairs would not have to be made innnediately. 

Under these facts, we do not believe that substantial evidence supports the judge's finding that employees might have to work in the area 

at night. We hold that, because there was adequate light for safe 

working conditions during the day and there was no probability of work. 

being performed at night, there was no violation of the standard. 

Accordingly, we reverse the judge and vacate the citation.±._/ 

'};_/ If even some sporadic nighttime work or the probability of nighttime 

work had been shown, the result might have been different. 

13!JO 
Distribution 

Robert W. Wachsmuth, Esq. 

Kelfer, Coatney & Wachsmuth 

311 Bank of San Antonio 

One Romano Plaza 

San Antonio, Texas 78205 

Richard L. Reed, Esq. 

Johnston, Krog & Vives 

2600 Tower Life Building 

San Antonio, Texas 78205 

Nancy S. Hyde, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles C. Moore 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

Falls Church, Virginia 22041 
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 

June 29, 1981 

Docket No. PITT 78-97-P 

PENN ALLEGH COAL COMPANY, INC. 

DECISION 

On September 14, 1975, Penn Allegh Coal Company filed a petition 

for modification of the application of the cabs and canopies standards, 

30 CFR 75.1710-l(a), to the electric face equipment at its Allegheny 

No. 2 mine. 1/ The petition for modification was filed under section 

30l(c) of th; 1969 Coal Act, 30 U.S.C. §86l(c)(l976), which, in relevant 

part , provided: 

Upon petition by the operator or the representative of miners, 

the Secretary may modify the application of any mandatory 

safety standard to a mine if the Secretary determines ••• that 

the application of such standard to such mine will result in a 

diminution of safety to the miners in such mine. Upon receipt 

of such petition the Secretary shall publish notice thereof 

and give notice to the operator or the representative of miners 

in the affected mine, as appropriate, and shall cause 

such investigation to be made as he deems appropriate. 

Such investigation shall provide an opportunity for a 

public hearing, at the request of such operator or 

representative or other interested party, to enable 

l./ The standard requires installation of protective cabs or canopies 

on all self-propelled electric face equipment on a staggered time 

schedule coordinated with descending mining heights. It states in 

pertinent part: 

(a) [A]ll self-propelled electric face equipment, including 

shuttle cars, which is employed in the active workings of each 

underground coal mine on and after January 1, 1973, shall,· in 

accordance with the schedule of time specified in subparagraphs 

(1), (2), (3), (4), (5), and (6) of this paragraph (a), be equipped 

with substantially constructed canopies or cabs, located and 

installed in such a manner that when the operator is at the 

operating controls of such equipment he shall be protected from 

falls of roof, face, or rib, or from rib and face rolls. 

81-6-14 

J ·~ f\ I j .... "-.: \, r.., 
t:Jie operator and the representative of miners in· such 

mine or other interested party to present information 

relating to the modification of such standard. The 

Secretary shall issue a decision incorporating his 

findings of fact therein.... Any such hearing shall 

be of record and shall be subject to section 554 of 

title 5 of the United States Code. (Emphasis added.) ];_/ 

On January 9, 1976, while the petition for modification was pending 

before an administrative law judge, a notice of violation of 30 CFR 

75.1710-l(a) was issued to Penn Allegh for failure to provide a canopy 

on a Long-Airdox electric coal drill. On June 15, 1977, the judge 

issued a lengthy decision in the modification case granting the modification in part and denying it in part. Both Penn Allegh and the 

Secretary appealed the decision to the Board of Mine Operations Appeals. 

On March 9, 1978, the pending appeals were transferred to the Assistant 

Secretary for Mine Safety and Health pursuant to the transfer provisions 

of the 1977 Mine Act. 30 U.S.C. §96l(a). The appeals remain pending 

before the Assistant Secretary as of this date. 

On November, 14, 1977, a petition for assessment of civil penalty 

for the violation alleged in the January 9, 1976, notice of violation 

was filed by the Secretary and the civil penalty case was assigned to 

the administrative law judge who had heard the modification case. 11 On 

December 9, 1977, Penn Allegh requested a stay of the penalty proceeding 

pending the decision of the Board in the appeal of the modification 

case. The judge denied the stay because the petition for modification 

had not included the coal drill that was the subject of the notice at 

issue in the present penalty proceeding. !!._/ 

On January 17, 1978, the judge issued a notice of prehearing 

conference and pretrial order stating that counsel for the Secretary had 

"indicated his unwillingness to concede that the use of a canopy on 

:?:_/ Section lOl(c) of the 1977 Mine Act, 30 U.S.C. §8ll(c)(Supp. III 

1979), provides for the same modification procedure. 

11 Section llO(a) of the 1977 Mine Act requires that the Secretary 

assess an operator of a mine at which a violation occurs a civil penalty. 

Section 105 .sets forth the procedures for that assessment and for contesting the assessment before the Commission. 

!!_/ The petition for modification as originally filed did not specify 

the part;icular electric face equipment for which modification was 

requested. However, at the modification hearing the parties submitted a 

joint exhibit listing the electric face equipment encompassed by the 

petition. The judge asked counsel for Penn Allegh if the exhibit was to 

be deemed as amending the petition so as to apply only to those machines 

specified therein. Counsel responded affirmatively. 

' ,, ,, , . 

..,> 'l', \.1d 
respondent's coal drill will result in a diminution of the safety of the 

miners and therefore [that] the canopy requirement is inapplicable." 

The judge requested that the parties submit proposed stipulations 

regarding the mining height and the height of the coal drill, and, among 

other things, that the Secretary furnish a scale drawing "of the canopy 

design MESA contends can be used safely on the coal drill in question 

under the mining height present."~/ In response, the Secretary submitted a drawing of a canopy available from the manufacturer of the 

drill. Penn Allegh responded by asserting that the design submit.ted by 

the Secretary could not be used safely in its mine, that the judge's 

prior modification decision showed that a canopy could not be used 

safely, and that requiring a new modification petition would result in a 

needless multiplicity of proceedings. 

On February 27, 1978, the judge issued a notice of hearing and 

pretrial order which stated: 

.The issue in this case is whether or not the canopy design proposed 

by MESA could be used safely in the 4 Right section of the No. 2 

mine on January 9, 1976. This issue will be determined on the 

basis of the scale drawing submitted by MESA and the dimensions as 

to mining height, machine height and roof suJ:>port to which the 

parties have stipulated. 

In response to this order the Secretary filed a prehearing statement 

that included a modified canopy design. This design contained structural 

modifications not present in the previously submitted design. The 

Secretary stated that he was "forced" to submit the niodified design 

because the judge was "predisposed" to make findings, based upon the 

modification case, which would not permit the coal drill to operate 

safely when equipped with the canopy the Secretary originally proposed. 

Prehearing statemei..: at 4 (March 8, 1978). 

In its response to the pretrial order Penn Allegh asserted that a 

"canopy utilizing the design [originally] proposed by MESA for the ••• 

drill could not on January 9, 1976 and cannot now be used safely in the 

4 Right Section or any other section of Allegheny No. 2 Mine." Supplemental Prehearing Submission, ,114, 15, (March 15, 1978). Regarding 

MESA's drawings of 'the modified canopy design Penn Allegh stated: 

[T]his proposed design is incompetent and irrelevant with 

respect to the subject violation. Such violation must be 

adjudicated on the basis of facts and conditions as they 

existed at the time the alleged violation occurred. Moreover, [Penn Allegh] denies that MESA's suggested modifications in the machine and canopy design will overcome 

the hazards created by equipping the subject machine with 

a canopy in 47" coal. ii 

ii The Mining Enforcement and Safety Administration (MESA) became the 

Mine Safety and Health Administration (MSHA) when the 1977 Mine Act 

took effect. 

2_1 The parties had agreed that the minimum mining height at which the 

electric face equipment would have to operate was 47 inches. 
Supplemental Prehearing Submission, at 5-6, (March 15, 1978). In a 

further response to MESA's modified canopy design Penn Allegh stated: 

Obviously this new design was not available on January 9, 

1976 because it is strictly conceptual in nature and was 

prepared for the purpose of this case and hence must be 

deemed to be irrelevant. Moreover, the [structural 

modification] merely exacerbates the problems of visibility and the hazards resulting therefrom. 

Response to Offer of Proof, at 3, (April 3, 1978). 

The matter was heard on April 6, 1978. At the start of the hearing; 

the judge recited his understanding of the posture of the case: 

I understood the sole issue to be determined with 

respect to the fact of violation was whether the 

canopy design [initially] proposed by the Secretary 

••• could have been retrofitted to the •.. face drill 

in use of the 4 Right Section of the No. 2 Mine without diminishing the safety of the miners. 

I further understood that the issue with respect 

to the fact of violation would be determined on the 

basis of the canopy design configuration found in 

the manufacturer's drawing .•• which the operator 

agreed was available to it as early as April 1975, 

and the agreed upon dimensions as to the mining 

height, machine height and roof support. 

Tr. 6-7. 

Counsel and the judge then extensively discussed the propriety of 

admitting as exhibits the Secretary's modified canopy design. Counsel 

for Penn Allegh stated that "unless there was an actual canopy design 

available from the manufacturer at [the time of the alleged violation] 

that could have been retrofitted ••• this evidence is worthless and 

irrelevant.~· Tr. 18. After further discussion, the judge stated: 

[W]hat this offer of proof if accepted amounts to is a 

direction that the presiding judge impose on the operator 

the burden of showing that two untested, unproved design 

concepts involving a complete overhaul of the equipment 

and a relocation of the operator's controls would, if 

accomplished, be acceptable as a safe canopy design concept. 

I think this is a thinly disguised attempt to shift 

from the Secretary the burden of showin_g that the manufacturer's design configuration could be used safely 

by requiring the operator to show that [the Secretary's] 

untested, unproved paper design concepts would, if implemented, diminish the safety of the miner. Even if these 

design concepts are, as I assume they will be, endorsed 

by [the Secretary's witness], they would still remain untested, unproved, paper concepts. 
As I have said it is my strong recollection and I have confirmed that [when such testimony was presented before another judge 

he] said. he could assign little weight to such conceptualizatio~ 

testimony. I agree and for this as well as the other reasons 

adverted to reject this offer of proof. 

Tr. 26-27. 

After further extended discussion the Secretary stated that the 

judge's ruling "wipe[s] out our case". Tr. 46. The judge then rendered 

a bench decision finding that a total mining height of 48.5 inches was 

necessary to allow safe operation of the drill with the canopy originally 

proposed by the Secretary. Because the-stipulated minimum mining 

height was 47 inches, the judge concluded that "the canopy design 

configuration, proposed by the Secretary cannot be used safely in 

Respondent's No. 2 mine and could not have been used safely ••• on 

January 9, 1976." Tr. 55-56. J_/ On April 7, 1978, the judge issued a 

written decision, reiterating his bench decision, and dismissed the 

petition for penalty assessment. 

On May 5, 1978, the Secretary filed a petition for discretionary 

review with the Commission. The petition asserted that the judge erred 

in declaring the standard invalid. It also raised questions concerning 

the burden of proof, the admission of evidence and the taking of official 

notice. On January 3, 1979, the Commission granted the Secretary's 

petition. §_/ 

Although this matter poses potentially interesting questions regarding 

the burden of proof in an enforcement proceeding brought for a violation 

of a performance standard and the nature of the proof that will be 

J_/ The judge also found that he had the authority to rule upon the 

validity of the mandatory safety standard at issue before him. Exercising this authority, he concluded that the Secretary had failed to 

follow the statutory scheme in promulgating 30 CFR §75.1710-1 and that 

the stand.ard was therefore null, void and unenforceable. The judge 

reached identical conclusions in his decision in Sewell Coal Co., 1 

FMSHRC 1381 (WEVA 79-31, 1979). The judge's decision in Sewell was 

directed for review by the Commission. For the reasons stated in our 

decision in Sewell, issued this date, we conclude that the judge was 

correct in finding he had the authority to rule on the standard's 

validity, but erred in finding 30 CFR §75.1710-1 to be null, void and 

unenforceable. 

8/ At the time that the Secretary's petition for review was filed no 

Commissioners had yet assumed office. Therefore the 40-day review 

period expired without review of the judge's decision having been 

directed. 30 U.S.C. §823(d)(l). On June 16, 1978, the Secretary filed 

a petition for review of the Commission's "final order" with the U.S. 

Court of Appeals for the D.C. Circuit. On November 7, 1978, after 

Commissioners had been nominated and confirmed, the Secretary filed a 

motion with the Court to remand the case to the Commission to allow the 

Connnission the opportunity to act on the Secretary's petition for 

review. The Secretary's motion was granted and the case was remanded 

"so that the Commission may dispose of the Secretary's petition." 

1 '. '\( _( t ! , . n 
considered to be probative and relevant in such proceedings it presents 

a yet more fundJimental issue which connnands our attention--the propriety 

o'f· allowing an operator to assert as a defense in an enforcement. proceeding •that application of the allegedly violated safety standard will 

diminish the. sa~ety of miners. Our resolut·:l.On of this issue. makes 

unnecessary, indeed inappropriate, discussion of the other issues rqised 

in this case. 

Penn Allegh's consistent.argument throughout this case has been 

that to require the installation of a canopy on its coal drill will 

actually diminish, rather than enhance, the safety of miners. This is 

so, in Penn Allegh's view, because a canopy giving sufficient clearance 

to the coal drill operator to allow safe and comfortable operation of 

the drill, necessarily will be too high to allow safe operation in the 

47-inch.mining height at issue. Therefore, according to Penn Allegh, to 

apply the standard here is to diminish the safety of miners--a result 

contrary to the Act's purposes. In view of this, Pertn Allegh submits 

that the notice of violation for failure to comply with 30 CFR §75.1710 

should be vacated and the petition for assessment of penalty dismissed. 

Section 30l(c) of the 1969 Coal Act and section lOl(c) of the 1977 

Mine Act expressly provide a specific mechanism for handling those 

situations where the application of a standard diminishes, rather than 

enhances, miners' safety. In such situations, the operator is required 

to petition the Secretary for relief from the application of the standard. 

Upon receipt of such a petition the Secretary gives notice, conducts ari 

investigation, provides an opportunity for a public hearing, and issues 

a decision granting or denying the relief sought. The Secretary has 

adopted detailed regulations governing the processing of such petitions. 

30 CFR Part 44. Multi-level review of a modification petition is provided; the initial decision being made by the Administrator of MSHA with 

the right to be heard by an administrative law judge of the Department 

of Labor and with an appeal to the Assistant Secretary of Labor. Only a 

decision of the Assistant Secretary is deemed final agency act.ion for 

purposes of judicial review. 30 CFR 44.51. !}_/ 

Thus, there is a clear distinction between modification proceedings 

instituted by an operator and enforcement proceedings instituted by the 

Secretary. The two serve related but separate ends. In one the Secretary 

must prove failure to comply with a standard he has adopted for application to the mining industry in general. In the other, the operator• 

must demonstrate why compliance should be waived in view of the special 

facts at a particula~ mine. 

In the present case, it is undisputed that the coal drill was not 

equipped with a ~anopy as required by the standard. It is ~lso undisputed 

that Penn Allegh did not seek a modification of the cabs and canopies 

standard for the coal drill at issue. Penn Allegh failed to do so even 

in view of the fact that it had previously filed a petition for modif ication of the same standard as it applied to many other pieces of 

ii Under the 1969 Coal Act modification proceedings were processed 

through the Department of Interior's Office of Hearings and Appeals with 

a right of appeal to the Board of Mine Operations Appeals. See 43 CFR 

§4.550 (1972)). -
equipment and, therefore, was obviously aware of the procedure to be 

followed. Instead, with regard to the coal drill at issue here, Penn 

Allegh waited until it was cited for non-compliance and then raised in 

the enforcement proceeding the same question that could have been 

resolved in a modification proceeding, i.e., whether application of the 

standard would cause a diminution of safety at its mine. 

We cannot endorse this short circuiting of the Act's modification 

procedures. We believe it important that questions of diminution of 

safety first be pursued and resolved in the context of the special procedure provided for in the Act, i.e., a modification proceeding. 

A similar conclusion has been reached in an analogous situation 

under the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et 

~· In the OSHA statutory scheme, an employer may apply to the Secretary of Labor for a variance from a standard's application. 29 U.S.C. 

§655(d). As with the Mine Act, the OSHAct's variance procedure is 

distinct from the Act's enforcement procedure. In enforcement proceedings the Occupational Safety and Health Review Commission has 

likewise been confronted with arguments that a violation of the Act 

should not be found where compliance with a standard would result in a 

"great er hazard" than non-compliance i.e. , a diminution of safety. Irt 

establishing a narrow "greater hazard" defense, the OSHRC has set forth 

three elements: 1) the hazards of compliance are greater than the 

hazards of non-compliance; 2) alternative means of protecting employees 

are unavailable; and 3) a variance application would be inappropriate. 

(Emphasis added.) See,~·· Russ Kaller, Inc. t/a Surfa-Shield, 4 BNA 

OSHC 1758 (1976). 

The Third and Ninth Circuits have affirmed this forumulation of the 

defense. In General ElectrJc Co. v. Secretary, 576 F.2d 558, 561 (3d 

Cir. 1978), the Court stated: 

Every employer has the initial obligation to make sure that 

his working areas comply with all applicable standards. If there 

is reason to believe that compliance with certain standards may 

jeopardize his employees, a variance should be sought. If a 

"greater hazard" defense is allowed at an enforcement proceeding 

without requiring initial resort to the variance procedures or a 

showing that such resort would be inappropriate, there would be 

• little incentive for an employer to seek a variance under these 

circumstances. 

General Electric contends that an employer who correctly 

believes that his working conditions are safer than those prescribed in the standards should not be penalized for bypassing the 

variance procedures and taking his chances that he will not be 

cited or that he will prevail in an enf9rcement proceeding. The 

flaw in this argument is that some employers will believe 

incorrectly that their working conditions are safer than those 

prescribed in the standards. By removing this incentive to 

seek variances, the Commission would be allowing an employer to 

take chances not only with his money, but with the lives and 

limbs of his employees. This we cannot do. [Emphasis added.] 

The Ninth Circuit endorsed the Third Circuit's reasoning in Noblecraft 

Industries v. Secretary, 614 F.2d 199 (1980). 
We find this rationale compelling and applicable to the modification procedures of the mine safety statutes. A statutory procedure is 

and was available to Penn Allegh to obtain a waiver of the application 

of the cabs and canopies standard to the coal drill at issue. That 

procedure involves a forum different from this Commission, (i.e., the 

Department of Labor) and Penn Allegh was aware of the applicable procedures for obtaining the relief sought here. Penn Allegh did not avail 

itself of this opportunity. Instead, it chose to operate the drill 

without a canopy, an admitted violation of the standard, and waited 

until it was cited before making its argument regarding diminution of 

safety. Thus, Penn Allegh, rather than the Secretary, has determined 

that compliance is unnecessary. If Penn Allegh is wrong, employees have 

been exposed to a hazardous condition in violation of the Secretary's 

standard. 10/ At the present time, we cannot forecast with any certainty 

whether Penn Allegh could or could not have equipped its drill with a 

safe canopy. 11/ The responsibility for making that determination rests 

in a different forum and should not be determined here. 

10/ We recognize that if Penn Allegh is right requiring literal compliance would mean that miners would be exposed to a hazardous condition. 

We view the regulatory scheme of the Act, however, as being premised 

upon the proposition that compliance with the safety standards adopted 

by the Secretary protects the nation's miners, and that the procedures 

permitting non-compliance, i.e., the modification provisions, must be 

strictly observed. We also stress, however, that the Secretary's 

regulations appear to provide a vehicle for insuring that the safety of 

miners is not compromised during the pendency of a modification petition. 

30 CFR §44.16 provides for interim relief from the application of a 

standard pending final decision on a petition for modification. Also, 

30 CFR 44.4(c) provides that "the granting of the modification ••• shall 

be considered as a factor in the resolution of any enforcement action 

previously initiated for claimed violation of the subsequently modified 

mandatory safety standard." This case does not present a situation 

where an enforcement proceeding was brought by the Secretary after the 

operator had filed a modification petition and before that petition had 

been finally resolved. 

11/ The fact that Penn Allegh had received a partially favorable 

decision from an administrative law judge in its modification case is of 

no importance. Although the facts forming the basis of the favorable 

portions of that decision possibly could be analogized to the facts of 

the present case, both parties appealed the judge's decision and no 

final decision on the petition for modification has yet been issued. 

Therefore, the administrative law judge's decision granting a waiver as 

to other items of equipment does not provide a sound basis for excusing 

Penn Allegh's failure to file a modification~petition here. 

139B 
Therefore, we hold that.the 4

defense of diminution of safety was 

improperly raised and accepted in this enforcement proceeding. 12/ The 

judge's decision is reversed and the case is remanded for further 

proceedings consistent with this decision. 

Marian Pearlman Nease, Commissioner 

12/ Nor in this case could Penn Allegh assert, as an alternative to its 

disallowed defense, that it was technologically impossible for it to 

comply. Such a defense would be merely an adjunct to its diminution of 

safety defense because it is "technologically impossible" only because 

it diminishes saf ety--not because it is impossible to fit a canopy on 

the coal drill. 

.!400 
Distribution 

Cynthia L. Attwood, Esq. 

Thomas Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

William D. Sutton, Esq. 

Glenn E. Bost, II 

Thorp, Reed & Armstrong 

2900 Grant Building 

Pittsburgh, Pennsylvania 15219 

Administrative Law Judge Joseph B. Kennedy 

Office of the Administrative Law Judges 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike 

10th Floor - Building #2 

Falls Church, Virginia 22041 

.l ·10 j 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. . 20006 

SECRETARi OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINif~RATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY 

Respondent 

June 29, 1981 

Docket No. WEVA 79-31 

DECISION 

This case arose when the Department of Labor's Mine Safety and 

Health Administration (MSHA) sought civil penalties under the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (Supp. III 

1979) ("the 1977 Mine Act"), for alleged violations of the cab and 

canopy standard for underground coal mines, 30 CFR §75.1710-l(a). !/ 

The relevant facts are not disputed. Sewell Coal Company was cited by 

MSHA for failing to equip a roof bolter and a shuttle car with canopies. 

The alleged violations were abated and the Secretary filed a proppsal 

for civil penalties. ±./ 

Prior to hearing the Secretary and Sewell agreed to a settlement of 

the matter. The Secretary filed a motion with the administrative law 

judge to approve the settlement. 3/ The judge denied the motion. The 

judge found that Sewell could not-comply with the cited standard "without diminishing the safety of the miners and depriving them of the 

!/ 30 CFR §75.1710-l(a) states in pertinent part: 

[A]ll self-propelled electric face equipment, including 

shuttle cars, which is employed in the active workings of each 

underground coal mine on and after January·!, 1973, shall, in 

accordance with the schedule of time specified in subparagraphs 

(1), (2), (3), (4), (5), and (6) of this paragraph (a), be equip:._Jed 

with substantially constructed canopies or cabs, located and 

installed in such a manner that when the operator is at the 

operating controls of such equipment he shall be protected from 

falls of roof, face, or rib, or from rib and face rolls. 

!:./ The notice of violation pertaining to the roof drill was terminated 

when the section in which the drill was being used was abandoned and the 

equipment withdrawn from use. The citation pertaining to the shuttle 

car was terminated when the equipment was replaced with another shuttle 

car that had a canopy. · 

1J Section llO(k) of the 1977 Mine Act, 30 U.S.C. §820(k) states: 

No proposed penalty which has been contested before the Commission 

••• shall be compromised, mitigated or settled except with the 

approval of the Connnission. 

1402 81-6-13 
protection afforded by section 318(i) of the mandatory safety standards, 

30 U.S.C. §878(i)." He further found that the Secretary's failure to 

comply with section 318(i) rendered the cab and canopy standard "null, 

void and unenforceable." He therefore dismissed the petition for 

assessment of penalty. In a memorandum opinion issued in conjunction 

with his decision dismissing the penalty petition, the judge set forth 

his reasons for concluding that he was empowered to pass upon the 

validity of the standard and for finding the standard invalid. 

This case presents us with two important threshold questions: 

whether the judge had the authority to rule upon the validity of 30 CFR 

75.1710-l(a) and, if so, whether he properly found the standard null, 

void and unenforceable. 

I. 

The standard at issue was promulgated under the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. §801 et. seq. (1976)(amended 

1977) ("the 1969 Coal Act"), and was adopted on October 3, 1972. 37 

Fed. Reg. 20689-90 (1972). Therefore, the question of whether the 

validity of the standard can be challenged in an enforcement proceeding 

must first be addressed in terms of the relevant procedures under the 

1969 Coal Act. The 1969 Coal Act did not have a specific provision 

regarding the proper vehicle for challenging the validity of standards 

adopted by the Secretary. Furthermore, case law involving such challenges 

is sparse. From our review, it appears that validity challenges were 

left to be raised in the various types of enforcement proceedings 

provided for in the Coal Act. See §§106(a)(l), 109. For example, in 

U.S. v. Finley Coal Co., 345 F. Supp. 62 (D.ED. Ky., 1972), aff'd, 493 

F.2d 285 (6th Cir. 1974), the defense of improper promulgation of 

standards was raised and accepted in a criminal proceeding brought under 

the Coal Act. In Morton v. Delta Mining, Inc., 495 F.2d 38, 43 (3d Cir. 

1974), rev'd on other grounds, 423 U.S. 403 (1976), a challenge to the 

Secretary's penalty assessment regulations was upheld in a penalty 

collection proceeding. See also Association of Bituminous Contractors 

v. Andrus, 581 F.2d 853,-s6"5-866 (D.C. Cir. 1978)(Leventhal, concurring), 

in which it is suggested that, under the Coal Act, the promulgation of 

a health or safety standard was appropriately chall~nged directly in the 

courts of appeals under section 106 of the Act. Apart from sta·::utory 

enforcement proceedings, a further possible avenue of relief was the 

institution of a suit for injunctive relief against the enforcement of 

allegedly invalid regulations. See National Independent Coal Operator's 

Ass'n v. Kleppe, 423 U.S. 388 (1976). 

Although challenges to the validity of standards under the 1969 

Coal Act were left to be raised in enforcement proceedings, the administrative body established by the Secretary of Interior to adjudicate 

contested cases, the Board of Mine Operations Appeals, declined to 

review such challenges. The basis for the Board's conclusion was that 

J1oa 
the delegation of authority to 'it by the Secretary of Interior did not 

encompass the authority to invalidate rules and regulations issued by 

the Secretary.. Buffalo Mining Co., 2 IBMA 226, 242-245 (1973). Because 

of this perceived limitation on its authority, the Board stated: "The 

power t~ invalidate rules and regulations promulgated by the Secretary 

is not within the scope of authority of this Board or the Administrative 

Law Judge. This power resides in the U.S. District Courts and the 

Courts of Appeals." Peabody Coal Co., 4 IBMA 137, 138 (1975). 

This basis for the Board's refusal to entertain a challenge to the 

validity of a standard does not apply to this Commission. The Commission 

is an independent _adjudicative agency, entirely separate from the 

enforcing agency, and its authority to review Secretarial action is not 

subject to the same constraints as were perceived by the Board. Helen 

Mining Co., 1FMSHRC1796, 1798-1801 (1979), ~· for rev. filed, Nos. 

79-2518, -2537, D.C. Cir., Dec. 19 & 21, 1979. The Commission has been 

given primary adjudicative jurisdiction over disputes arising under the 

Act and is authorized to decide independently questions of fact, law, 

and policy. 30 U.S.C. §823(d). See Bituminous Coal Operator's Assoc. 

v. Marshall, 82 F.R.D. 350 (D.D.C. 1979); Council of the Southern 

Mountains v. Donovan, No. 79-2982 (D.D.C., May 19, 1981). The determination of the validity of a standard obviously could be an important 

step in the resolution of disputes brought before the Commission and, 

absent some'appropriate limitation on our authority to do so, we believe 

validity challenges should be resolved by the Commission. 

The Secretary vigorously asserts, however, that section lOl(d) of 

the 1977 Mine Act is such a limitation of our authority. This section, 

in pertinent part, provides: 

Any person who may be adversely affected by a mandatory health 

or safety standard promulgated under this section may, at any time 

prior to the sixtieth day after said standard is promulgated, file 

a petition challenging the validity of such mandatory standard with 

the United States Court of Appeals for the District of Columbia 

Circuit or the circuit wherein such person resides or has his 

principal place of business, for a judicial review of such 

standard •••• The procedures of this subsection shall be the 

exclusive means of challenging the validity of a mandatory health 

or safety standard. (Emphasis added.) 

This provision by its terms concerns pre-enforcement challenges to 

standards adopted under the 1977 Mine Act, and did not become effective 

until March 9, 1978. The 1977 Act is silent with respect to the review 

of standards previously adopted under the predecessor 1969 Coal Act. We 

fail to see how section lOl(d) of the 1977 Mine Act can be applied 

retroactively to foreclose a challenge to a standard adopted under the 

1969 Coal Act five and one-half years before __ section lOl(d) 's effective 

date. In our view, the 1977 Mine Act leaves intact tjle avenues available 
under the 1969 Coal Act for challenging the validity of standards adopted 

under that Act. !!_/ 

Therefore, .because challenges to the validity of standards adopted 

under the 1969 Coal Act were left to be raised in enforcement adjudications, 

because the Commission stands in a position fundamentally different from 

the Board of Mine Operations App~als, and because section lOl(d) of the 

1977 Mine.Act is only prospectively applicable to standards adopted 

under that Act, we hold that a challenge. to the validity of a standard 

adopted under the 1969 Coal Act can be raised and decided in an adjudication before the Commission. 2_/ 

II. 

Turning to the question of the standard's validity, for the following reasons we conclude that the judge erroneously found 30 CFR §75.1710-

l(a) to be null, void and unenforceable. The starting point for our 

analysis is to trace the development of section 318(i) of the 1969 Coal 

Act to determine its impact, if any, on the adoption of the improved cab 

and canopy standard. 

The provisions of section 318(i) first appeared in Senate bill 

2917, as reported, ~as section 206(1) (10). Legis. Hist. at 52-58. §_/ 

In order to fully understand the requirements of section 318(i) it is 

necessary to read _it in the context of the subsections preceeding it 

(section 206(1)(1)-(9) in S. 2917 as reported, and section 305(a)(l)-

(12) as passed), and the relevant legislative history behind these 

sections. As will be explained below, although most of the discussion 

in the legislative .history concerning sections 305(a) and 318(i) is 

directed to the former, the discussion also sheds considerable light on 

the proper interpretation to be given section 318(i) in this case. 

Section 305(a)(l)-(12) and section 318(i) were derived from section 

206(1)(1)-10) in S. 2917, as reported. The Senate Committee Report 

accompanying S. 2917 devoted considerable attention to the need for the 

provisions of section 206(1)(1)-(10) as a means for controlling ignitions 

and explosions. Legis~ Hist. at 151-161. More specifically, much 

debate was generated over whether to eliminate the distinction between 

gassy and non-gassy mines, the appropriate time periods for requiring 

electric face equipment in all mines to be permissible, and the attendant 

costs and benefits. Id. The Senate Committee resolved these questions 

by deciding to eliminate the gassy/non-gassy distinction, require the 

use of permissible.equipment but provide for non-compliance permits, and 

establish field testing procedures and economic assistance. Id. 

4/ We note that mandatory standards promulgated under the 1969 Coal Act 

remain in effect under the 1977 Mine Act until the Secretary of Labor 

issues a new or revised standard. 30 U.S.C.-96l(b). 

i/ Thus, the application and effect of section lOl(d) of the 1977 Mine 

Act is left to be determined in an appropriate future case. 

&_I References to "Legis. Hist." are drawn from the Senate Subcommittee 

on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 

_ Legislative History of the Fed:ral Coal Mine Health and Safety Act of 

. 1969 (Aug. 1975). 
The section-by-section analysis accompanying the Committee Report 

further discusses the requirements of section 206(1) and, in relevant 

part, states: 

This section would also define the term 11 pn:r1nissible electric face 

equipment" to mean electric equipment taken intn or used inby the 

last open crosscut of the mine--that is, the workir,, place--or 

parts thereof which meets the Secretary's speciFications relative 

to preventing the emission of a spark or arc which could cause 

a mine fire or explosion and which includes other fe~tures to prevent, where possible, accidents in the use of e~· ... tp"_2nt. 

The present regulations of the Bureau of Mines (Schedule 2G) 

would continue until changed, but the Secretary mtist L.iunediately 

develop practical methods, such as field testing, tu facilitate 

approval, for permissibility both under the present reg1<i..:1. tions and 

under revised regulations--to account for the mines requ ;_.,.. e:d to use 

permissible equipment by this bill. Such methods w~ )d .1.eo ognize 

that the primary objective is to prevent mine fires and mine 

explosions from this equipment. Without sacrificing safety, some 

types of equipment, such as "home-made" equipment in some small 

mines, might be made permissible for this purpose. Efforts in this 

direction would facilitate approvals of such equipment without the 

necessity for three year examinations of prototypes in the Bureau 

of Mines laboratory. (Emphasis added.) 

Legis. Hist. at 194-195. See also Legis. Hist. at 159-160. 

In a statement of the individual views of two members of the Senate 

Committee, two members noted their opposition to the elimination of the 

gassy/non-gassy distinction and the required use of permissible electric 

face equipment in all mines. Legis. Hist. at 227-233. On the floor of 

the Senate, considerable debate was focused on this aspect of the bill. 

The issue was addressed at length. Legis. Hist. at 224-245, 353-355, 

360-390, 397-398, 603-664, 668-673, 681-703. The Senate debate was 

resolved in favor of eliminating the distinction between gassy/non-gassy 

mines concerning the use of permissible electric face equipment, but 

extending the effective dates for non-gassy mines and establishing a 

procedure for granting permits for noncomplying equipment. See Legis. 

Hist. at 832-839 for text of section 206(1) as passed by Senate. 

Section 305 of House Bill 13950 dealt with permissible electric 

equipment. Legis. Hist. at 985-991. This section was similar to 

section 206(1) of the Senate Bill in that it eliminated the distinction 

between gassy/non-gassy mines and provided for noncompliance permits in 

non-gassy mines. See House Committee Report on section 305(a), Legis. 

Hist. at 1054, and section-by-section analy?is at 1077-1079. See also 

House Floor Debate at 1171, 1203, 1307, 1340-1242, 1350-1365 and 1379. 

As is clear from a review of these latter cited portions of the.legislative history, the focus of the debate over permissibility requirements 

was different in the House than in the Senate. Whereas in the Senate 

most of the debate focused on whether to eliminate the gassy/non-gassy 

distinction, in the House the debate focused on whether in mines 

formerly classified as non-gassy, the period provided for achieving 

permissibility was too long a period. 
In conference, the language of the Senate bill was adopted with 

technical changes and with changes in the time requirements for compliance. Legis. Hist. at 1527, 1564. The language agreed to in 

conference was enacted as sections 305(a) and 318(i) of the 1969 Act. 

With this background, we can now return to consideration of the 

judge's interpretation of section 318(i). As enacted section 318(i) 

provides: 

"permissible" as applied to electric face equipment means all 

electrically operated equipment taken into or used inby the last 

open crosscut.of an entry or a room of any coal mine the electrical 

parts of which, including, but not limited to, associated electrical 

equipment, components, and accessories, are designed, constructed, 

and installed, in accordance with the specifications of the 

Secretary, to assure that such equipment will not cause a mine 

explosion or mine fire, and the other features of which are 

designed and constructed, in accordance with the specifications 

of the Secretary, to prevent, to the greatest extent possible, 

other accidents in the use of such equipment; and the regulations 

of the Secretary or the Director of the Bureau of Mines in effect 

on the operative date of this title relating to the requirements 

for investigation, testing, approval, certification, and acceptance 

of such equipment as permissible shall continue in effect until 

modified or superseded by the Secretary, except that the Secretary 

shall provide procedures, including, where feasible, testing, 

approval, certification, and acceptance in the field by an 

authorized representative of the Secretary, to facilitate compliance by an operator with the requirements of section 305(a) of 

this title within the periods prescribed therein; (Emphasis added). 

As previously discussed, the judge apparently invalidated the 

standard based on his conclusion that in promulgating the cabs and 

cano.pies standard the Secretary failed to adopt specifications pertaining to the design, construction and installation of canopies and, 

therefore, failed to comply with the underscored provisions of this 

section. In doing so, we believe the judge erred. 

Although section 318(i)'s definition of permissible electric face 

equipment includes equipment whose non-electric features "are designed 

and constructed, in accordance with the specifications of the Secretary, 

to prevent, to the greatest extent possible, other accidents in the use 

of such equipment", our examination of the legislative history has 

turned up no explanation as to the meaning or impact of that clause. 

Instead, as is clear from the summary set forth above, all of the 

discussion in the legislative history is directed at the electrical 

features of permissible equipment and the concern for preventing ignitions and explosions. Since nowhere in the legislative history is the 

meaning or purpose of the "other accidents" phrase specifically or 

impliedly discussed, we believe it is appropriate to view it simply as 

a provision that provides the Secretary with the authority to also 

develop permissible design and construction specifications for the nonelectric features of electrical equipment. Thus, if particular specifications for cabs or canopies for electric face equipment were developed 

by the Secretary, he co~ld make such specifications mandatory components 

of permissible equipment. 

140? 
Furthermore, the legislative history makes clear that the provision 

in section 318(i) regarding the continuance of the Bureau of Mine regulations and the need for development of further procedures by the SeGr~tary 

was directed at maintaining the permissibility requirements for electrical 

equipment then in effect (Bureau of Mines Schedule 2G, 30 CFR Part 18, 

subpart A through D), and effectuating the expressed congressional 

desire that further procedures be established for facilitating compliance 

with the permissibility requirements by small operators. The Secretary 

accomplished the latter by adding a new subpart E to Part 18, "Field 

Approval of Electrically Operated Mining Equipment". See Legis. Hist. 

at 195; 35 Fed. Reg. 19790; and 36 Fed. Reg. 7007. 

Thus, we believe that the judge read section 318(i) too broadly in 

concluding that the Secretary was required to proceed under that section 

in promulgating a cabs and canopies standard. Section 318(i) should not 

be read to preclude the Secretary's use of other available statutory 

options for the promulgation of safety standards. In our view, the 

Secretary acted properly procedurally in availing himself of the option 

to improve the statutory cabs and canopies standard (section 317(j)) 

under the authority of section lOl(a) of the Act. (Secretary may 

develop, promulgate and revise improved mandatory safety standards). 

The judge's decision further suggests, however, that in promulgating the standard the Secretary violated one of the substantive 

mandates of the statute, i.e., section lOl(b)'s mandate that no improved 

mandatory standard shall reduce the protection afforded miners below 

that provided by any mandatory health and safety standard. This conclusion of the judge appears to be premised on two inte~related bases. 

First, because the judge believed the Secretary was required to proceed 

under section 318(i) in promulgating the improved standard, in his view 

the Secretary's failure to set forth specifications and certification 

procedures for cabs and canopies necessarily diminishes the level of 

safety provided for in the statute. In view of our conclusion that the 

Secretary was not required to proceed under 318(i) in adopting an 

improved cabs and canopies standard, this ground for invalidating the 

standard must be rejected. 

Second, it also appears that the judge based his finding of a 

reduced level of protection, at least in part, upon more specific 

grounds for finding that compliance with the improved standard causes a 

diminution of safety. In various parts of his memorandum opinion, the 

judge refers to cases.involving petitions for modification of the 

application of the cabs and canopies standard, and statements by the 

Secretary and his agents made in extending and suspending the application of the standard in various mining heights. As discussed below, 

we believe each of these grounds is an inadequate basis for invalidating 

the standard. 

The judge cites several petition for modification decisions and 

notes that the "[t]estimony in modification cases as to the burdens 

placed upon the operators and the hazards to which miners are exposed is 

voluminous." We conclude that there is no basis in the record for 

concluding that 30 CFR §75.1710-1 has reduced the protection afforded 
miners. Each of the modification cases cited in the judge's decision 

contains findings, based upon testimony of record, that enforcement of 

30 CFR 75;1710-l(a) as to certain pieces of equipment will, at various 

specified heights, diminish the safety of th~ miners to some degree. 

The issue in such petition for modification cases is whether the 

standards as applied at the mines involved would result in a diminution 

of safety to the miners. Section 30l(c) of the 1969 Coal Act; section 

lOl(c) of the 1977 Mine Act. This issue is far different fro~ one 

requiring resolution of the broader question of whether an improved 

mandatory standard redue~s the level of protection afforded miners 

generally,and in all applications,below that provided by a mandatory 

statutory standard. It is this more general issue that would have to be 

resolved before a standard could be declared invalid because it reduces 

protection below that provided by a mandatory standard. Because the 

cited modification cases do not involve or resolve the issue of the 

standard's general effect on existing levels of safety, they provide no 

support for the judge's action in striking down the standard in the 

present case. 

Nor do we believe the judge properly relied on statements made by 

the Secretary and his agents in extending and suspending the standard's 

requirements in certain mining heights. In first extending the effective 

date for compliance in mining heights of less than 30 inches, the 

Secretary stated: 

(I]n lower mining heights, particularly those below 30 inches, 

certain human engineering problems have not been fully solved. 

While these problems vary depending upon the particular mining 

equipment, they include impaired operator vision, and operator 

cramping and fatigue. Because of these unsolved engineering 

problems the Secretary has determined that certain dates should be 

extended on and after which coal mines having specific mining 

heights must install canopies or cabs. This action is considered 

necessary in order to permit development of additional 'technology 

on canopy or cab design, in conjunction with accomplishing equipment design changes to adapt canopies or cabs. 

41 Fed. Reg. 23200 (June 9, 1976). 

Later, in a notice published on July 7, 1977, the Secretary 

reviewed the status of compliance with the standard, and concluded that 

"even though existing technology might be applicable to some 

equipment used in mining heights below 30 inches ... , substantial 

amounts of existing equipment could not be retrofitted and brought 

into compliance at this time •... To meet and correct this situation 

MESA is developing specifications for cab and canopy compartment 

coniiguration for new mining equipment pursuant to section 318(i) 

[of the 1969 Act]. These regulations and specifications, when 

completed, will be processed and promulgated in accordance with 

section 101 of the Act." 

42 Fed. Reg. 34877. Accordingly, compliance with the cabs and canopies 

standard was suspended in mining heights less than 30 inches. 
We believe the judge read these statements too broadly. They do 

not show, contrary to the judge's suggestion, that the standard has 

generally reduced the level of protection afforded miners. Rather, the 

statements made in extending and suspending the.dates for compliance in 

certain mining heights--heights lower than those involved in the present 

case--evidence a recognition of certain problems in lower mining heights 

as well as a recognition of the documented benefits att.ained by the 

standard in mining heights above 30 inches. ~ 42 Fed. Reg. 34876-77. 

Therefore, it is our conclusion .that, on the basis of the record in this 

case, the judge did not properly find that 30 CFR §75.1710-l(a) reduced 

the level of protection afforded by the stabutory mandatory standard and 

thus was void because it contravened section lOl(b). 

In his decision the judge also appears to have found that the 

standard is invalid because of its "technology forcing" nature. The 

judge stated: 

the Federal Coal Mine Health and Safety Act of 1969 

and its successor place an affirmative obligation upon 

the Secretary to conduct the research necessary to ensure 

that the standards he promulgates enhance, rather than 

decrease, the level of protection afforded the miners. 

Like the Occupational Safety and Health Act, the 1969 

and 1977 Mine Safety Acts do not permit the Secretary 

to place an affirmative duty on each operator to research 

and develop new technology •.•• Thus, the regulation 

at issue which requires each operator to conduct such 

research and development--and thereby places miners 

at risk--is beyond the authority of the Secretary to 

promulgate and must be deemed invalid and unenforceable. 

This rationale appears to be interwoven with his conclusion, rejected 

above, that the Secretary was required to develop specifications under 

section 318(i). 

The record in the present case does not support the judge's 

suggestion that the Secretary did not properly follow the directive of 

section lOl(c) in promulgating the cab and canopy standard. 7/ The 

preamble to the adoption of the standard at 37 Fed. Reg. 206S9 (October 

3, 1972), reflects that the statute's notice and comment rulemaking 

procedures were followed in promulgating the standard. A proposed rule 

was published (36 Fed. Reg. 5244 (March 18, 1971)), objections were 

filed, and an evidentiary hearing was held. On the basis of the rulemaking record the Secretary concluded: 

J_/ Section lOl(c) of the 1969 Coal Act in relevant part provided: 

[D]evelopment and revision of mandatory safety standards shall 

be based upon research, demonstrations, experiments, and such 

other information as may be appropriate. In addition to the 

attainment of the highest degree of safety protection for miners, 

other considerations shall be the latest scientific data in the 

field, the technical feasibility of the standards, and experience 

gained under this and other safety statutes. 

14l0 
(5) Practical technology is available to design and construct a 

substant.ial canopy or cab for installatio:n on self-propelled electric face equipment of sufficient strength to protect the equipment 

operator from a non-massive roof fall. 

(6) Although practical technology is available to design and 

construct a substantial canopy or cab for installation on selfpropelled electric-face equipment of sufficient strength to protect 

the equipment operator from a nonmassive roof fall, it has been 

shown that in mining heights less than 72 inches, additional 

research and study is necessary to solve human engineering problems 

such as reduction of visibility and cramping of the equipment 

operator. Such research and study is currently being undertaken on 

behalf of the Bureau of Mines and results will be available in 

calendar year 1973. Depending upon the results of such research 

and study, as well as experience gained in the course of enforcement of the Federal Coal Mine Health and Safety Act of 1969 and 

other pertinent statutes, the timetables, based on mining heights, 

for the installation of canopies or cabs on self-propelled electricface equipment, contained in §75.1710-l(a), (2), (3), (4), (5), and 

(6), may be shortened or lengthened. 

(7) Observation of self-propelled electric-face equipment presently in use (including machinery presently equipped with canopies 

or cabs) shows that practical technology is available to retrofit 

existing self-propelled electric-face equipment with substantially 

constructed canopies or cabs. 

(8) Manufacturers of new self-propelled electric-face equipment 

need the same amount of ti~e to design and install substantially 

constructed canopies or cabs on such equipment as do coal mine 

operators to design and install canopies or cabs on equipment 

presently in use. 

37 Fed. Reg. 20689 

On the basis of these findings, the Secretary adopted 30 CFR 

§75.1710-1 requiring cabs and canopies, establishing a staggered schedule for compliance in descending mining heights, and specifying certain 

criteria for the construction of such cabs and canopies. In regard to 

the latter, the standard provides in part: 

For the purposes of this section, a canopy or cab will be considered to be substantially constructed if a registered engineer 

certifies that such canopy or cab has the minimum structural 

capacity to support elastically: (1) a dead weight load of 18,000 

pounds, or (2) 15 p.s.i. distributed uniformly over the plan view 

area of the structure, whichever is lesser. 

30 CFR §75.1710-l(d). 

Thus, as adopted the standard combines specification and performance 

criteria, i.e., it specifies the type of protection required (cabs or 

canopies) and specifies minimum support specifications, but it leaves to 

the operator or manufacturers the duty to determine precisely how such 

performance can be achieved on each particular type of equipment used. 
Certainly, if the judge suggests that the Secretary is without authority 

to adopt performance standards under the Act, this suggestion must be 

rejected.. We find no provision in the Act prohibiting the use of performance standards. Indeed, performance standards are recognized as 

being a valuable and legitimate means of regulation. As has been stated: 

Performance standards are generally to be pref erred over those 

w~ich contain specific requirements, as they give employers 

latitude in selecting a means of compliance which is best suited to 

their operation. 

Diebold, Inc., 3" BNA OSHC 1897, 1900 (1976)(0SHRC), rev'd on other 

grounds, 585 F.2d 1327 (6th Cir. 1978). Thus, simply because the 

standard may leave the specific means for achieving compliance up to an 

operator, does not mean that the Secretary has impermissibly shifted the 

burden of research to an operator. To the contrary, the findings 

accompanying the adoption of the standard shows that sufficient 

practical technology existed warranting adoption of the standard. 

The judge relied heavily upon American Iron and Steel Institute v. 

OSHA, 577 F .2d 825 (3d Cir. 1978), to support his conclusion. that "the 

1969 and 1971 Mine Safety Acts do not permit the Secretary to place an 

affirmative duty on each operator to research and develop new technology." 

The judge again appears to have painted with too broad a brush. The 

Court in American Iron and Steel was interpreting an OSHA standard that 

combined specification and performance elements in requiring compliance 

with a specified coke oven emissions exposure limit, and, if after 

implementation of all engineering and work practice controls compliance 

was not achieved, mandated that "the employer ••. research, develop and 

implement engineering and work practice controls necessary to reduce 

exposure." 29 CFR·§l910.1024(f)(l)(ii)(b). The Court found the statute 

did not allow the Secretary to place an affirmative duty upon an 

employer to research and develop new technology. 577 F.2d at 838. 

There is, however, no affirmative duty for research and development 

placed upon an operi'ltor in the cabs and canop·ies standard. 

Moreover, the Court found the performance requirements of the 

standard there challenged to be properly promulgated, stating: 

As we have construed the statute, the Secretary can impose 

a standard which requires an operator to implement technology 

"looming on today's horizon," and is not limited to issuing 

a standard solely based upon technology that is fully developed 

today. 

In the present case, the judge found that "canopy technology looms on 

some future horizon, not today's." This finding, however, is supported 

by a reference to the suspension of the can~py requirements in heights 

30 inches or under, 42 Fed. Reg. 34876, and to decisions granting 

petitions for modification. The judge ignored the parts of the canopy 

suspension notice relevant to this case, i.e., the finding of existing 

practical technology in mining heights above 30 inches. In the notice 

suspending the standard under 30 inches the Secretary stated: 
The•results of the compliance study indicate that con~ 

siderable progress has been made in mee'ting the requirements of ·the standards, except in mining heights less 

than 30 inches. Of 12,910 pieces of equipment reported 

to be affected by the requirements in mining heights of 

36 inches and above (actual height from bottom to top of 

48 inches or more).9,631 pieces of equipment (approximately 75 percent) were in compliance with the standards. 

In mining heights of 30 inches or more, but·less than 

36 inches (actual height from bottom to top of 42 inches, 

but less than 48 inches) 581 of 2,137 pieces of equipment required.to meet the standards were reported to be 

in compliance (approximately 27 percent). Compliance 

in mines with mining heights below 30 inches (actual 

height from bottom to top of less than 42 inches) was 

negligible. 

This study also revealed that cabs or canopies continue 

to have a tremendous impact on the reduction of injuries 

or fatalities involving operators of self-propelled 

electric face equipment, including shuttle cars. Reports 

indicate that from 1974 through 1976 at least 111 equipment operators have been saved from certain death or 

serious injury because a cab or canopy protected the 

operator from falls of roof, face, or rib. Sixty of these 

"saves" occurred during 1976. Moreover, an analysis of 

haulage fatalities indicates that the number of equipment operators killed due to being pinned, squeezed, or 

crushed against the roof, rib, or other equipment, and 

dislodged posts have also been significantly reduced. 

42 Fed. Reg. 34877. We believe this finding shows that an appropriate 

level of practical cab and canopy technology in fact existed. Therefore, we conclude that the record does not support the judge's 

finding that the general performance standard adopted by the Secretary 

places an illegal burden on mine operators. 

Each of the·grounds relied upon by the judge have failed; his 

conclusion that 30 CFR §75.1710-l(a) is null, void and unenforceable 

is reversed. 

III. 

Apart from his finding that the standard was invalid, the judge's 

dismissal of the penalty petition was also based o~ a finding that 

"on the dates the aforesaid notice and citation issued compliance 

with .•• 30 CFR §75.1710-l(a) was impossible without diminishing the 

safety of miners •.•• " The judge made this finding prior to hearing 

or stipulation of facts. The only relevant materials in the record 

when this finding was made were the notice and citation, Sewell's 

response denying the violations, and the Secretary's motion to approve 

settlement. 
Regarding the notice of violation pertaining to the roof drill, the 

motion stat.ed: 

At the time the Notice was issued, the technology 

to abate the citation was in an experimental stage. 

Further, in some instances the use of canopies on 

Galis drills had caused injuries to employees performing tranuning operations. Petitioner recognized 

the difficulties Respondent was experiencing in 

attempting to abate the violat.ion and extended the 

abatement period on three occasions subsequent to 

the Notice~ Abatement finally was achieved by abandonment of the cited ••. Section •.•• 

Accordingly, although a violation of the cited 

. standard existed,. only a nominal penalty for the 

violation would be appropriate. 

As to the citation concerning the shuttle car, the motion stated: 

At the time of the inspection, no cab or canopy 

was connnercially avaiiable for Respondent's use 

on a shuttle car working in 43-inch high coal. 

Nevertheless, Respondent was able to provide a 

shuttle car to work in the cited area which had 

been specially equipped with a canopy. Respondent 

has a program to equip all of its underground 

equipment with cabs or canopies wherever it is 

possible to do so. In light of Respondent's good 

faith in attempting to comply with the cited . 

technology forcing standard, Petitioner moves for 

approval of the $25.00 penalty ••. , to which the 

parties have agreed. (Emphasis added.) 

Thus, although the settlement agreement reflects that difficulties were 

encountered by Sewell in attempting to generally comply with 30 CFR 

75.1710-l(a), the agreement falls short of stating that compliance in 

the specific instances at issue here was not possible without diminishing the safety of miners. In fact, with regard to the second citation 

the settlement agreement states that Sewell "was able to provide a 

shuttle car to work in the cited area which had been specially equipped 

with a canopy." The judge's finding that safe compliance was not 

possible appears to be directly contrary to this statement. 

The judge's finding was based in part on a decision of the Administrator for Coal Mine Safety and Health in a petition for modification 

case filed by Sewell under section 30l(c) of the 1969 Coal Act. Sewell 

Coal Co., No. M 76-131, April 27, 1979. In that proceeding, the 

Administrator granted in part and denied in part a petition for modification of the application of 30 CFR §75.1710-l(a) to numerous pieces of 

electric face equipment in several of Sewell's mines, including the mine 

in which the violations at issue here arose. The judge's decision provides no clear discussion of the interrelationship between the factual 

1414 
matters at issue in this enforcement proceeding and those at issue in 

the modification case, nor is the legal effect that the grant of a 

modification petition has on a pending enforcement proceeding discussed. 

See our decision in Penn Allegh Coal Co., PITT 78-97-P, issued this 

date. We note that in the present case, unlike the situation before us 

in Penn Allegh, a petition for modification was filed prior to the 

issuance of the notice and citation. Id. at n.10. 

In view of the fact that our decision in Penn Allegh discusses for 

the first time the relationship between enforcement proceedings and 

modification proceedings, and because the parties had no opportunity 

prior to the judge's order of dismissal to present arguments addressing 

this issue in the context of the facts of this case, a remand for further 

proceedings is necessary. 

Accordingly, the judge's decision is reversed and the case remanded 

for further proceedings consistent with this opinion. 

Commissioner 

Manian/Pearlman Nease, Commissioner 

, I l I 

A -t ,. . 

. : .t \.) 

,e-
Distributi.on 

Cynthia L. Attwood 

Michael A. McCord 

Leslie J. Canfield 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wils:on Boulevard 

Arlington, Virginia 22203 

Etetcher A. Cooke 

The Pittson Coal Co. Group 

Sewell Coal Company 

Lebanon, Virginia· 24266 

Administrative Law Judge Joseph B. Kennedy 

Office of Administrative Law Judges 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike 

10th Floor•Skyline C~nter #2 

Falls Church, Virginia 22041 

·'-· ·:i · l r 'I 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 ' 

June 29 ~ 19.81 

Docket No. WEVA 79-360 

KING KNOB COAL COMPANY, INC. 

DECISION 

This civil penalty case under the 1977 Mine Act, 30 U.S.C. §801 

et seq. (Supp. III 1979), involves a conflict between a mandatory 

safety and health standard and MSHA's purported interpretation of 

that standard in its interim inspector's manual. For the reasons 

set forth below, we hold that the standard controls over the manual 

and affirm the administrative law judge's decision. 

The essential.facts are undisputed. In January 1979, a fatal 

accident occurred on the haulage road of a King Knob Coal Company 

strip mine when an employee was struck by one of King Knob's threequarter ton pickup trucks being driven in reverse. The pickup was 

used in King Knob's mining operations for transportation purposes. 

The pickup was not equipped with a backup alarm and as a result King 

Knob was cited for violating 30 CFR §77.410, which provides: 

Mobile equipment; automatic warning devices. 

Mobile equipment, such as trucks, forklifts, 

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. 

The judge held that the plain language of §77.410 includes ~ickups. within the class of regulated vehicles and concluded that-"[s]ince 

King Knob concedes that the subject pickup truck did not have the 

specified warning device it is apparent that the violation is proven 

as charged." 2 FMSHRC 1679, 1680 (1980). 

The judge rejected King Knob's liability defense that it was 

entitled to rely on an explanation of §77.410 contained in the 1978 

MSHA Interim Mine Inspection Manual. The Manual is an informally 

promulgated handbook containing "guidelines" to aid inspectors in 

enforcement of the Mine Act. The guideline explaining §77.410 

81-6-12 
excepts pickups from the warning device requirement provided that 

their rear views are "not obstructed." 1/ The judge classified 

this reliance.argument as "essentially one of equitable estoppel" 

and held that estoppel was ·inapplicable.to the federal government in 

the discharge of "sovereign," as opposed to "proprietary," functions. 

2 FMSHRC at 1680. He found the enforcement of mine safety standards 

"a unique governmental function for the benefit of the public" and 

concluded that equitable estoppel could not "be successfully invoked 

as a defense to violations of the Act and its implementing regulations." 

Id. However, in determining the appropriate penalty the judge considered 

the reliance effect of the Manual's exception. Based on his conclusion 

that the pickup's rear view was unobstructed, he found that "King Knob 

could have reasonably believed that it was in compliance with MSHA's 

policy excepting pickup trucks from the backup '.alarm standard where 

the operator's view to the rear is not obstructed." Id. at 1682. 

Therefore, he held that King Knob was not negligent in--failing to 

have a backup alarm on the truck and assessed a nominal penalty 

of $10. Id. 

We first consider the liability issues without reference to the 

Manual. King Knob contends that §77.410 refers only to heavy off~road 

vehicles and not to light-weight highway vehicles. King Knob argues 

that because "loaders," "tractors," and "graders"--other enumerated 

kinds of "mobile equipment"--(fre large vehicles, "trucks" must similarly 

refer to large off-road trucks commonly used for hauling heavy 1oads at 

surface.mines. King Knob bolsters this argument by noting that where 

the term "mobile equipment" appears in other sections in the subpart 

containing §77.410 (Subpart E, "Safeguards for mechanical equipment"), 

large vehicles are contemplated. 

We do not agree. "Trucks" are expressly mentioned as one kind of 

regulated "mobile equipment." "Truck" is a generic term and, of course, 

pickups are a familiar type of light truck. Since §77.410 does not 

1_/ The Manual provides: 

POLICY 

Any vehicle being operated on the mine property that is 

capable of going in reverse shall be equipped with an automatic 

warning device which shall give an audible alarm when such equipment starts moving in a reverse direction, and remain in operation 

during the entire reverse movement. 

The warning device required by this section need not be 

provided for automobiles, jeeps, pickup trucks, and similar 

vehicles, where the operator's view directly behind the vehicle 

is not obstructed. Service vehicles making visits to surface mines 

or surface work areas of underground mines are not required to be 

equipped with such warning device. (Emphasis added). 

[Interim Mine Inspection and Investigation Manual, Ch. III, p. 205 

(March 1978)]. 

A virtually identical provision was included in a predecessor 

manual, MESA's 1974 Surface Coal Mine Inspection Manual. 

1418 
expressly differentiate among various types of trucks subject to coverage, its plain language extends to pickups. This conclusion is reinforced by the breadth of §77.410's central term, "mobile equipment." In 

Lucas Coal Company v. IBMOA, 522 F.2d 581, 584-585 (3rd Cir. 1975), the 

court treated "mobile equipment" as an extensive term encompassing 

several different vehicles used in a mining operation, specifically 

bulldozers. We concur in the court's view that "[t)he five examples set 

forth in §77.410 ••• preceded by the words 'such as,' are plainly not 

all-inclusive as to the section's coverage." 522 F.2d at 585. 

Further, the _obvious purpose of § 77. 410 is to protect miners from 

vehicles of various size moving in reverse. 2/ The standard is premised 

on the general recognition that a driver's rear view is ordinarily not 

as good, and hence as safe, as the forward view. Even if their role at 

a mine is primarily auxiliary, three-quarter ton pickups are nevertheless medium-sized vehicles whose relative speed compared with heavier 

vehicles constitutes a hazard in the busy mine setting. This clear 

danger as well as the facially broad reach of both "trucks" and "mobile 

equipment," lead us to conclude that recognizing the exception for which 

King Knob contends would constitute amendment rather than interpretation 

of the standard. Certainly, if the standard's drafters had intended to 

except light trucks from the overall class of "trucks," they could 

easily have written the standard to reflect the exception. The answer 

to King Knob's reliance on other references to mobile equipment in 

subpart E is that subpart E addresses diverse safety concerns. The 

various sections within subpart E deal with different problem areas, 

~th each of these areas requiring varying degrees of coverage. Apart 

from the Manual, therefore, King Knob's three-quarter ton pickup truck 

used in mining operations was "mobile equipment" within the meaning of 

§77.410; since King Knob conceded that the pickup lacked a backup alarm, 

a finding of violation is dictated unless the effect of the Manual 

provisions compels a different result. 

The MSHA Manual's pickup exception injects two issues into what 

would otherwise be a straightforward analysis of §77.410's coverage: 

whether we are required to read §77.410 as if the pickup exception were 

written into it and, even if we are not, whether the existence of the 

Manual exception estops the government from prosecuting this case. 

·2/ We note that the standard's mention of "forklifts," which are 

normally small or medium-sized, indicates that the class of covered 

vehicles is not exclusively limited to the very large or very heavy. 

141B 
Regarding the Manual's general legal status, we have previously 

indicated that the Manual's "instructions are not officially promulgated 

and do not prescribe rules of law binding upon [this Commission]." 

Old Ben·Coal Company, 2 FMSHRC 2806, 2809 (1980). In general, the 

express language of a statute or regulation "unquestionably controls" 

over material like a field manual. See H.B. Zachry v. OSHRC, 638 F.2d 

812, 817 (5th Cir. 1981). We find the OSHRC's analogous treatment of a 

similar OSHA manual generally applicable: "the guidelines provided by 

the manual are plainly for internal application to promote efficiency 

and not to create an administrative straightjacket [;they] do not have 

the force and effect of law, nor do they accord important procedural or 

substantive rights to individuals." FMC Corporation, 5 OSHC 1707, 1710 

(1971). This do.es not mean that the Manual's specific contents can 

never be accorded significance in appropriate situations. Cases may 

arise where the Manual or a similar MSHA document reflects a genuine 

interpretation or general statement of policy whose soundness commends 

deference and therefore results in our according it legal effect. 3/ . ' - This case, however, does not present that situation. 

We cannot view the Manual commentary on §77.410 as a genuine 

interpretation or general policy statement; rather, it is clearly an 

attempted mo~ification of the standard's requirements. The commentary 

contains an "obstructed view" and pickup exception not even remotely 

alluded to in the regulation's language. Indeed, as we concluded above, 

a pickup exception is inconsistent with the standard's broad language. 

Section lOl(a) of the 1977 Mine Act (30 U.S.C. §8ll(a)) requires all 

rules concerning mandatory health or safety standards to be promulgated 

in accordance with §553 of the APA (5 U.S.C. §553). Further, §10l(a)(2) 

requires the Secretary to publish in the Federal Register any "proposed rule promulgating, modifying, or revoking a mandatory health 

3/ An agency interpretation is a statement of what the agency thinks a 

statute or regulation means. Chamber of Commerce of U.S. v. OSHA, 636 

F.2d 464, 469 (D.C. Cir. 1980). General statements of policy are 

"'statements. issued by an agency to advise the public of the manner in 

which tpe agency proposes to exercise adiscretionary function.'" Amer. 

Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980), quoting 

Attorney General's Manual on the Administrative Procedure Act, 30 n.3 

(1947). Interpretations and general policy statements are distinct from 

ordinary "legislative" regulations, are excepted from the APA's notice 

and comment procedures (infra), and, in general, lack the force and 

effect of law. Chrysler Corp. v. Brown, 441 U.S. 281, 301-303 & n. 

31 (1978). Although a reviewing body is not bound by an interpretation 

or general policy statement, it may choose to defer to and apply such 

pronouncements, thereby endowing them with a status that equals or 

approximates the force and effect of law. Agency expertise, the soundness of the pronouncement in question, and the formality with which 

the matter was promulgated are all factors which bear on deference. 

We note that the Manual is a relatively informal compilation not 

published in the Federal Register, and those factors weigh against 

deference. 

l ~ •) ( J ...l '~;:;.,, 
o~ safety standard" _and to permit· public comment on the propo~ed 

regulation· (emphasis added). Section 553 of the APA requires that to 

the extent a· ·rule is more than an interpretation or general statement of 

policy, it is subject to that Act's notice and comment requirements. 

The Manual's attempted modification of §77.410 was not promulgated in 

accordance with these requirements. Therefore, the Manual's provisions 

on §77.410 lack the force and effect of law and §77.410 stands as written. 

See Chamber of Commerce of U.S. v. OSHA, 636 F.2d at "468-471; Brown Express, 

Inc. v. United States, 607 F.2d 695, 700-701 (5th Cir. 1979); Firestone 

synthetic Rubber & Latex Co. v. Marshall, 507 F. Supp. 1330, 1334-1339 

(E.D. Tex. 1981). 

This holding means that we will apply §77.410 as construed above 

without reference to the Manual. However, this disposition does not 

completely resolve the liability issue in this cas·e. Even if the 

Manual's pickup and obstructed view language has no legal effect, King 

Knob argues that the Secretary is estopped from finding a violation 

because King Knob was equitably entitled to rely on the "pickup 

exception.".!!_/ 

King Knob's argument has some force. The Manual's Introduction 

invites trust by stating in part that: 

The Manual is also intended to acquaint the mining 

industry, State inspection agencies, Federal agencies 

and other interested persons and organizations with 

the administration of the Act and Regulations. [Id. 

at vii.] --

There is no disclaimer in the Introduction warning an operator that the 

Manual is not a source of law binding on the Secretary, the Commission, 

or courts. Nevertheless, we cannot accept King Knob's position.· 

The Supreme Court has held that equitable estoppel generally does 

not apply against the federal government. Federal Crop Insurance Corp. 

v. Merrill, 332 U.S. 380, 383-386 (1947); Utah Power & Light Co. v. 

United States, 243 u;s. 389, 408-411 (1917). The Court has not expressly 

overruled these opinions, although in recent years lower federal courts 

have undermined the Merrill/Utah Power doctrine by permitting estoppel 

against the government in some circumstances. See, for example, United 

States v. Lazy F.C~ Ranch, 481 F.2d 985, 987-990 (9th Cir. 1973); United 

States v. Georgia-Pacific Co., 421 F.2d 92, 95-103 (9th Cir. 1970). 

Absent the Supreme Court's expressed approval of that decisional trend, 

we think that fidelity to precedent requires us to deal.conservatively 

with this area of the law. This restrained approach is buttressed by 

the consideration that approving an estoppel defense would be inconsistent 

4/ In connection with the estoppel issue, we find that substantial 

evidence supports the judge's finding that the pickup's rear view was 

unobstructed._ Thus, King Knob fits squarely within the Manual's purported exception. We reject the Secretary's argument on review that 

the pickup's tailgate constituted an obstruction. Since all pickups 

have tailgates, recognizing tailgates as "obstructions" would make the 

Manual's commentary virtually meaningless. 

t j •) J 

J.. -:?. '""' . 
with the liability without fault structure of the 1977 Mine Act. See 

El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (1981). Such a defense 

is really a ·claim that although a violation occurred, the operator was 

not to blame for it. Furthermore, under the 1977 Mine Act, an equitable 

consideration, such as the confusion engendered by conflicting MSHA 

pronouncements, can be appropriately weighed in determining the appropriate penalty (as the judge did here). 

Even the decisional trend which. recognizes an estoppel defense 

refuses to apply the defense "if the government's misconduct [does not] 

threaten to work a serious injustice and if the public's interest would 

••• be unduly damaged by the imposition of estoppel" (emphasis added). 

United States v. Lazy F.C. Ranch, 481 F.2d at 969. In view of the 

availability of penalty mitigation as an avenue of equitable relief, we 

would not be persuaded that finding King Knob liable--the Manual notwi thstanding--would work such a "profound and unconscionable injury" 

(Lazy F.C. Ranch, 481· F.2d at 989) that estoppel should be invoked. 

Finally, the record is devoid of any showing that King Knob actually 

relied on the Manual's exception, rather then merely being "entitled" to 

rely on it. Courts have required that actual reliance be shown. See, 

for example, United States v. Georgia-Pacific Co., 421 F.2d at 96-~ 

n. 4. 

In sum, we find the Manual commentary to be without legal effect, 

reject King Knob's estoppel arguments, and therefore affirm the judge's 

liability findings on the basis of our construction of §77.410 above. 

In reaching this result, we do not adopt the judge's "sovereign/proprietary" 

governmental function distinction, which we deem unnecessary to resolution 

of liability. 

We agree with the judge's handling of the penalty issue. MSHA's 

equivocal enforcement policy made it difficult and confusing for a 

reasonable operator to know the true standard of care imposed by 

§77.410, and, hence, whether it was in a state of violation or compliance. Even though King Knob did not show actual reliance on the 

Manual, the proper negligence question is either what it actually knew, 

or what it should (or could) have known, concerning the appropriate 

standard of care. We think that the confusion caused by the Manual 

interfered with King Knob's ability to ascertain the true standard of 

care and therefore placed it in a position where it could have believed 

it was in compliance. Penalizing King Knob for confusion caused by MSHA 

strikes us as unfair and harsh. Under these circumstances, we agree 

with the judge that King Knob was not negligent. We also find support 

in United States v. American Greetings Corp., 168 F.2d 45, 50 (N.D. Ohio 

1958), aff'd per curiam, 272 F.2d 945 (6th Cir. 1959). There, the Court 

imposed liability despite estoppel claims, but reduced the penalty under 

analogous circumstances of an agency's "misleading" a respondent. 

We emphasize that our decision prospectively obviates future confusion surrounding the meaning and scope of §77.410. The decision will 

also alert the public to the need for using the Manual, and similar 

1422 
materials, with caution. We also express the hope that this opinion 

will encourage MSHA to use its Manual in a responsible manner. In our 

view, such .materials should contain, at the least, a precautionary 

statement warning users of their informality and non-binding nature. As 

this case unfortunately demonstrates, less than careful dissemination of 

such materials can cause enforcement and compliance confusion and, at 

worst, can diminish the protection of the Act and implementing 

regulations. 

For the foregoing reasons, 

~\~HU\ ''R~oJ.YJ1HJ» 'lloa,u 

Marian Pearll\!8-n Nease, Commissioner 
Distribution 

Duane Southern, Esq. 

Rose, Southern & Padden 

612 First National Bank Bldg. 

Fairmont, W. Virginia 26554 

Cynthia L. Attwood, Esq. 

Ronald E. Meisburg, Esq. 

Office of the Solicitor 

U. S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

Office of the Administrative Law Judges 

Federal Mine Safety & Health Review Commission 

5203 Leesburg·Pike, 10th Floor 

Building 2 

Falls Church, Virginia 22041 
·Administtative·Law Judge Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FAlLS CHURCH, VIRGINIA 22041 

JUN 1 \98\ 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL CO., 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 81-270 

A.O. No. 46-01454-03076V 

Pursglove No. 15 

DECISION AND ORDER 

The parties move for approval of a settlement (at 90% of the amount 

initially assessed) of a charge that on August 14, 1980, a federal mine 

inspector observed an accumulation of approximately 24 tons of loose 

coal in the number 2 and 4 entries of the 1 Right Section of the 

Pursglove No. 15 Mine. Sometime prior to this the condition had been 

noted by the section foreman, Michael Jackson, who took no corrective 

action. The record does not show what action or inaction by the section 

foreman or his superiors resulted in this excessive and dangerous accumulation 

of combustibles. 

What is clear is that this was a violation that resulted from a 

·culpable indifference on the part of manage~ent to a reasonably 

foreseeable and objectively ascertainable risk of·serious bodily harm 

or death. Under existing law, this disregard for the safety of the 

mine is automatically imputable to the operator. As this case shows, 

enforcement would be seriously debilitated if this rule were changed so 

as to immunize operators .from accountability for. serious violations on 

a showing that the condition was attributable to an act of negligent 

indifference by an individual rank-and-file miner or his supervisor. 

Based on an independent evaluation and de novo review of the 

circumstances, I find the proposed settlement is marginally acceptable. 

Once again I must voice my concern that no disciplinary action was taken 

against the individual or individuals responsible because management 

apparently feels such action is counterproductive to other objectives. 

Accordingly, it is ORDERED that the motion to approve settlement 

be, and hereby is, GRANTED. It is FURTHER ORDERED that the operator 

pay the amount of the settlement agreed upon, $900, on or before 
Friday, June 19, and that subject to payment the captioned matter 

be DISMISSED. 

Distribution: 

Jerry F. Palmer, Esq., Consolidation Coal Company, Consol Plaza, Pittsburgh, PA. 15241 (Certified Mail) 

David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

1427 
FEDERAL MINE SAFETY ANP HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW. JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 1981 

UNITED MINE WORKERS OF AMERICA> Complaint of Discharge> 

Discrimination> or Interference 

On behalf of: 

Docket No. LAKE 81-55-D 

NORMAN BEAVER> 

Complainant Powhatan No. 1 Mine 

v. 

NORTH AMERICAN COAL CORPORATION> 

Respondent 

Appearances: 

Before: 

DECISION 

Joyce A. Hanula> Legal Assistant> United Mine Workers 

of America, Washington> D.C., for the Complainant; 

Todd D. Peterson, Esq.> Crowell & Moring, Washington, 

D.C., for the Respondent. 

Judge Cook 

I. Procedural Background 

On December 3, 1980, the United Mine Workers of America (UMWA) filed 

a discrimination complaint on behalf of Norman Beaver (Complainant) in the 

above-captioned proceeding alleging that North American Coal Corporation 

(Respondent) committed an act of discrimination in violation of section 

105(c)(l) 1/ of·the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. (Supp. III 1979) (1977 Mine Act). The complaint was timely 

1/ Section 105(c)(l) of the 1977 Mine Act provides as follows: 

"No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise interfere. with the exercise 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 

t~e 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 

., .t • .. > 0 

./;. ·~ "- (\ 
filed with the Federal Mine Safety and Health Review Commissi-on (Commission) 

pursuant to se_ction 105(c) (3) ]j of the 1977 Mine Act following a determination by the Department of Labor's Mine Safety and Health Administration 

(MSHA) that no violation of section 105(c)(l) had occurred. 3/ The complaint 

alleged, inter alia, (1) tbat the Complainant was the walkaround representative of the miners on June 11, 13, 14, and 15, 1980; (2) that the Complainant, in his capacity as walkaround representative of the miners, accompanied 

a Federal mine inspector during the course of four regular inspections conducted on June 11, 13, 14, and 15, 1980; (3) that the Respondent failed to 

comply with the requirements of section 103(f) of the 1977 Mine Act by 

fn. 1 (continued) 

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/ Section 105(c)(3) of the 1977 Mine Act provides 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 (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 appropriate. Such order shall become final 30 days after its issuance. Whenever an order is'issued sustaining the complainant's charges 

under this subsection, a sum equal to the aggregate amount of all costs and 

expenses (including attorney's fees) as determined by the Commission to have 

been reasonably incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution and prosecution 

of such proceedings shall be assessed against the person committing such 

violation. 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)." -

3/ On its face, the discrimination complaint states that it was filed pursuant to section 105(c)(2) of the 1977 Mine Act. The parties' March 4, 1981, 

filing contains a stipulation which states that the complaint was filed pursuant to section 105(c)(2) of the 1977 Mine Act. 
refusing to pay the Complainant for the time spent accompanying the Federal 

mine inspector during the course of such regular inspections; (4) that such 

failure to pay the Complainant was an act of discrimination in violation of 

section 105(c)(l) of the 1977 Mine Act; and (5) that the Complainant suffered 

damages in the amount of $306.08, representing 32 hours-of lost wages. 4/ 

The prayer for relief requested (1) the issuance of an order requiring the 

Respondent to pay the Complainant the sum of $306.08, with interest, and 

(2) such other relief as the Commission deems appropriate. The Respondent 

filed an answer on January 5, 1981, alleging, a~ongst other things, that 

the complaint fails to state a claim for which relief can be granted. 

On January 13; 1981, a notice of hearing was issued scheduling the case 

for hearing on the merits on March 3, 1981, in Washington, Pennsylvania. On 

March 2, 1981, an order was issued granting a joint motion for continuance 

filed by .the parties. The continuance was based on the parties' decision to 

waive an evidentiary hearing and to file stipulations and to submit briefs 

on the issue of whether an operator is required to pay a walkaround representative who accompanied a Federal mine inspector on regular insp.ections on 

days he was not scheduled to work. 

The parties filed a joint stipulation of facts on March 4, 1981. Both 

parties filed briefs on April 10, 1981. The UMWA and the Respondent filed 

reply briefs on April 24, 1981, and April 27, 1981, respectively. 

II. Issue 

The general question presented is whether the complaint states a claim 

for which relief can be granted. The specific question presented is whether 

a mine operator is required to pay an employee who is a walkaround.representative of the miners for the time spent accompanying a Federal mine inspector 

on a regular inspection on days when such·walkaround representative is not 

scheduled to work, when another miner-employee who was scheduled to work at 

such times could have accompanied the Federal mine inspector and would have 

suffered no loss of pay. 

fn. 3 (continued) 

A comparison of sections 105(c)(2) and 105(c)(3) of the 1977 Mine Act 

reveals that the UMWA could properly file this action before the Commission 

only pursuant to section 105(c)(3). Section 105(c)(2) filings are made by 

the Secretary of Labor. 

The Respondent has not challenged this filing defect, and the tenor 

of the stipulations indicates agreement between the parties that the case 

is properly before the Commission. Accordingly, the defect is viewed as 

technical, and the complaint is deemed one properly filed under section 

105(c)(3). 

4/ The complaint alleges that the walkaround activities occurred in June of 

1980. Thereafter, the parties stipulated that such activities occurred in 

June of 1979. This discrepancy is considered immaterial, and is noted solely 

to point out that the discrepancy exists. 

1430 
III. Opinion and Findings of Fact 

A. Stipulation and Findings of Fact 

The parties filed the following stipulation on March 4, 1981: 

1. This proceeding is governed by the Federal Mine 

Safety and Health Act of 1977 ("the Act") and the standards 

and regulations promulgated for the implementation thereof. 

2. The Administrative Law Judge has jurisdiction over 

this proceeding. 

3. Respondent is an "operator" as defined in Section 

3(d) of the Act. 

4. Norman Beaver was an employee and authorized UMWA 

walkaround representative at North American's Powhatan No. 1 

mine on June 13, 14 and 15, 1979. 

5. On June 13, 14 and 15, 1979, the Powhatan No. 1 

mine was working on an idle day basis. 

6. On June 13, 14 and 15, 1979, Norman Beaver was not 

scheduled to work, but accompanied a MSHA inspector on a 

regular inspection. 

7. Prior to accompanying the inspector, Mr. Beaver was 

informed by North American that he would not be compensated 

for accompanying the inspector because he was not scheduled 

to •N"ork on those days. · 

8. Other UM\lA members did work at the mine on June 13, 

14, 15, 1979. These employees could have accompanied the 

MSHA inspector on his inspection. 

9. North American did not compensate Norman Beaver for 

the time spent accompanying a MSHA inspector on June 13, 14 

and 15, 1979. The amount of compensation due Norman Beaver, 

if a violation of 103(f) and 105(c) is found, is $229.56. 

10. Norman Beaver filed a complaint of discrimination 

under Section 105(c) of the Act on July 25, 1979. 

11. On November 10, 1980, Mr. Beaver received a lette~ 

from Joseph A. Lamonica, Acting Administrator for Coal Mine 

Safety and Health. The letter informed Mr. Beaver that MSHA 

had conducted an investigation of his complaint and that the 

Secretary had determined that a violation of Section 105(c) 

had not occurred. 

1431 
12. On December 3, 1980, the UMWA on behalf of Normari 

Beaver filed a Discrimination Complaint pursuant to Section 

105(c)(2) ·of the Act. [2/l 

13. On January 7, 1981, the UMWA received 

North American's Answer to the D~scrimination Complaint on 

behalf of Norman Beaver. 

B. Opinion 

The Complainant was an employee and authorized UMWA walkaround representative at the Respondent's Powhatan No. 1 Mine on Jurie 13, 14, and 15, 1979. 

The mine was working on an idle day basis on those days~ The Complainant 

was not scheduled to work on those 3 days, but accompanied a Federal mine 

inspector on a regular inspection. Prior to accompanying the inspector, the 

Complainant was informed by the Respondent that he would not be compensated 

for accompanying the inspector because he was not scheduled to work on those 

days. Other UMWA members did work at the mine on those 3 days, and could 

have accompanied the Federal mine inspector on his inspection. 

The Respondent did not compensate the Complainant for the time spent 

accompanY.ing the Federal mine inspector on June 13, 14, and 15, 1979. The 

Complainant is due compensation in the amount of $229.56, if a violation of 

sections 103(f) and 105(c)(l) of the 1977 Mine Act is found to have occurred. 

The question presented in this case is whether a mine operator is 

required to pay a walkaround representative of the miners, who is also his 

employee, for the time spent accompanying a Federal mine inspector on a 

regular inspection on days when such walkaround representative is not scheduled to work, when another miner-employee who was scheduled to work at such 

time could have accompanied the Federal mine inspector and would have suffered 

no loss of pay. The UMWA maintains that the failure to pay the miners' 

walkaround representative in such a case is a violation of section 105(c)(l) 

of the 1977 Hine Act because it constitutes an interference with the statutory 

right to participate in mine inspections accorded the miners' walkaround 

representative under section 103(f) of the 1977 Mine Act. In support of its 

position, the UMWA maintains that the Commission's decisions in Helen Mining 

Company, 1 FMSHRC 1796, 1 BNA MSHC 2193, 1979 CCH OSHD par. 24,0~5 (1979), 

and Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833, 1 BNA MSHC 2230, 1979 

CCH OSHD par. 24 ,071 (1979), stand for the proposition "that miners are 

entitled to compensation when they accompany a Federal inspector on regular 

inspections" (UHWA's Brief, p. 4). The UMWA points out that in Magma Copper 

Company, 1 FMSHRC 1948, 1 BNA MSHC 2227, 1979 CCH OSHD par. 24,075 (1979), 

the Commission stated that: 

Walkaround pay was designed to improve the thoroughness 

of mine inspections and the level of miner safety consciousness. The first sentence of section 103(f) expressly states 

27 Seen. 3, supra. 
that the purpose of the right to accompany inspectors is to 

aid the inspection. The Senate committee report on s. 717, 

95th Cong.,· 1st Sess. (1977), the bill from which section 

103(f)· is derived, explained that the purpose of the right to 

accompany an inspector is to assist him in performing a "full" 

inspection, and "enable miners to understand the safety and 

health requirements of the Act and [thereby] enhance miner 

safety and health awareness." s. Rep. No. 95-181, 95th Cong., 

1st Sess., at 28-29 (1977), reprinted in Senate Subcommittee 

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

Legislative History of the Federal Mine Safety and Health Act 

of 19.77, at 616-617 (1978) ["1977 Legis. Hist."]. ·The purpose 

of the right to walkaround pay granted by section 103(f) is 

also clear: to encourage miners to exercise their right to 

accompany inspectors. 

It was Congress' judgment that a failure to pay miners' 

representatives to accompany inspectors would discourage 

miners from exercising their walkaround rights, and that the 

resulting lessening of participation would detract from the 

thoroughness of the inspection and impair the safety and 

health consciousness of miners. [Footnote omitted.] 

1 FMSHRC at 1951-1952. (UMWA's Brief, PP• 5-6.) 

The UMWA fashions the following arguments from these dual propositions: 

The representative of the miners plays an extremely 

important role in the statutory scheme of the Act. He or she 

is the conduit between the employees at the mine and the [Secretary of Labor's] authorized .representative. Such person 

serves as the spearhead for the employees' concerns regarding 

their health and safety. In Leslie Coal Mining Co. v. MSHA & 

UMWA, 1 FMSHRC 2022 (1979), an operator denied an authorized 

representative of the miners, who was not scheduled to work, 

the right to accompany an inspector on a regular inspection. 

Judge Steffey found a violation of 103(f) and stated at page 6 

" •• ·• I believe that the company cannot interfere with the 

person that the miners choose to accompany the inspectors. 

As long as he is still an employee • • • and still one of the 

people who is intended to accompany the inspectors, I believe 

the company must let him do so • • " Judge Steffey ~as convinced of the need tq maintain the integrity of the selection 

process for the miners' walkaround representative. The Judge 

also remarked on the importance of baving a specific person to 

accompany inspectors. At page 8 of his decision, he stated: 

But there does seem to be one aspect of 

having the inspectors -- or rather having a 
specific person or persons designated to accomp[a]ny the inspectors; because it appears to me 

that the inspectors feel that if they get the 

same person each time -- or a limited number of 

persons -- to accompany them, that a process of 

training can be instilled in these people who go 

around with the inspectors, and the result is 

there is gradu[a]lly built up a certain amount of 

expertise in these representatives who accompany 

them. 

The result is they can better field complaints from the miners in general and can 

coordinate the various inspections· by adding 

knowledge to what has happened in the past. And 

this, I think, is helpful for both the company 

and the inspectors. 

It is obviously advantageous to both Tthe Respondent] 

and the miners to have [the Complainant] accompany the 

inspector rather than pull an employee out of the mine who 

just happened to be scheduled to work that day. Such person may not possess the expertise or experience that [the 

Complainant] possesses. It would be unrealistic to expect 

that individual to perform an effective watchdog role to 

insure that MSHA conducts a thorough inspection~ Since the 

person is not the one that has been selected in advance by 

the miners to walkaround on the particular inspection there 

is no assurance that the individual would have the confidence 

of his fellow employees. The lack of such confidence could 

seriously cut down on the complaints that are brought to 

the Secretary's attention. 

[The Respondent] was in no way prejudiced by [the 

Complainant] accompanying the inspector. The alternative to 

not paying an off-duty miner representative is to pay an 

on-duty miner, withdrawing him from his scheduled work site. 

Since the idle day work force is limited to the number of 

workers needed to perform certain essential tasks it would 

appear that taking somebody from their work site could be 

very disruptive. There is no logic to this approach. Moreover, it permits the operator to play a role in the selection 

of the miners' representative. By limiting walkaround pay to 

employees who the operator has scheduled to perform idle day 

work, the operator effectively restricts the pool of available 

employee walkaround representatives. [The Complainant] was 

the person the miners had selected to accompany the MSHA 

inspector on this inspection. The miners should not be 

deprived of their right to have the most effective representative accompany the inspector merely because that representative is not scheduled to work on a particular idle day. 

1434 
One of the surest ways to shatter confidence in the 

miners' representative is to allow the operator to play a 

role in the selection of who that representative will be. 

Allowing the operator to manipulate the right to walkaround 

pay may well result in undermining the effectiveness of the 

entire role of a miners' walkaround representative. 

(UMWA's Brief, pp. 7-9). 

The Respondent maintains that the case presents a straightforward and 

relatively simple issue which is answered by the explicit language of section 103(f) which states, in part, that "[s]uch representative of miners who 

is also an employee of the operator shall suffer no loss of pay during the 

period of his participation in the inspection made under this subsection." 

Briefly stated; the Respondent's position is that since the Complainant was 

not scheduled to work on the days when the regular inspection was conducted, 

he suffered no loss of pay for the time spent accompanying the Federal mine 

inspector and therefore is not· entitled to compensation under the walkaround 

pay provision of section 103(f) of the 1977 Mine Act. The Respondent's 

reasoning is set forth as follows: 

[The language of the walkaround pay provision of section 

103(f) of the 1977 Mine Act] indicates that Congress intended 

to permit employees who were regularly scheduled to work to 

participate in inspections without suffering any loss in'pay. 

The section does not state that any miners' representative 

must be compensated for participating in an inspection. If 

Congress had intended that result, it could easily have 

granted that right by clear and explicit language. Instead, 

however, Congress chose to require only that a miners' representative must suffer no loss of pay; that is, if a miners' 

representative is already at the mine and scheduled to work, 

the operator may not deny his pay simply because he participated in an MSHA inspection. 

By requiring only that a miners' representative suffer 

no loss of pay, Congress indicated its intent that the walkaround right not be utilized to place an additional employee 

on the operator's payroll. The language states Congress' 

intent not to add another salary, but only to ensure that an 

employee currently receiving his salary would not be penalized for his participation in the inspection. Thus, the 

meaning of Section 103(f) is simply that an employee must not 

lose pay to which he otherwise.would have been entitled 

simply because he chooses to participate in an MSHA 

inspection. 

When this statutory language is applied to [the Complainant's] complaint .the result is readily evident. Since 

[the Complainant] was not scheduled to work during the week 

i 4 3 r J.. '1. e,l 
when the inspection occurred, he suffered no loss of pay as 

a result of participating in the inspection. Therefore, [the 

Respondent's] action was fully consistent with the provisions 

of Section 103(f). 

This conclusion is reinforced by the fact that other 

UMWA personnel were scheduled to work during the week of the 

ipspection and were available to participate as the miners' 

representative. Since these ID1WA employees were working at 

the mine, they would have continued to receive pay even if 

they had participated in the inspection as the min~rs' representative. Thus, there was no reason for [the Complainant] 

to be the miners' representative on the inspection. Other 

miners' representatives could have participated in the 

inspection without adding another individual to [the 

Respondent's] payroll. [Emphasis in original.] 

(Respondent's,Brief, pp. 4-5). 

The UMWA's reply brief states, in part, that: 

On its face the requirements [of the walkaround pay 

provision of section 103(f) of the 1977 Mine Act] are quite 

clear. If the representative of the miners is an employee, 

then the operator cannot refuse to pay him at his normal 

rate for the time spent participating in a regular 

inspection]. 

In the instant case, [the Complainant] walked around 

during what would have been his usual shift had the mine 

been in regular production. He was an employee of the 

operator and the person the miners selected to accompany 

the MSHA inspector on his inspection. 

[The Respondent's] interference with the exercise of [the 

Complainant's] right to pay during a regular inspection is a 

violation of [sections] 105(c)(l) and 103(f) of the Act. 

The Respondent sets forth the following arguments in its reply brief: 

In its initial brief the UMWA ignores the explicit 

language of the Act, and instead focuses on imaginary 

problems that are not raised by the facts of this case. 

1. This case does not involve the issue whether [the 

Respondent] may dictate who will participate as a miners' 

representative on MSHA inspections. [The Respondent] made 

no effort to dictate to the miners who could act as their 

representative. The miners were completely free to select 

whomever they wished to act as their representative during 
the inspections, and [the Respondent] recognized that no 

such representative could suffer a loss of pay. In fact, 

[the Respondent] specifically permitted [the Complainant] 

to participate in the.inspection himself. [This fact 

distinguishes the instant case from Leslie Coal Mining 

Company, 1 FMSHRC 2022 (1979), upon which the UMWA relies]. 

[The Respondent] simply decided that since [the Complainant] 

suffered no loss of pay, that it would not pay him extra 

compensation for participating in the inspection. This 

decision, which is completely consistent with the language 

of the Act, in no way infringed upon the miners' r~ght to 

select their own representative. 

2. There is no reason to stretch the language of the 

Act to award extra ~ompensation to [the Complainant]. The 

UMWA claims, without any supporting evidence whatsoever, 

that it was essential for [the Complainant] to act as the 

miners' representative and that it was therefore necessary 

to provide him extra compensation in order to encourage his 

participation. The Ul1WA brief is replete with unsupported 

assertions that [the Complainant] is the only one who could 

have acted effectively as the miners' representative. These 

assertions are completely inconsistent with the facts as 

stipulated by the parties, which indicate that other qualified 

UMWA members were working at the mine and were available to 

act as miners' representatives. 

In fact, it is an extraordinarily rare situation wher,e 

one person acts as the miners' representative for all MSHA 

inspections. UMWA mine safety committees generally comprise 

at least three people, and frequently many Ul1W'A members at a 

particular mine will participate in inspections as miners' 

representatives. In this case, there is no evidence that 

[the Complainant] was the only qualified miners' representative or that·he participated in every inspection. There 

is no evidence that it was necessary- for [the Complainant] 

to participate in this particular inspection. In fact, the 

stipulation indicates precisely the contrary: that other 

UHWA members were scheduled for worK who could have participated as miners' representatives. 

Moreover, the participation of different UMWA members 

as miners' representatives enhances.rather than detracts 

from the goals of the walkaround provision and the Act. As 

the Ul:1WA itself admits, one of the principal purposes of the 

provision is to enhance all of the miners' consciousness of 

the various safety and health provisions of the Act. If only 

one miner participated as a miners' representative, then the 

benefits of miner participation would be limited to that one 
miner. Thus, in many instances it is both necessary and in 

complete accordance with the policies of the Act to have more 

than one person act as the miners' representative. 

The choice of whom to select is of course up to the 

miners at a particular mine, and in this case [the.Respondent] 

permitted the miners that choice. The only restriction is 

that which is contained in the·Act itself, which states not 

that any miners' representative is entitled to be compensated 

for participating, but only that the representative shall 

suffer no loss of pay as a result of participati_ng in the 

inspection. 

3. The legislative history fully supports the conclusion_ that Congress intended merely to ensure that miners 

suffered no loss of pay for participating in an inspection 

.and not that anyone who acted as a miners' representative 

would receive compensation. * * * 

For example, the Senate Report states that the reason 

for requiring that a miner suffer no loss of pay was to avoid 

a requirement that "would unfairly penalize the miner for 

assisting the inspector in performing his duties." Subcommittee on Labor of the Senate Committee on Human Resources, 

Committee Print, Legislative History of the Federal Mine 

Safety and Health Act of 1977, 616-17 (1978). Thus, the 

Senate Report indicates that Congress was simply seeking to 

avoid penalizing a miner by making him lose pay that he 

otherwise would have received simply because he participated 

in an inspection during a time when he was scheduled to work. 

Nothing in the legislative history or in the language of the 

Act itself indicates that Congress intended that a person 

who was not working at the mine be compensated for participation in an inspection. 

4. The UMWA suggests that [the Respondent] would suffer 

no harm if it were required to compensate miners' representatives even if they were not otherwise scheduled to work. The 

UMWA clearly misses the point, since requiring compensation 

for any miners' representative would in effect require [the 

Respondent] to add another employee to its payroll. It is 

[the Respondent's] prerogative to determine how many people 

it wishes to employ. Although [the Respondent] recognizes 

that it may not refuse to pay a member of its active work 

force who participates in an MSHA inspection, it is not 

required to put on its payroll someone who would not otherwise be receiving any pay. Congress specifically recognized 

this right by limiting the walkaround pay right to those 

who would otherwise have suffered a loss of pay, that is, 

those who were otherwise scheduled for work. [Footnote 2 

omitted.] 

1438 
For the reasons set forth below, I conclude that the Respondent's 

refusal to pay the Complainant for the time spent accompanying the Federal 

mine inspector on the June 13, 14, and 15, 1979, regular inspection was 

not an interference with the exercise of statutory rights accorded the Complainant under section 103(f) of the 1977 Mine Act. Accordingly, no violation of section 105(c)(l) of the 1977 Mine Act occurred as a result of 

such refusal. In reaching this conclusion, all arguments advanced by the 

parties have been considered fully, and, except to the extent that they 

are expressly or impliedly adopted herein, they are rejected as contrary 

to the facts as stipulated, contrary to the law, or immaterial to the 

decision in this case. 

Section 105(c)(l) of the 1977 Mine Act provides, in part, that no 

person shall in any manner discriminate against, or cause discrimination 

against, or otherwise interfere with the exercise of the statutory rights 

of any miner or representative of miners because of the exercise by such 

miner or representative of miners of any statutory right afforded by the 

1977 Mine Act. 6/ It is my opinion that a mine operator's refusal to provide the miners1 walkaround representative, who is also an employee of such 

mine operator, with the pay to which he is entitled under the walkaround 

pay provision of section 103(f) of the 1977 Mine Act, is an act of interference in the exercise of statutory rights accorded such representative by 

section 103(f), and therefore actionable under section 105(c)(l). As noted 

in the statute's legislative history: "The Committee intends that the scope 

of the [activities protected by section 105(c)(l)] be broadly interpreted 

by the Secretary, and intends it to include * * * the participation in mine 

inspections under [section 103(f)]." S. Rep. No. 95-181, 95th Cong., 

1st Sess. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE 

SAFETY AND HEALTH ACT OF 1977 at 623 (1978). 

The question presented is whether the walkaround pay provision of section 103(f) requires the mine operator to provide the miners' walkaround 

representative, who is also an employee of such mine operator, with pay for 

the time spent accompanying Federal mine inspectors Qn regular inspections 

which are conducted on days when such walkaround representative is not 

scheduled to work, when another miner-employee who was scheduled to work at 

such times could have accompanied the Federal mine inspector and would have 

suffered no loss of pay. None of the Commission 1 s decisions on the subject 

of walkaround pay address this issue. 

The Commission has held that the right to walkaround pay accorded a 

miners' representative under section 103(f) of the 1977 Mine Act is limited 

to the time spent accompanying a Federal mine inspector during a "regular" 

inspection conducted pursuant to section 103(a} of the 1977 Mine Act. Helen 

Mining Company, 1 FMSHRC 1796,1 BNA MSHC 2193, 1979 CCH OSHD par. 24,045 

(1979); Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833, 1 BNA MSHC 2230, 

1979 CCH OSHD par. 24,071 (1979). The Commission has also held that when 

E_/ The full text of sectioμ 105(c)(l) is set forth in n. 1, supra. 

143B 
an inspection of "the entire mine" conducted pursuant to section 103(a) is 

divided ihto two or more inspection parties to simultaneously inspect different parts qf the mine, one miners' representative, who is also an employee 

of the mine operator, in each inspection party is entitled to walkaround pay 

under section 103(f) for the time spent accompanying a Federal mine inspector 

who is engaged in such inspection. Magma Copper Companz, 1 FMSHRC 1948, 

1 BNA MSHC 2227, 1979 CCH OSHD par. 24,075 (1979). In each of these three 

cases decided by the Commission, the miners' walkaround representative was 

scheduled to work on the days when the inspections were conducted. 

Similarly, no decision by an Administrative Law Judge of this Commission 

has been discovered which poses the question presented _herein. See, ~·.£·, 

Jewell Ridge Coal Corporation, 2 FMSHRC 2578 (1980) (Steffey, J.); Secretary 

of Labor ex rel. Scott v. Consolidation Coal Company, 2 FMSHRC 1056 (1980) 

(Melick, J.); Alabama By-Products Corporation, 2 FMSHRC 467 (1980) 

(Laurenson, J.); Leslie Coal Mining Company, 1 FMSHRC 2022 (1979) 

(Steffey, J.). 

The walkaround pay provision of section 103(f) requires only that the 

walkaround representative of the miners "who is also an employee of the 

operator shall suffer no loss in pay during the period of his participation 

in the inspection* * *·" (Emphasis added.) The UMWA interprets this 

language as requiring the mine operator to provide compensation to its 

employee who is a walkaround representative of the miners whenever such 

representative accompanies a Federal mine inspector on an inspection of the 

entire mine conducted pursuant to section 103(a), regardless of whether or 

not such representative at that time would otherwise be performing work for 

the mine operator which would entitle him to a wage payment. In the UMWA's 

view, the only germane considerations are (1) that the individual is the 

person selected by the miners to act as their representative during inspections conducted pursuant to section 103(a), and (2) that the individual is 

an employee of the mine operator. This interpretation distorts the plain 

meaning of the carefully drafted language used by Congress. Congress 

intended only that a representative suffer no loss in pay when his activities 

as walkaround representative of the miners during inspections of the entire 

mine conducted pursuant to section 103(a) require him to be absent from those 

duties which he would otherwise perform for the mine operator, his employer. 

The plain language of the walkaround pay provision disavows any intent to 

create a right to compensation for a walkaround representative who is not 

otherwise scheduled to work. The walkaround pay provision is designed to 

encourage miner participation in inspections by providing an assurance that 

their designated representative will suffer no loss in pay as a result of 

participating in such inspections, i.e., that his participation in an inspection will place him in the same position with respect to his pay that he 

would have occupied had he not participated in the inspection. It was not 

intended to create a right to compensation where none otherwise existed. 

The UMWA argues that denying the Complainant walkaround pay for his 

activities on June 13, 14, and 15, 1979, permits the mine operator to play 

a role in the selection of the miners' walkaround representative, and also 

A 

4 1 (I 
deprives the miners of their right to have the most effective representative accompany the Federal mine inspector merely bec.ause that representative is not scheduled to work on the-day of the inspection •. According 

to the UMWA, allowing the mine operator to play a role in the selection 

~rocess will surely shat~er the miners' confidence in tpeir representative, 

and allowing the mine operator to manipulate the right to walkaround pay 

may well result in undermining the effectiveness of the miners' walkaround 

representative. · 

It is unnecessary to address these issues because they are well beyond 

the facts of this case. There is no indication in the record, as stipulated, 

that the Complainant's idle day ·status permitted the Respondent to directly 

or indirectly participate in any manner in the process of selecting a walkaround representative. Additionally, there is no indication that the 

Respondent manipulated the Complainant into an idle day status to discourage 

his participation in the inspection. The UMWA's arguments must be reserved 

for a case in which the facts properly raise such issues. 

The facts of the instant case reveal that the Complainant was permitted 

to participate in the June 13, 14, and 15, 1979, inspection notwithstanding 

his idle day status, and that some other miner who was working at the mine 

could have acted as the miners' walkaround representative on those 3 days 

and received his full pay under section 103(f). In order to create the 

kind of result which the UMWA prays for in this proceeding, it would be 

necessary to amend section 103(f) of the 1977 Mine Act to so provide. 

In view of the foregoing, I conclude that the Gomplainant was not 

en'ti tled to walkaround pay under sec ti on 103( f) of the 1977 Mine Act for his 

participation as walkaround representative of the miners during the June 13, 

14, and 15, 1979, regular inspection of the Respondent's Powhatan No. 1 Mine. 

The Respondent's refusal to pay the Complainant for the time so spent was· 

not an interference with the exercise of rights accorded the Complainant 

under section 103(f) of the 1977 Mine Act, and, accordingly, is not actionable under section 105(c)(l) of the 1977 Mine Act. The discrimination complaint will be dismissed. 

IV. Conclusions of Law 

1. The Administrative Law Judge h?s jurisdiction over this proceeding. 

2. The Respondent is an "operator" as defined in section 3(d) of the 

1977 Hine Act. 

3. The Department of Labor's Mine Safety and Health Administration 

conducted an investigation of the dispute which is the subject matter of 

this proceeding and concluded that a violation of section lOS(c)(l) of the 

1977 Mine Act had not occurred. 

4. The Complainant received a written notification from the Department 

of Labor's Mine Safety and Health Administration on December 10, 1980, 
informing him of that agency's determination that no violation of section 

105(c)(l) had occurred; and thereafter the Complainant timely filed this 

action before. the Federal Mine Safety and Health Review Commission. 

5. The Complainant was not entitled to walkaround pay under section 

103(f) of the 1977 Mine Act for his participation as waikaround representative of the miners during the June 13, 14, and 15, 1979, regular inspections 

of the Respondent's Powhatan No. 1 Mine. 

6. The Respondent's refusal to pay the Compl_ainant for the time so 

spent was not a violation of section 105(c)(l) of the 197l Mine A~t. 

7. All of the conclusions of law set forth in Part III, supra, are 

reaffirmed and incorporated herein. 

ORDER 

The discrimination complaint is DISMISSED. 

Distribution: 

Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 

900 15th Street, NW., Washington, DC 20005 (Certified Mail) 

Todd D. Peterson, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW., Washington, DC 20036 (Certified Mail) 

Special Investigation, Mine Safety and Health Administration, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

144~! 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 2 1981 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

RALPH FOSTER AND SONS; ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~-

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-397-M 

A/C NO. 05-03209-05001 

MINE: ERDA C G27 

DECISION AFTER REMAND 

On May 12, 1981, the Federal Mine Safety and Health Review Connnission 

remanded the above case for the assessment of a penalty. 

The following is a review of the criter.ia required to be examined in 

the assessment of a penalty. 30 U.S.C. § 820(i). The parties stipulated to 

the fact that at the time Citation No. 326566 was issued, Ralph Foster and 

Sons had no history of violations of the Federal Mine Safety and Health 

Act, 30 U.S.C. § 801 et seq. (the Act) (Tr. 22). Respondent is a very 

small mine operator. CExhibit A attached to the pet it ion and Tr. 11). 

The danger anticipated by the standard was likely to occur (Tr. 11, 

Connnission Exhibit 1), and the resulting injury could be permanently 

disabling. (Comm. Ex .. 1). The miners involVed immediately put on their 

safety glasses after being informed of the violation by the inspector. 

(Tr. 12). 

The degree of negligence attributed to respondent by the Mine Safety 

and Health Administration was based on an erroneous fact and should, 

therefore, be re-assessed. The inspector's statement indicates that the 

proprietor of the mine, Robert Foster, knew of the condition cited. This 

conclusion was .based on the inspector's belief that Robert Foster was one 

of the miners who was not wearing the safety glasses. (Comm. Exhibit 1). 

However, at trial, the inspector testified that Robert Foster was not one 

of the miners involved, and in fact, was not in the mine at the time. (Tr. 

10, 11, 21). Mr. Foster confirmed the fact that at the time of the 

violation he was working in another mine (Tr. 29). I find, therefore, that 

there was no negligence on the part. of the mine operator involved in the 

violation of the Act. 
Having given due consideration to the necessary criteria, I assess a 

penalty of $1';.oo. Respondent is directed pay this amount within 30 days 

of the date·of this order. 

Distribution: 

Ann N. Noble, Esq., Office of the Solicitor, United States Department of 

Labor,·1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294 

Mr. Rob.ert Foster, Ralph Foster and Sons, 2950 A 1/2 Road, Grand Junction, 

Colorado 81501 
FEDERAL 'MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W .. COLFAX. AVENUE. SUITE 400 

DENVER, CpLO~ADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH.ADMINISTRATION (MSHA), on ) 

behalf of JOHN COCHRANE and ) 

DARYL SPRADLEY, ) 

), 

Complainants, ) 

v. ) 

) 

) 

TRAIL .MOUNTAIN GOAL COMP ANY, ) 

) 

Respondent. ) 

) 

JUN 2 1981. 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 80-451-D 

DENV CD 80-13 

MINE: Trail Mountain 

DECISION AND ORDER 

On May 14, 1981, the parties to this proceeding filed with the 

Commission a Stipulation of Settlement, Motion and Consent seeking an agreed 

disposition of the case. 

Under the terms of the stipulation, the parties agree that respondent 

shall compensate John Cochrane and Daryl Spradley in the amount of $9,000.00 

each in settlement of their claims against respondent resulting from their 

discharges; that respondent shall expunge the employment records of John 

Cochrane and Daryl Spradley of any adverse references relating to their 

discharges; and that John Cochrane and Daryl Spradley shall accept the above 

stipulations as full settlement of the claims giving rise to this case. 

By joint motion, the parties seek an order providing: that respondent 

tender the agreed upon sum to John Cochrane and Daryl Spradley; that 

respondent expunge from their employment records any adverse references 

relating to their discharges; and that the above-entitled action be 

dismissed with prejudice and upon the merits. 

Given the complainants' consent to the t~rms of the settlement and 

finding that such settlement will effectuate the purposes of the Federal 

Mine Safety and Health Act of 1977, 30 U.S. C. § 801 ~ seq., it is 

ORDERED: trrat the settlement agreed to by the parties. is hereby 

APPROVED, that the joint motion is hereby GRANTED in full and, that this 

case is hereby DISMISSED WITH PREJUDICE. 

Jdp D. 1 oltz' 

A~ministrative Law Judge 

..... .! .·1 ~-
Distribution: 

Phyllis K~ Caldwell, Esq. 

Office of the Solicitor 

Unit.ed States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Robert G. Holt, Esq. 

1800 Beneficial Life Tower 

36 S. State Street 

Salt Lake City, Utah 84111 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

JUN 2 1981 

HEALTH ADMINISTRATION (MSHA), on ) 

behalf of JEFFREY S. HOTCHKISS, ) 

COMPLAINT OF DISCHARGE 

DISCRIMINATION OR INTERFERENCE 

) 

Complainant, ) 

v. ) 

) 

CLIMAX MOLYBDENUM.COMPANY, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~-

DOCKET NO. WEST 81-130-DM 

MINE: Climax Mine 

ORDER OF DISMISSAL 

The Secretary of Labor has moved to withdraw his complaint of 

discrimination filed on behalf of Jeffrey S. Hotchkiss. Withdrawal is 

sought on the grounds that insufficient evidence exists to continue 

prosecution. Mr. Hotchkiss has filed a forma~ consent to the withdrawal of 

the complaint. Respondent does not oppose the motion. 

The Secretary's motion is granted, and this pres.ent proceeding is 

dismissed with prejudice. 

The·Secretary's motion and the miner's accompanying consent, however, 

are silent as to whether the dismissal. should foreclose the miner's right to 

prosecute his own complaint under section 105(c)(3) of the Act. The 

Secretary's determination to withdraw can stand no differently than an 

initial determination not to file a complaint; it cannot deprive the miner 

of his right to initiate his own complaint. 1 / Because there has been no 

affirmative waiver of that right, Mr. Hotchkiss is granted 30 days from his 

receipt of this order in which to file his own complaint with the 

Connnission, should he wish to do so. 

SO ORDERED. 

n A. Carlson 

dministrative Law Judge 

1/ Cf. S. Rep. No. 95-181 95th Cong. 1st Sess. at 37 (1977); reprinted in 

Senate Subconnnittee on Labor, Connnittee on Human Resources, 95th Cong., 2d 

Sess. Legislative History of the Federal Mine Safety and Health Act of 1977 

at 626 (1978). 

144'1 
Distribution: 

Katherine Vigil, Esq. 

Office of the Solicitor 

United States· Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Mr. Jeffrey Hotchkiss 

145 West 7th 

Leadv.ille, Colorado 80461 

W. Michael Hackett, Esq. 

Canges, Shaver, Volpe & Licht 

600 Capitol Life Center 

Denver, Colorado 80203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN3 al 

SOUTHERN OHIO COAL COMPANY, Notices of Contest 

Contestant 

v. Docket Nos. LAKE 81-17-R 

LAKE 81-18-R 

SECRETARY OF LABOR, ·· LAKE 81-19-R 

LAKE 81-20-R 

LAKE 81-21-R 

LAKE 81-22-R 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Appearances: 

Bef'ore: 

Respondent 

Meigs No. 1 Mine 

DECISIONS 

David M. Cohen, Esquire, Lancaster, Ohio, for the 

contestant; 

F. Benjamin Riek III, Trial Attorney, Office of the 

Solicitor, U.S. Department of Labor, Cleveland, Ohio, 

for the respondent. 

Judge Koutras 

Statement of the Proceedings 

This case concerns contests filed by the contestant on October 20, 1980, 

pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 

challenging the validity of the citations issued by Respondent, MSHA, for violations under 30 C.F.R. § 75.1003-2. On D.ecember 4, 1980, Respondent filed a 

motion to permit late filing of its atta~hed answer and an order granting the 

motion was issued December 16, 1980. A hearing on the matter was scheduled 

for March 24, 1981, in Columbus, Ohio, but was subsequently continued to allow 

the parties to submit joint stipulations for the purpose of issuing a summary 

decision. Accordingly, briefs by both parties were filed on April 29, 1981. 

Stipulations 

1. The contestant operates the Meigs No. 1 Mine. This is a coal mine 

as defined by section 3(h) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (hereinafter the Act). 

2. The contestant is an operator as defined by section 3(d) of the Act. 

! • 1 (' _4,. :_.~. I ' ' 
3. The contestant is subject to the provisions of the Act pursuant to 

section 4 of the Act. 

4. At the beginning of the day shift on September 16, 1980, contestant's miners were transporting a part of an off-track shuttle car (which 

part was referred to in the subject citations as a "boom") on the east 

track of the Meigs No. 1 Mine. 

5. Because contestant's miners did not believe that said part constituted a "unit of off-track mining equipment" or "off-track mining equipment," 

contestant did not believe on September 16, 1980, that 30 C.F.R. § 75.1003-2 

or any of the subsections thereof were appropriate to said movement and acted 

accordingly. 

Inspector Charles M. Fin~authorized representative of Respondent, 

believed that said part did constitute a "unit of off-track mining equipment" 

or "off-track mining equipment." 

6. Citation Nos. 1010970 through 1010975 were served on contestant on 

September 16, 1980, between 9:37 a.m. and 9:42 a.m. The conditions or practices described in said citations are not now at issue. 

7. On October 16, 1980, contestant filed a notice of contest concerning 

the validity of Citation Nos. 1010970 through 1010975. 

8. All of the subject citations relate to section 310(d) of the Federal 

Mine Safety and Health Act of 1977 and allege violations of 30 C.F.R. 

§ 75.1003-2. 

9. All of the subject citations, except for Citation No. 1010972, are 

classified as "significant and substantial." 

10. The part of an off-track s.huttle car being transported on a lo-boy 

supply car was 5 feet 5 inches in length, 8 feet 9-1/2 inches in width, and 

23 inches in height. The off-track shuttle car was 24 feet 10 inches in 

length, 9 feet 6 inches in width, and 34 inches in height. The lo-boy supply car was 12 feet in length, 8 feet 6 inches in width, and 8-1/2 inches 

in height from the rail. 

11. Subsequent to the issuance of the subject citations, a notation 

was made in the equipment record book for the earlier September 16, 1980, 

midnight shift concerning the subject part. This notation was made solely 

to safeguard against contestant being served with an additional citation or 

ci,tations and was entered even though at that time contestant believed the 

su15ject regulations did not require any such entry. 

12. Southern Ohio Coal Company produced 4,437,769 tons of coal during 

1979 and 5,054,776 tons of coal during 1980. The Heigs No. 1 Mine produced 

918,242 tons of coal during 1979 and 1,133,645 tons of coal during 1980. 

1450 
13. Respondent will submit a computer printout documenting all violations of the Act incurred and paid by contestant at the Meigs No. 1 Mine. 

The parties stipulate as to the admissibility of the printout. 

Issues 

1. Whether a boom, a component of an off-track shuttle car, constitutes 

a "unit of off-track mining equipment" or "off-track mining equipment" subject 

to the requirements of 30 C.F.R. § 75.1003-2. 

2. If components such as a boom are included within the coverage of 

30 C.F.R. § 75.1003-2, whether the standard is so vague as to be unenforceable 

or unconstitutional. 

3. Whether respondent correctly charged contestant with six separate 

violations of 30 C.F.R. § 75.1003-2 for one occurrence. 

Applicable Statutory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

effective March 9, 1978, 30 U.S.C. § 801 et ~· 

2. 30 C.F.R. § 75.1003-2, which provides in.pertinent part as follows: 

Requirements for movement of off-track mining 

equipment in areas of active workings where energized trolley wires or trolley feeder wires are 

present; pre-movement requirements; certified and 

qualified persons. 

(a) Prior to moving or transporting any unit of offtrack mining equipment in areas of the active workings 

where energized trolley wires or trolley feeder wires are 

present: 

(1) The unit of equipment shall be examined by a 

certified person to ensure that coal dust; float coal 

dust, loose coal oil, grease, and other combustible 

materials have been cleaned up and have not been 

permitted to accumulate on such unit of equipment; and, 

(2) A qualified person, as specified in§ 75.153 of 

this part; shall examine the trolley wires, feeder wires, 

and the associated automatic circuit interrupting devices 

provided for short circuit protection to ensure that proper 

short circuit protection exists. 

(b) A record shall be kept of the examinations 

required by paragraph (a) of this section, and shall be 

made.available, upori request, to an authorized representative of the Secretary. 

145.l 
(c) Off-track mining equipment shall be moved or 

transported in areas of the active workings where energized trolley wires or trolley feeder wires are present 

only under the direct supervision of a certified person 

who shall be physically present at all times during moving 

or transporting operations. 

(d) The frames of off-track mining equipment being 

moved or transported, in accordance with this section, 

shall be covered on the top and on the trolley wire side 

with fire-resistant material which has met the applicable 

requirements. of Part 18 of Subchapter D of this Chapter 

(Bureau of Mines Schedule 2G). 

(e) Electrical contact shall be maintained between 

the mine track and the frames of off-track mining equipment being moved in-track and trolley entries, except that 

rubber-tired equipment need not be grounded to a transporting vehicle if no metal part of such rubber-tired 

equipment can come into contact with the transporting 

vehicle. 

Background of Controversy 

On September 16, 1980, MSHA inspector Charles Fink conducted an inspection of Southern Ohio Coal Company's Meigs No. 1 Mine. During this inspection, Mr. Fink observed the boom of an off-track shuttle car being transported 

on a lo-boy. Finding 30 C.F.R. § 75.1003-2 to be applicable, the inspector 

issued six citations alleging violations of subsections (a)(l), (a)(2), (b), 

(c), (d), and (e). Contestant contends that the citations should be vacated 

because a boom, a component of an off-track shuttle car, is neither a unit 

·of off-track mining equipment nor off-track mining equipment and is not subject to the provisions of 30 C.F.R. § 75.1003-2. Contestant also maintains 

that if the standard does apply to booms, then it is unconstitutionally 

vague. Further, contestant states that the. inspector improperly issued six 

citations for one incident involving the transporting of a boom. Respondent 

counters each one of contestant's argtunents, asserting that a boom is regulated by 30 C.F .R. § 75 .1003-2 and that the standard is not vague. Further, 

respondent asserts that it is proper to issue separate citations for each 

violation of a subsection of a mandatory standard. 

The six citations issued in these proceedings, resulting from the movement and transportation of the off-track shuttle car boom, are as follows: 

Citation No. Date 

1010970 9/ 16/80 

30 C.F~R. Section 

75.1003-2(a)(l) 

Conditions Cited 

No equipment examination by a certified 

person. 
1010971 9/16/80 

1010972 9/16/80 

1010973 9/16/80 

1010974 9/16/80 

1010975 9/16/80 

75 .1003-2(a)(2) 

75 .1003-2(b) 

75 .1003-2(c) 

75 .1003-2(d) 

75 .1003-2(e) 

Discussion 

Failure to examine 

trolley circuit and 

D.C. circuit breakers 

prior to movement. 

Failure to keep a 

record of the required 

equipment examinations. 

Failure by a certified 

person to supervise the 

movement of the equipment. 

Failure to cover the 

equipment with fireresistant material. 

Failure to maintain contact between the mine 

track and equipment. 

A. The Use of the Phrases "Unit of Off-track Mining Equipment" and "Off-track 

Mining Equipment" in 30 C.F.R. § 75.1003-2. 

Respondent argues that all requirements of 30 C.F.R. § 75.1003-2 are 

predicated on the movement of any unit of off-track mining equipment, and 

maintains that a boom is such a unit of equipment. In so stating, respondent ignores the fact that of the six subsections of which contestant has 

been charged with violating, only (a)(l), (a)(2) and (b) refer to "units" 

of off-track mining equipment. Contestant's suggestion that the terms 

"units ·of off-track mining equipment" and "off-track mining equipment" 

ref er to the same type of equipment is more acceptable in light of the 

rules of statutory construction. 

One such rule states that "a statute s.hould be construed so that effect 

is given to all provisions, so that no part will be inoperative or superfluous, 

void or insignificant, and so that one section will not destroy·another unless 

the provision is .the result of obvious mis.take or error." C. D. Sands, 2A 

Sutherland, Statutory Construction, § 46.06, p. 63 (1973). Accordingly, in 

order for section 75.1003~2 to make sense, and since units of off-track mining equipment are not distinguished from off-track mining equipment in the 

safety standard, I find that they refer to the same tyP.e of equipment. 

Support for this conclusion can be found in the definitions of the words 

"unit" and "equipment." The word "unit" as defined in Webster's New World 

Dictionarv includes both: 

l.b) a magnitude or number regarded as an undivided whole • 

• r: 'J 

•. t.) '"' 
* * * * * * 

3.b) a single, distinct part or object, especially one 

used for a specific purpose [the lens unit of a camera]. 

* 

The word "equipment" is aptly noted as being: "An extremely elastic term, 

the meaning of which depends on context." Blp.ck's Law Dictionary. 

Using these definitions, a unit of off-track mining equipment might 

refer to either a part of a larger piece of equipment or to only the complete machine. Regardless of whether a boom is a unit of off-track mining 

equipment, or just off-track mining equipment as those phrases are used· in 

section 75.1003-2, it is apparent that the definitions of "unit" and "equipment" allow the phrases to be used interchangeably. It is therefore necessary to closely examine the regulatory standard to understand the context 

in which these words are used. 

B. Whether a Boom, a Component of Off-track Mining Equipment is Subject to 

the Provisions of 30 C.F.R. § 75.1003-2. 

Contestant, in support of its position that a boom, as a component of 

off-track mining equipment, is not encompassed by the standard, thoroughly 

examines the textual construction and the legislative ·history of 30 C.F.R. 

§ 75.1003-2. Initially, contestant observes that components are not within 

the Congressional purpose of section 310(d) of the Act, which authorized 

promulgation of section 75.1003-2. Section 310(d) provides in part that: 

"Trolley wires and trolley feeder wires shall be guarded adequately (1) 

at all points where men are required to work or pass regularly under the 

wires." 

Contestant concludes that section 75.1003-2 should apply only to equipment which needs to be guarded from contact with trolley wires. Contestant 

asserts that "the precautions specified in section 75.1003-2, according to 

respondent's interpretation, would be required ·regardless of how small a 

component. was moved and how great a vertical clearance between the component 

and trolley wire" (Brief, pp. 2-3). Recognizing the Congressional purpose, 

contestant concedes that the standard should apply to complete or reasonably 

complete pieces of equipment (Brief, p. 6). 

Contestant examines the.history of the regulation, both the events leading 

to the promulgation of the rule and the hearings held on the rule. and finds 

no reference made to components of off-track mining equipment. It also notes 

that the MSHA Inspection Manual implies that the standard does not apply to 

components. Volume 2, page 456 of the manual, dated March 9, 1978, which comments on section 75.1003-2, states that: "This section refers to the moving 

of off-track mining equipment either under its own power or when being transported by other means." Since components rarely are capable of moving under 

their own power, contestant contends that the quoted language supports a conclusion that the regulation was not meant to encompass components. 

1454 
Respondent's arguments apparently rely on the premise that the words 

"unit of off-track mining equipment" are not vague and must be given their 

literal interpretation. Asserting that the phrase must be examined in the 

context of coal mining, respondent concludes that the plain and natural 

meaning of the words apprise the contestant of when it must comply with 

the standard. It notes that the clear purpose of the standard is to permit safe movement of mining equipment over energized trolley wires. Therefore, the standard seeks to prevent any electricity-conducting equipment 

from coming in contact with these wires. Respondent reasons that since 

components are made of steel and conduct electricity, they naturally come 

within.the scope of the standard. In view of the purpose of the standard, 

respondent contends that contestant should have realized that a boom was a 

unit of off-track mining equipment, and therefore covered by the standard. 

Upon a review of the arguments of both parties and my own analysis of 

the standard, its language and its purpose, I conclude that section 75.1003-2 

only applies to complete or reasonably complete pieces of off-track mining 

equipment. In interpreting this standard, I have given it the liberal construction which is necessary for remedial legislation whose primary purpose 

is preserving human life. See Freeman Coal Mining Company v. IBMA, 504 F.2d 

741 (7th Cir. 1974). But while an agency's explication of its regulation is 

entitled to great weight, "such interpretations forfeit their entitlement to 

deference when they plainly conflict with other indicia of the proper interpretation of the statute." UMWA v. Andrus, 581 F .2d 888, 983 (D.C. Cir. 

1978) • 

• There is nothing in section 75.1003-2 to indicate that the drafters 

intended to include component parts of off-track mining equipment within the 

coverage of the standard. Neither the word "component," nor examples of component parts, are found in any of the subsections. Respondent contends that 

the term "unit of off-track mining equipment" was meant to be expansive "in 

order to cover the myriad of possible pieces of equipment that may be transported by Contestant over energized trolley wires" (Brief, p. 9). This 

argument is unpersuasive since another section of Part 75 specifically refers 

to components, indicating that such parts are subject to the safety standard. 

See section 75.1103-2. The word "components" easily solves the problem of 

listing "the myriad of possible pieces of equipment." Therefore, it is fair 

to assume that the drafters would have included the word "components" within 

the provisions under section 75.1103-2 had they intended to include a component part such as a boom. 

Subsection (d) of section 75.1103-2 refers to the "frames of off-track 

mining equipment." The ordinary meaning of a frame is a structure upon 

which a thing is built. One of the examples given in Webster's New World 

Dictionary is: "4. any of various machines built on or in a framework." 

Therefore, the most natural interpretation of the phrase "frames of offtrack mining equipment" would indicate that it refers only to frames of 

c'omplete machinery. 

Component parts, such as a boom, do not have frames. They have enclosures or shells. Applicable words are found in 30 C.F.R. § 75.701 in its 
reference to "metallic frames, casings, and other enclosures of electric 

equipment." (Emphasis added.) Since subsection (d) mentions only frames, 

it is evident" that the drafters were considering only large, nearly complete, or complete pieces of machinery. 

Subsection (g) provides as follows: ''The provisions of paragraphs (a) 

through (f) of this section shall not ap.ply to units of mining equipment 

that are transported in mine cars, provided that no part of the equipment 

extends above or over the sides of the mine car." The facts here indicate 

that the boom was being transported on a lo-boy supply car whose sides were 

only 8-1/2 inches high from the rail. Since there were virtually no sides 

to the·supply car, anything that would be placed on it would "extend above 

* * * the sides of the mine car," and make the exception provided by subsection (g) inapplicable. Therefore, as contestant so aptly states, "the 

precautions specified in section 75.1003-2, according to r~spondent's interpretation, would be required regardless of how small a component was moved 

and how great of .a vertical clearance between the component and the trolley 

wire" (Brief, p.· 2). Such a broad interpretation of the standard goes 

beyond any Congressional purpose of providing a safe work environment and 

preventing accidents. 

Respondent argues that subsection (f) sufficiently defines a "unit of 

off-track mining equipment" so as to include a boom within its scope. The 

standard requires a minimum clearance of 12 inches between the unit and the 

trolley wires with additional precautions for equipment which does not permit 

at least. a 12-·inch clearance. I fail to see how subsection (g) adequately 

defin~s a unit of off...'.track mining equipment, other than to include every 

size and type of equipment. According to respondent's interpretation, even 

a very small component would be a unit of off-track mining equipment as 

long as it is more than 12 inches from the trolley wires when it is being 

moved. 

Furthermore, if section 75.1003-2 is meant to apply only to components 

of off-track mining equipment, then the very same or similar component parts 

of on-track mining equipment could be transported where energized trolley 

wires are present and not be subject to the safety requirements. This absurd 

situation couid not have been anticipated or intended by the drafters. 

Respondent's exploration of .the legislative history further convinces 

me that section 75.1003-2 was not intended to cover component parts. The 

Federal Registers which proposed the initial rule and also reported subsequent hearings and comments, make no mention of components of off-track 

mining equipment. */ The drafters obviously thought the words "off-track 

mining equipment" were sufficiently clear without further explanation. 

Since no mention is made of components, or examples thereof, I conclude 

that they are not subject to section 75.1003-2. 

~/ See 37 Fed. Reg. 26422 (December 12, 1972); 38 Fed. Reg. 7466 (March 22, 

l973~38 Fed. Reg. 16922 (June 27, 1973); 39 Fed. Reg. 29997 (October 31, 

1973). 
Conclusion and Order 

In view of the foregoing, I find that contestant was improperly charged 

with six violations under 30 C.F.R. § 75.1003-2 since the boom was neither a 

unit of off-track mining equipment or off-track mining equipment. Accordingly, 

it is unnecessary to examine.the issues of vagueness and multiple charges 

under the safety standard. The record shows that there is no genuine.issue 

a·s to any material fact alid that contestant is entitled to summary decision 

as a matter of law. Therefore, pursuant to Rule 64, 29 C.F.R. § 2700.64, the 

citations are VACATED and these proceedings are DISMISSED. 

£.~otf.~ Administrative Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corporation, P.O. 

Box 700, Lancaster, OH 43130 (Certified Mail) 

F. Benjamin Riek III, Esq., Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Office Building, Cleveland, OH 44199 (Certified 

Mail) 

Harrison B. Combs, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, DC 20005 (Certified Mail) 

Standard Distribution 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE; SUITE 400 

DENVER, COLORADO 80204 JUN 4 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

PHELPS DODGE CORPORATION, 

Respondent. 

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CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 79-370-M 

A/O No. 29-00159-05508 

DOCKET NO. CENT 79-371-M 

A/O No. 29-00159-05009 

DOCKET NO. CENT 79-372-M 

A/O No. 29-00159-05010 

MINE: Tyrone Mine and Mill 

DECISION 

APPEARANCES: 

Marigny A. Lanier, Esq. 

Office of the Solicito~ 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

for the petitioner 

Stephen W. Pogson, Esq. 

Evans~ Kitchell & Jenckes, P.G. 

363 North First Avenue 

Phoenix, Arizona 85003 

for the respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE: 

Pursuant to the provisions of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq., the petitioner seeks an order assessing 

civil monetary penalties against. the respondent for violations alleged in 3 

citations involved in the above captioned cases. An order was issued 

consolidating the ra~es for hearing. The citations alleg: a v~olation of 

30 C.F.R. § 55.3-3 in case CENT 79-371-M, and separate violations of 

};_/ Mandatory. To ensure a safe ope rat ion, the width and height of benches 

shall be governed by the type of equipment to be used and the operation· to 

be performed. 

1458 
30 C.F.R. § 55.3-5 2 in cases CENT 79-370-M and CENT 79-372-M. The 

violations allegedly took place on April 24, 1979. 

The respondent admits jurisdiction of the Cormnission, denies all other 

allegations and alleges that men were not working near or under dangerous 

banks at its Tyrone, New Mexico mine. 

FINDINGS OF FACT: 

1. The alleged violations took place at respondent's open pit, 

multiple bench copper mine located at Tyrone, New Mexico. 

2. The respondent is a large operator and the penalties proposed will 

not affect respondent's ability to continue in business. 

3. The respondent has a history of 55 cited violations from July 20, 

1978 through April 24, 1979 at its Tyrone, New Mexico mine. Of this 

number, there have 28 assessed violations paid. 

4. In 1978 there were 723 miners employed at respondent's Tyrone Mine 

and 1,064,340 annual man hours were worked by those miners. (Tr. 193). 

5. The violations alleged were promptly abated in good faith. 

6. The mining sequence followed at the open pit mine is to di?ill into 

the material containing the ore and to set explosive charges in order to 

blast the material loose. The material is then scooped up and hauled away 

for processing. 

7. As the copper ore and other material is removed, a bench slope 

plan is followed by the respondent. (Ex. R-6). This plan calls for the 

horizontal benches to be approximately 25 feet in width and the bench 

levels to be approximately SO feet apart. These catch benches are 

separated in stair step fashion by a slopirtg wall. 

8. The catch bench is a ledge that runs horizontally in the mine and 

it helps to confine or restrain loose material that may fall from higher up 

in the pit. (Tr. 16). . 

9. On April 24, 1979, at a location in the mine referred to as the 

Gettysburg drop cut, a decline or rim leading from one level down to 

another, the No. 13 electric shovel was observed by the MSHA inspector 

loading haul trucks with material that had been blasted previously. 

2/ Mandatory. Men shall not work near or under dangerous banks. 

Overhanging banks shall be taken down immediately and other unsafe ground 

conditiofis shall be corrected prom~tly, or the areas shall be barricaded 

and posted. 

145~t 
10. The walls and benches above the area where the material was being 

loaded into haul trucks by the No. 13 ~hovel extended up approximately one 

hundred to one. hundred fifty feet to the top or crest of the bank. 

11. The.maximtnn upper reach of the No. 13 electric shovel wa~ 

approximately 50 feet. 

12. On April 24, 1979, at another location in the mine the No. 3 

shovel was being operated to clean up rock material at the bottom of a bank 

or pit wall. The bank was approximately one hundred fifty to two hundred 

feet high. This operation was also observed by the MSHA inspector. 

DISCUSSION: 

DOCKET NO. CENT 79-372-M; .Citation No. 162124: 

The wall of the mine that slanted away from the work area at the 

Gettysburg drop cut was approximately 150 feet high. Approximate.ly 50 feet 

from the top of the wall was a horizontal catch bench and 50 feet below the 

first bench was anot.her catch bench. According to the bench slope plan, 

these benches were to be approximately 25 feet wide, from the t-0e of the 

wall out to outer edge of thebench. Photographs ta~en of the Gettysburg 

drop cut by the MSHA inspector at the time of the inspection show that the 

catch benches had' collected a considerable amount of rocks and earthen 

material. Men were working near the to~ of the bank which was 

approximately 150 feet high. The MSHA inspector observed one haul truck 

up next to the bank being loaded by the No. 13 shovel and another truck 

approximately 20 feet away from the high wall. Thus, the employees were 

working.near or under the bank and the question presented is whether the 

bank or.wall was dangerous. 

On April 24, 1979, the No. 13 shovel was at times operating within 20 

feet of the toe of the bank and the pit. wall which· rose approximately 150 

feet above. The catch benches on the banks a~ove the operator had.almost 

completely filled up with rock material. Rocks which might fall from the 

top of the wall would not have the catch bench available to stop or at 

least slow the fall. The cab of the shovel operator sits approximately 25 

to 30 feet above .the ground. If the rocks were falling from the catch 

bench, approximately 50 feet up the bank from where the shovel was 

operating, the rocks would probably not present a hazard and the bank would 

not be dangerous. Since the catch benches contained a large amount of rock 

and earth material, a rock which might fall from· the top, 150 £eet up, 

would not effectively be restrained, slowed, or stopped by the catch 

benches on its way down. This condition would present a hazard to the 

operator of the shovel as well as the haul truck drivers and persons 

walking on the ground near these vehicles in performance of their duties. 

All of these persons were observed at the site by the MSHA inspector. The 

operator testified that he observed rock fall from the 100 foot level above 

him and that he considered this condition to be hazardous. He also 
testified that the. rock ·could come through the cab of the shovel which he 

was operating .. The operator had complained to his supervisor about the 

d_angerous high .wall and worked near the high wall for approximately· two 

hours be.fore he was told by his supervisor to take' the shovel out of that 

location. ~owever, no areas were barricaded or posted. 

On the date of the inspection, the heavy equipment operator also 

observed that there were no catch benches on the high wall above th'e No. 13 

shovel. He stated that the catch benches were filled up with material 

which. made the benches slope at an angle instead of being flat and 

horizontal. In other places, the bench had been "dug back or .had fallen 

off to be non-existent." (Tr. 116). 

It is undisputed by the parties that catch benches are necessary and 

perform the function of restraining, stopping or slowing down rocks and 

materials which may fall down the face of the bank. Respondent concedes in 

its post hearing brief that there was. rock. on the benches. It further 

states that this is not very surpirsing since· the purpose of the catch 

bench is to catch rock which may fall due to blasting or for some other 

reason. However, the question is what if the benches are no longer 

available to catch rock because they have been filled by material or are 

missing in some places directly above the location where the miners are 

working? If there are no effective catch benthes above the miners, then 

there would be little to prevent rocks from falling unimpeded 

down the face of the bank. 

There was testimony that the loose and unconsolidated rock material 

observed by the MSHA inspector and by the miners on the bank could move 

because of the freeze-thaw characteristics of weather, because of blasting 

taking place in nearby areas of the mine, because of rainfall, wind or for 

any other reason which might set the rock material in motion. Of 

particular signific·ance is the testimony of the truck driver who was 

working in connection with shovel No. 13 at the Gettysburg drop cut near 

the time of the inspection. He testified that while he was in the cab of 

his empty truck waiting for another truck to finish being loaded by No. 13 

shovel, part of the bank above him came down and hit the side of his truck. 

He looked in the rear view mirror and saw dust and some debris still 

falling. His truck was parked within two feet of· the bank. The driver 

testified that he had difficulty driving away after his truck was loaded 

due to the rock material that had fallen under his truck from the bank. 

The catch benches above the No. 13 shovel had accumulated rocks and 

earthen material and were no longer effectiv~ in restraining, slowing or 

stopping rocks from- falling. This condition made the banks dangerous for 

the miners who were working near or under them. There was considerable 

risk or peril of injury to the miners if they were struck by rocks or 

debris falling -down the side of the high bank. Thus, I find that Citation 

No 162124 should be affirmed. 

-~ ~ 6.1 
DOCKET NO. CENT 79-371-M, Citation No. 162126: 

The width of the benches above the Gettysburg drop cut was originally 

approximately 2S feet and the height was approximately SO feet. There is 

no evidence that these specifications were not proper by engineering 

standards. The MSHA inspector concluded that since the benches above had 

effectively filled up and could no longer serve to catch falling or sliding 

rocks the equipment used would have to be able to clean off potentially 

falling rocks from the pit wall or bank above. In this case the bank was 

approximately 150 feet high and the shovel had a reach of SO feet.· Thus, 

the shovel would be unable to reach high enough to clean off the entire 

bank. The inspector also testified that there would have been no 

violation of the regulation if the catch benches had been maintained. 

The SO foot height of the original benches w~s proper for the 

equipment used because the shovel could reach up to SO feet and thus to the 

edge of the bench above. Once the benches have sloughed away in 'places and 

filled up in others it would be difficult to maintain them. A geologist 

who testified for the respondent stated that it would present a danger to a 

miner to· go onto benches above and clean them off. Only smaller equipment 

could ·be used for that purpose and that equipment would not be able to 

reach up SO feet to clean off the bank. (Tr. 372). 

The interpretation of the standard advanced by the petitioner would 

require the respondent to continually maintain catch benches in locations 

where there was no longer any mining operation going on. The standard 

requires the height and width of benches to accommodate the type equipment 

to be used and in this case no equipment was to be used on those benches. 

The height and width of the benches were of proper dimensions when the 

mining took place. The problem arose because the benches sloughed away in 

some pl~ces and filled up in others after they were no longer in use, thus, 

making them ineffecLive in arresting material that could fall down the 

bank. It was for this reason that the conclusion was reached in the 

previo~s citation that the bank was dangerous. It was up to the respondent 

in that instance to promptly correct such unsafe ground conditions. · 

A violation of 30 C.f.R. § SS.3-3 has not been proven by a 

preponderance of the evidence and Citation No. 162126 should be vacated. 

DOCKET NO. CENT 79-370-M, Citation No. 16212S: 

On April 23, 1979, the No. 13 shovel was being operated to clean up 

material at the toe of a bank on the southside of the pit. (Tr. 126). The 

cab of the shovel was within approximately 20 feet of the bank and the cab 

was approximately 20 to 2S feet above the ground. There was also a service 

employee of the respondent on the ground between the shovel and the bank. 

The bank under which the shovel opera.tor and the service employee were 

working was approximately lSO to 200 feet high. The catch benches were 

approximately SO feet apart and had sloughed and filled with rock and rock 

material. The shovel operator testified that a rock about half of the size 

of a fist had come off of the bank, struck the window of his cab and· 

shattered the glass. The operator did finish his loading duties for that 

day. However, he refused to go back on the shovel at that location the 
next day because of the danger posed by the bank above him. He also 

testified that he had observed rock slides in the area where he had been 

working previously. (Tr. 128). 

The photographs introduced, as well as the testimony of the shovel 

operator and other witnesses, show that the catch benches had completely 

sloughed away above most of .the area where the No. 3 shovel was working. 

This allowed practically no means of arresting falling rocks potentially 

dangerous to any miners working below. 

The respondent correctly suggests that engineering expertise is 

necessary in order .to determine whether or not a bank is unstable. 

However, I also conclude that a miner does not have to be an expert in rock 

mechanics to determine that his safety is impaired when the window of the 

cab of his shovel is struck and shattered by a rock from the bank above 

him. By this decision I am not concluding that in every case where a rock 

falls from a bank and strikes equipment that the. bank is dangerous. 

However, in this case, the operator had previously observed .slides in the 

area and the MSHA inspector and other witnesses had observed loose and 

unconsolidated material on the bank 150 to 200 feet above the No. 3 shovel. 

That material could be s~t in motion for reasons already stated and catch 

benches which were partially filled, or had sloughed away altogether, would 

not be working to restrain the falling material. This condition made the 

bank dangerous for those miners working near or under it. Citation No. 

162125 should be affirmed. 

CONCLUSIONS OF LAW: 

1. The undersigned Judge has jurisdiction over the parties and the 

subject matter in these proceedings. 

2. The respondent violated 30 C.F.R. § 55.3-5 as alleged in Citation 

No. 162124, DOCKET No. CENT 79-372-M; and as alleged in Citation No. 

162125, DOCKET NO. CENT 79-370-M. 

3. The petitioner failed to prove that the respondent violated 30 

C.l".R. § 55.3-5 as alleged in Citation No. 162126, DOCKET NO. CENT 

79-371-M. 

ORDER 

Citation No. 162126 and the penalty proposed therefor are hereby 

vacated. Citation No. 162124 is affirmed and the penalty assessed is 

$1,000.00. Citation No. 162125 is affirmed and the penalty assessed is 

$195.00. The respondent is ordered to pay total civil penalties in the sum 

of $1,195.00 within 30 days from the date of this decision. 
Distribution: 

Marigny A. Lanier, Esq. 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

Stephen W. Pogson, Esq. 

Evans, Kitchell & Jenckes, P.C. 

363 North First Avenue 

Phoenix, Arizona ·85003 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 S.KYLINE; 10th FLOOR• 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 9 1981 

SECRETARY OF LABOR, 

MINE.SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Civil Penalty Proceeding 

Docket No. LAKE 79-215-M 

Petitioner A.C. No. 11-01176-05002 

v. 

Barry Plant No. 8 Dredge and Mill 

MISSOURI GRAVEL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Janet M. Graney, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

James A. Burstein, Esq., and Thomas S. Foster, Esq., 

for Respondent. 

Judge William Fauver 

This proceeding was brought by the Secretary of Labor und~r section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., for assessment of civil penalties for an alleged violation of a 

mandatory safety standard. The case was heard at Springfield, Illinois. 

Both.parties were represented by counsel, who have submitted their proposed 

findings, conclusions, and briefs following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS O~ FACT 

1. At all pertinent times, Respondent, Missouri Gravel Company, operated a plan.t known as the Barry Plant No. 8 Dredge and Mill in Pike County, 

Illinois, which produced sand and gravel for sales in or substantially 

affecting interstate commerce. 

2. Material was transported through the plant by a conveyor belt that 

was powered by a motor-driven pulley. The belt traveled about 350 feet per 

minute. The plant operator, Leslie Perrine, controlled the head pulley by 

a main switch panel at the lower level of the plant. 
3. The head pulley was about 30 inches in diameter and consisted of a 

motor, a feed belt drive and a gear reducer. It was surrounded by a work 

platform and was about 30 feet above the plant's surface. A 50-foot walkway 

ran parallel to the belt between the tail pulley on the plant surface and 

the head pulley and provided the only access to the work platform. A small 

stairway led to the walkway at the lower end. A "no ent~y" sign was at the 

top of the stairs, on a detachable chain that went across the landing. This 

was put there to keep out unauthorized personne·l. 

4. A waist-high handrailing extended along the perimeter of the work 

platform and the outside of the walkway. There was no rail between the conveyor belt and the walkway or between the work platform and the pinch point, 

where the belt revolves around the head pulley. The walkway and work platform 

were constructed of metal grating and exposed to the weather. 

5. Robert Rohs, the plant superintendent, traveled on the platform about 

twice a week for a visual inspection of the head pulley while the conveyor was 

running. It was his practice not to move closer than 20 to 24 inches from the 

pulley. If he needed to get closer, he would first notify the plant operator 

to shut down the conveyor. The plant operator went up on the platform about 

twice a week to grease the head pulley and, as needed, to perform repairs and 

maintenance. The evidence indicates that the operator went on the platform 

only when the conveyor was not running. The above two personnel were the only 

ones authorized to detach the chain and go onto the platform. However, in 

the absence of the plant superintendent, another employee would be required 

to inspect the head pulley. 

6. On :1ay 24, 1979, Inspector Richard J. Ogden inspected the plant 

including the conveyor belts, the dredge, mobile equipment and the shop and 

maintenance areas. He was accompanied by Mr. Rohs and Mr. Perrine. 

7. The inspector observed that, at the head pulley, the pinch point 

between the belt and head pulley was unguarded. 

8. On :tay 24, 1979, Inspector Ogden issued Citation No. 363006 to 

]{espondent, reading in part: "The head pulley of the main belt conveyor was 

not guarded." The cited condition was abated on June 5, 1979, by installing 

a perforated screen as a guard. 

9. At the time of the irispec ti on, there was no emergency switch at the 

head pulley and no stop cord on the conveyor. It was the inspector's opinion that, without a railing between the work platform and the pinch point, 

an employee could be severely injured by becoming caught in the moving 

machinery parts. 

10. He considered such an injury was unlikely because work was seldom 

performed in the cited area while the belt was operating. He saw no one using 

the walkway during the inspection. 

11. Inspector Ogden also believed that Respondent could not have predicted the alleged violation. The plant had been inspected by MESA and MSHA 
inspectors. Before the instant inspection, Harvey Osborne, a MESA inspector, 

apparently told Respondent that a "no entry" sign and chain would be adequate 

compliance, but cautioned that, in the future, enforcement policy would probably be changed and the chain and sign would not be allowed. However, after 

that there were five or six inspections before the instant one and Respondent 

was not told that the chain and sign were inadequate; also no violation was 

cited for a missing guard at the head pulley prior to the instant charge. 

12. After the instant inspection, Mr. Rohs and Mr. Wolfmeyer, Respondent's general superintendent, notified Mr. Fierke of the citation. 

Mr. Fierke called the MSHA office and spoke with Mr. Stan Smith, who said 

that there was an internal memo from MSHA that provided that detachable 

chains and signs were no longer acceptable. MSHA had not circulated this 

memo to the owner-operators. 

13. On May 24, 1979, Inspector Ogden issued Citation No. 363005 to 

Respondent, reading in part: "The return idlers on the No. 1 belt conveyor 

were not guarded." On December 9, 1980, the Secretary moved to dismiss the 

petition for assessment of civil penalty as to that citation. 

DISCUSSION WITH FURTHER FINDINGS OF FACT 

Based on the citation issued on May 24, 1979, the Secretary has charged 

Respondent with a violation of 30 C.F.R. § 56.14-1, which provides: "Mandatory. 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." 

The Secretary contends (1) that the chain and sign across the stairs, 

about 50 feet from the pinch point, was not a guard within the meaning of 

the cited standard, and (2) that the events in prior inspections do not 

estop the Secretary from charging Respondent with a violation of the cited 

standard. 

The Secretary proposes a penalty of $26. 

The Respondent argues that the detachable chain and sign provided 

adequate protection against injury from the moving parts of the head pulley 

because the walkway provided the only access to the head pulley and no 

employees, except the plant superintendent, were authorized to remove the 

chain and travel on the platform while the conveyor belt was running. The 

operator was the only other person authorized to travel on the platform and 

he traveled it only when the belt was not running. Respondent contends that, 

when the superintendent traveled on the platform .to inspect the head pulley, 

he would perform only a visual inspection no closer than 20 to 24 inches from 

the pinch point and was, therefore, in no danger of injury. 

Respondent also argues that the Secretary is estopped from bringing this 

action because of Respondent's good-faith reliance on the representations--

1 .4 6,. ! lf I 
express an~ implied--of prior inspectors who indicated that use of the chain 

and sign was adequate compliance. 

I find that the detachable chain and "no entry" sign that limited-access 

to Respondent's head pulley at the Barry Plant No. 8.Dredge and Mill were not 

an adequate guard within the meaning of the cited standard. Two employees 

were authorized to detach the chain and travel on the work platform. Other 

employees heeded the warning of the "no entry" sign; however, the two authorized employees were not protected from the dangers of becoming caught in 

the head pulley and severely injured. Mr. Rohs testified that he has never 

slipped on the surface of the work platform, even when the surface was wet. 

However; I find that the possibility of slipping on a wet or icy platform, 

or of simply stumbling, was not so remote as to excuse Respondent from providing a guard around the moving machine parts. 

I also find that earlier statements made by inspectors as to what constitutes a suitable guard are not binding upon the Commission. However, 

Respondent's good-faith reliance on the express and implied representations 

of prior inspectors, and MSHA's failure to notify Respondent of a change in 

enforcement policy before the instant inspection, show that Respondent was 

not negligent. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdict;ion over the parties and subject 

matter of the above proceeding. 

2. Respondent violated 30 C.F.R. § 56.14-1 by failing to provide a 

guard around the head pulley at its Barry Plant No. 8 Dredge and Mill, as 

alleged in Citation No. 363006. Based upon the statutory criteria for 

assessing a civil penalty for a violation of a mandatory standard, Respondent is assessed a penalty of $1 for this violation. 

3. Petitioner's motion to dismiss the petition for assessment of civil 

penalty as to Ci ta"tion No. 363005 is GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED that (1) Respondent shall pay the Secretary of 

Labor the above-assessed civil penalty, in the amount of $1, within 30 days 

from the date of this decision and (2) the petition for assessment of civil 

penalty as to Citation No. 363005 is DISMISSED. 

11~ ]a;,,,..,~ LLIAM FAUVER, JUDGE 
Distribution: 

Janet M~ Graney, Esq., Trial Attorn~y, Office of the. Solicitor, 

U.S. Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

James A. Burstein, Esq., Counsel for Respondent, 8500 Sears Tower, 

233 South Wacker Drive, Chicago, IL 60606 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE a1ol981 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, a division of 

Material Service Corp., 

Respondent 

Civil Penalty Proceeding 

Docket No. LAKE 81-91 

A.O. No. ll-02236-03063V 

Crown No. 2 Mine 

DECISION 

Appearances: Rafael Alvarez, Esq., U.S. Department of Labor, Office 

of the Solicitor, Chicago, Illinois, for the Petitioner; 

Harry M. Coven Esq., Chicago, Illinois, for the Respondent. 

Before: Judge Koutras 

Statement of the c"ase 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner against the respondent pursuant to section llO{a) 

of the Federal Mine Safety and Health Act of 1977, charging the respondent 

with one alleged violation of mandatory safety standard 30 CFR 75.200. 

Respondent filed a timely answer contesting the citation and the matter was 

scheduled for hearing on May 20, 1981, in Terre Haute, Indiana, along 

with other cases involving these same parties. However, prior to the 

commencement of the hearing, the parties advised me that they had agned 

to a settlement of the dispute, and they were afforded an opportunity to 

present their joint settlement proposal on the record for my consideration. 

The citation, initial assessment, and proposed settlement amount are as 

follows: 

Citation No. Date Proposed Assessment Settlement 

1005827 11/10/80 $2,000 $1,500 

Discussion 

The citation in this case was issued after the inspector found that 

certain room and entry intersection diagonals and crosscuts were driven 

1470 
for distances wider than those provided for by the respondent's 

approved roof control plan. In support of the proposed settlement, 

petitioner stated that the citation in question was issued approximately 

one month before respondent's new roof control plan was approved, and 

that the roof area in question was considered to be in very good condition 

and was fully roof-bolted. Under the new roof control plan, the area 

cited as being driven too wide would only have exceedeq the plan requirements by approximately 18 inches, and the conditions cited did not result 

in any accidents or injuries (Tr. 4-9). 

In view of the foregoing circumstances, and taking into account all 

of the statutory .civil penalty criteria found in section llO(i) of the 

Act, the parties were in agreement that the proposed settlement is 

reasonable and they requested my approval. 

Conclusion 

After careful review and consideration of the pleadings, arguments, 

and information of record in support of the proposed settlement, I 

conclude and find that it is reasonable and in the public interest. 

Accordingly, pursuant to 29 C.F.R. 2700.30, the settlement is APPROVED. 

Order 

Respondent IS ORDERED to pay a civil penalty in the amount of $i,500, 

in satisfaction of the citation in question within thirty (30) days of 

the date of this decision and order, and upon receipt of payment by 

the petitioner, this proceeding is DISMISSED. 

~Ko'!a~ Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., U.S. Department of Labor, Office of the So i.citor. 

230 South Dearborn St., Chicago, IL 60604 (Certified Mail) 

Harry M. Coven, Esq., Gould & Ratner, 300 West Washington St., Suite 1500, 

Chicago, IL 60606 (Certified Mail) 

1471 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 10 1981 

SECRETARY OF LABOR," Complaint of Discharge, 

MINE SAFETY AND HEALTH Discrimination, or Interference 

ADMINISTRATION (MSHA), 

On behalf of: 

WAYNE TICE, 

v. 

Complainant 

Docket No. SE 79-25-D 

CD 78-95 

Nauvoo Strip Mine 

AADIANT COAL COHPA.i."l'Y, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Inga Watkins, Esq., Office of the Solicitor, 

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

for Complainant; ~ 

Joseph w. McCullough, Radiant Coal Company, Inc., 

Birmingham, Alabama, for Respondent. 

Judge Stewart 

The above-captioned case is a complaint of discharge, discrimination, 

or interference brought pursuant to section 105(c) 1/ of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (hereinafter, the 

Act). 

1/ Section-10S°(c)(l)--0f~he Act-readS-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 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 * * *. " 

•~t· ( ,·· 
At the hearing, the parties introduced stipulations, admissions, 

exhibits, 2/ and the testimony of witness·es. The Complainant called as 

witnesses Wayne Tice; Billy Starnes, United Mine Workers of Ameri~a (UMWA) 

executive board member for District 20; Terry Hunter, president of .UMWA Local 

6855; David Lawson, UMWA safety inspector; and Lawrence Layne, Special Investigator for Coal Mine Safety.and Health, U.S. Department of Labor. Joseph 

McCullough, president of Radiant, testified ~n behalf of Respondent. 

Wayne Tice was employed by Radiant Coal Company (hereinafter Radiant) 

from October 10, 1977, until June 8, 1978, when he was discharged. The reasons given for his discharge were an inciden.t which occurred on June 6, 1978, 

when Tice allowed .a drill truck to roll while a person was underneath it and 

other alleged safety infractions for which he had been reprimanded. 

Tice, a UMWA member, was idled from December 1977, to April 1978, by a 

strike. After he returned to work on April 10, 1978, and complained of 

mechanical problems he encountered while operating the drill, he was not 

allowed to work as many hours as the other employees. 

Radiant is not in operation and is no longer active but it has not ~one 

bankrupt nor has it been dissolved. The last coal mining at the Nauvoo Strip 

.Mine took place in September 1978. The machinery which had been leased was 

returned to its owners. Radiant currently has no assets. It owe·s $11,000 to 

the Internal Revenue Service in withholding·taxes. Other major obligations 

include amounts owed to a fuel distributor a~d a power company. The total 

liabilities amount to a minimum of $40,000. 

ISSUES 

I. Whether Wayne Tice is entitled to relief pursuant to the provisions 

of section lOS(c) of the Act. 

II. If Wayne Tice has been discriminated against in violation of section 105, to what relief is he entitled? 

In order to establish a prima facie case of a violation of section lOS(c), 

Tice must establish (1) that he engaged in" protected activities, and (2) that 

the adverse action taken against him was motivated in part by the protected 

activities. Tice bears the ultimate burdEl!n of persuasion with regard to these 

issues. On the other hand, Radiant may affirmatively defend by proving by a 

preponderance of the evidence that, although part of its motive was unlawful, 

(1) it was also motivated by the miner's unprotected activities and"(2) that 

it would have taken adverse action against the miner in any event for the 

unprotected activities alone. Pasula v. Consolidation· coal Company, 2 MSHC 

2/ The transcript of this hearing contains references to an exhibit, M-8. 

This number was included as a designation of one of a group of pr~marked 

exhibits which were offered at one time. No exhibit offered actually has the 

designation M-8. 
1001, 1010 (1980) (hereinafter, Pasula); Robinette v. United Castle Coal 

Company, Docket No. VA 79-141-D, 2 MSHC 1213 (1981). 

STIPULATIONS AND ADHISSIONS 

That the Federal Mine Safety and Health Rev;ew Commission 

has jurisdiction over the subject matter of this case 

That Wayne Tice, Complainant, worked for Radiant Coal 

Company at the Nauvoo Strip Mine between October 10th, 1977 

and June 7th, 1978. 

That during the working shift between April 14th and 

21st, 1978, the drill steel of the 650 CP drill had t•) ~_e 

placed back into the rack. The drill steel fell out of the 

rack and injured Wayne Tice's foot. 

That Wayne Tice did not receive work between May "';t'_ 

1978 and May 30th, 1978. 

That on June 8th, 1978, Wayne Tice was discharged from 

Radiant Coal Company. 

That the 650 GP drill assigned to Wayne Tice while 

employed at the Nauvoo Strip Mine was r7paired on June 13th, 

1978. The repairs included, but were not limited to, adjustment to the latches on the steel rack, welding the mast and 

replacing the pin on the steel rack lock. 

That on Hay 30th of 1978, Radiant Coal Company was aware 

that Mr. Tice claimed that the drill jumped into reverse while 

being operated by him. 

That on June 5th, 3/ Mr. Tice was sent home and asked to 

stop working at 3 :45 p.m., and that all other miners working 

at the mine that day continued to work the remainder of the 

day. 

DESCRIPTION AND CONDITION OF DRILL 

The CP650 drill, which is truck-mounted, drills a hole 6-7/8 inches in 

diameter. Separate engines run· the drill and the truck. When in operation, 

the drill stands vertically 28 feet in the air. The steels used for drilling 

are mounted on the drill mast and are attached to a drilling head. A rack 

3/ Although Complainant's witnesses mistakenly referred to the last day on 

which Tice worked as June 5, 1978, the record as a whole establishes that 

the last day he worked was June 6, 1978. 

1174 
alongside the drill carries seven spare steels to be used in drilling. The 

steels have an outside diameter of 5 inches and an inside diameter of 3 inches. 

They are 25 fee-t long and weigh 4,000 pounds. The spare steels are held in 

place in the rack by brackets and secured there by latches operated by means 

of rods. 

When Tice returned to work after the strike on April 10, 1978, rods were 

missing on some latches and some of the latches were frozen. As a result, 

once latched, the latches could not be undone. If left undone, the steels 

would move around. Steels would come loose when the drill was in a vertical 

or horizontal position. 

The rotation lever on the drill was also defective. When the lever was 

in the reverse position, a counterclockwise rotation unscrewed the steels from 

the drill operating head. A pin and part of its linkage were broken. Because 

of the broken pin, the drill would vibrate itself into reverse. As a result, 

the steel would be unscrewed from the drill head. When the carrier was to be 

moved, the mast would be lowered to a horizontal position. The drill motor 

was left running to maintain the hydraulic pressure. If the rotation lever 

vibrated into reverse, the steel would detach itself and then fall when the 

drill mast was again raised to a vertical position. 

The rotation lever and a throttle lever had first become defective on 

December 1, 1977, just prior to the strike. The throttle lever had been 

repaired during the strike. Part of the problem with the rotation lever--

the broken linkage--was also repaired during' the strike. 

The drill was a used machine which required maintenance on a regular 

basis. At various times, the throttle was adjusted, parts of the motor 

were taken off and repaired, bolts were tightened and adjusted, and welding was done on the latches. This welding on the latches was done by 

Radiant employees. Additional work was done on the drill on June 13, 1978, 

after Tice had been discharged. Repairs were made to the latches, the pin 

was replaced in the "steel rack lock" and welding was done to fix the latch 

on the mast. 

During the period from December 4, 1977, until the end of March 1978, 

Joseph McCullough, Radiant's president, personally ran the drillon occasion. 

He did not have any problem with the steels dropping out. After adjusting 

the throttle control, he did not have any problem with it. · During this time, 

the carrier was moved several hundred miles without the drill or the drill 

steels coming loose. McCullough did not operate the drill from the conclusion of the strike through June 19, 1978. 

The Nauvoo Pit was inspected on May 23, 1978. Radiant's daily report for 

May 23 mentioned an inspection but did not contain any indication that the 

drill was in operation on those days and did not state whether or not the 

inspector examined the drill. The drill was useable but was not used in normal 

mining operations that day because there was no need to drill. Lawrence Layne, 

the MSHA special investigator who investigated Tice's discrimination complaint, 

117, .. I •. " 
·visited the Nauvoo Strip Mine on June 21, 1978.. Mr. Layne had questioned 

Mr. Henderson, the MSHA inspector who conducted the inspection of the Nauvoo 

Pit in May 1978. Henderson stated that he did not inspect the drill. Edward 

McCullough at first believed that the drill had been run for the inspection 

but later admitted that he had no personal knowledge tha·t the inspector had 

examined the drill, or if he did, whether it was running at the time. 

The record establishes that Wayne Tice complained of conditions which he 

believed to be a danger to him in the operation of the 650 drill and that he 

did not make these claims frivolously. Because of a defective rotation lever, 

·the drill would vibrate into reverse when being transported from place to 

place. The steel would become disengaged from the drill head .and fall from 

the mast. Defecfs in the latches which held the steels to the mast allowed 

the steels to come loose. Although Joseph McCullough had no problem operating 

the drill during the strike, Tice experienced difficulties in the operation 

of the drill due to the defects after the strike. 

SAFETY COMPLAINTS 

Tice regularly complained of the condition of the drill to Tommy Johnson 

from April 10, 1978, through June 6, .1978. He estimated the total number of 

complaints to Tommy Johnson to have been 12 to 15 and asserted that he did 

so every tiine he encountered a problem with the steels. He specifically 

identified one occasion on which he complai~ed. On April 21, 1978, Tice was 

slightly injured while attempting to replac~.a steel which had been allowed 

to fall from the drill. Tice warned Johnson that someone might be seriously 

injured if the condition were not corrected. 

Tice also complained of the condition to Terry Hunter on a number of 

occasions and on at least one occasion to Billy Starnes. The first occasion 

on which Tice complained to Hunter occurred when Hunter went to the Nauvoo 

Pit during the third week in April, 1978, to have Radiant Coal Company sign 

the new contract~ He observed efforts to replace two steels which had fallen 

from the drill. He spoke with both Tice and Tommy Johnson. It was Hunter's 

opinion that Johnson knew of Tice's complaint because Johnson was "standing 

there" and responded to Johnson's inquiry by saying "We'll try to get it 

fixed." 

Hunter next spoke with Tice about the condition of the drill a week to a 

week and a half later. He again observed Radiant employees placing steels 

back into the drill. Chains and chain binders had been used around the steels 

in an attempt to keep the steels in place. Hunter again spoke with Tommy 

Johnson who assured him that the necessary welding would be done to repair 

the drill. 

The third occasion on which Tice complained occurred in the last week of 

May, 1978. Hunter visited the Nauvoo Pit in response to a complaint made by 

Tice over the telephone. Hunter spoke with Tice at the mine and called Billy 

Starnes for him. Tice explained his complaint to Starnes and gave Tommy 

Johnson the phone. Johnson told Starnes that they would fix the machine 

! • ·7 f ..... ' A ' 
before using it again. Hunter testified that the condition of the drill was 

such that he 'would have refused to operate it; he would.have called for an 

inspection by MSHA pursuant to section 103(g) of the Act instead. 

Radiant introduced four .exhibits entitled "Operator.'s Daily Report" 

completed by Tice with regard to the CP650 drill. These machine operator's 

reports were dated April 21, April 26, April 28, and ·May 30. Although space 

was provided for a listing of needed mechanical care or attention and Tice 

had noted problems with the drill in each report, he made no mention of a 

defective rotation lever or defective securing latches. Mr. McCullough testified that he did not see a complaint regarding the rotation lever or securing 

latches. Even if no such report were made in writing, the record establishes 

that verbal complaints were made by Tice• 

PROTECTED ACTIVITY 

·It is established by the record that Tice engaged in activity which gave 

rise to the protection of section 105(c). In pertinent part, section 105(c) 

protects a miner who has "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." 

A safety complaint is a protected activity within the meaning of section 

105(c) if such complaint is made to the opei&tor, the operator's agent or the 

representative of miners at the mine. 

terry Hunter and Billy Starnes were representatives of miners within 

the meaning of section 105(c). A "representative of miners" is defined in 

30 C.F.R. § 40.l(b)(l) as a person or organization which represents two or 

more miners at a coal or other mine for the purposes of the Act. · Each was 

charged by virtue of his position with responsibility for representing 

union members. In his capacity as president of Local 6855, Terry Hunter 

served as chairman of the union's safety committee. Billy Starnes was a 

member of the district executive board, more commonly referred to as a 

field representative. 

Section 3(e) of the Act defines an "agent" to be any person charged with 

responsibility for the operation of all or.part of a coal or other mine or the 

supervision of the miners in a coal or other mine. 

Tommy Johnson was Radiant's secretary-treasurer. He had authority to 

sign, and ac~ually signed, pay checks for the corporati9n. Tommy Johnson was 

also Radiant's "designated representative" for the purpose of conducting examinations and signing records of such examinations. 

McCullough's position was that he, McCullough, was the only supervisor 

at the Nauvoo Pit. He asserted that there was no foreman at the mine. He 

stated that he was "out there frequently (although) not necessarily every 

day." McCullough spoke with Johnson every day. · J.ohnson conveyed information 

! • 7~ .A. i ( 
to McCullough and advised him. He would relay McCullough's orders to the 

other Radiant employees. 

Notwithstanding the Respondent's assertion that Johnson was not a foreman, it is found that Tommy Johnson was "charged with * .* * the supervision 

of the miners" within the meaning of the Act. Tice received his work orders 

from Johnson. He was told by Johnson·when he was to begin and when he was to 

cease work. It is also clear that Johnson held himself out to non-employees 

as being charged with responsibility. When he was. questioned about Tice's 

safety complaints by Terry Hunter and Billy Starnes, Johnson responded to 

their questions as if he had the authority to do ~o. 

Tommy Johnson was a member of the UMWA during the times pertinent herein. 

His membership in the union does not preclude a finding that he was the agent 

of Radiant. He was also found by an arbitrator upon a grievance filed by 

Wayne Tice not to have been a supervisor within the meanin3 of the 1978 

National Rituminous Coal Wage Agreement. The conclusion of the arbitrator as 

to Tommy Johnson's status has been thoroughly considered herein. The underlying premise of the arbitrator's opinion was that no individual should be 

exempted from the coverage of the contract if it was possible to avoid doing 

so. The arbitrator concluded that Johnson was not a supervisor because he 

spent much more time in production work than he actually did supervising. 

The arbitrator's conclusion that Tommy Johnson was not a supervisor will be 

given little or no weight in this decision. In view of the underlying premise 

employed by the arbitrator, the contractual'and statutory categorizations of ,. an individual as a supervisor turn upon different criteria. 

Ultimate control over operations may not have been delegated to .Johnson; 

however, in McCullough's absence, Radiant employees looked to Tommy Johnson 

for their orders. In conveying orders, he supervised the other miners and, 

he exercised a substantial measure of control over daily operations. It 

would be unrealistic to categorize Tommy Johnson as other than an agent of 

Radiant Coal Company within the meaning of the Act. 

Wayne Tice made complaints regarding alleged safety defects to Tommy 

Johnson, the operator's agent, and to representatives of miners. In so 

doing, he engaged in activities protected by section 105(c) of the Act. 

REDUCTION IN HOURS 

During the period from April. 10 through June 6, 1978, Tice was permitted 

to work fewer hours than other Radiant employees after he had made safety 

complaints. The record establishes that this was adverse action motivated 

by protected activity. 

Tice had been hired on Tommy Johnson's recommendation on October 10, 

1977. He was to run the drill and do any work required in the pit. Because 

Radiant did not yet have a drill, he ran a bulldozer, pumped water, cleaned 

coal, helped load coal, and did anything in the pit that needed to be done 

for the first 2 or 3 weeks.of his employment. 

1478 
Because Radiant Coal Company, Inc., was not a member of the Bituminous 

Coal Operators' Association, it signed an appendix to the National Bituminous 

Coal Wage Agreement. The contract with the UMWA provided for payment at an 

hourly rate. The contract also provides that, in mines producing coal for 

6 days a week, each individual shall be given a fair and equal opportunity 

to work on each of those 6 days. 

Radiant employees were paid on a salary basis. The salary exceeded what 

they would have gotten if paid on an hourly basis. Radiant employees were 

supposed to work when needed and to do whatever work was necessary. Tice was 

paid on a: salary basis when he was hired. After the strike, Tice stated that 

he wanted to be paid.by the hour and only wanted to operate the drill. At 

that time, Radiant had a quantity of coal stockpiled. The work that Radiant 

did amounted to selling stockpiled material. It had finished mining of the 

area for which it had a permit. There was, therefore, no need to use the 

drill until the permit was obtained for the new area to be mined on April 8, 

or April 9, 1978. Tice was called back on April 10 and only he ran the drill 

until June 6, 1978. 

After Tice complained to Radiant management and the miners' representatives, the nu~ber of hours he was permitted to work were curtailed. Tice 

believed that this action was taken because of his safety complaints. He 

worked many partial days and so_metimes worked only once per week. Only once 

did Tice work for more than.7-1/4 hours. Normally, after working a day, he 

would be told that he would be notified when to return to work. He worked 

from 7 to 21 hours per week from May 10 thr6ugh June 7. Tice estimated that 

the other men generally worked a minimum of 60 hours per week. Because his 

home was about 1-1/2 miles from the mine on the road to the mine, he could 

observe the other Radiant employees going to and coming from work. Other 

employees of Radiant worked as-many as 10 to 12 hours per day and on 

Saturdays and some Sundays. 

Tice worked to this limited extent from April 10, 1978, to May 8, 1978. 

He was laid off from May 8 through May 30 purportedly because a dozer was 

broken but Radiant had a second dozer. The dozer was used to make a path 

for the drill and to remove rock after the shot. Leo Stubbe, who was classified as a drill helper, worked at least part of these 3 weeks. The drill 

was not operated during this period. 

Tice first complained about the condition of the drill to Tommy Johnson, 

and hence to mine management, on his return to work after the strike on 

April 10, 1978. He continued to complain to management throughout the period 

in which he was employed by Radiant. Tommy Johnson responded to Tice's complaints negatively. He directed Tice to continue drilling or go home. Tice 

continued to complain to Johnson and to union officials. On three separate 

occasions, he voiced his concerns to Terry Hunter. On the last occasion, he 

also complained to Billy Starnes. Tommy Johnson was aware that Tice complained to the union on these occasions. Johnson was questioned by the union 

officials involved regarding the alleged safety problem and told the officials 

that the condition would be.corrected. 

f 4 7<t .L '\ • 
Tice was the only individual to run the drill during the period of time 

from April 10, 1978, through June 6, 1978. Respondent asserted that Tic_e 

opted to only run the drill and Radiant complied with his wishes. The issue 

as to whether Tic~ had requested to operate only the drill had arisen as 

early as March 27, 1978, a week before Tice returned to -work. Respondent 

introduced an unsigned copy of a letter, dated April 3, 1978, purportedly 

from Ed Johnson to Terry Hunter. The letter was written for the sole purpose 

of informing Mr. Hunter that Radiant had been advised on March 27, 1978, by 

"a pit committeeman" that Tice asserted he wanted to run the drill only and 

that "he has repeatedly said that he did not want any other." However, in 

his statement given to Lawrence Layne, the special investigator of Tice's 

discrimination c!aim, Terry Hunter stated that both he and Tice had informed 

Tommy Johnson on or about April 4, 1978, that Tice would do any type of work 

and that Tice did not make the statement that he wanted to operate only the 

drill. Tice stated that he "never refused to do anything that there ever 

was for me to do, when they told me to do it." As noted in the daily 

reports, Tice occasional)y was called upon to perform tasks other than 

drilling. 

McCullough did not speak with Tice with regard to this matter. To 

support Radiant's contention, he introduced a photocopy of a statement which 

was purported to be that of ·Rosemary Stubbe, wife of Leo.Stubbe, in which 

she report~d statements made to her by Wayne Tice on March 27, 1978. At 

the hearing, Tice denied having made the statement to Mrs. Stubbe. 

Mr. ~~Cullough also testified that a number of people, including _Tommy 

Johnson, James Connell, a policeman and the mayor also told him that Wayne 

Tice had told them that he wanted to run the drill only and that he would 

not_ do other work. Tice specifically denied having made such comments. The 

nature of the evidence introduced by Respondent is such that Tice's rebuttal 

testimony is more persuasive. Although Tice stated a preference to run the 

drill rather than do other work when he returned from the strike, he did not 

refuse to do other work. Even if that statement had been understood 

initially as a declaration that he would do no other work, Tice made it clear 

to mine management that such was not his intent. Tice assertion that he 

never refused to do any work assigned to him is borne out by frequent references in Respondent's daily reports to his performance of work other than 

drilling. Moreover, Tice's unrefuted testimony was that he asked "a couple 

of times" to do other classified work and was told that there was nothing 

for him to do. 

Under these circumstances, the continued negative response to Tice's 

complaints and the disparate treatment given him after he made the complaints 

show that Tice's protected activity was motivation for the reduction in the 

number of hours he was permitted to work during the period from April 10, 

1978, through June 6, 1978. The record does not establish that Radiant was 

motivated by unprotected activities. 
REPRIMANDS 

After Tice had made safety complaints about the condition of the drill, 

he was issued a number of reprimands for alleged safety infractions. There 

was no basis for some of these. reprimands. The record establishes 'that 

Tice's protected activity in making the safety complaints was the motivation 

for the adverse action taken by Radiant in issuing the unwarranted reprimands. 

Tice was issued a reprimand dated April 14, 1978, for failure to comply 

with company safety rules. 4/ On April 13, 1978, after a steel worked loose, 

Tice stopped drilling and attempted to get the steel back in its rack. He 

was wearing safety goggles and a respirator initially as required by the 

company safety rules but he removed them ~ecause they prevented him from 

seeing properly. He believed that the goggles and respirator had to be worn 

only when the drill was in operation. Alan Bradford, a part-time employee 

who served as Radiant's safety director, saw Tice and told him to put his 

glasses and respirator back on. Bradford asked, and was told, Tice's reason 

for having removed the protective equipment. Tice was nevertheless given a 

reprimand for failing to wear goggles and a respirator while running the 

drill. 

Tice was also given a written reprimand for violation of company safety 

rules because he used an air hose to clean the dust from his clothing. He 

had been using the hose to do so since he be.gan working at Radiant and was 

unaware that he violated company safety rules by doing so. Joseph McCullough 

testified that Tice had signed and dated a copy of the company's safety rules. 

Tice testified that he did not remember doing so. The signed copy of the 

rules was not produced. Although it has not been definitely established that 

Tice actually signed the rules, he was aware of other provisions in the rules 

and should have also known of the prohibition against using the air hose to 

clean his clothing. 

In the first of two reprimands dated June 5, 1978, J. R. Newton, a person 

hired by Radiant to advise on safety matters, alleged on review of the daily 

reports that Tice was negligently causing the drill steels to fall because 

"the only way to drop these steels is to reverse the rotation of the drill 

on pulling the steel out of the bore hole." In the second reprim{lnd, J. W. 

McCullough alleged that Tice failed to turn a fuel line valve on the drill 

back on. As a result, the services of a mechanic were required to get the 

equipment back in operation. Tice testified that he had cut off the fuel 

line valve to replace a filter but had been sent home by Tommy Johnson before 

he could replace the filter. 

4/Tice was also reprimandedin-November of 1977 by Ed Johnson for sleeping 

on the job and not performing the work expected of him. Tice explained that 

he had been observed with his eyes closed but that he had closed them because 

sand was blown into them while he was operating a dozer in a 10-mph wind. 
The record establishes that some of these reprimands issued to Tice were 

part of a pattern of harrassment against him. Of the four pertinent reprimands issued ·to Tice (not including the letter issued with regard to the 

June 6 incident) after his complaints to Radiant, only one appears to have 

been of substance. Tice admitted having dusted his clo·thing with an air hose 

on April 10, 1978, in violation of company safety rules. On the other hand, 

Tice was cited on April 14, 1978, for·not wearing goggles and a respirator at 

a time when he was not operating the drill. The company safety rule required 

such use only when drilling. Although Tice was afso reprimanded for negligently having caused steels to fall from the drill, it has been established 

that the drill had faults that had not been corrected. J. R. Newton had no 

reasonable basis for his conclusion that Tice was at fault. Finally, Tice 

was also given a reprimand for failing to turn the fuel line back on. In 

view of the fact that it is uncontradicted, Tice's explanation of the incident is accepted~ Because the filter change had not been completed when 

Johnson directed him to quit for the day, Tice could not have turned the 

fuel line valve back on. The lack of a sound basis for the issuance of 

three of the four reprimands supports a finding that they were issued to 

harass Tice. The assertions of Joseph McCullough to the effect that Radiant 

management did not have a "program" to get rid of Tice and that the concurrence of Tice's complaints with the issuance of reprimands was coincidental 

are without foundation. It is clear that the unwarranted reprimands were 

not motivated by unprotected activity. 

DISCHARGE 

The record establishes that Tice's discharge on June 8, 1978, after he 

had made safety complaints about the condition of the drill, was adverse 

action motivated in part by protected activity. 

The letter of termination sent to Tice on June 7, 1978, gave as the 

cause for the discharge "the continuing violations * * * of the Federal, 

State and company safety rules and especially the seriousness of the latest 

violation occurring on June 6, 1978." The accident which occurred on June 6, 

1978, was due in part to Tice's negligence. As the arbitrator found, the 

role that Tice played in causing the accident was serious enough to have 

warranted suspension. Obviously, the violation of a Federal, state or company safety rule or regulation is not the type of activity afforded the protection of the Act, however, the record establishes disparate treatment of 

Tice for his part in the June 6 incident and that some of the reprimands 

issued for the alleged violations were part of a pattern of harassment taken 

against Tice in part for the safety complaints that he made. 

On the last day on which Tice worked for Radiant, Tice and his helper 

Stubbe encountered problems getting the drill carrier started. Once.they 

succeeded in doing so, they proceeded to the appropriate location and commenced drilling. Tice's helper informed Tommy Johnson that a problem existed 

starting the carrier. While Tice was still drilling and without Tice's 

knowledge, Tommy Johnson crawled under the vehicle. Tice was at the rear of 

the carrier; Tommy Johnson was in front of the carrier. Tice completed the 

1482 
drilling, pulled the drill out of the ground and lowered the leveling jacks. 

When he did so, the vehicle began to roll and almost ran Johnson over. The 

helper had left the vehicle in neutral and the parking brakes were either not 

set or not functioning. Tice believed that the carrier had a hand-set emergency parking brake but he had never tried the lever to ~ee if the brakes 

worked. He testified: "I was never in the carrier. That wasn't my job." 

Stubbe told Tice that the brake would not hold the carrier well enough to 

be relied upon, but because he had never attempted to set the brake, Tice 

was not sure if it was defective. 

Johnson did not reprimand Tice at the time of the near accident and the 

day proceeded without further incident until the drill bit wore out. Tice 

was sent home by Johnson and told that he would be notified in the normal 

fashion when he was again needed to wo.rk. Tice received the letter terminating his employment with Radiant on June 8, 1978. 

McCullough testified that he believed the incident which occurred on 

June 6 was the result of either an intentional act or one demonstrating a 

serious lack of common sense on the part of Tice. He testified that Tice's 

claim that his view was obstructed and that he did not observe Tommy Johnson 

or Stubbe was not plausible because Stubbe stood immediately to the side of 

the right front door of the truck, 10 to 14 feet from where Tice was standing, 

and Tommy Johnson was half under the truck. McCullough asserted that Tice 

should have seen the helper or Johnson. 

The daily report for June 6, 1978, contained a statement to the effect 

that Johnson was halfway under the carrier and Stubbe was squatting beside 

him when Tice hoisted the jacks, letting the machine roll. McCullough was 

not present at the scene of the incident and Tice did not see Stubbe, so it 

has not been established whether Stubbe ·was standing or squatting. Nevertheless, Tice should have known the two were there. He should have seen 

Stubbe and Johnson approach the carrier. Testimony had been given at the 

arbitration hearing on June 19, 1978, to the effect that Stubbe and Tice 

started out together to get Johnson who was 200 to 300.feet away and that 

Tice turned around and returned to the drill while Stubbe continued on to 

get Johnson. Other testimony was given at the arbitration to the effect 

that Stubbe went to get Johnson without Tice' s knowledge. In the present 

proceeding, the direct testimony of Tice that he did not go with Stubbe when 

he left to get Johnson is accepted. Nevertheless, Stubbe did go and get 

Johnson, and Tice should have known of their presence. Although there was 

negligence on the part of Tice, there is no basis for McCullough's suggestion that the incident was due to an intentional act by Tice. 

The accident on June 6 occurred as a result of the concurrent fault of 

Tice and Johnson. There was negligence on the part of Johnson as well as 

Tice. Before going under the drill, Johnson should have taken steps to notify 

Tice· and to determine that the drill would not roll. Johnson conceded at the 

meeting held June 9, 1978, that he had committed a safety infraction in failing to do so. On the other hand, Tice should have known that Johnson and 

Stubbe were in the vicinity bf the carrier. He certainly should not have 
lqwered the carrier without ascertaining whether he could_do so safely; that 

is, he shou~d have checked to see where his helper was and ~ade certain that 

the vehicle would" not roll when lowered. 

De_spite the fact that both men were clearly at fault, action was taken 

against Tice alone. There is no indication that Johnson was given even an 

oral reprimand. Conceivably, Tice's earlier safety infractions might account 

for some difference in the severity of the discipline meted out to Tice and 

Johnson. It does not account for the complete absence of adverse action· 

against Johnson. 

In context, the nature of the disparate treatment of Johnson and Tice 

leads to the.conclusion that there were reasons for the discharge other than 

those expressed. In view of the hostility of management towards Tice which 

was partially motivated by protected activities, it is found that Tice 

established a prima facie case that his discharge was motivated in part by 

his having engaged in protected activities. 

The test announced in Pasula provided the employer an affirmative defense 

if it could be established that, "although part of his motive was utilawful, 

(1) he was also'motivated by the miners' unprotected activities, and (2) that 

he would have taken adverse action against the miner in any event for the 

unprotected activities alone." Respondent may have been- motivated in part by 

Tice's unprotected activities. Certainly, 'rice was deserving of some form 

of discipl~ne·for the role he played in the~une 6th accident. However, 

Respondent failed to show that it would have taken adverse action against 

Tice because of his actions on June 6th or for any other unprotected activity. 

The ostensible reason for Tice'.s discharge was his culpability for the 

accident which occurred on June 6th in light of a number of earlier safety 

infractions. It has been found, however, that the reprimands for said 

earlier infractions were for the most P?rt without substance and were part 

of a pattern of harrassment by mine management against Tice. It has also 

been found that the record contains no indication that Tommy Johnson was 

reprimanded or otherwise disciplined for his concurrent, and equally 

serious, negligent disregard of safety. 

As noted in the arbitration opinion of June 30, 1978 (Exh. R-9), Tice's 

role in the accident may have warranted some disciplinary action. It was 

established that Tice acted in negligent disregard of mine saf.ety and endangered the life of Tommy Johnson who was also negligent. Even though cause 

for disciplinary action may have existed, Respondent failed to establish that 

it would have discharged Tice for his unprotected activities, whether or not 

he had engaged in protected activity. The record actually supports a conclusion to the contrary. There is no evidence that Respondent made it a 

practice to reprimand any employee other than Tice for safety infractions. 

The only instance on the record of a safety infraction by an employee other 

than Tice was committed by Tommy Johnson when he proceeded under the carrier 

while it was in operation. Although his infraction was serious, no indication exists that he was disciplined. Discounting the earlier reprimands for 
the reasons noted above, there is nothing on the record which would lead to 

the conclusion t~at Tice would have been treated differently than Johnson was 

treated had it not been for the forme.r's participatfon iri protected activity. 

That is, there is nothing which would indicate that Respondent woUld have 

discha·rged Tice for the safety infraction he committed on June 6, 1978. 

Tice successfully established a prima facie case of unlawful discrimination. Respondent failed to counter Complainant's case directly or to establish any affirmative defense. it is found, therefore, that Tice established 

by a preponderance of the evidence that the discriminatory action taken 

against him was motivated in part by his participation in activity protected 

by section 105(c) of· the Act_, entitling him to the relief afforded by that 

provision. 

RELIEF TO BE AFFORDED 

After receiving the letter of discharge dated June 7, 1978, Tice called 

Starnes ~ind told him of the letter. Tice was in turn informed t}lat this was 

not the proper termination procedure to be followed by Radiant. He was also 

informed that the union contract called for a meeting between the employee, 

his representative, and a company representative within 24 to 48 hours of the 

firing (hereinafter, 24/48 meeting). Tice set up this meeting in a telephone 

conversation with either Ed or Tommy Johnson. 

, The 24/48 meeting was held during working hours in Radiant's Gardendale 

office on June 9, 1978. Tice, Starnes, HunteP, and Lawson were met by 

Mr. McCullough at the office. When they had been seated, approximately seven 

other classified Radiant employees from the pit entered the room. Three 

members of mine management were present: J. W. McCullough, president; Edward 

Johnson, vice president; and Tommy Johnson, secretary-treasurer. When an 

objection was raised regarding the presence of the classified emp_loyees, the 

explanation was given that the employees were there of their own accord. 

Various threats were made in the course of the meeting. At one point, 

Tommy Johnson, holding his knife by the blade, shook it in Tice's face. 

Tommy Johnson told Tice that "if the union got 'Tice his job back an~ there 

was an accident within 500 feet of Tice, Tice would be held responsible and 

would answer to Johnson's personal satisfaction." 

Tommy Johnson told Hunter that Tice was a safety hazard and was trying 

to kill people. Johnson said Hunter would be personally responsible if Tice 

was given his job back. While he spoke to Hunter, Johnson also shook his. 

knife at him. Johnson also told Starnes and Lawson that they would be held 

responsible. 

Some of the classified union employees said that they would not work with 

Tice whatever the union said because Tice was unsafe. They·believed that Tice 

had deliberately let the drill truck roll when Tommy Johnson was underneath it. 

At least four or five of the employees had their knives out at the meeting 

pretending to be cleaning their fingernails. Tommy Johnson and Ed Johnson, 

1 4 8'' '-1 \. l 
another employee listed as an officer of Radiant, were brothers. Three of 

the radiant employees were Ed Johnson's sons-in-law. 

When Lawson told Tommy Johnson that he had violated the law first by 

crawling under the drill while it remained in operation, Johnson replied that 

Tice "should have known [he] was under there." Thereafter, the discussion 

became heated. During the argument, Tommy Johnson grabbed Tice by the arm 

and said "come on outside. We'll settle this now. I'll show you exactly 

what I am talking about." Starnes and.tawson attempted to stop Johnson from 

doing so and Tice did not go outside. 

It was established that Joseph McCullough did not have a knife out at 

the meeting and that his demeanor was friendly. McCullough testified that he 

had a feeling that Tice was getting farther away from the other men who worked 

with him in the pit, that there was a gradual change in the.men's attitudes 

culminating at the meeting on June 9th and that they were not happy working 

around him. 

Tice took the matter to arbitration on June 19, 1978, 10 days after the 

24/48 meeting. The arbitrator ruled that Tice could return to work but did 

not grant him back pay due to Tice's role in the June 6th incident. After 

the ruling, various threats were directed at Tice by Radiant employees. 

James Connell made a statement to the effect that Tice i;vould get beaten up 

if he returned to work and that accidents cquld be programmed or set up to 

happen. Tice overheard one of the Johnson's,.agreeing with this last statement. Tice believed that Mr. McCullough had something in his pocket that 

looked like a gun at the arbitration meeting. McCullough testified that he 

has never owned a gun in his life. The record establishes that McCullough 

did not have a gun at the arbitration. At the conclusion of the hearing, the 

Johnsons "ganged up around the elevator and tried to get Tice and ·the union 

representatives to ride the elevator with them." 

After the arbitrator ruled that Tice should be permitted to return to 

work, Tice told McCullough that he would be at work on the following morning. 

However, Tice did not report back for work after the arbitration; nor did 

he phone or write to Radiant to inform them that he would not be there. Tice 

stated that he did not return to work at Radiant because of the threats made 

against him and his family. 

Despite the apparent willingness of Mr. McCullough to permit Tice to 

return to work, Tice will not be denied recovery herein because of his 

failure to do so. Among others, Ed Johnson and Tommy Johnson repeatedly 

threatened Tice 1o1ith physical harm if he returned to work. Both Johnsons 

were officers of the company. It has been established that Tommy Johnson 

was an agent of Respondent within the meaning of the Act. Therefore, his 

threatening words and actions are imputed. to Respondent. Tice reasonably 

believed that he or his family would suffer physical ·harm if he returned 

to work. Under the circumstances, he is properly compensated even though 

he did not return to work at the Nauvoo Pit. 

14·86 
Tice. was unsuccessful in his subsequent efforts to obtain employment 

with other local mining operations. Tice stated that he went to every "strip 

or underground mine in Walker and Jefferson county." In the middle of July, 

he took employment with a construction company. 

At the conclusion of the hearing, Complainant submitted the following 

calculations of wages and overtime lost by Tice during the period from 

April 10, 1978, through June 9, 1978, and to wages lost as a result of his 

idlement from (but not including) June 9, 1978, through July 15, 1978. 

(a) $953.24: This amount represents "the difference between the hours 

actually worked by· Complainant, Wayne Tice, (from April 10, 1978, through 

June 9, 1978) and the hours that were actually worked by all men, regular 

time, based on 7-1/4 hours being regular time, 11 multiplied by the hourly 

contract rate then in effect of $8.91. 

(b) $596: That amount would represent "the total hours of overtime 

worked by the Union employees at the mine during the period between April 10th 

and June 9th. The total hours overtime would be 44.60 hours based on the daily 

reports. The total amount of overtime hours is multiplied by the overtime 

rate which was according to the Contract ?t the mine. The UMW Contract provided for an overtime rate of $13.37 per hour* * *· [T]he total number of 

overtime hours was divided by eight men, including Mr. Tice, based on the 

new Contract which provides in Article IV that all overtime available would 

be equally distributed amongst all men working at the 1nine. The number of 

men working at the mine (was calculated from'" the daily reports). 11 

(c) $1,614.94: This amount was achieved by multiplying "the total 

number of days between June 9 and July 15 by the hours per day and the amount 

of wages * * * provided by the contract ($8.91)." 

Counsel for Complainant offered the daily reports 5/ .for the period from 

April lo, 1978, through June 6, 1978, in support of the-estimation of damages. 

Mr. McCullough was offered the opportunity at the hearing to rebut the Complainant's estimation of damages. He stated that he had no statement to make 

regarding damages and that he would not dispute that the figures given by 

Complainant reflected "the amount of money he is claiming that.is owed him 

in'this discrimination case." 

On November 14, 1980, an order was issued setting the date December 19, 

1980, for the closing of the record. An opportunity was given therein for 

the parties to submit further information and/or clarification of their positions regarding compensatory damages. Neither party chose to submit additional information or clarification. 

57--;:ffi.ese daily re.ports-were .. introduced at the hearing with the. acquiescence 

of Mr. McCullough. Petitioner retained possession of the reports until 

August 10, 1980, presumably to aid in further calculation of damages. The 

reports were filed at that time. 
Complainant's unchallenged claims are accepted herein as the appropriate 

measure of.the damages suffered by Complainant, except to the extent that the 

claims are dir·ectly at odds with evidence of record. 

Mr. McCullough testified that Radiant Coal Company,. Inc., was not in 

active operation from June 7, 1978, through June 19, 1978. This testimony 

was not rebutted by Complainant. The last daily report submitted by Complainant waa dated June 6, 1978. 

The inactivity of Radiant on June 19, 1978, was the result of the arbitration held that day. Because the shut down of operations on that day was 

directly related to the discriminatory action taken against Tice, he is 

properly compensated for loss of that day's wages. 

The damages claimed by Complainant are accordingly reduced to account for 

the 8 working days in the time period between June 7 and June 18 during which 

no work took place at the Nauvoo Pit. Complainant's caclulation of lost 

wages during the period from April 10, 1978, through June 9, 1978, is reduced 

by 3 days' wages ($193.79). The calculation for the period from June 9, 1978, 

through July 15, 1978, is reduced by 5 days' wages ($324.82). 

It is found that Wayne Tice suffered damages in the amount of $759 in 

lost wage·s (regular time) from April 10, 1978, through June 9, 1978; $596 

in lost wages (overtime) for this same time period; and $1,290 in lost wages 

(regular time) from June 9, 1978, through JuJy 15, 1978. 

Complainant also requested that his employment record be expunged of 

any unfavorable references to alleged safety·violations for which he was not 

at fault. This request is granted with regard to the three reprimands discussed above which were improperly issued to Tice. 

There is no evidence that Radiant Coal Company has continued to harass, 

threaten or engage in other punitive action against Tice, his family or any 

other miner. 

The Act and the. Commission's Rules of Procedure contain statutory criteria that must be considered and require specific steps to be taken in connection with penalty assessments. Under the circumstances of this case, an 

assessment of a civil penalty would not be appropriate at this time because 

the procedural requirements have not yet been met. At the end of the 

discrimination case, MSHA requested leave to present evidence concerning the 

statutory criteria that must be considered in a penalty case. This request 

was denied due to unavailability of time as well as the failure to file a 

proper petition for assessment of civil penalty meeting the procedural 

requirements of the Act and the Commission's Procedural Rules. 

ORDER 

It is ORDERED that Respondent, Radiant Coal Company, Inc., pay the sum 

of $2,645 plus interest in the amount of 8 percent per· annum, calculated 
fr'om the date of his discharge, to Wayne·.Tic,e within 30 days of the date 

of this decision. 

It is further ORDERED ~hat Respondent expunge from Wayne Tice's employment records reference to the reprimands issued (a) on April 10, 1978, for 

failure to wear goggles and a respirator, (b) on June 5, 1978, for.failure 

to turn a fuel line back on, and (c) on June 5, 1978~ for causing steels 

to fall from the drill. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Inga Watkins, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Joseph w. McCullough, President, Radiant Coai. Company, Inc., 15 Glenview 

Circle, Birmingham, AL 35578 (Certified Mail) 

United Mine Workers of America, 900 Fifteenth Street, NW., Washington, 

DC 20005 (Certified Mail) 

•qq ..... ' '- . 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner,. 

v. 

UNION CARBIDE CORPORATION, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~~~~~-) 

DECISION 

APPEARANCES: 

JUN 1 o 1981 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-401-M 

MSHA CASE NO. 42-00473-05006 H 

MINE: Wilson Silverbell 

James H. Barkley, Esq. and Phyllis K. Caldwell, Esq. 

Office of the Solicitor, United States Department of Labor 

1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294, 

for the Petitioner 

John W. Whittlesey, Esq. 

Metals Division, Union Carbide Corporation 

270 Park Avenue 

New York, New York 10017, 

for the Respondent 

Before: Judge Jon D. Boltz 

Pursuant to provisions of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. §. 801 et~· (hereinafter "the Act")~ the petitioner seeks an order 

assessing a civil monetary penalty against respondent for the violation of 

30 C.F.R. § 57 .. 6-177 as alleged in Order of Withdrawal No. 336984-1, as modified. 

The case was heard on April 23, 1981, in Grand Junction, Colorado. 

At the conclusion of all of the evidence, the parties agreed to waive the 

filing of post hearing briefs and agreed to have a decision rendered from the 

bench after closing arguments. The bench decision follows: 

14!.lO 
BENCH DECISION 

The petitioner alleges a violation of 30 C.F.R. § 57.6-177.!/ In regard 

to the violation alleged, the petitioner more specifically states in Order of 

Withdrawal No. 336984, which was modified as 336984-1, that three misfired 

holes were observed on November 6, 1979, at 2:30 p.m., in the No. 292 heading, 

which is a location designated in the respondent's mine. The order also 

alleges that this condition was readily apparent and also that two employees 

were roof bolting within approximately 8 feet of the face. The respondent 

denies ·the allegation. 

The issues in· the case are whether or not there was a violation of the 

cited regulation and, if so, what penalty should be assessed. 

I make the following findings: 

1. I have jurisdiction over the parties and subject matter of 

these proceedings. 

2. The respondent is a large operator and the proposed penalty, 

if assessed, would not affect the operator's ability to 

continue in business. 

3. There is no significant history of past violations. 

4. The operator demonstrated good faith in attempting to achieve 

rapid compliance after notification of the alleged violation. 

It is undisputed that there were three misfires and that they were not 

reported to any supervisor until their existance was brought to the attention 

of the respondent by the MSHA inspector. The shot took place at the face at 

approximately .4:30 p.m. on November 5, 1979. After the shot, the swingshift 

came to work and the misfires were not discovered during that 8-hour shift. 

The misfires were also not discovered on the subsequent shift on November 6, 

,1979, until approximately 2:30 p.m. It is also undisputed that the MSHA 

inspector observed a fuse at the face of the number 292 heading. The fuse 

as described by the inspector was white and approximately 18 inches in length. 

]:_/ 57.6-177 Mandatory. Misfires shall be reported to the proper supervisor. 

The blast area shall be dangered-off until misfired holes are disposed of. 

Where explosives other than black powder have been used, misfired holes 

shall be disposed of as soon as possible by one of the follo~ing methods: 

(a) Washing the stemming and charge from the borehole with water; 

(b) Reattempting to fire the holes if leg wires are exposed; or 

(c) Inserting new primers after the stemming has been washed out. 
A miner who worked with a mucking machine at the face of the ore body 

after the shot had taken.place and before the MSHA inspector made his inspection 

testified that he checked the area of the blast but observed no misfires. 

Addition~lly, there were other persons who passed by the area, but did not 

observe any of the misfires •. The fuse described by the inspector was easily 

observed by him even though he was there only for the purpose of checking 

radiation levels in the mine. The other two misfires were not easily seen · 

since· they were near the bottom and were covered up with rock. There is no 

~vidence that the ·fuse dbserv'ed by 'the inspector was not in place from the 

time the shot took place at approximately 4:30 p.m. on November 5, 1979, 

until"approximately 2:30 p.m~ on November 6, 1979, when it was observed by 

the inspector,. 

·In my view, the cited r~gulation, which states that misfires shall be 

reported to the proper supervisor, is violated when the misfire, which in 

this case was readily observable, is left unattended for at least the length 

of time that it was iri this case. It wasn't until the MSHA inspector brought 

the condition to the attention of the respondent that remedial action was 

taken as required by the regulation. 

The order of withdrawal is affirmed and I conclude that a penalty should 

be assessed in the amount of $2,000.00. 

ORDER 

The foregoing bench decision is hereby affirmed and the respondent is 

ordered to pay a civil penalty of $2,000.00 within 30 days of· the date of 

this decision. 

~t/'-6< ££' v..fA:~:r-:-;-c< ;,~. / .J n D. Boltz . />}' 

· 1.-/Administrative Law--fudge 

Distribution: 

James H. Barkley, Esq. and Phyllis K. Caldwell, Esq. 

Office of the Solicitor, United States Department of Labor 

1585 Federal Building, 1961 Stout.Street 

Denve.r, ·.Colorado 80294 

John W. 'Whittlesey, Esq. 

Metals Division, Union Carbide ·corporation 

270 Park Avenue 

New York, New York 10017 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

a1-i·lll· 

VIRGINIA POCAHONTAS COMPANY, 

Contestant 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

-MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

VIRGINIA POCAHONTAS COMPANY, 

Respondent 

DECISION 

Docket No. VA 79-136-R 

Citation No. 696068 

August 17, 1979 

Vi-rginia Pocahontas No. 2' Mine 

Civil Penalty Proceeding 

Docket No. VA 80-112 

Assessment Control 

No. 44-01009-03035 

Virginia Pocahontas No. 2 Mine 

Appearances: Marshall S. Pe·ace, Esq., Lexington, Kentucky, for 

Virginia Pocahontas Company; 

Before: 

John H. O'Donnell, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Secretary of Labor 

and MSHA; 

Joe. Clark, T\Tashington, D.C., for United Mine Workers 

of America._!/ 

Administrative Law Judge Steffey 

Pursuant to an order 'dated February 29, 1980, as supplemented and 

amended on March 11, 1980, July 8, 1980, and September 9, 1980, a hearing 

was held in the above-entitled proceeding on December 2, 1989, in Abingdon, 

Virginia, under section 105 (d) of the Federal ~fine Safety and Health Act 

of 1977, 30 U.S.C. § 815(d). 

At the conclusion of the hearing, the parties indicated that they 

wished to.file briefs. It was agreed that initial briefs would be filed 

by February 2, 1981, and that answering briefs, if any, would be filed by 

February 16, 1981. Counsel for the Secretary of Labor and the Mine Safety 

and Health Administration filed his brief on January 29, 1981, UMWA's legal 

assistant filed her brief on February 4, lg31, and counsel for Virginia 

Pocahontas Company filed his brief on February 9, 1981. No party elected 

to file a reply brief. 

1:/ Although Mr~ Clark represented UMWA at the hearing, Ms. Joyce A. Hanula 

wrote and filed UMWA's brief in this proceeding. 

( ' 
\ -

2 

Issues 

The issue raised by Virginia Pocahontas Company's Notic·e of Contest 

in Docket No. VA 79-136-R is whether the provisions of section 103(f) of 

the Act require that a representative of the miners, who accompanies an 

inspector on a shift other than hi~ regularly scheduled sh~ft, be provided 

with work on that shift after the· period of his participation in the inspection has ended. 

The issues raised by the Petition for Assessment of Civil Penalty 

filed in Docket No. VA 80-112 are whether Virginia Pocahontas Company violated section 103(f) of the Act and, if so, what civil penalty should be 

assessed, based on the six criteria set forth in section llO(i) of the Act. 

Findings of Fact 

My decision in this proceeding will be based on the findings of fact 

set forth below. All of the briefs contain either a statement of the facts 

or proposed findings of fact. I believe that my findings include all the 

essential facts which are discussed in the parties' briefs. 

1. Virginia Pocahontas Company is an affiliate of Island Creek Coal 

Company. It was stipulated that Virginia Pocahontas is a large company and 

that payment of civil penalties would not affect its ability to continue in 

business (Tr •. 6-7). 

2. It was further stipulated that Virginia Pocahontas demonstrated 

a good-faith effort to achieve rapid compliance after the cftation here 

involved was issued (Tr. 7). 

3. The No. 2 Mine involved in th.is proceeding was closed on August 9, 

1979, and had not been reopened at the time the hearing was held on December 2, 

1980 (Tr. 7; 18). The mine was closed because it had become uneconomic to 

continue producing coal at that location (Tr. 168). 

4. The miners at the No. 2 Mine were represented by UMWA's Local 1568 

whose president in 1979 was Joe Clark. On Harch 9, 1978, or about the time 

that the 1977 Act became effective, Local 1568 had a meeting for the purpose 

of designating the persons who would walk around with MSHA's inspectors for 

the purpose of fulfilling the rights given to the miners under section 103(f) 

of the Act. The members of Local 1568 decided that the safety committeemen 

who are elected for 2-year terms should also be designated as their representatives under section 103(f) for the purpose of accompanying inspectors 

making mine inspections (Tr. 10; 14; 22; 38). 

5. ~oe Clark, in addition to being president of Local 1568, also 

acted as a safety committeeman, and was employed as an electrician at the 

No. 2 Mine (Tr. 11; 61). The union can elect as many as five committeemen, 

but Local" 1568 concluded that three committeemen were sufficient for discharging the union's functions at the No. 2 Mine, especially since, even at 

the largest mines, only three committeemen are generally elected (Tr. 29). 
3 

The other two connnitteemen in April 1979 at the No. 2 Mine were Randy Skeens 

and Clarence Auville (Tr. 12-13; 61). 

6. The position of safety connnitteeman requires the miner holding 

that position to be willing to spend time investigating and checking into 

complaints made by other miners (Tr. 14; 38). The majority of miners do not 

want to be safety committeemen and it was, in fact, difficult to find three 

miners at the No. 2 Mine who would accept the responsibilities of being 

safety committeemen (Tr. 10-11; 46; 96). All three of the safety committeemen (Clark, Skeens, and Auville) at the No. 2 Mine worked on the midnight-to8 a.m~ shift (Tr. 13). 

7. The fact that all three safety committeemen were employed on the 

midnight shift resulted from the fact that most miners who were interested 

in serving as safety committeemen were young. Host miners prefer to work 

on the day shift. The result of that preference, according to Joe Clark, is, 

that the oldest and most experienced miners are concentrated among the dayshif t employees. The youngest men, therefore, are generally assigned to the 

midnight shift and their willingness to accept the position of safety committeeman resulted in their being selected as the miners' representatives to 

fulfill their right under section 103(f) to walk around with MSHA inspectors 

(Tr. 13; 47-48). 

8. MSHA inspectors examine mines on all working shifts, but the majority of inspections occur on tl).e day shift (Tr. 32-34; 111). Since the membership of Local 1568 had decided·that safety committeemen should perform the 

walk-around duty of the miners' representative under s·ection 103 (f), and 

since all three of the safety committeemen worked on the midnight-to-8 a.m. 

shift, it was necessary for the safety committeemen to report for work on 

the day shift in order to carry out their responsibilities of walking around 

with inspectors. The reporting of a midnight shift employee as the miners' 

representative on the day shift created problems for both the miners' representatives and management. The problems created from the standpoint of the 

miners' representative are discussed in the next nine findings of fact. 

9. The facts which brought about the legal issue raised by Virginia 

Pocahontas Company's Notice of Contest resulted when Clarence Auville, a 

miners' representative who normally worked on the midnight shift, reported 

for work at 7:00 a.m. on Monday, April 23, 1979, for the purpose of accompanying an MSHA inspector during a regular inspection (Tr. 65; 67). Auville 

asked for work before the inspector began his examination of the mine, but 

that request was refused (Tr. 68). Auville sat from 7 a.m. to 9 a.m. waiting 

for the inspector to start his examination of the mine (Tr. 69). Auville 

then accompanied the inspector from about 9 a.m. to 12:30 p.m. and earned 

3-1/2 hours of pay, but the assistant mine foreman, Roger Hale, refused to 

give Auville any _work to earn the remaining 4-1/2 hours required for completing an' 8-hour shift (Tr. 69). Auville testified that ne~ther Hale nor 

Ward, the mine superintendent, explained to him that he would not be paid 

at all except for the actual time he accompanied the inspector (Tr. 85). 
4 

10. Auville was told by the inspector on Monday, April 23, that the 

inspector would not be making an inspectipn on Tuesday, April 24 (Tr. 86-87) .• 

Therefore, Auville reported for work at midnight on Honday, April 23, to 

work his regular shift which began at 12:01 a.m. on Tuesday, April 24 

(Tr. 70). Auville thereafter reported for work on the day shift on both 

Wednesday and Thursday, April 25 and April 26, 1979. He walked around 

with the inspector for 4-1/2 hours on each of those days and was given no 

work to complete an 8-hour shift on either day (Tr. 71-73). Auville had 

to report for work on Thursday, April·26, at midnight in order to obtain 

any pay for his fifth day for the week of April 23 through April 27 because 

the inspector worked for 16 consecutive hours and made two consecutive inspections covering two 8-hour shifts, namely the 7 a.m.-to-3 p.m. shift and 

the 4 p.m.-to-midnight shifts on April 26, 1979. A miners' representative 

other than Auville accompanied the inspector during his inspection conducted I 

on the 4-to-12 shift on Thursday (Tr. 87; 111). 

11. The inspector's failure to work on April 24 and the inspector's 

working of two consecutive shifts on April 26 caused Auville's work pattern 

for the week of April 23 through April 27, 1979, to be as follows: 

SHIFT WORKED 

12: 01 a. Iil. to 

8:00 a.m. 

7:00 a.m. to 

3:00 p.m. 

4:00 p.m. to 

12:00 midnight 

DAYS WORKED 

April 23 April 24 

Monday Tuesday 

Regular 

8 hours 

103(f) 

3-1/2 hrs. 

April 25 April 26 April 27 

Wednesday Thursday Friday 

Regular 

8 hours 

103(f) 103 (f) 

4-1/2 hrs. 4-1/2 hrs. 

The tabulation above shows· that Auville had to go home about 1 or 2 p.m. on 

Monday, April 23, and return to work by midnight of the same day, or 10 hours 

later, in order to earn 8 hours of pay for Tuesday, April 24. Auville had 

to do the same thing on Thursday, April 26, that is, leave the mine at 

1 or 2 p.m. and return at midnight, in order to earn 8 hours of pay for Friday 

because of the inspector's decision to work two consecutive shifts on Thursday 

(Tr. 86-87; 111). 

12. Auville testified that he did not actually realize that management 

would pay him only for the time spent with the inspector on April 23, April 25, 

and April 26 until he received his pay check for that period and found that he 

had not been paid for 11-1/2 hours which was the difference between the time 

he had accompanied the inspector on those 3 days and the time he would have 

earned had he worked three 8-hour shifts (Tr. 85-86). After Auville realized 

that he would not receive full pay for 8 hours of work when he accompanied 

an inspector, he refused thereafter to accept the assignment of accompanying 

inspectors (Tr. 90). 
5 

13. Upon receiving the check paying him' for less than 8 hours of work 

on°3 days, Auville went to an MSHA office and explained what had happened. 

USHA considered his complaint to be a ._reql}est for an inspection under 

section 103(g) of the Act. The result was that an inspector named Jessie D. 

Harrison inv.estigated the matter and on August 17, 1979, wrote Citation. No. 

696068 which alleged that Virginia Pocahontas Company had violated section 

i03(f) of the Act by faiiing to pay Clarence Auville for the 11-1/2 hours 

that he did not spend in accompanying an inspector on the 3 different days 

described in Finding No. 11 above (Tr. 76; 94; Exhs. 1, 2, and 3). 

14. When a miners' respresentative who normally works on the midnight 

shift gets paid for accompanying an inspeator for only 4 or 5 hours on the 

day shift, the miners' representative either has to be given supplemental 

working opportunities to earn the remaining 3 or 4 hours of pay on the day 

shift, or he must report at the mine at the commencement of the midnight 

shift and work long enough to earn the difference between.the amount he gets 

paid for actually accompanying the inspector and the amount he would have 

·earned if he had not reported on the day shift' for the purpose of accompanying an inspector. 

15. If management declines to provide supplemental work on the day 

shift for the miners' representative to earn a ~ull 8 hours of pay, the 

miners' representative is placed in a quandary. Since the miners' representative h~s to report for work at 7 a.m. for the day shift, he cannot 

come in late and work the las-1: 4 hours of the preceding shift without incur-, 

ring an overlap of 1 hour between the time the midnight shift ends at 8 a.m. 

and the time the day shift begins at 7 a.m. (Tr. 12). Of course, the miners' 

representative can avoid the 1-hour overlap by reporting to the mine for work 

at the beginning of the midnight shift'. He is generally finished with his 

walk-around duties on the day shift at 1 or 2 p.m. because the inspectors 

normally work approximately 4 hours after starting an inspection about 9 a.m. 

(Tr. 69-72). About 2 p.m., therefore, the miners' representative has a 

choice of either (1) remaining at the mine for 10 hours (from 2 p.m. to midnig~t) or (2) driving back to his home, sleeping for a few hours, and driving 

back to the mine at midnight to finish out the amount of time he needs for 

earning the 8 hours of pay which he was not given an opportunity to earn 

during the day shift. Regardless of which method he elects to utilize for 

reporting to the midnight shift to -earn the remaining 4 hours of pay, he will 

find himself obligated to report for work at 7 a.m. as the mi1lers' representative on the next day shift which starts only 3 hours after he has just 

finished earning 8 hours of pay at 4 a.m. for the time he couldn't work on 

the preceding day shift. 

16. ~alvin Ward, who was superintendent of the No. 2 Mine in April 1979, 

testified that a miners' representative who normally.works on the midnight 

shift, but who is asked to report for work on the day shift to walk around 

with an inspector and knows that he will be allowed· to earn pay only for the 

time he actually spends with an inspector, can earn the time he knows he will 

lose on the day shift by reporting to work at 4 a.m. on his regular midnight 

shift and working for 4 hours on the midnight shift to compensate for the fact 

-. ,,t .i.. - '.' I 
6 

that he cannot earn a full 8 hours of pay on the day shift when he walks 

around with an inspector (Tr. 123; 161). The superintendent believed that 

coming in at 4 a.m. on the midnight shift would be a desirable way for the 

miners' representative to earn his full 8 hours each day because he could 

work the last part of the midnight shift and the first part of the day 

shift(Tr. 162). The difficulty with Ward's suggestion is that Exhibit A in 

this proceeding shows that the miners~ representative is paid for from 

2 to 4-1/2 hours for walking around with an inspector. In order for a miners' 

representative to implement Ward's suggestion, ha would have to know in 

advance the number of hours which a prospective inspection on the day~hif t 

will take. Even the inspector could hardly give an exact estimate of the 

amount of time he will use to make a given inspection. Moreover, the superintendent's suggestion does not take into account the overlap of 1 hour of 

the midnight shift and the day shift caused by the fact that the midnight 

shift ends at 8 a.m. and the day shift begins at 7 a.m. (Finding No. 15, supra). 

17. The two miners' representatives, Clarence Auville and Joe Clark, 

who experienced a loss of pay as a result of walking around with an inspector 

because of management's refusal to assign them with work for the balance of 

the day shift not .used in walking around with an inspector, stated that they 

believed that it would be hazardous for them to make up the lost time on their 

regular midnight shifts on a weekly basis because they would necessarily 

become fatigued by failure to get a proper amount of sleep with the result 

that they could become inattentive at a given time and cause an injury to 

themselves or to .other r:iiners,.. (Tr. 14; 16; 50-51; 7 5; 99). Finding Nos. 11, 

15, and 16 above show that Auville and Clark correctly evaluated the fatigue 

factor. In addition to the fatigue factor, there are economic considerations. 

When a miner reports for work to earn 8 hours of pay on a single shift, he 

makes one round trip from his home to the mine. When a miner has to report 

to work twice to earn 8 hours of pay, he has to burn .twice as much gas and 

spend twice as much time in his car commuting to and froM work as he would 

ordinarily incur if he were able to earn 8 hours of pay on a single shift. 

18. The mine superintendent testified that management is exposed to 

problems when an employee who normally works on the midnight shift reports 

for work on the day shift to walk around with an inspector. The superintendent explained that maintenance work is done on the midnight shift and that 

it is important that equipment be repaired, that rock dust be applied, etc., 

while the equipment is idle so that the mine will be in proper condition 

for active mining to go forward on the day shift. The superintendent said 

that it is difficult to find employees who are willing to work on the midnight shift. Therefore, when a miners' representative is taken from the 

midnight-shift to accompany an inspector, it is more difficult to find a 

replacement for him than it would be to find a replacement for a miners' 

representative whQ is taken from the day shift to accompany an inspector 

(Tr. 125-126; .130-131). Auville performed general inside work and vulcanized belts, amo'ng other things. Belt vulcanizing is a job requiring two 

people. When one member of the vulcanizing team is unavailable, the other 

member cannot vulcanize belts by himself (Tr. 79). The superintendent stated 

that that when work is given to a midnight-shift miners'. representative on 

the day-shift to make up a full 8 hours of pay, it is difficult to find work 

"'} t· ...L .~ ·'- ,~ 
7 

for him to do which will not become the subject of an objection by a dayshift employee who would rather do the work assigned to the midnight-shift 

employee than do the work the day-shift employee normally performs(Tr. 129; 

160; 171). 

19. The superintendent said that another problem created by the union's 

assignment of a midnight-shift employee to walk around on the day shift is 

that excessive time is lost in traveling in and out of the mine. The superintendent stated that the miners' representative reporting on the day shift 

at 7 a.m. must first travel to a given job in the mine so that he will have 

work to·do until the inspector is ready to commence his inspection. When 

the inspector is ready to go underground, the miners' representative has to 

travel back out of the mine to be ready to accompany the inspector underground at about 8:30 or 9 a.m. The miners' representative then has to travel 

out of the mine with the inspector when the inspector has finished making his 

examination. After the inspector has completed writing citations or other 

work on the surface, the miners' representative again has to travel back underground to the place where he has been assigned work to complete the 8 hours 

of pay which he wants to earn (Tr. 129-130). 

20. Joe Clark and Clarence Auville both doubted the validity of the 

superintendent's claims. Clark pointed out that the same number of trips· 

in and out of the mine are required for a miners' representative to do his 

regular work and walk around with the inspector regardless of whether the 

miners' representative is tak~n from the day shift or the midnight shift 

(Tr. 177). Clark also disputed the superintendent's claim that management 

would find it any harder to replace a person who is assigned to accompany an 

inspector from a day shift than it is to find a replacement for a midnightshif t employee who accompanies an inspector on the day shift. Clark says 

his disagreement with the superintendent comes from the fact that one of 

management's greatest complaints about absenteeism is that when a miner, 

such as a shuttle-car operator, fails to report for work on a production 

shift, his absence requires the assignment of a "stranger" to take his place. 

The production crew is unused to the way the replacement shuttle car operator 

performs his work and that is somewhat disruptive to the smooth operation 

of the entire crew. Clark contended that when a midnight-shift employee 

reports for work on the day shift, the regular day-shift crew is not disrupted 

by having to be without one of its regular members while that person becomes 

a miners' representative to walk around with an inspector on a given day 

(Tr. 179-180). Auville claimed that his vulcanizing work was done on a 

sporadic basis so that no problems were created if vulcanizing was not done 

for several shifts. Moreover, Auville claimed that much of the vulcanizing 

work was done by employees of a firm which had contracted to do vulcanizing 

work for Virginia Pocahontas Company (Tr. 88-89). 

21. Management claims that the union did not keep it informed as to the 

identity of the person who had been designated to accompany inspectors each 

day (Tr. 127; 132; 157; 165; 172). The result.was that management sometimes 

found a haulage vehicle abandoned by its regular operator while that operator 

fulfilled his right to walk.around with an inspector (Tr. 155; 165). The 

union claims that it began to advise management in advance as to the identity 

' ~ oq ..4. " ,.} ' 
8 

of the person who had been assigned to be the miners' representative for 

the purpose of accompanying inspectors (Tr. 15-16). The union's witness, 

Joe Clark, claims that he thought he had an agreement with management under 

which the three safety committeemen, who normally worked on the midnight 

shift, would report to work on the day shift for a week at a time for the 

purpose of walking around with the inspectors. Clark said he thought 

management understood that the three safety committeemen, (Clark, Skeens, 

and AuvilleJ would ~otate on a week~y basis so that each of them would work 

for 1 week on the day shift. According to Clark, the union agreed to 

provide mine management on Friday with the name of the miners' representative who would accompany the inspector during the coming week (Tr. 31; 52). 

22. Ward, the mine superintendent, claims that the union did not keep 

him regularly informed as to the identity of the miners' representative and 

that considerable confusion resulted from the union's failure to keep him 

regularly informed (Tr. 132). Ward introduced as Exhibit A a one-page list 

of data concerning regular inspections made at the No. 2 :Hine for t:he perir.d 

extending from April 3, 1979, through May 3, 1979. That list shows that 

regular inspections may not have occurred every day and that a miners' representative was not always available to accompany the inspector. Moreover, 

Exhibit A shows that during a single month, five different miners were used 

as miners' representatives to accompany inspectors who were making regular 

inspections (Tr. 133). Only one of the five different miners' representatives 

was a duly elected safety committeeman and he was Clarence Auville who was 

the miners' representative on•April 23, 25, and 26, 1979, as previously described in Finding Nos. 9, 10; and 11, supra. 

23. The other four miners' representatives during the period from 

April 3 to May 3 were Mary Griffith, Lynn Agent, Michael Lester, and Roger 

Elswick. Three of the aforementioned miners' representatives (Griffith, 

_Agent, and Lester) normally worked on the day shift and one, Roger Elswick, 

normally worked on the night shift, or from 4 p.m. to midnight (Tr. 136; 

144; 146; 175). Clark explained the union's failure to use the thre~ aforementioned safety committeemen (Clark, Skeens, and Auville) during the period 

from April 3· to May 3 by stating that he and Skeens were unavailable at that 

time and that the other four people (Griffith, Agent, Lester, and Elswick) 

were appointed as members of the safety committee on a temporary basis so 

that they could substitute for the three safety committeemen who would 

normally have been expected to walk around with inspectors.during that period 

(Tr. 25-27; 37; 55-57; 175-176). Clark explained that he has authority, as 

the union's president, to appoint substitute miners to fill the positions of 

members of the safety committee. If the temporary appointments l_ast for more 

than 90 days, the union is required to hold a special meeting .for the purpose 

of electing new members of the safety committee (Tr. 11; 29-30). 

24. Clark also stated that miners' representatives are expected to be 

knowledgeable miners with ability to do such things as check air velocity 

and make methane readings so that they will know whether inspectors are 

correctly inspecting for such conditions. He stated that some miners who 

asked to be given the opportunity to walk around with inspectors could not 
9 

be allowed to continue acting as ·the miners' representative b.ecause they 

were not experienced enough to take an active part in mine examinations 

(Tr. 188-189). 

25. There is no requirement in either the Act or the Bituminous Coal 

Wage Agreement that the miners' representatives for purposes of accompanying inspectors under section 103 (f) of the Act must be members of the mine 

safety committee. Section 103(f) and the Wage Agreement do not prohibit a 

member of the safety committee from being a miners' representative for the. 

purpose of walking around with inspectors (Tr. 60). 

Consideration of Parties' Arguments 

Discussion of Specific Issue Raised by Notice of Contest 

All the issues raised in this case depend upon an interpretation of the 

requirements of Section 103(f) of the Act which provides as follows: 

(f) Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his 

miners shal~ be given an opportunity to accoclpany the Secretary or 

his authorized representative during the physical inspection of any 

coal or other mine made pursuant to the provisions of subsection (a), 

for the purpose of aiding such inspection and to participate in the 

pre- or post-inspection·~onferences held at the mine. Where there 

is no authorized miner representative, the Secretary or his authorized 

representative shall consult with a reasonable number of miners concerning matters of health and safety in such mine. Such representative of miners who is also an employee of the operator shall suffer 

no loss of pay during the period of his participation in the inspection made under this subsection. To the extent that the Secretary 

or authorized representative of the Secretary determines that more 

than one representative from each party would further aid the inspection, he can permit each party to have an equal number of such 

additional representatiyes. However, only one such representative of 

miners who is an employee of the. operator shall be entitled to suffer 

no loss of pay during the period of such participation under the provisions of this subsection. Compliance with this subsect{on shall 

not be a jurisdictional prerequisite to the enforcement of any provision of this Act. 

The issue raised by contestant's Notice of Contest is whether it is 

obligated under section 103(f) to compensate a miners' representative for 

8 hours of pay on the day shift when such representative accompanies an inspector on the day shift instead of on the midnight shift to which such representative is normally assigned. Contestant ~rgues in its brief (pp. 5-6) 

that it did not violate section 103(f) when it failed to provide Clarence 

Auville, a miner assigned to the midnight shift, with a total of 11-1/2 hours 

of supplemental work on three different day shifts to make up for the fact 

that Auville only spent from 3-1/2 to 4-1/2 hours each day in accompanying 

an inspector on the day shift. 
10 

Contestant· argues that the foregoing contention is clearly supported 

by the lang· 1ge of section 103 (f) which provides that "Such representative 

of miners wt., is also an employee of the operator shall suffer no loss of 

pay during the period ~ his partipation in the inspection m·ade under this 

subsection" r[mphasis supplied by contestant.). Contestant argues that 

section 103(i) only requires that the miners' representative suffer no loss 

of pay for the actual time he spends accompanying the inspector. Contestant 

correctly states that Auville was paid for the time he actually spent with 

the inspector_and claims that i\uville, i,.f he had chosen to do so, could have 

worked on his regular midnight shift to make VP the dif fcrence in pay between an 8-hour shift and the amount of pay h~ earned while accompanying 

the inspector. 

Contestant's brief (p. 6) stresses, in support of the foregoing argument, 

that it is important to recognize what section 103(£) does not provide. It is 

contended that the section (1) does not provide that the miners' representative 

be an elected member of the "Union safety committee, (2) does not provide that 

the miners' representative must receive special training to b-;;:-qualified to 

accompany an inspector, (3) does not provide that mine management alter work 

schedules to accommodate a particular miners' representative who is chosen 

by the miners, and (4) does not provide that m.anagement provide work to a 

miners' representative on a~y shift other than his or her regularly scheduled 

shift. 

U:MWA's brief (p. 4) and the Secretary's brief (p. 15) emphasize different 

words in the same portion of ·'section 103(f) cited by contestant to reach a 

conclusion exactly opposite from the position taken by contestant. Specifically, they read the pertinent language as follows: "Such representative of 

miners who is also an employee of the operator shall suffer no loss ~ ~ 

during the period of his participation in the inspection made under this 

subsection" [Emphasis supplied by UHWA and Secretary.]. UHWA argues that it 

is apparent from the language of section 103(f) that the right to compensation 

is coextensive with the right to accompany the inspector. The Secretary points 

out that Congress could have written that a miners' representative would be 

paid for the time he or she accompanied an inspector, but instead Congress 

chose a much broader provision than that and stated that the miners' r~presentative would suffer no loss ~ ~· 

As a matter of fact, section 103(f) is silent even as to contestant's 

concession that management is obligated to furnish work to the miner "on any 

shift other than his regularly scheduled shift" (Contestant's brief, p. 6). 

If the pertinent language from section 103 (f) is interpreted by placing 

emphasis on the words "during the period of his participation in the inspection made under this subsection", then that language is just as restrictive 

against paying the miners' representative who accompanies an inspector on the 

representative's Fegular shift as it is against paying the miners' representative who accompanies an inspector on a shift other than the representative's 

regular shift. It is only common sense that Congress would not have provided that the miners' representative "shall suffer no loss of pay during the 

period of his participation" if it had expected that the miner would not be 

allowed to work for the remainder of a shift so as to be paid for the balance 

of a given 8-hour shift not spent in walking around with an inspector. 
11 

Contestant's willingness to concede that it is obligated under section 

103(f) to provide work for a miners' representative who accompanies an inspector on his or her regular shift, despite the fact that there is no express 

provision to that effect in section 103(f), indicates that section 103(f) 

should be interpreted to require contestant to provide the miners' representative with work when he or she accompanies an inspector on a shift other than 

his or her regular shift, unless there are compelling reasons showing that 

providing such work is an unreasonable requirement. Therefore, contrary to 

the arguments in contestant's brief (pp. 4-5) to the effect that much of the 

testimony in this case was irrelevant, it becomes necessary to examine the 

safety ramifications resulting from contestant '.s refusal to provide the 

miners' representative with work on the day shift when such representative 

norm~lly works on the midnight shift. 

The Miners' Representative and Membership in Union Safety Committee 

While it is true, as contestant argues (brief, p. 6), that the miners' 

representative who accompanies an inspector is not required by the provisions 

of section 103(f) to be a member of the union safety committee, the evidence 

in this proceeding shows that the miners at contestant's mine decided that the 

members of the union's safety committee should be the miners' representatives 

for accompanying inspectors (Finding Nos. 4 and 5, supra). While it is also 

true, as contestant argues (brief, p. 6), that mine management is not.required by the provisions of section 103(f) to alter work schedules to accommodate use of a particular miμers' representative who is chosen by the miriers, 

that was the necessary result €t contestant's No. 2 Mine when it turned out 

that the members of the union safety committee were all miners regularly 

assigned to work the midnight shift at contestant's No. 2 Nine (Finding No. 6, 

supra). The fact that the union's safety committee members were all midnightshift employees made it necessary for the three. safety committee persons·, for 

a week at a time on a rotation basis, to report for work on the day shift in 

order to accompany inspectors (Finding No. 7, supra). 

Adverse Effects on Miners' Representatives of Contestant's Refusal To 

Provide Work on Day Shift 

As indicated above, while section 103(f) does not specificaliy require 

management to alter work schedules so that midnight-shift employees may earn 

payment for 8 hours of work on the day shift, when such midnight-shift employees accompany inspecto:r;s on the day shift, management's refusal to alter 

work schedules so that those midnight-shift employees could earn compensation 

for 8 hours on the day shift subjected them to many adverse conditions and 

circumstances (Finding No. 8, supra). 

Since contest.ant's No. 2 mine releases methane, it was a mine which was 

subject.to daily inspections, but the .miners' representative could not be 

certain that a given inspector would necessarily make an inspection each day. 

Therefore, the miners' representative frequently had to transfer back to his 

regular midnight shift and work from midnight to 8 a.m. after having accompanied an inspector on ~he day shift. That occurrence subjected the midnightshift employee to a 10-hour interval between leaving the mine on the day 

shift and having to report back to the mine for the beginning of the next 

midnight shift (Finding Nos. 9, 10 and 11, supra). 
12 

The lack of sleep and the extra commuting time and expense associated 

with ·switching back and forth between day and midnight shifts during a 

given week is inherent in a midnight-shift employee's willingness to act 

as the miners' representative ·for purposes of accompanying inspectors under 

section 103(f) and the miners' representative in this proceeding did not 

object to having to switch between midnight and day shifts when he knew 

that the inspector would not be at the mine on a given day shift (Finding 

No. 11, supra). 

The miners' representatives in this proceeding did take the position, 

however, that it would be unsafe for them to be required to work on the 

midnight shift and the d~y shift during each 24-hour period in order for 

them to make up on the midnight shift for the balance of time they did not 

spend accompanying inspectors on the day shift. The evidence showed that 

contestant's suggestion, that the miners' representative could work from 

4 a.m. on the midnight shift to 8 a.m. so as to make up for failure to earn 

a full 8 hours of pay from accompanying inspectors on the day shift, was 

impracticable and unworkable for at least two reasons. There is an overlap 

of 1 hour between the time the midnight shift ends at 8 a.m. and the time 

the day shift begins at 7 a.m. Therefore, any miner who tried to work the 

end of the midnight shift and the beginning of the day shift would automatically lose an hour from one or the other of the shifts. If one assumes 

that the overlap could be worked out by some sort of agreement with management, one is then confronted with the fact that the midnight-shift employee 

would· have to know in advance how much time a given inspection on the subsequent day shift would take 1n order to work the proper number of hours on 

the midnight shift to balance.exactly with the number of hours the midnightshift employee would actually spend in accompanying the inspector on.the day 

shift (Finding Nos. 14, 15 and 16, supra). 

The preceding paragraph explains why a midnight-shift employee reporting 

to work on the day shift to accompany an inspector cannot work on the midnight 

shift immediately preceding the day shift in order to make up the balance of 

time that his period of accompanying an inspector fails to equal a full 8-hour 

shift. There is one other way, of course, that the midnight-shift employee 

could make up for management's refusal to assign him or her work to do on 

the day shift before and after the inspection. That other alternative would 

be that the midnight-shift employee would report to work at 12:01 a.m. on the 

day after he or she has accompanied an inspector ·on the day shift. He or she 

would then know that on Monday, for example, he or. she had spent 4 hours 

accompanying the inspector. By coming in at 12:01 a.m. on Tuesday, he or 

she could work an additional 4 hours in order to receive pay for 8 hours of 

work. That procedure would work for 4 days (Tuesday through Friday), but 

since no work is normally done on Saturday, the midnight shift employee 

would have to come in on Sunday night_ and go to work at 12:01 a.m. on Monday 

in order to earn the balance of the 8-hour day shift he or she was not permitted to earn on the preceding Friday. The greatest disadvantage from coming 

in at midnight each night to make up for work not awarded on the day shift 

is that the miners' representative would become completely exhausted by the 

end of the week because he would have to come to work twice each day to earn 

one day of pay and he would each day have only about 3 hours between the 

completion of the balance of an 8-hour shift on the midnight shift before 

he would be obligated to report for wbrk at 7 a~m. on the day shift in order 

to be ready to accompany ail inspector on the day shift • 

. : , Ott ..... 
13 

When the .above-described adverse effects of working both the midnight 

and day shifts on a regular basis are-.considered, along with the adverse 

economic effects of having to report to work twice each day to .. earn pay for 

a single 8-hour shift (Finding No. 17, supra), it is obvious that contestant 

:failed to provide the mi~er·s' representative with a viable alternative for 

suffering no loss of pay ~hen c.ontestant advised the miners' repres.entative 

that he could make up the balance of an 8-hour shift by working on the midnight shift long enough to earn the balance in pay which the miners' representative was not permitted to earn on the day shift. 

The Miners' Representative and Special Training 

Although contestant's brief (p. 6) argues that section 103(f) does not 

provide that the miners' representative must re·ceive special training, 

I -beli·eve that contestant is in error in making that allegation. Section 

103(f) states that a miners' representative is ~o be given an opportunity to 

·accompany an inspector "for the purpose of aiding such inspection and to 

participate in pre- or post-inspection conferences held at the mine." 

A miners' representative who has no knowledge of proper health and safety 

practices would not be an "aid" to an inspector and would not be able to 

"participate in pre- or post-inspection conferences". The evidence in this 

proceeding sho~s that the union made an effort to select knowledgeable persons 

to act as miners' representatives, that the union wanted the miners' representatives to take an active role in the inspections, and t~at the union 

refused to permit some miners.· to continue acting as miners' representatives 

if their lack of experience rendered them ineffective in that role (Finding 

No. 24, supra). 

The unavailability of some of the union safety committee persons made 

it necessary for the union to appoint miners as temporary members of the 

safety connnittee •. Such temporary appointments may have resulted in use of 

some miners' representatives who lacked ~he training and experience which 

the :union preferred, but was unable to require in every instance (Finding nos. 

22 and 23, supra). 

Adverse Effects to·Management Attributable to Use of Midnight-Shift 

Employees as Miners' Representatives on Day Shift 

Since it was contestant's position ~hat the equities of providing work 

for midnight-shift employees acting as miners' representatives on the day 

shift has nothing to do with interpreting section 103(f), contestant's brief 

aoes not discuss the fact that contestant's evidence showed its dislike for 

having to provide work on the day shift on a regular pasis. Contestant's 

superintendent testified that he did not mind providing work for a midnightshift e.mployee on. the day shift when a midn:i,ght-shi~t employee acted as a 

miners' represe~tative on the day shift on ap infrequent basis, but he said 

that he could not tolerate that practice on a consistent basis (Tr. 128; 139; 

158). 

The superintendent described several problems created for management by 

the use of a midnight-shift employee as a miners' representative on the day 

shift. The superintendent said that it was difficult to find employees to 

work on the midnight shift and that when a midnight-shift employee reported 

for work on the day shift, the maintenance work did not get done while the 

•. I U' .i. . ; { ' 
14 

mine was idle hecause of the difficulty of finding an employee to replace 

the midnight-shift employee who was absent because of his reporting as 

miners' representative on the day.shift (Finding No. 18, supra). The 

superintendent also objected to the number of trips T...,·hich the miners' representative had to make in and out of the mine to do work until the inspector was ready to commence his inspection and to retuu1 to work after the 

inspector had ·finished his inspection (Finding No. 19, supra). 

The union's witnesses, however, cast doubt on the validity of management's claims by contending that there was no difference in the number of 

trips in and out of the mine which had to be-made by the miners' representative to do normal mining work and accompany the inspector regardless of 

whether he was performing the assignment of a miners' representative on his 

regular shift or on a shift other than his regular shift. The union also 

claimed that management was in a better position to use a midr; .·!-it-shift 

employee on the day shift as miners' representative than it was to use a 

member of a production crew because of management's dislike for having to 

replace a regular crew member with a "stranger" who did not normally work 

with a given production crew (Finding No. 20, supra). 

Failure To Provide Work on the Day Shift for a Midnight-Shift Emplovee Who 

Reports for Work on the Day Shift as a Miners' Representative for 

Accompanying Inspectors under Section 103(f) Is a Violation of Section 103(f) 

My review above of the ptovisions of section 103(f) leads me to conclude 

that contestant is obligated to provide any employee who accompanies an 

inspector on any shift with work on that shift so that the miners' representative may earn a full 8 hours of pay. As I have already noted, .section ·103(f) 

does not specifically require management to provide work for the balance of 

any shift if the miners' representative on any shift does not spend 8 hours 

accompanying an inspector. Contestant concedes that the provision in section 

103 (f) providing that the miners' representative "* * ~·: shall suffer no loss 

of pay during the period of his participation in the inspection made under 

this subsection" should be interpreted to mean that the miners' representative 

must be given work to make up an 8-hour shift if the miners' representative 

normally works on the same shift on which the miners' representative accompanies the inspector. I conclude that contestant is required by that same 

provision in section 1Q3(f) to compensate with 8 hours of pay any miners' 

representative who accompanies an inspector on a shift other than the shift 

to which he or she is normally assigned, regardless of whether the miners' 

representative accompanies the inspector on a shift other than his or her 

regular shift. 

·: ... 

Management might be able to insist that a day-shift employee act as the 

miners' representative on the day shift for carrying out the purposes of 

section 103(f) if the union did not provide, as it has in this case, a 

reasonable b·asis for selecting a miners' representative from the midnight 

shift for the purpose of accompanying inspectors who are conducting inspections on the day shift. In this case, the union has given cogent reasons 

for being unable to provide satisfactory miners' representatives from any 

lflOf~ 
15 

shift other than the midnight shift. I have already summarized those reasons 

above and they need not be repeated here (Finding Nos. 4, 5, 6, and 7, supra). 

I have also shown from the evidence that it is unreasonable for management 

to expect the midnight-shift employee who acts as miners' representative on 

the day shift to make up the balance of an 8-hour shift not earned on the 

day shift while accompanying an inspector by having that miners' representative report to his regular midnight shift (Finding Nos. 14, 15, 16, and 17, 

supra). 

Pages 15 to 22 of the brief filed by counsel for the Secretary and MSHA 

contains an excellent discussion of the legislative history and of the Commission's decision in The Helen Mining Co., 1 FMSHRC 1796 (1979). MSHA's 

brief emphasizes the fact that management should not be permitted to participate directly or indirectly in the selection by the union of the miners' 

representative for carrying out the provisions of section 103(f). MSHA's 

brief notes that contestant's refusal to provide Auville, the miners' representative in this case, with work on the day shift had a chilling effect 

on the willingness of miners to accept the responsibility of accompanying 

inspectors. In fact, Auville testified that he refused to act as miners' 

representative at all after management refused to pay him for a full 8-hour 

shift on the 3 days which he spent in accompanying inspectors on the day 

shift (Finding No. 12, supra). 

In the Helen Mining case, supra, the Commission held that management 

is obligated to assign a miner$ 1 representative to accompany each inspector, 

or group of inspectors, who come on the same day to conduct regular inspections in different parts of the same mine. The Commission's decision was 

affirmed by the Ninth Circuit Court of Appeals on May 18, 1981, in Magma 

Copper Co. v. Secretary of Labor, F.2d (No. 79-7687). On page 2157 

of the advance copy of the decision, the court stated: 

The legislative history and the statute itself could not be 

clearer, however, as to the purposes of the legislation in general 

and of the walkaround pay provision in particular. As Senator Javits 

explained, the walkaround pay provision seeks to assure that miners 

will exercise their right to participate in inspections. The right 

of participation, in turn, attempts to increase miners' ·awareness 

of safety problems as well as to provide inspectors with a guide 

familiar·with working conditions in the mine. * * * The importance 

of miner participation in safety is repeatedly emphasized throughout 

the legislative history of the Act--"If our national mine safety and 

health program is to be truly effective, miners will have to play an 

active part in the enforcement of the Act." See S.Rep. No. 95-181, 

supra, at 35, reprinted in Legislative History at 623. 

The walkaround pay provisions and the participation right are 

both aimed at the protection of the health and safety of miners--

the single overriding purpose of the legislation. * * * 

It would be self-defeating for section 103(f) to be interpreted in the 

manner sought by contestant. If contestant were permitted to refuse work 

on the day shift to every midnight-shift employee who reports to the dayshift as miners' representative, that miners' representative would have to 

1 r, O"i 
16 

earn a full- 8 hours of pay by reporting to the midnight shift to earn t·he 

remainder of his pay. As has. been shown above, the need to report to two 

shifts each day to earn 8 hours of pay is unfair, uneconomic, exhausting, 

and would inevitably result in an increase of hazards at the mine because of 

the liklihood of mistakes being made by an exhausted employee who is required 

to work on two shifts each day to earn pay for one shift. 

In its decision 'in Magma Copper, the Commission, at page 1950, warned 

against reliance on the "literal language of section 103(f)" when applying 

it~ provisions to the rights granted to the miners by that section. Also 

in Consolidation Coal Co., 3 FMSHRC 617 (1981), the Commission stated 

(at p. 618). 

* * * We are not prepared to restrict the rights afforded by that 

section [103(f)] absent a clear indication in. the statutory language 

or legislative history of an intent to do so, or absent an appropriate 

limitation imposed by Secretarial regulation. 

The courts have uniformly held that the Act is a remedial statute which 

should be liberally construed (Freeman Coal Mining Co. v. Interior Board of 

Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974); Ray Marshall v. Wade 

Kilgore, 478 F.Supp 4 (E.D. Tenn. 1979)). 

For the reasons hereinbefore given, I find that contestant violated 

section 103(f) by refusing to.,give a miners' representative work on the day 

shift as alleged in Citation No. 696068 dated August 17, 1979. The order 

accompanying this decision will affirm Citation No. 696068. 

Civil Penalty Issues 

Since I have found in the preceding portion of this decision that con--

testant violated section 103(f) of the Act, it is necessary that I assess a 

civil penalty pursuant to the six assessment criteria given in section llO(i) 

of the Act, as sought by the Petition for Assessment of Civil Penalty filed 

in Docket No. VA 80-112. As to the criteria of the size of respondent's 

business and whether·the payment of civil penalties will cause Virginia 

Pocahontas Company to discontinue in business, it was stipulated that Virginia 

Pocahontas is a large company and that payment of penal~ies will not cause 

it to discontinue in business (Finding No. 1, supra). As to a third criterion of whether Virginia Pocahontas.demonstrated a good-faith effort to 

achieve compliance, it was stipulated that the company had made a good-faith 

effort to achieve compliance by paying the miners' representative for the 

11-1/2 hours of pay he lost by accompanying an inspector after Citation No. 

696068 was written (Finding No •. 2, supra). It has been my practice neither 

to increase nor decrease a penalty otherwise assessable under the other five 

criteria when it has been shown that the company achieves compliance in a 

normal manner. The penalty is increased under that criterion if the company 

fails to make a good-faith effort to achieve compliance, and the penalty is 

decreased if the company shows an extraordinary effort to achieve compliance 

by taking such action, for example, as stopping production to correct a 

violation alleged in a citation, as opposed to cprrecting a violation alleged 
in an order of withdrawal which requires production to be stopped in any 

event. .Since there was normal good~faith compliance in this instance, the 

penalty will not be affected by application of the criterion of good-faith 

complianc~. 

Exhibit No. 4 in •this proceeding is a computer printout showing 

Virginia Pocahontas Company's history of previous violations. It has been 

my practice to increase a penalty under that criterion if the history of 

previous violations shows a violation of the section of the Act or regulations which is before me in a given case. Exhibit 4 shows that respondent 

has paid a civil penalty for one prior ~iolation of section 103(f) of the 

Act. Therefore, any penalty assessed in this proceeding should be increased 

by $25 under the criterion of the company's history of previous violations. 

The remaining criteria to be considered under section llO(i) of the Act 

are negligence and gravity. Only the brief filed by counsel for MSHA discusses the civil penalty issues raised by the Petition for Assessment of 

Civil Penalty filed in Docket No. VA 80-112, MSHA's brief (p. 23) argues 

that the facts in this case support a finding of gross negligence. It is 

said that a finding of gross negligence is warranted because the company's 

violation was intentional and that its intentional violation did not create , a really meritorious issue of first impression which should be subject to 

only a nominal penalty as I held in my decision issued in Jewell Ridge Coal 

Corp., 2 FMSHRC 2578 (1980). 

The record shows that there is considerable merit to the arguments made 

by MSHA's counsel. The superintendent of the No. 2 Mine at first willingly 

gave work on the day shift to midnight-shift employees who reported as miners' 

representatives on the day shift to accompany inspectors who were making 

examinations on the day shift (Tr. 158). The superintendent justified his 

change in that policy by stating that the midnight-shift employees had decided 

to make a job for themselves on the day shift and that he was getting complaints from the day-shift senior employees about having midnight-shift 

employees working regularly on the day shift (Tr._159-160). Although the 

superintendent claims that he made it clear to the union that he was going 

to change his policy before he actually changed the policy (Tr. 139), the 

union's president insisted in rebuttal testimony that management had specifically agreed to allow the three safety committeemen on the midnight shift to 

be the miners' representatives on the day shift on a regular basis and that 

no advance ~arning of a change in policy was ever given (Tr. 175). 

The superintendent himself agreed that he did not tell Auville of the 

change,in policy until Auville reported for work on the day shift on April 23 

and was told by the superintendent that he would not be given work on the 

day shift (Tr. 161}. The mine superintendent showed considerable pride in 

having stopped the midnight-shift employees from reporting as miners' representative on the day shift when he was gsked the following questions at 

transcript page 163: 

·'·(l(• 

..... ' ' 
18 

Q Now, after you declined to let Mr. Auville make up his 

time, did everybody after that get paid? 

In other words, after it happened to Mr. Auville, did 

you work out some kind of an arrangement whereby this matter of 

their not getting paid was taken care of? 

A I can't recall a~fbody after Mr. Auville doing it. And 

if somebody felt, you know, that he would want to do it occasionally, 

I didn't complain about it. 

Q 

a regular 

worked on 

So, apparently you got the p-ractice of switching over 

basis stopped after April 26th [the last day Auville 

the day shift and was not paid for it]? 

A Yes, sir, I sure did. 

on 

It should be borne in mind that the union's president regularly worked 

on the midnight shift. Therefore, the ~nion's president left the mine each 

morning at 8 a.m. Since the working hours for the day shift began at 7 a.m., 

there is every reason to believe that the superintendent was at the mine 

also by 8 a.m. each day. There is no apparent reason why the superintendent 

could not have worked out an agreement with the union's president to the 

effect that he was goi~g to raise an issue of interpretation of section 103(f) 

under which he would refuse to pay a midnight-shift employee who reported as 

the miners' representative on ,,the day shift. 

If an advance agreement had been worked out, the midnight-shift employee 

could have been warned in advance of the change in policy and he could have 

worked as miners' representative on the day shift for 1 day and could, under 

protest, have worked on the next midnight shift to make up any time he was 

not permitted to earn on the day shift. If management had followed the aforementioned procedure, it could have raised the issue of first impression before 

me in this proceeding and still could have prevented the raising of the issue 

from having any severe effects on the miners' willingness to act as miners' 

representatives under section 103(f) while the legal issue was being adjudicated. 

The failure of the superintendent to explain to Auville in advance, that 

there would be a change in providing work ori the day shift for the midnightshift employee who was reporting to work on the day shift as miners' representative, unnecessarily caused Auville to work for 3 days without getting 

paid when Auville's working only 1 day would have been sufficient for the 

purpose of raising an issue of first impression. The evidence, therefore, 

supports a. conclusion that Virginia Pocahontas Company was unnecessarily 

harsh in its abrupt change of policy insofar as its treatment of Auville 

was concerned. In.such circumstances, I agree with MSHA's counsel that there 

was a high degree of negligence associated with Virginia Pocahontas' violation 

of section·l03(f). 

MSHA's brief (p. 24) contends that the violation of section 103(f) was 

serious because Auville refused to act as the miners' representative after 

failing to get paid for accompanying the inspector on three different inspections. MSHA also points out that other miners were discouraged from being 

miners' representatives for the purpose of accompanying inspectors. 
19 

The record supports MSHA's arguments. When Auville was asked how the 

miners got paid for w&lking around with inspectors after management refused 

to pay him, he stated (at Tr. 90): 

A I don't know how that went. 

Q Did you do any more walking around? 

A No, not after they refused to pay me. 

Q You didn't do any more? 

A No. 

As to the union's ability to obtain persons to walk around with inspectors after management's refusal to pay Auville, the union's president testified as follows (Tr. 177-178): 

Q Well, how did you arrange this after April 26, then, so that 

nobody failed to get his full eight-hour pay? 

A I would have to think about that a minute. Since it's been 

brought up, it might have changed a little bit. 

You couldn't get anybody. People would say, ·"If I'm not 

going to get paid, I'm not going to do it." 

So, I would hffire to look around and find somebody. And 

most of the time, I couldn't, you know, you wouldn'.t find somebody 

who was qualified to do it. We just had to do the best we could. 

Q So, what you did was find somebody on the same shift--

A Tried to, yes, sir. 

Q --so you didn't have this transfer problem? 

A Yes. 

Q And you're not aware of any instance where the person who 

did the walking around either did come in early and work the previous 

shift or came back in to finish up on another shift? 

A No, sir. At this point, I would say it didn't happen at 

VP-2 [that is, Virginia Pocahontas Company's No. 2 Mine]. 

Inasmuch as Virginia Pocahontas Company's management made no effort to 

avoid a serious impact on the miners' willingness to participate in inspections under section 103(f) while raising an issue of first impression under 

that section, I find that the violation was serious. 

MSHA's brief (p. 24) recommends that a penalty of $500 be assessed for 

the instant violation of section 103(f) in view of the fact that the company 

violated the section three different times at the expense of the miners' 

1r,11 
20 

representative ·even though one violation would have been sufficient to raise 

the issue brought in this proceeding. I find that MSHA's recommended penalty 

of $500 is supported by the record and should be imposed. As I indicated 

above, an amount of $25 should be added to any penalty ·otherwise assess.able 

under the criterion of history of previous violations because respondent 

has violated section 103(f) on one prior occasion. 

WHEREFORE, it is ordered: 

(A) The Notice 0£ Contest filed in Docket No. VA 79-136-R is denied 

and Citation No. 696068 dated August 17, 1979, is affirmed. 

(B) Within 30 days from the date of this decision, Virginia Pocahontas 

Company shall pay a civil penalty of $525.00 for the violation of section 

103(f) alleged in Citation No. 696068 dated August 17, 1979. 

Distribution: 

~ C. SI 1= /J JJ,71"' 

Richard C. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 

.,, Marshall S. Peace, Esq.,dAttorney for Virginia Pocahontas Company, 

2355 Harrodsburg Road, P.O. Box 11430, Lexington, KY 40575 

(Certified Mail) 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, \'A 

22203 (Certified Mail) 

Joyce A. Hanula, Legal Assistant, United Mine h·orkers of America, 

900 - 15th Street, NW, Washington, DC 20005 (Certified l!ail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 1 ~ 1981 

SECRETARY OF LABOR, Complaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF OTIS G. LAWSON~ 

Complainant 

v. 

PARAMONT MINING CORP., 

Respondent 

. ,. 

Docket No. VA 81-44-D 

Deep Mine No. 7 

DECISION AND ORDER 

The Secretary moves to withdraw the captioned discrimination complaint on the ground that the complaining miner has entered into a 

settlement agreement with respondent. This agreement includes a release 

of the discrimination claim and a consent to dismissal of the captioned , . 

complaint •. 

Based on an independent evaluation and de ~ review of the 

circumstances, I conclude the settlement ag'reement is in accord with 

the purposes and policy of the Act. 

Accordingly, it is ORDERED that the same 

It is FURTHER ORDERED that respondent pay Mr. 

settlement agreed upon, $3,500, forthwith a 

the captioned matter be DISMISSED. 

Distribution: 

be, and hereby is, APPROVED. 

Lawson the amount of the 

that subject to payment 

Judge 

Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Michael T. Heenan, Esq., Smith, Heenan, Althen, Zanolli, 1110 Vermont 

Ave., NW, Washington, DC 20005 (Certified Mail) 

f I l '. 

_i., • ' ~ ( 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

JUN 111981 

HEALTH ADMINISTRATION (MSHA), on behalf) COMPLAINT OF DISCHARGE, 

of ROBERT E. STAFFORD, ) DISCRIMINATION OR INTERFERENCE 

Complainant, ) 

) DOCKET NO. WEST 80-289-DM 

v. ) 

) MINE: Sherwood Project 

WESTERN NUCLEAR, INC., ) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~~ 

DECISION AND ORDER 

Appearances: 

Mildred L. Wheeler, Esq. 

Office of the Solicitor 

United States Department of Labor 

11071 Federal Building, Box 36017 

450 Golden Gate Avenue 

San Francisco, California 94102 

For the Petitioner 

Kent W. Winterholler, Esq. 

Parson, Behle & Latimer 

Attorneys at Law 

79 South State Street 

P .0. Box 11898 

Salt Lake City, Utah 84147 

For The Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE THE CASE 

On April 9, 1980, the Secretary of Labor, Mi.ne Safety and Health 

Administration [hereinafter "the Secretary"], brought this action on behalf 

of Robert E. Stafford [hereinafter "Stafford"] pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S~C. 

§ 801 et seq. (1978) [hereinafter cited as "the Act" or "the 1977 Act"]. 

In his complaint, the Secretary. alleges that Respondent, Western Nuclear, 

Inc. [hereinaft-er Western Nuclear], unlawfully discriminated against 

Stafford by discharging him from his employment at Western Nuclear's 

Sherwood Project on September 19, 1979, in violation of the Act. The 

Secretary alleges that Stafford was engaged in activities relating to 
health and 1

safety protected by section lOS(c) of the A~t at the time of his 

discharge. I The Secretary's complaint seeks relief on behalf of 

Stafford iil the form of a finding of discrimination, an order directing 

Western Nuclear to reinstate Stafford to his former position with back pay 

plus interest from the time of his discharge, an order directing Western 

Nuclear to clear the employment record of Stafford of any unfavorable 

references relating to his discharge, and that an appropriate civil penalty 

be assessed against Western Nuclear for its alleged unlawful interference 

with Stafford's exercise of rights protected by section lOS(c) of the Act. 

Western Nuclear, on May 5, 1980, filed an answer to the complaint 

containing a gen~ral denial of all allegations and a prayer for relief 

seeking recovery of costs, expenses, and attorneys fees. Pursuant to 

notice, the matter came on for hearing on October 8, 1980, in Spokane, 

Washington. Submission of post hearing briefs was compieted on January 7, 

1981. 

FINDINGS OF FACT 

1. Western Nuclear is operator of an open pit uranimn mine and mill 

processing plant in Wellpinit, Washington, known as the Sherwood Project. 

2. Robert E. Stafford was employed by Western Nuclear at its Sherwood 

Project from July 31, 1978, to September 19, 1979, the date of his 

discharge. 

3. Stafford was assigned to the General Mill Maintenance Department 

as a general laborer where he performed various jobs, such as sandblasting, 

carpentry, painting and industrial coatings. For this work, he received 

$6.81 per hour. 

1/ Section lOS(c)(l) of the 1977 Act, 30 U.S.C. § 815 (c)(l), reads in 

pertinent part as follows: 

"No person shall discharge or in any other manner discriminate against 

or otherwise interfere with the exercise of the statutory rights of any 

miner • • • because s.uch miner • . • has filed or made a complaint under or 

relating to· this Act, including a complaint notifying the operator or the 

_operator's agent, or the representative of the miners ••• of an alleged 

danger or safety or health violation •.• , or because such miner ••• is the 

subject of medical evaluations and potential transfer under a standard 

published pursuant to section 101 or because such min.er •.. 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 exercis~ by such miner .•. on behalf of himself or others of any 

statutory right afforded by this Act." 

1 r·11· () . t.) 
4. Stafford had a well-known reputation at the Sherwood Project for 

an interest in state unemployment compensation and in the circumstances 

under· which ·one could qualify for such assistance. 

5. Stafford also had a reputation for dis liking the task of 

sandblasting~ Co-workers at the Sherwood Project generally shared that 

opinion. 

6. On September 17, 1979, Stafford was part of a work crew assigned 

the task ·of sandblasting a mill yellowcake precipitation tank in order for 

repairs to be made to its inside surface. 

7. 'The work crew consisted of Stafford, Audrey Grant, Richard Miller, 

Allan Rebillard and Maurice Clark. Clark was lead man for the group. He 

was responsible for all procedural activities of the crew, although his 

presence at the job site was only periodic and transitory. In Clark's 

absence, Rebillard, as senior man, was considered by the crew to be in 

charge and they followed his orders. Due to his seniority and experience, 

Rebillard was instructed to insure safety. 

8. The mill yellowcake precipitation tank is a metal vessel with a 

height of approximately 22 feet and a diameter of approximately 28 feet. 

The uppermost s~ction of the tank is cylindrical in form. At the 

eight-foot mark it tapers off into a cone, dowri a 45 degree slope, to a 

small drain port at the apex. The inverted cone has a vertical height of 

14 feet. 

In the center of the tank is a vertical shaft which rotates a network 

of suspended long and short rakes. The staggered rakes agitate the 

yellowc~ke solut{on by passing within 1/8 inches of the internaf surface 

of the cone. The four rakes, two long and two short, are maintained in 

position by a series of rake arm supports. The suppo.rts,. made of 3 1/2 

inch pipe, extend at right angles from the shaft out to the internal 

surfa·ce of the cone, where they are attached to. the rake blades. 

9. The procedures for sandblasting the inside of the tank were 

developed by Clark, as lead man, and Edward Jeffries, Mill Repair Foreman 

and supervisor of the work crew. The task was to be performed by crew 

members from a mobile, cage-like apparatus, known as a spider. The spider, 

supported by a cable, could be positioned at varying intervals around the 

tank' S circumference and then Operated along the tank IS Vertical axis, The 

crew members would thereby have access to all intern-al surfaces from the 

relative security provided by the spider. Procedures.would be taken to 

insure worker safety from radiation hazards. Safety lines would be worn 

and tended. 

10. On the morning of September l7, 1979, preparatory work for 

sandblasting the yellowcake precipitation tank was completed. Equipment 

was issued and assembled. The interior of the tank was washed down. 

11. That same morning, Stafford held a conversation with Sherwood 

Project co-workers Craig Smith and George Hill. Segments of that 

conversation dealt with Stafford's opinion that sandblasting the yellowcake 
precipitation tank·was unsafe, that St.afford was considering quitting and 

that getting. unemployment compensation was a concern. 

·12·. Later that day, a bantam crane was used tb position the spider 

apparatus inside the tank. The spider, however,· was missing certain wheels· 

usea' to balance the assembly. As a result~. it, operated in a clumsy 

fashion. Lead man Clark ordered that the spid'er be used. in its present 

condition. Sandblasting operations commenced, with crew members taking 

shift·s sandblasting from the _spider. Wheels for the spider were 

subsequently located, but their installation did not perfect the stability 

of the mechanism. At some point in the day, an electrical short occurred 

in the spider assembly and it had to be taken from the· tank and removed 

from service •. The sandblasting. operation was temporarily halted as a 

result. 

13. In light of the spider malfunction, the crew looked for an 

alternate method to accomplish its task. Those members present, Stafford, 

Grant, Miller ·and Rebillard, considered a solution proposed by Rebillard. 

The suggested alternative was to use the spider as an inert b9sket to gain 

access to the tank, leave the spider, climb down onto the rake assemblies 

and sandblast off of· them. Safety lines would be worn and tended. The 

crew me~bers agreed to the proposal. 

14. Rebillard then informed Clark of the. crew member's concern for 

their safety while working from the spider and of t~e plan to gain access 

to the tank. At least some sandblasting was accomplished that day by the 

crew utilizing this method. 

15. That afternoon, Stafford again spoke with Smith, who had examined 

the precipitation tank while in the area on another job. Safety, or lack 

thereof, was the. subject of the conversation. 

16. On September 18, 1979, the crew looked for a means of gaining 

access to those areas of the tank that had not, as yet, been sandblasted. 

Those members of the crew. present, Stafford, Grant, Miller and Rebillard, 

talked the situation over and, at Rebillard'. s suggestion, a:greed that crew 

members· would ride the rake assemblies to get into a position to sandblast. 

17. Crew members procee~ed with the revised plan to complete their 

assigned tasl.t. Stafford, Grant and Mi.ller took shifts of approximately 30 

minutes duration, sandblasting from the rake assemblies. Each junior crew 

member was in the yellowcake precipitation tank three or four times per 

day. Rebillard positioned the crew member ,where sandblasting was required 

by activating the·rake drive mechanism, transporting the individual to the 

desired location. Stafford was so transported. 

1 t l ~ ' ..4. d I 
18. Prior to crew members entering the tank, Rebillard had locked out. 

the motor control switch for the rake drive, preventing its activation. He 

had also tagged the switch, stating that maintenance work was in progress. 

Rebillard would remove the lock just prior to activating the drive 

mechanism and, once the crew member was in position, would stop the rake 

drive and immediately replace the lock. This procedure deviated from 

Western Nuclear's lock and tag procedure then in effect, which required 

that the lock and tag should only be removed when the work was· completed 

and the equipment was clear of personnel. The procedure employed by 

Rebillard likewise deviated from the el~ctricity standard for metal and 

non-metallic open pit mines contained ·in 30 c.~.R. § 55.12-16. 2/ 

19. That same day, Stafford held a conversatron with co-workers Smith 

and Hill. Quitting for a safety concern and unemployment compensation were 

subjects of discussion. 

20. At approximately 8:00 a.m. on September 19, 1979, Bobby Ridgeway 

then Radiation Safety Officer with Western Nuclear's Sherwood Project, 

encountered Stafford near the yellowcake precipitation tank while on a walk 

around inspection. During that encounter, Stafford coimounicated to 

Ridgeway his apprehension of falling off of the rake assemblies. 

21. Later that morning, Stafford held several conversations with Smith 

and/or Hill. Quitting, being fired, refusing. to work, sandblasting, 

yellowcake hazards, riding the rake assemblies and unemployment 

compensation were topics of dis.cuss ion in varying degrees. 

22. Oh September 19, 1979, the crew as a whole began the day in the 

general maintenance shop. Stafford, Grant, Miller and Rebillard were 

present. Stafford asked Miller if he would take his shifts sandblasting. 

Miller said that he would, but Rebillard said that to do· so would be 

illegal as crew members should each be in the protective hood assembly for 

only twenty minutes at a time. At this time, Clark walked in, asked what 

was going on and was told of Stafford's request. Clark instructed the crew 

to get things ready for work on the tank, which they did. Rebillard. asked 

Stafford to go down into the tank first. Stafford refused, stating that he 

felt it was unsafe. Rebillard informed Stafford that he could either go in 

the tank first or go see Jeffries. ~tafford chose to go see Jeffries. 

23. At approximately 8:45 a.m., on September 19, 1979, Stafford went 

to Jeffries' office and told him that he wasn't going into the tank. 

Jeffries asked Claude C.ox, Mine Safety Supervisor, and Ridgeway, as 

radiation supervisor, to check the yellowcake precipitation tank for air 

quality and the equipment being used for safety. 

2/ Mandatory. Electrically powered equipment shall be deenergized before 

mechanical work is done on such equipment. Power switches shall be locked 

out or other me?sures taken which shall prevent the equipment from being 

energized without the knowledge of the individuals working on it. Suitable 

warning notices shall be posted at the power switch and signed by the 

individuals who are to do the work. Such locks or preventive devices shall 

be removed only by the persons who installed them or by authorized 

personnel. 
24. After being asked by Jeffries, Cox and Ridgeway physically 

examined the yellowcake precipitation tank. Cox. observed the area and 

examined the· equipment for safety. He asked Stafford, Miller and 

Rebillard, in the presence of Jeffries, what was unsafe. The only_ reply he 

received was from Stafford, who stated that he didn't want to get on and 

ride the rakes. Stafford was interrupted by Jeffries, who forcefully 

stated, "You were told not to ride the rakes, we don't want you to ride 

those rakes." Cox, at this point, was unaware that people had been ridi~g 

the rake assemblies. Ridgeway reported to Jeffries at the scene that the 

crew members were sufficiently protected from radiation hazards. 

25. Jeffries then wrote out a discharge slip for Stafford based upon 

his refusal to perform his assigned duties. 

ISSUES 

By discharging him from his·employment at the Sherwood Project for 

failure to perform his assigned duties, did Western Nuclear unlawfully 

discriminate against Rob~rt E. Stafford in violation of section lOS(c}(l) 

of the Federal Mine Safety and Health Act of 1977? 

DISCUSSION 

In its decision of Secretary of Labor on. behalf of David Pusula. v. 

Consolidation Coal Company, 2 FMSHRC 2786 (October 14, 1980), the Federal 

Mine Safety and Health Review Commission recognized the right of a miner to 

refuse to perform work and set forth the test to be used to determine 

whether or not the discharge of a miner for such refusal was 

discriminatory. The Commission held as follows: 

"We hold that the complainant has established ·a prima 

facie case of a violation of section lOS(c)(l) if a preponderance of ·the evidence proves (1) that he engaged in a 

protected activity, and (2) that the adverse action was 

motivated in any part by the protected activity. On these 

issues, the complainant must bear the ultimate burden of 

persuasion. The employer may affirmatively defend, however, 

by proving by a preponderance of all the evidence that, 

although part of his motive was unlawful, (1) he was also 

motivated by the miner's unprotected activities, and (2) that 

he would have taken adverse action against the miner in any 

event for the unprotected activities alone. On these issues, 

the employer must bear the ultimate burden of persuasion. It 

is not sufficient for the empioyer to show that the miner 

deserved to have been fired for engaging in the unprotected 

activity; if the unprotected conduct did no.t originally concern 

the employer enough to have resulted in the same adverse action, 

we will not consider it. The employer must show that he did in 

151fl 
fact consider the employee deserving of discipline for engaging 

in the unprotected activity alone and that he would have disciplined him in any event." Id. at 2799-2800. (Emphasis in original.) 

A. Protected Activity 

The Review Commission further refined the right of a miner to refuse 

to perform work in its decision of Secretary of Labor, Mine Safety and 

Health Administration (MSHA), ex rel. Thomas Robinette v. United Castle 

Coal Company, 3 FMSHRC 803-(April~ 1981). Robinette resolved the 

question of whether good faith and reasonableness are components of 

protectetl activity.· The Commission adopted a rule that required a miner to 

have a good faith, reasonable belief in a hazardous condition .for the work 

refusal to be considered protected activity. _!i. at 812.. 

"Good faith belief simply means [an) honest belief that a hazard 

exists." Id. at 810. The Commission determined that "[g]ood faith also 

implies a;-accompanying rule requiring validation of reasonable belief." 

Id. at 811. Validation could be achieved by 11 ••• a simple requirement that 

the miner's honest perception ·be a reasonabie one under the circumstances." 

Id. at 812. (Emphasis in original-:-) 

With regard to these issues, the evidence establishes that Stafford 

had a preoccupation with state unemployment GOmpensation and· in the 

circumstances under which one could qualify for such assistance. He also 

was known ·to have a distinct dislike for the task of sandblasting. Craig 

Smith testified in minute detai 1 as to various convet'sat ions he had with 

Stafford in the three days preceding Stafford's discharge. In the majority 

of these conversations, issues of safety, termination of employment and 

unemployment compensation were subjects of discussion. Smith had no deep 

regard for Stafford and was of the opinion that Stafford was trying to draw 

a paycheck for no work. On cross examination by counsel for the Secretary, 

it ·was revealed that Smith Is recollection of other events from his past 

association with Stafford .could not be recalled in similar exacting detail. 

On the other hand, Stafford either denied or could not remember. 

conversations with Smith having taken place. After examining the testimony 

and demeanor of the witnesses, I find that conversations between Stafford 

and Smith did occur and that issues of safety, termination of employment 

and unemployment compensa.tion were subjects of discussion. However, the 

testimony as to what was specifically said by whom aqd when it. occurred is 

not entirely credible. I further find that it has been established by a 

preponderance of the evtdence that Stafford held an honest belief that a 

hazard existed in riding the rake assemblies and that such belief was a 

reasonable one, involving substantial risk of injury through physical 

mutilation. There was clearly a violation of a mandatory safety standard 

and management was informed by Stafford of this situation, as is more fully 

set forth below. Under these circumstance~, Stafford's refusal to perform 

work was a valid exercise of a statutory right afforded him by the 1977 Act 

arid, as such, is entitled to ·protection. 

As to other issues of protected activity raised in this case, section 

lOS(c)(l) of the Act sets forth certain enumerated types of employee 

activity protected by a prohibition against discrimination or interference, 

including: 

' t" .. •>(• J .. • >i::.,, 
" •.• a complaint notifying the operator or the operator's 

agent ~·· of an alleged danger or safety or health violation 

in a coal or other mine, .. , or because of• the exercise by 

such miner ••• on behalf of himself or others of any statutory 

right afforded by this Act." 

The evid~nce establishes that early on September 19, 1979, that Bobby 

Ridgeway, then Radiation Safety Officer with Western Nuclear's Sherwood. · 

Project, encountered Stafford near the yellowcake precipitation tank while 

on a walk around inspection. Ridgeway testified that at their meeting he 

greeted Stafford ~aying, "Good morning, Bob," and that Stafford responded 

with, "Well, I guess I am going to be fired." Ridgeway testified that he 

was concerned and wanted to know why. Stafford stated that he refused to 

go in the tank.· When asked why, Stafford mentioned both his and hl.s 

mother's concern about his exposure to high radiation. Ridgeway then 

proceeded to explain the relative safety of the assignment to Stafford. On 

cross examination by counsel for the Secretary, it was brought out that in 

an interview with Robert Chelini, the MSHA inspector investigating 

Stafford's discharge, that Ridgeway had stated that Stafford had told him 

that he was afraid he would fall [off of the rakes]. Ridgeway identified 

his voice on a tape recording of that interview. He testified that he 

could not remember Stafford telling him about his fear of falling, but that 

he could have told him. I find· that Stafford did connnunicate his 

apprehension to Ridgeway and, under the broad laniuage of section 

105(c)(l), that the communication amounted to a colorable complaint of an 

alleged danger or safety violation. 

The evidence further establishes that on September 19, 1979, after 

first refusing to enter the yellowcake precipitation tank, that Stafford 

went to see Edward Jeffries, the Mill Repair Foreman. Stafford told him 

that he wasn't going into the tank. Jeffries testified that he asked 

Stafford why and was told that Stafford had talked with his mother and that 

she had advised him against entering the tank because of the high 

radiation. Stafford testified that he complained to Jeffries about how he 

didn't believe that he should be riding the rakes in the manner the crew 

was employing because he thought that it was dangerous. Jeffries denied 

that Stafford mentioned this apprehension. According to Jeffries, the 

first indication that he received that employees were riding the rake 

assemblies came from· Mr. Chelini, the MSHA special investigator. I find 

that Stafford did mention these concerns tt> Jeffries, providing the grounds 

for those concerns. These communications constituted a safety·complaint 

and, thus, were protected activity under the Act. 

To satisfy himself, Jeffries asked Claude Cox, Mine Safety Supervisor, 

and Rid.geway, as radiation supervisor, to check the yellowcake precipitation tank fo.r air quality and the equipment being used for safety. Cox and 

Ridgeway examined the tank and Ridgeway reported to Jeffries at the scene 

that the crew members were adequately protected from radiation hazards. 

Cox testified, that while on the scene and in.the pre.sence of Jeffries, he 

asked Stafford, Miller and Rebillard what""was "unsafe. The only reply he 

received was from Stafford, who stated that he didn't want· to get on and 

ride the rakes. Stafford was interrupted by Jeffries who forcefully 

stated, "You were told not to ride the rakes; we don't want you to ride 

' t . ') .,- ...... ,.~ . 
those rakes." Cox testified that at this point he was unaware that people. 

had in fact been riding the rake assemblies. I find that Stafford's 

remarks were s·afety complaints and entitled to protection under the Act. 

B. Motivation of Discharge 

It is abundantly clear from the record that Stafford was discharged 

from his employment at Western Nuclear'& Sherwood Project for his refusal 

to perform his assigned duties. That refusal has previously been 

determined to have been a valid exercise of -Stafford's statutory rights 

and, hence, protected activity. Although Stafford t'.s complaints may have 

played some part in his discharge, his refusal to work was ostensibly the 

cause. i find it has been established by a preponderance of the evidence 

th~t Stafford's discharge was motivated by this protected activity. 

Althouih the record indicates that Stafford may have been less than ~ 

desirable employee, Western Nuclear-has failed to show that it did in fact 

consider him deserving of discipline for engaging in any unprotected 

activity alone and that it would have disciplined him. in any event. 

CONCLUSIONS OF LAW 

1. Respondent Western Nuclear is a mine subject to the provisions of 

the 1977 Act. 

2. At all times relevant to this Decision, Complainant Robert E. 

Stafford was a miner as defined in the Act and entitled to the protection 

afforded by the Act. 

3. The presiding Administrative Law Judge has jurisdiction over the 

parties and the subject matter in these proceedings. 

4. On September 19, 1979, Complainant Stafford engaged in the 

following activities, which are protected by section 105(c)(l) of the Act: 

complaints to Radiation Safety Officer Bobby Ridgeway concerning radiation 

and falling hazards; complaints to Mill Repair Foreman Edward Jeffries 

concerning radiation and falling hazards; complaints to Mine Safety 

Supervisor Claude Cox concerning falling hazards; and refusal to perform 

assigned duties which necessitated his transportation on electrically 

operated mechanical equipment in a manner inconsistent with the intended 

use of that equipment. 

5. On September 19, 1979, Respondent Western Nuclear discharged 

Complainant Stafford from his employment, motivated in part by the 

protected activity described above. 

6. Respondent Western Nuclear failed to establish that it did in fact 

consider Complainant Stafford deserving of discipline for engaging in any 

unprotected activity alone and that it would have disciplined him in any 

event. 

1r:·2 fJ ') r:. 
7. Respondent Western Nuclear's discharge .of Complainant Stafford on 

September 19, 1979, violated section lOS(c)(l) of the Federal Mine Safety 

and Health Act.of 1977. 

ORDER 

Accordingly, it is ORDERED: that Respondent Western Nuclear, Inc. 

offer to re.instate Complainant Robert E. Stafford to his former position, 

at his former rate of pay, with any adjustments in position or rate of pay 

to which he would have been entitled had he not been discharged; that 

Respondent pay to Complainant Stafford back pay in the form of gross pay 

less amounts withheld pursuant to state and Federal law, to be calculated 

from the· date of his discharge to the date this Decision becomes final, 

less actual interim earnings, plus interest at the rate of 9 percent per 

annum; that Respondent shall expunge from Complainant Stafford's employment 

record any adverse references relating to his discharge and transmit to him 

a copy of his employment record reflecting the deletion of any adverse 

references relating to his discharge; and that Respondent shall pay a 

civil penalty in the amount of $100.00 for its violation of the Federal 

Mine Safety and Health Act of 1977. 

Judge 

Distribution: 

Mildred L. Wheeler, Esq., Office of the Solicitor, United States 

Department of Labor, 11071 Federal Building, Box 36017, 450 Golden Gate 

Avenue, San Francisco, California 94102 

Kent W. Winterholler, Esq., Parso~, Behle & Latimer, Attorneys at Law, 

79 South State Street, P.O. Box 11898, Salt Lake City, Utah 84147 

1r>2a 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th. FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCl1, VIRGINIA 22041 

JUN 12 • 

SECRETARY OF LABOR, .. 

. Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 79-9-M 

Petitioner A/O No. 33-01395-05002F 

v. 

Harrison Pit and Plant 

AMERICAN MATERIALS CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Linda L. Leasure, Esq., Office of the Solicitor, 

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

Petitioner; 

John w. Edwards, Esq.·, and David William T. Carroll, 

Esq., Smith & Schnacke, Columbus, Ohio, for Respondent. 

Judge Cook 

I. Procedural Background 

On June 26, 1979, the Mine Safety and Health Administration (Petitioner) 

filed a petition for assessment of civil penalty in the above-captioned proceeding pursuant to section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979) (1977 Mine Act). The petition alleges tw~ violations of provisions of the Code of Federal Regulations. 

On July 5, 1979, an answer was filed by American Materials Corporation 

(Respondent). Thereafter, the parties engaged in extensive discovery. 

On May 21, 1980, a notice of hearing was issued scheduling the case for 

hearing on the merits on August 5, 1980, in Cincinnati, Ohio• The hearing 

convened as scheduled with representatives of both parties present and 

participating. At the Respondent's request, the undersigned Administrative 

Law Judge, accompanied by representatives of both parties, viewed the site 

of the accident which resulted in the issuance of the subject citations. At 

the close of the Petitioner's case-in-chief, the Respondent made motions to 

dismiss the proceeding. The motions were taken under advisement to be ruled 

upon at the time of the writing of the decision. Additionally, following the 

presentation of the evidence, a schedule was set for the filing of posthearing 

briefs and proposed findings of fact and conclusions of law. However, difficulties experienced by counsel necessitated a revision thereof. 

1 ~ 'J ' ''""'* 
On October27, 1980, the Respondent filed a motion to dismiss. On 

November 10, 1980, the Petitioner filed a m·emorandmn in opposition thereto. 

The Respondent filed a posthearing memorandum on December 11, 1980, and 

the Petitioner filed proposed·~indings of fact and concl~sions of law on 

December 12, 1980. On January 12, 1981, the Petitioner filed a letter 

retracting, for the present, references to certain cases cited in its posthearing brief. The Respondent filed a reply memorandum, a supplemental 

memorandmn regarding recent decisions, and a second supplemental memorandum 

regarding recent decisions on January 21, 1981, March 2, 1981, and March 16, 

1981. 

II. Violations Charged 

Citation No. 

358304 

360204 

III. Witnesses and Exhibits 

A. Witnesses 

Date 

4/26/78 

4/26/78 

30 C.F.R. Standard 

56.12-71 

56.20-11 

The Petitioner called Federal mine inspectors Verl C. Thomas and 

William D. Atwood as witnesses. Both the Pet:itioner and the Respondent 

called Mr. Charles Ballinger, the Respondent'·s superintendent of operations, as a witness. 

B. Exhibits 

1. The Petitioner introduced the following exhibits in evidence: 

M-1 is a ground plan of the Respondent's Harrison Pit and Plant. 

M-2 is a geperal ground plan of the Respondent's Harrison No. 712 

Plant. 

H-3 is a computer printout showing the history of pre\7ious violations for which the Respondent had paid assessments at its Harrison Pit and 

Plant, at its Fai.rfield Pit and Plant No. 711, at its North Hamilton facility 

No·. 710, and at its Kirby Road Pit and Plant. 

M-4 is an aerial photograph of the Respondent's Harrison Pit and 

Plant. 

2. The Respondent introduced the following exhibits in evidence: 

0-1 is a photograph. 

0-2 is a photograph. 
IV. Issues 

Two basic issues are involved in this civil penalty proceeding: (1) did 

a violation of the subject mandatory safety standards occur, and (2) what 

amount should be assessed as a penalty if a violation is found to have 

occurred? In determining the amoun~ ~f civil penalty that should be assessed 

for a violation, the law requires that six factors be considered: (1) history 

of previous violations; (2) appropriateness of bhe penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of the 

penalty on the operator's ability to continue in business; (5) gravity of the 

violation; and (6) the operator's good faith in attempting rapid abatement of 

the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. No inspections were made and no citations were issued at the Harrison 

Pit and Plant prior to the accident of April 25,· 1978 (Tr. 8). 

2. There is no dispute as to coverage and jurisdiction. The facility 

constitutes a "mine" within the meaning of the 1977 Mine Act (Tr. 11). 

3. The size of the mine during the years 1977 and 1978 was 19,518 manhours per year (Tr. 26-29). 

B. Respondent's Motions to Dismiss at the Close of Petitioner's 

Case-in-Chief 

The Respondent made oral motions to dismiss the proceeding at the close 

of the Petitioner's case-in-chief. The motions to dismiss encompass both 

citations. The undersigned Administrative Law Judge took the motions under 

advisement, and informed the parties that rulings would be made on the motions 

at the time of the writing of the decision based upon the record as it existed 

when the motions were made (Tr. 134-142). 

The Respondent advanced various arguments in support of its motions to 

dismiss, and has reasserted those argmnents in its posthearing filings. The 

specific legal issues raised are addressed in subsequent portions of this 

decision. The evidence contained in the record when the motions were made 

has been considered fully. 

It is found later in this decision that the evidence presented by the 

Petitioner failed to prove that the circwnstances of the accident in this 

case presented a situation where "equipment must be moved or operated near 

energized high-voltage powerlines * * * and the clearance is less than 

10 feet * * *·" (Emphasis added.) Therefore, a violation of 30 C.F.R. 

§ 56.12-71 has not been proved. 

However, it is found later in this decision that the evidence presented 

by the Petitioner established a prima facie case as to a violation of 30 C.F.R. 

1526 
§ 56.20-11 in that a warning sign should have been posted as to a safety 

hazard which would not be immediately obvious to an employee, namely, the 

safety hazard created by the high-voltage powerline. 

Accordingly, the Respondent's motion to dismiss at .the close of the Petitioner's case-in~chief will be granted as to an allegation of a violation of 

30 C.F.R. § 56.12-71 and will be denied as to an alleged violation of 30 C.F.R. 

§ 56.20-11. 

C. Occurrence of Fatal Accident 

On April 25, 1978, an individual identified as Mr. Meyer sustained a 

fatal injury at the Respondent's Harrison Pit and Plant. The two citations 

which are the subject matter of this proceeding were issued during the Petitioner's April 26, 1978, fatal accident investigation. 

Mr. Meyer was not an employee of the Respondent at the time of the accident, and nothing indicates that he was ever the Respondent's employee. 

Rather, he was either an employee of RBS Trucking Company or an owner-operator 

working for ·RBS Trucking Company. RBS Trucking Company was one of the Respondent's customers hauling sand and/or gravel from the Harrison Pit and Plant 

(Tr. 54, 66, 101, 126). . 

It appears that before April 25, 1978, the Respondent's geographical 

market expanded when trucks hauling coal ·fro~ Kentucky to the Harrison, Ohio, 

area began coming to the Harrison Pit and Plant to obtain loads of sand for 

the return trip to Kentucky (Tr. 122-123). Some of thes.e truck drivers cleaned 

coal residue from their truck beds while on the Respondent's property. This 

cleaning operation was accomplished by raising the truck bed. This had begun 

a short time before April 25, 1978 (Tr. 122-124). 

It appears that the Respondent was clearly displeased with the fact tmrt 

some of the truck drivers were cleaning coal residue from their truck beds 

while on the property, and that the Respondent was particularly upset by the 

fact that some of these truck drivers were cleaning their truck beds in the 

stockpile areas. Mr. Charles Ballinger, the Respondent's superintendent of 

operations, . had instructed Mr. Norman Ross, the foreman, to stop the truck 

drivers from doing this, to get them to clean their truck beds off of the 

-property, because coal residue was contaminating the materials that the · 

Respondent was offering for sale. It appears that Mr. Ross implemented this 

directive by verbally informing those truckdrtvers caught in the act to make 

sure that they cleaned their truck beds before coming onto the property. . It 

appears that no arrangements had been made to so instruct the truck drivers 

when they first entered the property (Tr. 52-53, 122-125). 

RBS Trucking Company delivered coal to the power companies in the 

Harrison, Ohio, area, and thereafter picked up sand and/or gravel at the 

Harrison Pit and Plant for the return trip to Kentucky (Tr. 125-126). On 

April 25, 1978, Mr. Meyer 'drove onto the property, presumably to pick up a 

load of sand and/or gravel for transport into Kentucky. He turned west down 

1527 
a gravel-surfaced roadway leading to one of the stockpile areas (Tr. 37-38, 

unnumbered stockpile on M-4). Shortly before reaching the workshop, he pulled 

his tractor.,.trailer dump truck completely off the gravel-surfaced roadway in 

order to dump the coal residue from the truck bed. He pulled off to the left 

· of the gravel-surfaced roadway and parked the truck in an area characterized 

by unstable ground conditions. The ground was wet and muddy and there was 

standing water present (Tr. 35-38, 59, 86). 

Parked rn this position, the truck was parallel to, but not directly 

under, the overhead high-voltage powerlines. The truck was positioned such 

that the righthand, or passenger's., side of the truck was approximately 

5 feet from the gravel-surfaced roadway, and that the lefthand, or driver's, 

side was the side nearest the powerline (Tr. 37-38, 58-59, 73, 118-119). 

Mr. Meyer, apparently while still inside the tractor cab, raised the 

30-foot long truck bed, or "sandbox," to its maximum vertical extension of 

28-1/2 feet. Then, it appears that he got out of the cab in order to operate the tailgate release lever (Tr. 58, 61, 65, -80-83, 85, 88, 103, 115). 

This lever was located on the front of the trailer .at the service connection of the tractor-trailer rig (Tr. 115). An individual could operate the 

lever either while standing on the ground or while standing ·on the tractor 

frame (Tr. 115-116). It appears that Mr. Meyer climbed onto the tractor 

frame in order. to release the lever. He was electrocuted at approximately 

1:45 p.m. when a gust of wind blew the high~voltage powerline into the 

raised bed of the truck. This required the ~ust of wind to blow the powerline a lateral distance of approximately 1 foot. The voltage passing 

through the powerline was rated at 4,160 volts1 }:_/ and the powerline was 

approximately 28-1/2 feet above the ground (Tr. 34-37, 61-62, 80-86, 117-

118). 

The subject citations were issued during the course of the Petitioner's 

April 26, 1978, fatal accident investigation. Citation No. 358304 was issued 

by Federal mine inspector William D. Atwood. The allegations contained in the 

citation, as incorp.orated into the petition for assessment of civil penalty, 

charge a violation of mandatory safety standard 30 C.F.R. § 56.12-71 in that 

"[t]he dump truck was being operated within 10 feet of the energized 4,160 volt 

powerline." The cited mandatory safety standard provides that "[w]hen equipment must be moved or operated near energized high-voltage powerlines (other 

than trolley lines) and the clearance ~~ less than 10 feet, the lines shall 

be deenergized or other precautionary measures shall be taken." 

1/ One of the definitions contained in 30 C.F.R. § 56.2 provides that the 

term "high potential" means "more than 650 volts." According to Paul W. 

Thrush (ed.), A Dictionary of Mining, Mineral and Related Terms (Washington, 

D.C. :· U.S. Department of the Interior Bureau of Mines) (1968) at page 543, 

the term "high voltage" means: "a. A high electrical pressure or electromotive force. Grove. b. That which is greater than 650 volts. Also called 

high potential. ASA MZ.1-1963." 
C'itation No. 360204. was issued by Federal mine inspector Steve Viles. 

The allegations .contained in the citation, as incorporated into tlie petition 

for assessment of° civil penalty, charge a violation of mandatory safety standard 30 C.F.R. § 56.20-11 in that "[h]azardous· area [was] not adequately 

posted at the main ·haulage road along the 4,160 [volt] P.Owerline." The cited 

mandatory safety standard proviies that "[a]reas where health or safety 

hazards exist that are not immediately obvious to employees shall be barri-

~aded, or warning signs shall be posted at all approaches. Warning ·signs 

.shall be readily 1 visible, legible, display the nature of.the hazard, and any 

protective action required."· 

D. Whether the Respondent is Properly Charged with Violations of 

Mandatory Safety Standards 

The first principal question presented is whether the Respondent is properly charged with violations of mandatory safety standards which caused or 

contributed to the death of an individual who was either a customer or an 

employee of a customer, or an independent owner-operator hired by a customer. 

The resolution of this question turns upon (1) whether the decedent was a 

"miner" within the meaning of section 3(g) of the 1977 Mine Act; and (2) 

whether the Respondent is charged with having committed violations of the 

mandatory safety standards or, alternatively, whether;the Petitioner seeks 

to hold the Respondent responsible for violations committed by either the 

customer, or the custome.r's employee, or the independent owner-operator hired 

by the customer. 

The 1977 Mine Act is remedial legislation intended to secure a safe and 

healthful work environment for "miners," as that term is defined in section 

3(g) of the 1977 Mine Act. See section 2 of the 1977 Mine Act •. The 1977 Mine 

Act imposes duties on mine ope-rators with respect to those individuals falling 

within the statutory definition of a "miner." See Republic Steel Corporation, 

1 FMSHRC 5, 11, 1 BNA MSHC 2002, 1979 CCH OSHD par. 23,455 (1979). Therefore, 

the threshold inquiry is whether the decedent was a "miner," as defined by 

section 3(g) of the 1977 Mine Act. 

Section 3(g) of the 1977 Mine Act defines the term "miner" as "any 

individual working in a 'coal or other mine." One's status as a "miner" is 

not contingent upon an employment relationship.with the owner or operator 

of a mine. El Paso Rock Quarries, Inc., 3 FMSHRC 35, 37 n. 11, 2 BNA MSHC 

1132, 1981 CCH OSHD par. 25,154 (1981). The .duty imposed on the mine operator to comply with the 1977 Mine Act and the mandatory.safety and health 

standards is one that extends to all miners, irrespective of whether or not 

the miners affected by a given violative condition are employees of the mine 

operator. See Republic Steel Corporation, 1 FMSHRC 5, 11, 1 BNA MSHC 2002, 

1979 CCH OSHD par. 23,455 (1979). 

The evidence presented establishes that Mr. Meyer was either an employee 

of RBS Trucking Company or an owner-operator wor~ing for RBS Trucking Company; 

and that RBS Trucking Company was one of the Respondent's customers, transporting sand and/or g~avel from the Harrison Pit and Plant to Kentucky. The 

lfi29 
evidence also shows that Mr. Meyer visited the Harrison Pit and Plant on 

April 25, 1978, to obtain a load of sand and/or gravel. I hold that 

Mr. Meyer's April 25, 1978, activities at the Respondent's Harrison Pit and 

Plant constituted "working in a coal or other mine" and, accordingly, that 

Mr. Meyer fell within the definition of "miner" set fort-h in section 3(g) · 

of the 1977 Mine Act. Therefore, he was entitled to the protections afforded 

by the 1977 Mine Act. 

The second question presented is whether the Fetitioner seeks to hold the 

Respondent responsible for violations committed by Mr. Meyer; or, alternatively, whether the Respondent is charged with having committed the violations 

cited in the subject citations. 

The Respondent is, of course, properly charged if the citations allege 

that the Respondent committed the violations of the cited mandatory safety 

standards. It is self-evident that the Respondent is liable for its own 

violations. 

A review of the allegations contained in the citations clearly show~ 

that the Respondent.is charged with having committed the violations of mandatory safety standards 30 C.F.R. § 56.12-71 and 30 C.F.R. § 56.20-11. The 

Petitioner is riot attempting .to hold the Respondent liable for violations 

committed by either RBS Trucking Company or Mr. Meyer.,. Accordingly, I conclude that the Respondent is properly charged in thi-s 'proceeding. 

These determinations dispose of some of the issues raised in Respondent's motion to dismiss filed on October 27, 1980. Others will be disposed 

of later in this decision. 

E. Citation No. 358304, April 26, 1978, 30 C.F.R~ § 56.12-71 

As noted above, this citation alleges a violation of mandatory safety 

standard 30 C.F.R. § 56.12-71 in that "[t]he dump truck was operated within 

10 feet of the energized 4,160 volt powerline." The cited mandatory safety 

standard requires that "[w]hen equipment must be moved or operated near energized high-voltage powerlines (other than trolley lines) and the clearance is 

less than 10 feet, the lines shall be deenergized or other precautionary measures shall be taken." 

The evidence shows that Mr. Meyer pulled his tractor-trailer dump truck 

off of the gravel-surfaced roadway and parked parallel to, and not under, the 

powerline. He raised the truck bed to a height of 28-1/2 feet, its maximum 

extension, and a. gust of wind blew the powerline into contact with the 

raised truck bed, electrocuting Mr. Meyer. This required the gust of wind 

to blow the powerline a lateral distance of approximately 1 foot. The evidence in the record and the inferences drawn therefrom shows that Mr. Meyer 

raised the truck bed in order to clean coal residue from it prior to 

acquiring a load of sand and/or gravel. 

The controversy as to whether a violation of the regulation occurred 

centers around the regulation's use of the term "must." The Respondent's 

1530 
position, as set forth in its motion to dismiss at the close of the Petitioner's case-in-chief, in its December 11, 1980, posthearing memorandum, 

and in its January 21, 1981, reply memorandum, asserts that no violation 

occurred because there was no requirement that the truck be moved or 

operated near the powerlines. According to the Respondent's posthearing 

memorandum: 

To the contrary, the truck was parked on ground that was wet, 

muddy and very unstable. The area was not suitable for 

pulling a truck into. There were no truck tracks in the offroad area other than the tracks made by the decedent's truck. 

The r'oad did not pass under the powerlines. In order· to get 

under the powerlines, the truck had to drive off the haul 

road onto the unstable area which was clearly unintended for 

and unsuitable for driving. No reasonable person would have 

driven a truck or anticipated someone else would drive a truck 

onto the area where the accident occurred. 

(Respondent's Posthearing Memorandum, pp. 11-12; citations to record omitted.) 

The Petitioner counters that the Respondent's policy prohibiting the 

cleaning of trailer beds in the pit areas, and its attempts to implement and 

enforce such policy, in effect required the drivers to perform the cleaning 

activities on or beside the haulage roads leading to the pits and in close· 

proximity to high-voltage powerlines. According to the Petitioner, the fact 

that the Respondent did not want the truck ~.eds cleaned on its property is 

not controlling because, given the circumstances, it was foreseeable that the 

dumping would occur on the property (Tr. 137-142, Petitioner's Posthearing 

Submissions, P• 8). 

The regulation's use of the verb phrase "must be moved or operated" 

demons.trates that the regulation applies when the mine operator requires 

the movement or operation of equipment within 10 feet of high-voltage powerlines, or when the operator arranges the layout of its plant in such a way 

that equipment must be moved or operated within 10 feet of high-voltage 

powerlines in carrying out operations at the plant. 

As stated previously, the evidence presented by the Petitioner failed to 

prove that the instant case presented a situation where equipment must be 

moved or operated within 10 feet of high-voltage powerlines. 

The location of the wires in this case with respect to the subject part 

of the plant, including the roads, was such that it cannot be said that the 

mine operator created a situation where a truck such as the one involved in 

this case must be operated within 10 feet of the high-voltage lines. 

The wires in question were not over the road in the area of the accident.. The wires were well off the road. The facts show that they had to be 

at least about 13 feet from the road. Further, the wires were 8-1/2 feet 

above the standard required by the National· Electric Safety Code (Tr. 99-

100). 

1531 
The mine operator had made it known to the truck drivers that it did not 

want them to dump any coai from their trucks on the property of the plant. 

The problem.of such type of dumping of coal had begun to develop just before 

the day of the subject accident• 

Evidence was found in the area after the accident indicating that other 

truck drivers had cleaned ~oal residue. from their truck beds in the area where 

the accident occurred. Mr. Ballinger testified that he observed two piles of 

coal residue in the area immediately following the accident, the one which 

Mr. Meyer had dumped and one which had been dumped by another driver prior 

to the accident (Tr. 38-39, 53-54). The latter pile was approximately 5 to 

10 feet behind, i .. e., to the east of the truck and 3 or 4 feet to the north 

(Tr. 38-39). He-testified that he did not observe piles of coal at any other 

point along the roadway, either to the west or to the east of the shop (Tr. 

39). Federal mine inspector Verl C. Thomas, who examined the area during the 

April 26, 1978, fatal accident investigation, observed three piles of coal 

residue located approximately 5 to 8 feet, possibly 10 feet, behind the truck 

and 4 to 6 feet farther to the north (Tr. 59-60). He observed two additional 

coal residue piles located approximately 15 to.20 feet behind the truck, and 

somewhat closer to the gravel-surfaced roadway than the first three piles (Tr. 

59-60). 

However, there is no proof that any part of the management of the 

Respondent had any knowledge that the coal piles existed in the areas behind 

the subject truck off of the road area (Tr. 120-122), although the management 

had prior knowledge of dumping in the stockp"i.les. In addition, 'the truck 

driver took his truck off the road into a wet, muddy and very unstable area. 

It was an unsuitable area to park a truck (Tr. 37-38). In addition, the 

driver had gone the wrong way on a road that had been marked "one-way" the 

opposite direction (Tr. 49-50, 59, 73). 

In addition, the inspector who issued. the citation had, in a statement 

. he issued concerning the alleged violation of 30 C.F.R. § 56.12-71, checked 

a box which sta'ted that the condition or practice cited could not have been 

known or predicted, or occurred due to circumstances beyond the operator's 

control (Tr. 71). This observation by the issuing inspector bolsters the 

conclusion that the Respondent did not create a situation where equipment 

must be moved or operated within 10 feet of high-voltage power.lines. 

In view of all of these factors, it .is found that the Petitioner has 

failed to prove that the facts of this case presented a situation where 

equipment must be moved or operated within 10 feet of high-voltage 

powerlines. 

It should be added that the additional evidence presented by the Respon- d~nt after the Petitioner had concluded its case would not change the result 

herein. 

In view of the foregoing, I conclude that a violation of mandatory 

safety standard 30 C.F.R. § 56.12-71 has not been established. 

1 ' "'. ~ 3 '> r ... 
F. C.itation No. 360204, April 26, 1978, 30 C.F.R. § 56.20-11 

As noted above, this citation alleges a violation of mandatory safety 

standard 30 C.~.R. § 56.20-11 in that a "[h]azardous area [was] not adequately 

posted at the main haulage road along the 4 ,160 [volt] powerline." The cited 

mandatory safety standard provides that "[a]reas where liealth or safety hazards 

exist that are not immediately obvious to employees shall be barricaded, or 

warning signs shall be posted at all approaches. Warning signs shall be 

readily visible, legible, display the nature of the. hazard, and any protective action required." The evidence presented shows that the area had not 

been barricaded and that no warning signs had been posted (Tr. 69-70, 72, 88). 

The Respondent does not contest the fact that the area where the fatal 

accident occurred was not barricaded and that no warning signs had been posted. 

Inst~ad, the Respondent maintains that no violation occurred, by interpreting 

the phrase "not immediately obvious to. employees" as (1) limiting the regulation's protection to its own employees; and (2) requiring that the hazard not 

be immediately obvious to its own employees. (See Respondent's motion to 

dismiss at the close of the Petitioner's case-in-chief, Tr. 134-137; Respondent's Posthearing Motion to Dismiss; Respondent's Posthearing Memorandum.) !:_/ 

The Petitioner maintains that the protection affor~ed by mandatory safety 

standard 30 C.F.R. § 56.20-11 extends to all who fall within the definition 

of "miner" set.forth in section 3(g) of the 1977 Mine Act. Additionally, the 

Petitioner maintains that the hazard may not have been immediately obvious to 

Mr. Meyer. 

I conclude that mandatory safety standard 30 C.F.R. § 56.20-11 imposes a 

duty upon the mine operator with respect to all who fall within the definition 

of the term "miner." The regulation's protection is not limited to the mine 

operator's employees. 

Mandatory safety standard 30 C.F.R~ § 56.20-11 was initially promulgated 

by the Secretary of the Interior pursuant to section 6 of the F.ederal Metal and 

Nonmetallic Mine Safety Act of 1966, 30 u.s.c. § 725 (1976) (1966 Metal Act). 

See 30 C.F.R. § 56.1. The 1966 Metal Act was remedial legislation enacted 

"to reduce the high ~ccident·rate and improve health and safety conditions in 

mining and milling operations carried on in the metal and nonmetallic mineral 

industries." s. Rep. No. 1296, 89th Cong., 2nd Sess., reprinted in [1966] 

U.S. CODE CONG. & AD. NEWS, 2846. The Federal Mine Safety and Health Amendments Act of 1977, Pub. L. No. 95-164, 91 STAT. §§ 1290-1322 (Amendments Act), 

amongst other things, repealed the 1966 Metal Act, see § 306(a) of the Amendments Act, and ~nlarged the definition of "mine" set forth in section 3(h) of 

the Federal Coal Mine Health and Safety Act of 1969, 30 u.s.c. § 801 et~· 

(1970) (1969 'coal Act), to include those mines previously covered by the 

1966 Metal Act. S. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977), reprinted 

'!:_/ The Respondent's position that the regulation protects only its own 

employees is based upon the definition of "employee" set forth in 30 C.F.R. 

§ 56.2, which defines the term as "a person who works for wages or salary 

in the service of an employer." 
in LEGIS.t\TIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 

647 (1978 • The mandatory standards relating to mines, issued by the Secretary of the Interior under the 1966 Metal Act and in effect when ·the Amendments Act w • enacted, remained in effect as mandatory health or safety 

standards aL licable to metal and nonmetallic mines under the 1977 Mine Act, 

and continue to remain in effect until such time as the ·secretary of Labor 

issues new c-~ revised mandatory standards. Section 30l(b)(l) of the Amendments Act. fhe mandatory standards in effect on the effective date of the 

Amendments Act "continue[d] in effect according to;their terms until modified, terminated, superseded, set aside, revoked or· repealed by the Secretary of Labor, the Federal Mine Safety and Health.Review Commission or other 

authorized officials, by any court of competent jurisdiction, or by operation 

of law." Section 30l(c) (2) of the Amendments Act. 

It has been held previously in this decision that Mr. Meyer fell within 

the definition of the term "miner" as set forth in section 3(g) of the 1977 

Mine Act. Thus, the question presented is whether 30 C.F.R. § 56.20-11, as 

applied under the 1977 Mine Act, accords protection to miners who are not the 

mine operator's employees. The problem is essentially one of interpreting 

the regulation in accordance with the 1977 Mine Act's remedial purpose. 

As a general proposition, the rules of statutory construction can be 

employed in the interpretation of administrative regulations. See C. D. Sands, 

lA Sutherland on Statutory Construction, § 31.06; p. 362 (1972)-.-According to 

2 Am.Jur.2d, Administrative La1 , § 307 (1962·), "rules made in the exercise of 

a power delegated by statute should be construed together with the statute to 

make, if possible, an effectual piece of legislation in harmony with common 

sense and sound reason." Remedial. legislation directed toward sec·uring safe 

and healthful work places must be interpreted in light of the express Congressional purpose of providing a safe and healthful wo.rk environment, and the 

regulations. promulgated pursuant to such legislation must be construed to 

effectuate Congress' goal of accident prevention. Brennen v. Occupational 

Saf~ty and Health Review Commission, 491 F .2d 1340 (2d Cir. 1974). "Should 

a conflict develop between a statutory interpretation that would promote 

safety and an interpretation that would serve another purpose at a possible 

compromise of safety, the first should be preferred." District 6, UMWA v. 

Department of Interior Board of Mine Operations Appeals, 562 F.2d 1260 (D.C. 

Cir. 1972). 

The 1966 Metal Act never used .the term "miner" in any of its provisions. 

Instead, the 1966 Metal Act used the terms "employees of the mine," 

"employees," "mine workers," and "workers in such mines," wh~re the term 

"miner" would ordinarily be expected to appear. See sections 7(a), 8(a) (3), 

8(b)(3), lO(c), and 15 of the 1966 Metal Act. But the regulation, when interpreted in conjunction with the 1977 Mine Act's remedial purpose, is clearly 

intended to provide those working in the mine with warning of or protection 

against health or· safety hazards which are not immediately obvious. I therefore conclude that Congress, in adopting 30 C.F.R. § 56.20-11 as a mandatory 

standard under the 1977 Mine Act, intended that it afford protection to all 

miners, and that it imposes a duty on the mine op.erator with respect to all 

1534 
miners working in its mine. A construction limiting its protection to 

employees of the mine operator would serve an objective at odds with mine 

safety, and is ·therefore not to be preferred. 

The remaining question is whether the hazard was immediately obvious. 

The evidence clearly shows that the powerlines·were readily observable (Tr. 

72, 10~). The evidence further shows that the powerline that achieved 

contact with the truck bed was approximately 28-1/2 feet above the ground, 

and that the truck bed, at its maximtun extension, reached a height of 

approximately 28-1/2 feet. 

The fact that the powerlines themselves were readily observable under 

normal conditions is not dispositive of the question presented. The powerlines were sufficiently high above the ground that the hazard posed by 

raising a truck bed or operating other equipment in the area was not immediately obvious. The truck operator had raised the bed of the trailer from 

inside the truck cab. It was raining; the winds were gusting; and the 

operator of the truck, upon getting out of the. truck, was engaged in operating the tailgate. There is no way to know whether operators of trucks in 

the area would know about the high voltage of the wires in question. In 

view of all o.f these factors, I conclude that this was an area where a 

safety hazard existed which was not immediately obvious to a miner such as 

the subject truck driver and that neither barricades nor warning signs were 

posted at all the approaches. 

Accordingly, I conclude that a violat-ion of mandatory safety standard 

30 C.F.R. § 56.·20-11 has been established by a preponderance of the evidence. 

G. Negligence of the Operator 

It appears that the problem of dumping coal residue on the property 

arose only a short time prior to April 25, 1978. The Respondent undertook 

steps to prevent truck drivers from engaging in such activity, but as of 

April 25, 1978, had not found an effective means of dealing with the problem. In fact, at some undisclosed point in time after the accident, the 

R~spondent provided a waste area in the pits where the dumping of truck 

beds could be accomplished (Tr. 131). 

However, the fact remains that warning signs should have be(~ posted 

concerning the hazard of the high-voltage powerlines. In view of all of the 

surrounding circumstances, including the fact that the Respondent attempted 

to undertake corrective action by attempting .to ,prevent the dumping of coal 

residue on the property prior to April 25, 1978, I find that the Respondent 

demonstrated ordinary negligence in connection with the violation. 

H. Gravity of the Violation 

The violation contributed to the fatal ac~ident. Accordingly, it is 

found that the violation was serious. 

1535 
I. ·Good Faith in Attempting Rapid-Abatement 

The haulageway was immediately barricaded and posted in order to abate 

the violation (Tr. 72). Accordingly, I conclude that the Respondent demonstrated good faith in attempting rapid abatement of the ~iolation. 

J. Size of the Operator's Business 

The Respondent is a wholly owned subsidiary of American Aggregates 

Corporation (Tr. 9; Respondent's Posthearing Memorandum, P• 2). The record 

contains no evidence as to whether American Aggregates Corporation owns or 

controls mining operations other than the Respondent, or, if so, the size 

of those mining operations. 

No evidence was presented as to the aggregate size of all mining operations owned or controlled by the Respondent. The only evidence contained in 

the record relates to the size of the Respondent's Harrison Pit and Plant. 

The parties stipulated that the size of t-he Harrison Pit and Plant in 1977 

and 1978-was ,rated at 19,518 man-hours per year (Tr. 26-29). The evidence 

presented reveals that the Harrison Pit and Plant sold approximately 350,000 

to 400,000 tons of material in 1978 (Tr. 52). 

K. History of Previous Violations 

The parties stipulated that no inspect:i,.ons had been conducted at, or 

citations issued at, the Harrison Pit and Plant prior to the April 25, 1978, 

ac.cident (Tr. 8). The record contains no other evidence as relates to the 

history of previous violations. 

Accordingly, it is found that the Respondent has no history of previous 

violations cognizable in this proceeding. 

L. Effect of a Civil Penalty on the Operator's Ability to Continue 

in Business 

No evidence was presented establishing that the assessment of a civil 

penalty in this case will adversely affect the Respondent's ability to remain 

in business. In Hall Coal Company, 1 IBMA 175, 79_ I.D. 668, 1971-1973 CCR 

OSH. par. 15,380 (1972), the Commission's predecessor, the Interior Board of 

Mine Operations Appeals, held that evidence relating to whether a penalty will 

affect the ability of the operator to remain in business is within the operator's control, and therefore, there is a presumption that the ope.rator will 

not be so affected. I find, therefore, that a civil penalty otherwise properly assessed in this proceeding will not impair the Respondent's ability to 

continue in business. 

VI. Conclusions of Law 

1. The Administrative Law Judge has jurisdiction over the subject matter 

of, and the parties to, this proceeding. 
2. American Materials Corporation and its Harrison Pit ~nd Plant have 

been subject to the provisions of the 1977 Mine Act at all times relevant to 

this proceeding_. 

3. Federal mine inspectors William D. Atwood and S~eve Viles were duly 

authorized representatives ef the Secretary of Labor at all times relevant to 

this proceeding. 

4. The Petitioner has failed to prove the alleged violation with respect 

to Citation No. 358304, April 26, 1978, 30 C.F.R. § 56.12-71. 

5. The violation charged with respect to Citation No. 360204, April 26, 

1978, 30 C.F.R. § 56 .• 20-11 is found to have occurred as alleged. 

6. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

i 

The parties filed the posthearing submissions identified in Part I, 

supra. Such submissions, insofar as they can be considered to have contained 

proposed findings of fact and conclusions of law have been considered fully, 

and except to the extent that such findings and conclusions have been expressly 

or impliedly a·ffirmed in this decision, th~y are rejected on the grounds that 

they are, in whole or in part, contrary to the facts and law or because they 

are immateriai to the decision in this case. 

VIII. Penalty Assessed 

Upon consideration of· the entire recbrd in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a penalty is warranted as follows: 

Citation No. Date 30 C.F.R. Standard Penalty 

360204 4/'2.6/78 56.20-11 $300 

ORDER 

IT IS ORDERED that the Respondent's motion to dismiss at the close of 

the Petitioner's case-in-chief as relates to an alleged violation of 30 C.F.R. 

§ 56.12-71 be, and hereby is, GRANTED. 

IT IS FURTHER ORDERED that the Respondent's motion to dismiss at the 

close of th~ Petitioner's case-in-chief as relates to an alleged violation of 

30 C.F.R. § 56.20-11 be, and hereby is, DENIED. . 

IT IS FURTHER ORDERED THAT the Respondent's October 27, 1980, motion to 

dismiss be, and hereby is, DENIED. 

1 ..... 3 ... 1· .l. ~ • 
IT IS FURTHER ORDERED that the Respondent pay a civil penalty in the 

amount of $300 within the next 30 days. 

~.-a.__~. Cook 

L----- '.Administq:i.tive Law Ju.dge 

Distribution: 

Linda L. Leasure, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015· Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Patrick Zohn, Esq., Office of the Solicitor, U.S. DeDartment of Labor, 

881 Federal Office Building, 1240 East Ninth Street, Cleveland, OH 

44199 (Certified Mail) 

John W. Edwards, Esq., and David Wm. T. Carroll, Esq., Smith &.Schnacke, 

Suite 700, 100 East Broad Street, Columbus, OH 43215 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

1538 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

.QUN l S 1981 

SECRETARY OF LABOR, 

on behalf of 

GARY M. BENNETT, 

Complaint of Discharge, 

Discrimination, or Interference 

Complainant Docket No. CENT 81-35-DM 

v. 

Baton Rouge Alumina Plant 

KAISER ALUMINUM AND CHEMICAL 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

Marigny A. Lanier, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for Complainant; 

Stephen H. ·Booth, Esq., Labor Counsel, Kaiser Aluminum 

and Chemical Corporation, Oakland, California, for 

Respondent. 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The Secretary of Labor asserts that Complainant Bennett was 

suspended for thirty days without pay because he refused to work under 

unsafe conditions. Respondent contends .that Bennett was disciplined 

for insubordination. Respondent also contends that the complaint is 

barred by time limitations. 

A hearing was held, pursuant to notice, on February 26, 1981 in 

New Orleans, Louisiana. Gary Bennett, Ferdinand Johnson, Ronnie Procell, 

Riley Jester, all employees of Respondent, and Otis Pilgrim and Melvin 

Robertson, employees of the Mine Safety and Health Administration (MSHA), 

testified on.behalf of Complainant. Theodore Peno, ~Flavius Galloway, 

Willie Brown, Alvin Saizan and Roland Bertram, employees of Respondent, 

testified on Respondent's behalf. · 

Post-hearing briefs have been filed by both parties. Based on the 

evidence presented at the hearing and the contentions of the par~ies, I 

make the following decision. 

FINDINGS OF FACT 

1. Respondent operates an alumina plant in Baton Rouge, Louisiana, 

milling bauxite ore into alumina powder. 

2. The plant includes sand traps lo~ated in what is called the 

tank farm. The sand traps are large, conically-shaped vessels that filter 

and cook a caustic liquid known as "liquor" which helps remove impurities 

from the bauxite ore. 

1539 
3. The "liquor" is heated to between.200 arid 300 degrees Fahrenheit. 

Even a small amount on a person's skin can cause a severe burn~ 

• ~. Complainant was employed as a pipefitter and as such he participated 

in the sandtrap "turnaround" which occurred every six months. This process 

involves the draining and cleaning of the vessel. 

5. Complainant's duties during the turnaround included opening the 

manway door, removing valves for repairs and setting "blinds," which are 

metal discs the same diameter as the pipes and which prevent any flow of 

liquid into the vessel. 

6. All valves are closed and tagged during a turnaround and the pump 

to the feedline entering the sandtrap is turned off and.locked out. 

7. There are two "down~omer lines" which lead from the main feedline 

to the sandtrap. Each of these lines contains double valves which are 

shut during turnaround and can only be opened_ by hammering them with at 

least an eight pound maul. Blinds are inserted in the downcomer lines as 

added protection for the carpenters and laborers who enter the sandtrap 

to remove built-up scale on the vessel. 

8. After the scale is removed from the inner walls, Complainant's 

tasks were to "pop" scale from a side valve and reinstall the valves at the 

bottom of the vessel. Popping a valve consists of heating and thereby 

removing the scale around the valve with a torch. 

9. There is a sharp conflict in the testimony on the question of 

whether Complainant did, or was required to, insert any pa~t of his body 

into the vessel while popping the valve. I generally accept Complainant's 

testimony, supported by the testimony of Ferdinand Johnson and Riley Jester, 

on this issue, and find that Complainant did insert his arms and shoulders 

inside the vessel while popping the side valve. 

10. On October 11, 1979 sandtrap #3 was undergoing the turnaround. 

By lunchtime Complainant had finished popping the side valve. He still 

had to reinstall the other valves and close the vessel; the carpenters 

and laborers had left the vessel. 

11. During the lunch hour Complainant was told by some co-workers 

that the blinds had been removed. Complainant and Ferdinand Johnson, 

who worked with him, complained to their foreman, Willie Brown, that this 

created a safety hazard. 

12. In fact, only the two blinds on the downcomer lines had been 

removed after the carpenters and laborers left the vessel. This was in 

accord with past practice in the turnaround. 

13. Complainant refused to return to work after lunch until a 

"safety man" came to evaluate the situation. 
'14. Foreman Brown notified Theodore Peno, Maintenance Supe~intendent 

who came to sandtrap #3 with Maintenance Coordinator Flavius Galloway. 

Peno and Galloway spent nearly 40 minutes checking the vessei and the 

blinds and valves and determined that in their judgment, all safety 

measures had been observed. 

15. The matter was discussed with Complainant and Johnson. Peno 

explained that he and Galloway had checked the entire s'ystem and he 

offered to remain at ·the site. Johnson agreed to return to work but 

complainant ref used a direct order to return. 

16. On the foilowing day, October 12, 1979, Respondent suspended 

complainant for 30 days without pay. 

17. On February 4, 1980 Complainant filed a complaint with MSHA 

and on October 13, 1980, the Secretary of Labor filed this action with 

the Commission. 

ISSUES 

1. Is the complaint barred by the time limitations contained in 

§ 105(c) of the Act? 

2. Did Respondent violate § 105(c) when it suspended Complainant 

for 30 days without pay for refusing to perform his assigned duties on 

October 11, 1979? 

Discussion . 

Complainant's original complaint was filed with MSHA nearly three 

months after the end of the suspension period, and the Secretary's 

complaint on his behalf was filed with the Commission more than eight 

months after that. The statute provides that a miner "may" file a 

complaint with MSHA within 60 days of the event complained of. § 105(c)(2). 

The Secretary "shall" notify the miner of his determination within 

90 days of the date it was received, § 105(c)(3), and, if he finds a 

violation, "he shall immediately file a comp~aint with the Commission." 

§ 105 (c) (2). 

I conclude that none of the filing deadlines are jurisdictional in 

nature. Rather, they are analogous to statutes of limitation, which may 

be waived for equitable reasons. It has already been held that the 

filing deadlines in discrimination cases arising under the 1969 Coal Act 

are not jurisdictional. Christian v. South Hopkins Coal.Co., 1 FMSHRC 

126, 134-36 (1979). The same result was obtained under .§ 111 of the 

present Mine Act, which directs mine operators to compensate miners 

while withdrawn from a mine pursuant to 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. 

Applying these standards, I find that the delay in filing the 

original complaint was justifiable. Before the ~eriod expired, Complainant 

asked Respondent'~ industrial relations representative which public 

agencies deal with safety complaints, but receiv~d no response. Complainant 

also brought his complaint to the attention of an MSHA inspector less 

than two months after the suspension ended. The inspector mistakenly 

gave Complainant the wrong name and the wrong phone number for properly 

notifying MSHA. The delay of approximately one month was thus justifiable. 

The Secretary's delay in processing the complaint cannot defeat the 

action, in light of the legislative history quoted above. Moreov3r, it 

is commonly held that the government is not affected by the doctrine of 

laches when enforcing a public right. Intermountain Electric Co., 1980 

CCR OSHD Para. 24202 (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). Respondent's plea of limitations is rejected. 

Turning to the merits, the first issue is whether Complainant was 

engaged in activity protected under§ lOS(c). Secretary of Labor 

ex rel Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980). I find 

that Complainant in good faith believed that it was dangerous to continue 

working after the blinds were removed. Therefore, his complaint concerning 

their removal was protected under§ lOS(c). Complainant's foreman 

explained that the blinds were removed because there were no workers 

inside the vessel. This did not satisfy Complainant so Brown called 

Peno who agreed to investigate the complaint. Brown told this to 

Complainant but Complainant remained dissatisfied and would not return 

to work. Complainant then left to find the safety supervisor, which he 

was unable to do. The safety supervisor, as it happened, was with an 

MSHA inspector, who was inspecting other areas of the plant. 

Complainant's refusal to work at this point was protected by§ lOS(c). 

It had not been clearly explained to him that only the two blinds on the 

downcomer lines had been removed. The parties agree that removal of all 

blinds before the turnaround is finished would be an unsafe practice. 

Complainant's honest belief in this condition was therefore a reasonable 

one under the circumstances. Secretgry of Labor ex rel. Robinette 

v. United Castle Coal Co., 3 FMSHRC 803, 812 (1981). 

After Peno was notified of the complaint, he and Galloway, who both 

parties trust as the expert on tank farm operations, spent nearly 40 

minutes checking every aspect of the sandtrap turnaround. Peno, accompanied 

by Galloway, then explained their findings to Complainant and told him 

1 d r:-4 'J ,_, 
that his job involved no safety hazard. Complainant still refused to 

return to work.. Peno then offered to remain at the site and watch for 

trouble but Complainant persisted in his demand for a safety man. Peno 

then resolved to seek disciplinary action against Complainant. 

I cannot conclude that Complainant's refusal to work was protected 

at this point. It may be that a miner is "not required to accept the 

foreman 1 s evaluation of danger~' Phillips v. IBMA, 500 F.2d 772, 780 

(D.C. Cir. 1974), but neither may a miner insist unreasonably on a right 

to refuse to work. Robinette, supra. Peno diligently investigated the 

complaint and, after finding it baseless, thoroughly explained his 

position to Complainant. Complainant still honestly believed the 

condition to be hazardous but this belief was not a reasonable one. It 

is important to note that Complainant had completed the task of popping 

the valve which required inserting his body in the vessel. At the time 

he refused to continue work, there was no requirement that he get inside 

the vessel again to finish the turnaround. Peno and Galloway made it 

plain to him that the procedure used with the blinds was the same procedure 

he had worked under on prior turnarounds. Complainant's complaint was 

protected; his continued refusal to work after Respondent's investigation 

and explanation, I find to be unreasonable, and therefore not protected. !/ 

Complainant's defiance of Brown played some role in the disciplinary 

action. However, ·Respondent has established that unprotected activity -

Complainant's refusal to work after Peno's explanation to him - was an· 

important factor in the decision to suspend. In fact, until Complainant's 

defiance of Peno, Peno had been making every effort to accommodate him. 

I therefore find that Complainant would have been suspended for this 

alone. 

CONCLUSIONS OF LAW 

1. I have jurisdiction over the subject matter and the parties to 

this proceeding. 

2. Complainant's complaint is not barred by the time'limitations 

provisions of the Act. 

3. Respondent did not violate § 105(c) when it suspended Complainant 

for 30 days without pay. 

!/ The actual safety of the condition has some bearing on whether 

Complainant's belief in an unsafe condition was a reasonable one, though 

it is not controlling. A few days after the incident, Respondent requested 

an MSHA inspector to tour the sandtrap area to see if there was merit to 

the complaint. The inspector, who testified· at the hearing, was of the 

opinion that the removal pf the blinds did not pose a safety hazard. 

154:1 
ORDER 

Therefore IT IS ORDERED that the proceeding is DISMISSED. 

~~ A41~~ vfe__ 

James A. Broderick 

\ Chief Administrative Law Judge 

Distribution: 

Marigny A. Lanier, Esq. Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Stephen H. Booth, Esq., Labor Counsel, Kaiser Alumipum and Chemical 

Corp., 300 Lakeshore Drive - 947KB, Oakland, California 94643 

(Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ARCH HOOVER, 

v. 

OFFICE OF ADMINISTRATIVE L\W JUDGES 

2· SKYLINE, 10th FL.OOR 

5203 LEESBURG PIKE 

FALLS CHURCH, .VIRGINIA 22041 

JUl15. 

Complainant 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. WEVA 80-580-D 

ISLAND CREEK COAL COMPANY, 

Respondent 

North Branch Mine 

Appearances: 

Before: 

DECISION 

Charles Jr. Moats, Montrose, West Virginia, for Complainant; 

Wayne Bussell, Esq., Lexington, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued Fepruary 23, 1981, a hearing in 

the above-entitled proceeding was held on Apri~ 7, 1981, in Elkins, West 

Virginia, under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(c)(3). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below (Tr. 150-162): 

This proceeding involves a Complaint of Discharge, Discrimination, or Interference filed on July 30, 1980, pursuant to section 

105(c)(3) of the Federal Mine Safety and Health Act of 1977 by 

Arch Hoover against Island Creek Coal Company. The Complaint alleges 

that Island C.reek discriminated ag·ainst complainant by refusing to 

allow him to hold or obtain a mechanic's job at respondent's North 

Branch Mine. 

The Complaint was filed under.section 105(c)(3) of the Act 

because the Mine Safety and Health Administration declined to file a 

complaint on Mr. Hoover's behalf under section 105(c)(2) of the Act 

after finding, on the basis of MSHA's own investigation of the Complaint, that no violation of section 105(c)(l) of the Act had occurred. 

I shall make some findings of fact which will be set forth in 

enumerated paragraphs. 

1. Mr. Arch Hoover began working at Island Creek's North 

Branch Mine on January 17, 1968. During most of that time he has 

been a helper to the operator of a continuous-mining machine or 

has.done other work operating equipment, but he has frequently 

done mechanical work. On December 8, 1978, mechanic's job No. 105 

was open and Mr. Hoover applied for that job, but the job was not 

filled on the ground that no qualified bidder had applied for it. 
2 

That particular job required that the person who held it be a 

certified electrician. Mr. Hoover admittedly is not a certified 

electrician. 

Mr. Hoover filed a grievance about not being awarded the 

mechanic's job, but the grievance seems to have been withdrawn 

with the understanding that Mr • ..- Hoover would be sent to the 

next class offered after that "occurrence for the purpose of enabling Mr. Hoover to become trained so as t~ be qualified to hold 

a certified electrician's card issued by the West Virginia Department of Mines. 

2. Before Mr. Hoover could be sent to a school to become 

a certified electrician, he learned that he could attend the 

classes only if someone, in a position to know the facts, signed 

a statement to the effect that Mr. Hoover had had 3 years of electrical experience. Mr. Robert Severe, a UMWA committeeman, signed 

a statement to the effect that Mr. Hoover had had the required 

36 months of experience, but when the statement was given to 

Mr. James Hamlin, superintendent of the U01;-th Branch Mine, he 

stated that he could not agree that Mr. Hoover had accumulated 

36 months of experience under the direct supervision of a certified 

electrician. Mr. Hamlin's refusal to confirm that Mr. Hoover 

possessed the requisite experience resulted in Mr. Hoover's not 

being sent to the class~p to become a certified electrician. 

3. Three witnesses testified on behalf of Mr. Hoover to 

the effect that at various times Mr. Hoover had acted as the sole 

mechanic on their section when the regular mechanic was unavailable. 

Those witnesses stated that Mr. Hoover performed both mechanical 

and electrical work as well or better than other full-time mechanics 

who hold certified electrician cards. The evidence shows, however, 

that when Mr. Hoover performed the work of a mechanic, a section 

foreman with a certified electrician's card was on duty on the 

section. 

4. Mr. Hamlin explained when he testified in this case that 

the class to which Mr. Hoover wanted to be admitted was a special 90-

hour class established with the approval of the West Virginia Department of Mines for the sole purpose of enabling some mechanics who 

had been working for Isl~nd Creek for a number of years in that 

position to become certified under the law in a way that would permit 

them to be considered as lawful, certified, electricians when, in 

fact, they would probably not have been able to pass the regular 

examination given to those who became certified electricians under 

the law as it is now administered. 

Mr. Hamlin further stated that he checked with those company 

personnel who were in a supervisory position over electrical work 

and all of those individuals stated that they did not think Mr. Hoover 

had done the kind of electrical work which would be required for him 
3 

to have been considered to have accumulated 36 months of experience 

under the direct supervision of a certified electrician. 

5. Mr. Hamlin and Hr. Riggleman, who is a maintenance electrical supervisor, additionally explained that the 90-hour class, 

which Mr. Hoover was not allowed to att~nd, was established for 

people who had held a regular mechanic's job prior to the passage 

of a new law pertaining to certifiecation of electricians, but who 

could not have b~come certified under the new law except for attendance at the special 90-hour course. Therefore, even if Mr. Hoover, 

a·t the time the 90-hour course was offered, had actually had 36 months 

of experience, he would not have been qualified for that special 

course set up for the benefit of those particular people who had been 

working as mechanics prior to the passage of the West Virginia law 

requiring people to become certified electricians if they were also 

given the title of mechanic. 

6. There was introduced in evidence in this proceeding as 

Exhibit A a portion of the West Virginia statute which defines what 

a certified electrician is and that section, which is 22-l-l(d)(2), 

provides that a person either has to pass the examination given by 

the Department of Mines, or have 3 years of experience and complete 

a coal mine electrical training program approved by the Department 

of Mines. The program approved by the Department of Mines under 

that section is the 90-lr6ur course which Mr. Hoover was not permitted 

to attend because of his''failure tq qualify ror that special purpose. 

The result is that he can no longer go to any existing or prospective 

class because the West Virginia Department of Mines has indicated that 

that type of method of becoming a certified electrician is no longer 

available. 

7. Under the existing method of becoming certified, it is 

necessary for a miner to become an apprentice electrician. He has 

to take an 80-hour course and has to follow that up with training 

in the mine under the direct supervision of a certified electrician 

for a period of time and then, eventually, he has to take another 

40 hours of instruction in the classroom and, finally, he has to pass 

an examination given by the West Virginia Department of Mines. 

8. Mr. Hamlin has inqicated in his testimony that Mr. Hoover 

was offered the possibility of enrolling in a course which would be 

given during the day shift at the North ~ranch Mine and that course 

might take, together with the apprentice training, up to 18 months 

before one can become a certified electrician under the present 

requirements,; Mr. Hoover does not work on the day shift, and he has 

indicated that he does not find it possible to take advantage of the 

training program offered on the day shift because it would require 

_him to drive by himself about 85 or 90 .miles to attend that type of 

training. Although Mr. Hoover now drives about 90 miles to work 

at the North Branch Mine on the 4:00 p.m.-to-12:00 midnight shift, 

he does so in the company of about ten other men who all ride in 

a van. The result is that they can pool their resources and afford 
4 

to drive that far as a group, but Mr. Hoover says he cannot afford 

to·do it.alone on the day shift a~ a single person. Consequently,_ 

he finds that it is economically infeasible to take advantage of the 

pre.sent means of becoming a certified electrician. 

I believe that those are the pertinent facts that have been 

developed here today in the testimony of quite a few witnesses. 

In order for Mr. Hoover to obtain relief under section 105(c)(l) 

of the Federal Mine Safety and Health Act of 1977, he would have to 

show that respondent has violated that section. That section reads 

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 

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 compiaint notifying the operator or 

the operator's agent, or the representative of miners at the 

coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner, 

representative of miners or applicant for employment is the 

subject of medical evaluations and potential transfer under a 

standard published'-pu~suant to section 101 or because such 

miner, representative of miners or applicant for employment 

has instituted or caused to be instituted any proc'eeding under 

or related to this Act or has testified or is about to testify 

in any such proceeding, or because of the e~ercise by such 

miner, representative of miners or applicant for employment on 

behalf of himself or others of any statutory right afforded 

by this Act. 

As I explained in the preliminary discussion that I had before 

the hearing started today, I had already studied Mr. Hoover's Complaint in this case and I tried my utmost to find some way to provide 

for the relief which he seeks, which is to become a certified electrician, but before I can order Island Creek to send him to a class to 

become a certifi.~d electrician, I would have to find ·that Island Creek 

violated section 105(c)(l) and I haven't been able to find anything in 

that section, or in the evidence introduced in this case, which would 

permit me to make such a finding. 

As I explained before, it looked to me as if the primary way that 

I.-might find··a violation woui'd be if the evidence showed that Mr. Hoover 

was asked to do the work of a mechanic, which, of course, also means 

that he should be a certified electrician, and he were to refuse to do 

that on the ground hat he was not a certified electrician, and the 

company were to tell him that if he didn't do it. he would be discharged. 

If the aforesaid things had occurred, I might then have been able to 
5 

find that there was a violation because he was objecting to doing 

something which is hazardous, that is, do a job for which he is not 

qualified by having the proper training. But, Mr. Hoover told me 

very clearly and without any equivocation, that nobody ever ordered 

him to do mechanical equipment work. He was asked to work on mechanical equipment on.occasion. On other occasions, he volunteered 

to do mechanical work, but I haven't been shown, and nobldy has 

alleged, that Island Creek coerced him into doing mechanical ~ark. 

So, I can't. really find that the part of the Complaint which alleged 

that Mr. Hoover was required to do mechanical work is really supported 

by the evidence. 

I think it was a mistake for Island Creek to have allowed 

Mr. Hoover to work as the only mechanic on a given section at times 

because there was testimony by several witnesses to the cf f ect that 

there were times when Mr. Hoover was doing work which at least involved 

electrical connections and hooking up electrical wires, for example, 

in the installat~on of an electric motor. Mr. Hamlin pointed out, 

however, that as far as he was concerned,_ that was not the kind of 

electrical work that he feels is contemplated in the requirement 

that a person be a certified electrician. 

It is a fact that when Mr. Hoover did mechanical work, there was 

a certified electrician present on the section. So, I can't really 

find that there was a violation of the Federal Hine Health and Safety 

Act, or the regulations ·~P.romulgated under that Act, when Hr. Hoover 

worked as a mechanic on a section when the regular mechanic was 

unavailable. 

As Mr. Bussell pointed out in his argument, before I could order 

Island Creek to do something that it hasn't already done, such as set 

up a special class for the benefit of Mr. Hoover, I would have to find 

that Mr. Hoover has been engaged ip some protected activity or that 

Island Creek refused to let him go to one of those classes because of 

his having been engaged in a protected activity. I haven't been able 

to find any protect~d activity that he has been.engaged in. 

There have been some cases before the Commission in which the 

Commission has ordered a company to give an individual-certain types 

of relief. For example, in Local Union No. 1110, U~fi~A, and Robert L. 

Carney vs. Consolidation Coal Company, 1 FMSHRC 338 (1979), Carney was 

given three letters of reprimand and placed on probation for 1 year 

because of his union activities. He had left the continuous-mining 

macliine and had gone to complain to other urtion officers and MSHA 

because he was asked to operate the continuous~mining machine pending 

receipt of a···known mixture of methane for checking the methane monitor. 

Carney was told he could only make such compiaints and leave the 

section when management approved it. Carney continued doing union 

work without getting permission and that resulted in another letter of 

reprimand. 
6 

The Commission in that case affirmed .an administrative law judge's 

holding that this restrictive policy was a violation of Carney's rights. 

The health and safety of miners made it necessary for .a union committeeman to do his work even though it might interfere with Consolidation's 

ability to control production as it would prefer on a given occasion. 

The Commission held that Consolidation's policy would impede a miner's 

ability to contact the Secretary of Labor when safety violations or 

dangers arise. 

I refer to ·the Carney case primarily to illustrate the fact that 

if Mr. Hoover had been engaged in some activity v:hich showed that the 

company was about to do something that was hazardous or endangered 

someone's life or health, then he would be entitled to relief because 

he would have been engaged in a protected activity. The mere fact that 

he agreed to do mechanic's work is not a protected activity, as I understand it, which would enable me to find that a violation of section 

105(c)(l) occurred. 

Mr. Moats explained to me--Mr. Hoats being the person who represented Mr. Hoover in this case--what the present West Virginia law is 

on becoming a certified electrician and; as he understood that portion 

of the West Virginia law, Mr. Hoover, when he worked solely as a mechanic on a section when the regular mechanic was absent, would have to 

be an apprentice electrician and should have a card so stating from the 

West Virginia Department Jf Mines. Mr. Moats suggested that the failure 

of Mr. Hoover to be given that classification while he was acting as 

the sole mechanic on a section may well be illegal under West Virginia 

law. 

I am not certain that Hr. Hoover is precluded from doing mechanical 

work so long as a certified electrician is present, even under the present 

West Virginia law. As I understand that law, it simply requires that a 

person be an apprentice electrician under that statute if he wants to 

become a certified electrician. Since Mr. Hamlin has indicated that 

the present program is apparently going to be designed for the day 

shift only, it wouldn't appear that Mr. Hoover would be able to qualify 

for it in view of his economic problem of being unable to drive back 

and forth to work on the day shift. I don't know that any good will 

come out of this hearing; but I would hope that Island Creek would 

endeavor to offer the program for an apprentice electrician on its 

4:00-to-12:00 shift so that Mr. Hoover could get into the program and 

could eventually become a certified electrician. 

There was a lot of testimony in this case by Mr. Hoover's friends 

and I think he must be a very fine person in order for these miners to 

take off a day from work to come and testify in his behalf and I would 

hope that their efforts are not in vain and that Mr. Hoover 'ivill be 

given an opportunity to become a certified electrician. Everyone who 

has testified here today has said that Mr. Hoover is an excellent 

worker, that he is conscientious, that he has initiative, and I think 

a man like that should be allowed to become as well-trained and educated 

as possible and I hope the company will make a concerted effort to try 

1:150 
7 

to see that Mr. Hoover gets the proper recognition and opportunity to 

achieve the requirements for the position that he would like to hold. 

But, as I have stated, I simply cannot find any way to find that 

a violation of section 105(c)(l) occurred. 

\\THEREFORE, it is ordered: . 

The Complaint filed in Docket No. WEVA 80-580-D is denied for failure to 

prove that a violation of section 105(c)(l) of the Federal Mine Safety and 

Health Act of 1977 occurred. 

Distribution: 

~ CJ. rSt::-1) ;;_ 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

Charles Jr. Moats, Representative for Arch Hoover, Route f.! 1, Box 102A, 

Montrose, WV 26283 (Certified Mail) 

Wayne Bussell, Esq., Attorney for Island Creek Coal Company, P.O. Box 

11430, Lexington, KY 4t575 (Certified Mail) 

MSHA, Special Investigations, U.S. Department of Labor, 4015 l\'ilson 

Boulevard, Arlington, VA 22203 

Assistant Solicitor, U.S. Department of Labor, 4015 1\'ilaon Boulevard, 

Arlington~ VA 22203 

1:15J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 60204 JUN 16 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

UNITED NUCLEAR - HOMESTAKE PARTNERS, 

now HOMESTAKE MINING COMPANY, 

Respondent. 

~~~~~~~~~~~~~~~~~~~~ 

APPEARANCES: 

Robert A. Cohen, Esq. 

Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

For the Petitioner 

Wayne E. Bingham, Esq. 

Pickering & Bingham 

920 Ortiz, N.E. 

Albuquerque, New Mexico 87108 

For the Respondent 

Before: Virgil E. Vail 

Administrative Law Judge 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NOS. CENT 79-251-M 

) CENT 79-252-M 

) CENT 79-262-M 

) 

) MINES: Section 23 

) Section 25 

) Section 13 

) (Consolidated) 

) 

) 

) 

DECISION 

I. Statement of the Case 

The above-captioned civil penalty proceedings were brought ·pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq.,(hereinafter referred to as "the· Act"). The 

violations were charged in 25 citations issued to the respondent following 

inspections at three of its mines between the dates of February 28,· 1979 

and April 25, 1979. 

Pursuant to notice, a hearing on the merits was held in Albuquerque, 

New Mexico on June 3, 1980. The parties filed post-hearing briefs. 

1 ;; ~) l) - t r. 
II. Stipulations 

At the outset of the hearing, the parties entered into· the following 

stipulations: 

1. The Section 23 and 25 111ines . are operated by United NuclearHomestake Partners and are subject to the Act. 

2. The Administrative Law Judge has jurisdiction to hear these 

matters. 

3. The Section 23 mine is a large uranium mine with· approximately 

486,000 hours worked in 1979. 

4. The Section 25 mine is a medium size uranium mine with 

approximately 287;000 hours worked in 1979. 

5. The mine inspectors who issued the citations were employees of the 

Mine Sa.fety and Health Administration and authorized ·representatives of the 

Secretary of Labor. 

6. Any penalties assessed in these proceedings would not affect the 

operator's ability to remain in business. 

7. The respondent demonstrated good faith in abating all the alleged 

violations. 

8. The Section .23 and 25 mines have a small history of previous 

violations. 

III. Settlement Proposals 

CENT 79-251-'M 

On May 22, 1980, petitioner filed a written motion for _approval of 

a partial settlement ·agreement which had been entered into with the 

respondent. At the hearing, the parties moved that the agreement be 

approved. The agreement provides for withdrawal of Citation no. 151097 

and for payment of the penalties proposed in connection with Citations 

.numbered 151093, 151094, 151098·, 151440 and 151441. At the hearing the 

pa~ties stated that they had agreed to settle three more citations. 

Respondent agreed to pay the proposed penalty assessments in Citations 

numbered 151089, 151090 and 151096. Both the writter. and oral motions 

included a documented discussion of the six criteria as· set forth in 

Section llO(i) of the Act. 

Upon due.consideration, I conclude that the proposed settlements 

should be approved. Approval of the settlement proposals are reflected 

be low in the fin al order. i 

l . r-5' )\. \-{ 
CENT 79-252-M 

The parties entered into an agreement to settle Citation no. 151439. 

Respondent agreed to pay the full amount of the proposed penalty 

assessment. Petitioner's writtert motion contained a complete discussion of 

the elements set out in Section UO(i) of the Act and said-motion is 

incorporated herein by reference. 

The proposed settlement is hereb¥ approved, as reflecFed in the final 

order. 

At the hearing, petitioner moved that Citation no. 151606 be vacated. 

In support of his motion, petitioner stated that.the wrong standard was set 

forth in-the citation. Petitioner's motion is approved and Citation no. 

151606 is hereby vacated. 

Respondent agreed to pay the full amount of the assessed penalties in 

Citation nos. 150800, 151603, 151609, 151610, 151611 and 151612. The 

reasons, as set forth by the parties, were accepted by the undersigned and 

the settlements were approved at the hearing. 

CENT 79-262-M 

The Secretary's written motion to approve settlement is granted. 

Respondent agreed to pay the proposed assessment in full for Citation no. 

151446. 

IV. Discussion 

CENT 79-251-M 

Citation No. 151092 

Citation no. 151092 alleges a violation of 30 C.F.R. 57.9-2, which 

provid~s that: _"Equipment defects affecting safety shall be corrected 

before the equipment is used." 

Inspector Jose Aragon issued the citation charging that,."the 

operating control for the service air tugger • . • was defective. The 

tugger had to be operated with the open/close air valve on the air hose 

eight feet behind the tugger." 

The issue is whether or not the absence of an operating control device 

on the tugger constituted a defect and, if so, did the defect affect the 

safety of the miners? 

Inspector Aragon testified that the tugger was being used as a winch 

to hoist supplies onto supply cars. He _stated that the manufacturer is 

supposed to install a control on the tugger, but in this instance the air 

pressure was being regulated by a valve eight feet behind the tugger. (Tr. 

17). It was the inspector's opinion that the tugger was defective because 
the handle and .part of the control on the tugger were missing, causing the 

operator to regulate the air pressure by using an open/close air valve from 

a position behind the machine. (Tr. 16 and 56). This, he stated, was a 

safety hazard since the operator would not have complete control of the 

materials that were being lifted and the materials could fall or the cable 

could break if the lpad was dropped too suddenly. (Tr. 18). 

Roy Souther, safety director at the mine, testified that the tugger 

had not been manufactured with a control device. For this reason the 

respondent.could not have known that the condition constituted a violation. 

He stated that the tugger was a converted slusher and at one time. there had 

been another ·control, but that was when it was being used to pull slusher 

buckets and not as a winch. (Tr. 146). 

Mr. Souther disagreed with the inspector's view that the operator 

would have better control if he was operating the tugger with control on 

the tugger itself. He was of the opinion that air pressure is like water 

pressure and when the air is turned off the pressure stops immediately. 

This would be true from either control position. (Tr. 129). Also, he 

stated that the cable had a test strength greater than what the 90 pounds 

of air pressure could break. The cable had 17,000 pounds weight strength. 

(Tr. 128). The operator was operating the tugger with a back lash guard in 

front of the tugger so in case the cable would break the guard would 

prevent it from hitting the operator. (Tr. 132). 

I find the testimony of the respondent's witness to be more credible 

than that of the petitioner's. The operator would not have any greater 

control if he was operating the machine from a valve on the tugger than by 

using the open/close air valve. The citation is therefore vacated. 

Citation No. 151095 

Citation no. 151095 charges a violation of standard 57.19-101 which 

provides that: "Positive stopblocks .or a derail switch shall be installed 

On all tracks leading tO the Shaft COllar Or landing. II 

As Mr. Aragon described the condition at the shaft on the day the 

citation was issued, there was a supply car parked on the track 

approximately 30 feet from the shaft. There was no derail switch or 

positive stopblocks, which would prevent the car from going into the shaft. 

(Tr. 21-22). 

Respondent claims that there was a derail'switch. Roy Souther 

testified that there was a switch tongue, which if tu_rned would direct a 

car off the main line. (Tr. 134). 

155[1 
I am not persuaded by the testimony presented by the res·pondent, that 

the tongue acted as a derail. switch. The testimony. is uncontroverted that 

there was a rail car sitting on the main track and if pushed the car would 

not have derailed~ rather it would have proceeded in the direction of the 

shaft. (Tr. 149). Although the tongue could. be used to derail a car, it 

was not being used as a· derail switch~ Therefore, I find that there was a 

violation and the citation is affirmed. . 

Penalty Assessment 

The bulk .of the testimony in this matter went to the issues of 

respondent's negligence and the gravity of the violation. 

The shaft gates are kept closed except when the conveyance is at the 

collar and there are signs posted saying to keep the door shut. (Tt". 135). 

The rails are on leveled ground and it wou.ld be highly improbable that a 

rail car would roll into the shaft on its own. It would take two or more 

people or a heavy piece of equipment .to push a car into the shaft •. Even 

then, respondent offered testimony to the effect that· a car could not roll 

through the shaft gates which are made from ·quarter inch steel and 

completely cover the shaft. (Tt". 136 and 153). · 

For the reasons stated above, I conclude that the possibtlity of an 

accident steeming from this violation would be remote. If an accident were 

to occ~r, however, it could be serious in nature and affect up to-thirteen 

miners. (Tr. 24) •. If find that the appropriate penalty. for this violation 

is $100.00 

Citation No. 151099 

Citation no. 151099 alleges a violation of a mandatory safety standard 

30 C.F.R. 57.12-68, which provides that: "Transformer enclosures shall be 

kept locked against unauthorized en.try." 

The sole issue is whether the transformer enclosure was "locked" as 

defined by the standard. 

The facts are undisputed. The transformer enclosure consisted of a 

chain link fence 5 to 7 feet high which was stretched .and tied to the 

corner posts. (Tr. 27 and 141). The chain link fence was attached to the 

four corner posts with wire. (Tr. 34). 

Mr. Aragon issued the citation based on his belief that 57.12-68 

requires that there be a gate that is locked and that hooking a piece of 

wire to hold the chain link to the post did not meet the requirements of 

the st.andard. 
I concur with the Petitioner's position, that merely wiring the chain: 

link fence to the posts does riot satisfy the r~quirement that the enclosure 

be locked. 

Penalty Assessment 

·Respondent's negligence ·w.as slight due to the fact that respondent was 

in the process of completing the enclosure. A permanent gate was going .to 

be installed and respondent had posted danger signs on the fence. (Tr. 141 

and 142). 

If an injury .were to occur it could have been of a serious nature. 

However, it would be only slightly easier to gain admittance to the 

transformer the way the fence was constructed the day the citation was 

issued than if the gate had been completed and was padlocked. 

For the reasons stated above, I find that a penalty of $,20 .00 is 

appropriate. 

Citation No. 151601 

Mine inspector, Charles Sisk, issued Citation no. 151601, alleging 

a violation of 57.3-221/ in that "proper ground coittrol practices were 

not being followed by a miner ... " Mr. Sisk testified that the miner 

was installing roof support starting at the face and working back toward 

the existing ground support. It is an improper practice to go under 

unsupported ground to start installing roof bolts. (Tr. 72). The inspector 

stated that the problem with installing roof support, the. way it was being 

done by the miner in the instant case, is that. he was 25 feet from any 

existing support. (Tc. 73). Although Mr. Sisk tested the ground and it 

appeared to be all right, he testified that the practice or how the miner 

was.proceeding was what concerned him, rather than the condition of the 

ground. (Tr. 102). 

Respondent argues that MSHA should not determine when ground support 

is required. (Respondent 1 s brief at p. 10). This, however, is not the 

issue in the present. case. ·The only determination to be made is whether 

proper ground control practices wer~· being followed. Respondent contends 

that the ground was in good condition and 'did not require bolting and 

therefore the petitioner did not prove that proper practices were not being 

followed. Furthermore, respondent claims that the miner was acting on his 

own and the respondent cannot. be held responsible for his actions. 

1/ 57.3-22'Mandatory. Miners shall examine and test the back, face, and 

ribs of their working places at the beginning of each shift and f~equently 

thereafter. Supervisors shall examine the ground conditions during daily 

visits to insure that proper testing and ground control practices are being 

followed. Loose ground ·shall be taken down or adequately supported before 

any other work is done. Ground conditions along haulageways and travelways 

shall be examined periodically and scaled.or supported as necessary. 
I find respondent's arguments to be unpersuasive. The miner was not 

acting on his own when he was installing the roof bolts. George Ruff, 

underground shift boss at Section 25, testified that the deter~ination that 

ground support .should be installed was made by Mr. Lloyd. (Tr. 175). Mr. 

Ruff also stated that the miner was not following good mining practices by 

starting from the face and bolting out. (Tr. 177). The fact that the 

method being used by the miner was. not .sanctioned by the company and was 

not the general practice in the mine, does not relieve the respondent of 

liability. Secretary of Labor v~ Nacco Mining; Company Docket No. VINC 

76X99-P, (April 29, 1981). 

I find that the citation should be affirmed. Once it was determined 

that ground support.was going to be put in, it was the responsibility of 

the respondent to see that it was done in a proper and safe manner. 

Penalty Assessment 

Although the ground 

a fatality could result. 

nature and that a penalty 

Citation No. 151607 

appeared to be solid, if a roof fall were to 

r· find that the violation was of a serious 

of $200.00 is appropriate. 

occur 

While inspecting the car shop, Mr. Sisk issued Citation no. 151607 

based on the fact that a portable drill did not have a proper prong in the 

electrical plug, thereby removing the continuity of the grounding circuit. 

(Tr. 84). 2 I 

Respondent does not refute the fact that the grounding prong· in the 

plug was missing. Rather, respondent contends tha~ petitioner failed in 

his burden of proof in not proving that the drill was not otherwise 

grounded or was not provided with equivalent protection. 

Petitioner claims that the drill was portable and· therefore 

proper grounding device would be the three prong plug. (Tr. 91). 

support respondent's position, that the drill had become a fixed 

equipment, George Ruff testified that the drill press was bolted 

bench, which was then welded to a rock bolt plate. (Tr. 170). 

the only 

To 

piece of 

to a 

I agree with petitioner that it was a portable drill. There is 

nothing in the record that convinces me that the drill could not have been 

2/ Citation no. 151607 alleges a violation of mandatory safety standard 

57.12-25 which provides that: 

"All metal enclosing or encasing electrical circuits shall be 

grounded or. provided with equivalent protection. This requirement does not apply to battery-operated equipment." 

1fi58 
easily removed from the bench. Respondent's expert witness testimony was 

all based upon the assumption that the drill was a stationary or fixed 

piece of equipment. Therefore, his testimony is of no value in determining 

whether a violation occurred. 

I find that a violation did occur. The record is void of any evidence 

that would prove that there was another method of grounding being used when 

th~ citation was issued. Petitioner established a prima facie case through 

the testimony of M~. Sisk. Respondent then had the burden of proving that 

the drill had been grounded in a way other than by the missing prong or 

there was equivalent protection. This respondent failed to do. 

Penalty Assessment 

I find the respondent negligent in that it knew or should have known 

of the condition .. Mr. Sisk testified that if the drill were to become 

. energized the 120 volts could injure or even prove to be fatal. ('.rr. 92). 

Based on his testimony, I find the violation to be of a serious nature. A 

penalty of $130.00 is assessed for the violation. 

Citation Nos. 151604 and 151614 

Citation nos. 1516042/ and 1516143/, both of which allege a 

violation of mandatory safety standard S7 .12-10, will be discussed 

together. The standard allegedly violated provides that: 

57.12~10 Mandatory Telephone and low potential signal wire 

shall be protected, by isolatiori or suitable insulation, or 

both, from contacting energized power conductors or any other 

power source. 

Respondent does not contend that the phone lines were isolated from 

the power cables. The sole issue, therefore, is whether there was 

"suitable insulation." 

2/ Citation 151604 reads as follows: The mine telephone line is in 

physical contact with 480 power cables at the 31E-8 substation (3 different 

cables - 480 voits) and with the 18N feeder cable at 18N-31E intersection. 

All of these (4) power cables were energized (480 volts). 

3/ Citation 151614 reads as follows: cm the 640 level from the, station out 

to the 640 transformer station the telephone circuit is in direct physical 

contact with the 2300 volt primary feeder in 3 places and in contact with2 

440 volt cables in 5 or. 6 places and also in· contact with the water line 

cable in 2 places. (heat tape electrical cable). 

1559 
Charles Sisk, the mine insp.ector, who issued the citations testified 

that even if the phone lines and cables were insulated the respondent 

would·not have been in compliance- (~r. 116-119). It is the Secretary's 

p_osition that the word "from," as contained in 57.12-10,4/ means that 

there must be insulation in addition to what insulation would already be in 

a power cable. in support of his position, petitioner cites a policy 

memorandum, dated February 21, 1975, issued by the Assistant AdministratorMetal and Non-Metal Mine Health and Safety of the Mining Enforcement and 

Safety Administration, the predecessor to MSHA. The memorandum interprets 

30 C.F.R. § 57.12-82, which is similar to 30 C.F-.R. § 57.12-10. The 

memorandum states that, "Jacketing as provided on a powerline by the 

manufacturer is no.t adequate for the insulating purposes of Federal 

mandatory standard 55, 56, 57.12-82. Additional insulation or separation 

must be 'Provided •.• " 

Respondent contends that the company was in compliance. It is 

Respondents position that all the wires were adequately insulated and that 

the standard does not require insulation in addition to that which is 

already contained in the cables and wires. 

Respondent's expert witness was Robert Witter, an electrical engineer. 

He testified that Respondent's Exhibit 18, which is a piece of cable 

similar to that used in the 31 East 8, is a shielded multi-conductor cable. 

The cable consists of three inner conductors which are surrounded by a 

layer of insulation. The conductors are sur_rounded by a filler and then 

covered.by a concentric shield. Outside the shield there is another layer 

of filler and then the jacket. (Tr. 161, 188-189)-. Respondent's Exhibit 

19, the 2300 volt cable was constructed in a similar manner (Tr. 193). 

The phone line, Mr. Witter stated, was a "shielded" cable. Shielded means 

that there is a thread of wires that encircle the insulated conductors and 

the wires are then covered by an outer jacket. (Tr. 187). 

In his opinion there would no possibility of the phorte line becoming 

energized if it came into contact with either of the- cables because there 

was adequate insulation. (Tr. 191 and 193). 

I find th~t both the phone lines and power conductors were adequately 

insulated within the meaning of the standard. Petitioner's argument that 

additional insulation is needed for··compliance is unconvincing. If in fact 

additional insulation is required, the standard is unclear and does not 

give adequate notice to mine operators. 

This position is further supported by Judge Edwin S. Bernstein in his 

interpretation of facts and standard 30 C.F.R. § 57.12-82, both of which 

are similar to the present case. He held that,'' the "insulation" installed 

by the manufacturer "insulated" the cables within the meaning of the 

standard .•. if the Secretary of Labor required some special kind of 

insulation or some additional insulation, he should have specified that in 

the standard." Secretary of Labor v. Homestake Mining Company CENT 79-27, 

August 20, 1980, review granted. 

Accordingly, both citations are vacated. 

4/ 57-12-82 Mandatory. Powerlines shall be well separated or insulated 

from waterlines, telephone lines, and air lines. 
ORDER 

CENT 79-251 

The proposed settlement agreement is hereby approved for the citations 

listed below and respondent is ordered to pay the designated amounts. 

Citation 151089 $160.00 

Citation 151090 $122.00 

Citation 151093 $180 •. 00 

Citation 151094 $ 72.00 

c:ltation 151096 $140.00 

Citation 151098 $ 7&.00 

Citation i51440 $210.00 

Citation 151441 $180.00 

Citations 151092 and 151097 are vacated. 

Citation 151095 is affirmed and Respondent is ordered to pay a 

$100.00 penalty. 

Citation 151099 is affirmed and Respondent is ordered to a $20.00 

penalty. 

CENT 79-252-M 

The proposed settlement agreement is hereby approved as listed below. 

Citation 151439 $210.00 

Citation 150800 $195.00 

citation 151603 $ 84.00 

Citation 151609 $195.00 

Citation 151610· $210.00 

Citation 15.1611 $1,95.00 

Citation 151612 $195.00 

Citations 151606, 1516Q4 and 151614 are vacated. 

Citation 151601 is affirmed and respo'ndent is ordered to pay a $200.00 

penalty. 

Citation 1516o7 is affirmed the proposed penalty of $130.00. 

CENT 79-262 

The proposed settlement agreement, whereby respondent agreed to pay 

the proposed penalty of $106.00 for Citation 151446 is approved. 

Respondent is ordered to pay the sum of $2,982.00 within forty days of 

·this decision. 

~le;.~ Administrative Law Judge 
Distribution: 

Robert A. Cohen, Esq. 

Office of the Solicitor 

United States Department of Labor 

.4015 Wilson Boulevard 

·Arlington, Virginia 22203 

Wayne E. Bingham, Esq. 

PICKERING & BINGHAM 

920 Ortiz, N.E. 

Albuquerque, New Mexico 87108 

l r6') . . tl (.., 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE JUN 1618 FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 

OZARK-MAHONING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

• 

Contests of Citations 

Docket No. LAKE 80-253-RM 

Citation No. 365457; 2/14/80 

Docket No. LAKE 80-254-RM 

Citation No. 366115; 2/14/80 

Barnett Mine 

DECISION 

Shortly after the two cases captioned above were assigned to me, 

the Contestant agreed that they be consolidated with the related penalty 

cases when filed (see letter of May 1, 1980, from Contestant). On 

April 10, 1981, I was advised that the penalty cases had been filed 

and assigned to Judge Laurenson and had already been heard by him. 

Judge Laurenson has now issued his decision in Secretary of Labor 

v. Ozark Mahoning Company, LAKE 80-336-M- and LAKE 80-337-M (May 26, 1981). 

Judge Laurenson accepted a settlement as to one of the citations 

involved herein and assessed a penalty as to the other citation~ That 

decision is binding on me. 

The citations under review 

Distribution: 

are ~aerm~_,, 2. 

Charles C. Moore, Jr. 

Administrative Law Judge 

Mr. M. L. Hahn, S. & I. R •. Director, Ozark-Mahoning Company, P. O. 

Box 57, Rosiclare, IL 62982 (Certified Mail) 

William G/ Pasternack, Esq., U.S. Department of Labor, Office of 

the Solicitor, 230 South Dearborn Street, Chicago, IL 60604 (Certified 

Mail) 

1563 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ex rel THOMAS ROBINETTE, 

Applicant 

v. 

UNITED CASTLE COAL COMPANY, 

Respondent 

!JUN 1 6 1881 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. VA 79-141-D 

DECISION ON REMAND 

Appearances: James H. Swain, Esq., Offic~ of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pemv;ylvania, for Applicant; 

·Michael L. Lowry, Esq., Ford, Harrison, Sullivan, Lowry & 

Sykes, Atlanta, Georgia, for Respondent. 

Before: Chief Administrative Law Judge Broderick 

On April 3, 1981, the Commission remanded this case for a determination 

as to "whether [Complainant] Robinette would have been fired for his 

unprotected activity alone." Com. Dec. at 17-18. The parties were 

ordered to file briefs on the issue, and were given the opportunity to 

offer additional evidence. The.Secretary of Labor filed· a brief, but 

Respondent stated that it was in receivership and unable to af:ford -the 

expense of filing a brief. Neither party sought to introduce additional· 

evidence. 

The evid~nce shows that there were a number of factors involved in 

Respondent's decision to discharge Robinette. He allowed his cap cord 

to be severed, he shut down the belt conveyor, he disconnected the mine 

phone, he failed to grease the feeder, he permitted a miner to run 

through and destroy a line curtain while working as a miner-helper, and 

on a number of occasions he generally neglected his- duties. ·of these 

factors, I found the shutting down of the belt conveyor to be activity 

protected under§ 105(c). This was not ·cited by Respondent as a reason 

for discharging Robinette, but the Commission found as I did that it 

played a role in the discharge. Com. Dec. at 16. The Commission further 

found that Robinette had engaged in upprotected activities which were 

involved in the decision to discharge him. The Commission characterized 

the act of disconnecting the phone as "a flagrant disregard of mine 

safety." Com. Dec. at 17. 

Respondent has the burden of proving by a preponderance of all the 

evidence that it would have fired Robinette solely because of the unprotected 

activities. Secretary of Labor ex rel Pasula v. Consqlidation Coal Co., 

2 FMSHRC 2786, 2800 (1980). 
It is not sufficient for the employer to show that the miner 

deserved to have been fired • • • The employer must show that he 

did i~ fact consider the employee deserving of discipline for 

engaging. in the unprotected activity alone and that he would have 

disciplined him in any event. 

Fasula, supra. 1./ See also Wright Line, 251 N.L.R.B. 150, 105 LRP~1 1169 

(1980). 

Percy Sturgili, section foreman, testified that on May 30 Robinette 

worked on the belt feeder and that part of his job was to grease the 

tailshaft. On May 31 the feeder tailshaft broke and Sturgill concluded 

that this was caused by failure to grease it the previous day. Sturgill 

remonstrated with Robinette about this failu~e. On May 31, while 

Robinette was working as a miner-helper, the miner ran through and 

destroyed a line curtain. Sturgill blamed this incident on Robinette. 

These incidents figured in Respondent's decision to discharge him on 

June 4. 

At the time of the cap lamp incident, Sturgill testified that he 

saw Robinette disconnect the mine phone. He had a discussion with 

Robinette concerning the feeder being shut down, and Robinette's light 

being out. Although he did not discuss the phone incident until after 

Robinette returned from shovelling spillage on th~ beltline, it is clear 

that the phone incident was also involved in Respondent's decision to 

discharge Robinette. 

On the present record, it is difficult to decide whether Respondent 

would have fired Robinette solely for the acts and omissions described 

in the prior two paragraphs because it obviously involves a hypothetical 

set of circumstances.· It is clear, however, that shutting down production 

(which I found to be protected and the Commission affirmed) was the 

final act or event for which he was fired. Using a test recently employed 

by the NLRB, 

[I]n those instances where after all the evidence has been 

submitted, the employer has been unable to carry its burden, [I] 

will not seek to quantitatively analyse the effect of the unlawful 

cause once it has been found. It is enough that the employee's 

protected activities are causally related to the employer.action 

whic.h is the basis for the complaint whether that "cause" was the 

straw that proke the camel's back or•a bullet between the eyes, if 

it was enough to determine events, it is enough to come within the 

proscription of the Act. 

Wright Line, 105 LRID1 at 1175 n. 14. 

1/ But £!_. Texas Dept. of Community Affairs v. Burdine, 

U.S. , 25 FEP Cases 113 (1981), a case brought under Title VII 

of the Civil Rights Act. 

1 r·sr I) ~) 
The protected activities here were what "determined the event" -

Robinette's discharge - and this is what I meant in the conclusion in my 

prior decision.that the protected activities were the "effective cause" 

of the disd :irge. 

I conclude that Respondent has not carried its burden under the 

Pasula stanr~rd. Sturgill did not t~stify that he would have fired 

Robinette fur his unprotected activities alone. Indeed, Sturgill did 

not testify that he would have fired him for any;activities. The decision 

to discharge was made by Jack Tiltson, Respondent's Vice President, who 

did not testify at the hearing. Tiltson was told of the protected and 

unprotected activities, and it would be speculative on this record to 

decide whether or not he would have regarded the unprotected activities 

as sufficient grounds for discharge. There is no evidence of disciplinary action taken by Respondent involving like conduct in the past. 

It is not enough that Robinette's work performance was less than 

exemplary. It is not enough that he "deserved" to be discharged, not 

enough that his unprotected activity was "a flagrant disregard of mine 

safety." Since I cannot accurately assess the extent to which his 

unprotected activity motivated the discharge, I must conclude that 

Respondent's burden has not been carried. 

ORDER 

I conclude on the basis of the whole record that Respondent has not 

established by a preponderance of the evidence that Robinette would have 

been discharged for unprotected activities alone. 

Therefore my order of March 13, 198~ IS REAFFIRMED. 

-tau~ ~k/ivr>d~e/( v/ James A. Broderick 

Chief Administrative Law Judge 

Distribution: By certified mail. 

Michael L. Lowry, Esq., Ford, H_arrison, Sullivan, Lowry & Sykes, 

1400 Harris Tower, 233 Peachtree St., N.W., Atlanta, GA 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

14480-Gateway Bldg., 3535 Market St., Philadelphia, PA 19104 

Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson 

Blvd., ArLington, VA 22203 

Harrison Combs, General Counsel, United Mine Workers of America, 

900 Fifteenth St., N.W., Washington, DC 20005 

Thomas A. Mascolino, Esq., Associate Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

156() 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUPGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE JUN 18 1~ FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRADFORD COAL COMPANY, INC., 

FUEL FABRICATORS, INC., 

INDIANA STEEL AND FABRICATING 

Respondents 

co.' 

Civil Penalty Proceeding 

Docket No. PENN 80-267 

A.O. No. 36-02347-03015 

Preparation Plant 

DECISION AND ORDER 

On June 16, 1981, this matter came on for a hearing on 

(1) cross motions for summary decision filed by Fuel Fabricators Co., Inc., and the Secretary, (2) a motion to dismiss by 

Indiana Steel and Fabricating Co., and (3) a motion to 

implead a third party respondent. By order of June 1, 1981, 

Bradford Coal Co. was dismissed fro~ the case. 

The cross motions are supported by a stipulation of 

mat:terial facts and waiver of an evidentiary hearing. Indiana 

Steel moved to dismiss on the ground it paid the only penalty 

with which it was charged. 1/ Fuel Fabricators opposes this 

motion on the ground that Indiana Steel as general contractor 

was legally responsible for the five violations in question. 

Based on an independent evaluation and de novo review of the 

circumstances, I conclude the motion to---ciismiss as to 8itation 

No. 846927 should be denied but as to the other four electrical 

violations it is granted. As to the· four electrical violations, 

the Secretary's motion for summary decision against Fuel 

Fabricators ~s /''granted and the cross motion denied. 

Findings of Fact 

1. At all times pertinent, Fuel Fabricators and Indiana 

Steel and Fabritating Company were mine operators and statutory 

17 At the hearing, Indiana Steel declined an evidentiary 

hearing to dispute the facts set forth·in the stipulation or 

to brief its claim that the Commission is without authority 

to determine de novo the "responsible operator" in a multirespondent penalty proceeding. 

156·7 
agents within the meaning of section 3(d) and (e) of the 

Mi.ne Safety Law. 30 U.S.C. § 802(d) and (e). 

2. At the time the violations·alleged occurred, Fuel 

Fabricators, the owner-operator, had overlapping control 

over and supervisory responsibility for compliance with 

the Mine Safety Law at the site of the preparation plant 

in question. 

3. Except as indicated, at. the time the violations 

alleged occurred, Indiana Steel, the builder-operator, had 

overlapping control over and supervisory responsibility for 

compliance with the Mine Safety Law at the site of the 

preparation plant in question. 

_ 4. The stipulated and undisputed 2/ facts show Fuel 

Fabricators and Indiana Steel were jointly and severally 

liable for the condition set forth in Citation No. 846927. 

5. The stipulated facts show Fuel Fabricators and its 

electrical contractor and statutory agent, Meyer Brothers of 

Philipsburg, Pennsylvania, were responsible for the electrical 

equipment violations found in Citations Nos. 846929, 846930, 

846931 and 846932. 

6. The stipulated facts show Indiana Steel had no 

responsibility for creation or abatement of the conditions 

on the electrical equipment. 

Conclusions of Law 

1. The claim that the construction site and the construction 

activity at the new coal preparation plant were not subject 

to regulation under the Mine Safety Law 'is without merit. 

I find Congress intended to subject the construction activity 

involved in building.the new plant to MSHA jurisdiction 

and regulatio·n from the time the first miner-employees 

entered the site to commence work on the new plant. The fact 

that Fuel Fabricators failed to file an identity report 

within 30 days after it opened the mine site was no ground 

for denying MSHA jurisdiction to regulate that activ.ity. 

The express terms of the Act as well as its legislative 

history show Congress intended coverage of the Mine Safety 

Law to be as broad as the constitutional power conferred by 

27 Where the parties fail to show there is a disputed 

issue-of fact, it is unncessary to hold an evidentiary 

hearing. Castle v. Pacific Legal Foundation, 445 U.S. 198 

(1980). 
the Commerce Clause. United States v. Dye Construction Comkany, 

510 F.2d 7~, 83 (10th Cir. 1975). The objective was to ma e 

maximum use of the connnerce. power to improve occupational 

safety and h·ealth in the ijation' s mines and to avoid the 

disruptions to" production that imped~ and burden commerce. 

Charles T. Sink, Dkt. No. HOPE 75-679 (Dept. of Int., OHA, 

OALJ, May 19, 1975), aff'd. 1 MSHC 1362 (1975); Secretary 

v .. Shinyara, 1 MSHC 1450 (M.D. Pa. 1976); Mar~hall v. Bosack, 

1 MSHC 671 (E.D. Pa. 1978); Energy Fuel Nuclear, Inc., 1 · MSHC 1747 (1979); Sun Landscaping & Supply .Go., 1 MSHC 2444 

(1980). . 

Congress, has plenary power to regulate activities in 

and affecting interstate connnerce and in this instance has 

specifically determined that the construction of structures 

and facilities including "custom coal preparation facilities" 

that are "to be used in" the processing of coal to be sold 

either locally or in interstate commerce is an activity 

subject to regulation. § 3(h)(l) of the Mine Safety Law. 

30 U.S.C. § 802(h)(l). Cases cited, supra. See also, 

Texas Utilities Generating Company, 1 MSHC 2091 (1979); 

Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964); Katzenbach 

v. McClun~, 379 U.S. 294 (1964); Wickard, v. Filburn, 317 

U.S. 1111942). As the stipulated fact~ and the reasonable 

inferences to be drawn therefrom show, there was apparently 

a steady flow of construction materials to the mine site 

from the time Indiana Steel began its construction of the 

$17,000,000 facility. I findi therefore, there was a direct 

nexus between the construction activity at the mine site and 

the flow of goods and materials in commerce. United States 

v. Dye Construction Company, supra. I also find that even if 

all of the construction materials used in the new plant were 

produced and purchased wholly within the state of Pennsylvania 

the business of building coal preparation plants is a class 

of activity the cumulative effect of which clearly affects 

interstate commerce. Usery v. Lacy, 628 F.2d 1226 (9th Cir. 

1980); Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976) and 

cases cited supra. 

2. As the foregoing shows, Fuel Fabricators' suggestion 

that the Act does not apply until the coal preparat~on plant 

becomes operational, i.e., actually processes coal for sale 

in or affecting commerce is also without merit. Texas . Utilities Generating Company, supra; Energy Fuel Nuclear, Inc., 

supra. In enacting the Act, Congress made a specific finding 

that. "the.ais~uption of production and the loss of income to 

operators and.miners as a result of coal or other mine 

accidents or occupationally caused diseases unduly impedes 

and burdens commerce." 30 U.S.C. § 80l(f). Thus, Congress 

has determined that a class of activity, unsafe mine operations, 

1R6fl 
including construction operations has a substantial economic 

effect on commerce. I conclude therefore that the construction 

activity that precedes production activity at the mine site 

in question is included in the class of activity that as a 

matter of law affects interstate commerc~. · This coverage I 

find is consistent with the congressional pn:cpose to reach 

as broadly as constitutionally permissible working conditions 

and practices in the nation's mines, since fiv~unifo~m coverage 

would give unsafe employers a competitive advantage. The 

"substantial economic effect" test makes irrelev1.nt any 

determination of what is "in" o:r:. "out" of the "current of 

commerce". United States v. Wrightwood Dairy Co., 315 U.S. 

110, 119 (1942). An activity that takes place wholly 

intrastate may be subjected to congressio'nal refulation 

because of the activity's impact in other states--regardless 

of whether the activity itself occurs before or during or 

after interstate movement. United States v. Rock R0''"" 1 Cooperative, Inc., 307 U.S. 533, 569 (1939). Accord_:_~ .. Shreveport Rate Cases, 234 U.S. 342 (1914). As the Supreme 

Court has noted: "There is a basis in logic and experience 

for the conclusion that substandard labor conditions among ~- any group of employees, whether or not they are personally 

engaged in commerce or production, may lead to strife disrupting 

an entire enterprise." Maryland v. Wirtz, 392 U.S. 183, 

192 (1968). See also, Pere~ v. U.S. 402 0.S. 146 (1971); 

Marshall v. Bosac~upra; Marsharr-v. Kraynak, 1 MSHC 

1685 (W.D. Pa. 1978); Godwin v. OSHRC, supra; Usery v. Lacy, 

supra; Island County Highway Dept., 2 MSHC 1174 (1980);--

0gle Co. Highway Dept., 2 MSHC 1255 .. (1981). 

3. Under the Mine Safety Law, Fuel Fabricators, the 

owTier-operator, and its independent contractors Indiana 

Steel and Meyer Brothers were responsible for mine safety 

hazards which they either created or had responsibility 

for abating at the new preparation plant. Old Ben 

Coal Company, 1 MSHC 2177 (1979), aff'd, unpublished order, 

(D.C. Cir. December 9, 1980), see, 2 MSHC 1065; Republic 

Steel Corporation, 1 MSHC 20020979); A.B.C. v. Andrus, 581 

F.2d 853 (D.C. Cir. 1978); BCOA v. Secretary, 547 F.Zd 240 

(4th Cir. 1977); S. Rpt. 95-181, 95th Cong., 1st Sess. 14 

(1977). 

4. In the execution of their ~esponsibility for 

enforcement of the Act, the Secretary and the Commission are 

authorized to assess and to ·apportion or allocate civil 

penalties between independent contractors and owner-operators. 

In the exerci~e of its adjudicatory oversight power, the 

Commission ha:s the ultimate authority to determine de novo 

the allocation of responsibility for contested violations. 

BCOA v. Secretary, supra at 247; NISA v. Marshall, 1 MSHC 

1570 
2033, 2040-42 (3rd Cir. 1979); Old Ben, supra; Secretary 

v. Morton Salt, Dkt. CENT 80-59-M, Order On Motion To Dismiss 

Third-Party Petition, dated April 14, 1980, review denied, 

2 FMSHRC (May 1980); 45 Fed. Reg. 44,497 (General 

Enforcement Policy for Independent Contractors); 30 C.F.R. § 

45.2(c). 

5. The stipulated and undisputed facts show Fuel 

Fabricators and Indiana Steel shared functional control over 

the area involved in the violation cited in Citation No. 

846927 in that the latter was responsible for placing the 

combustible debris within 25 feet of the flammable liquid 

storage tank and the former for removal of the same. I 

conclude that by entering into a joint arrangement and 

responsibility for accumulation and removal of the debris 

these parties shared equal responsibility for compliance and 

for the violation that admittedly occurred. 

6. Based on an independent evaluation and de novo 

review of the circumstances including the gravitY-(low) and 

the negligence (slight), I find, after taking into account 

the other statutory criteria, that the amount of the penalty 

warranted is that recommended by MSHA, namely, $130, one 

half of which is assessed against Fuel Fabricators and the 

other half against Indiana Steel. 3/ The violation will be 

recorded as part of the prior history of both operators. 

7. The stipulated facts show the four electrical 

violations were perpetrated as the result of.actions by Fuel 

Fabricators and/or its electrical contractor Meyer Brothers. 

The undisputed facts show Indiana Steel had neither functional 

nor supervisory responsibility for these violations. While 

the owner operator is automatically responsible for violations 

by its independent contractors, I can find nothing in the 

law or its underlying policy that makes independent builderoperators vicariously liable for violations by owner-operators 

and other contractors working on the same site in the absence 

pf a showing that with the exercise of due diligence the 

general contractor should have been aware of the violation 

and taken realistic action to abate the same in order to 

protect its own employees or subcontractors. Compare, 

Anning-Johnson Co. v. OSHRG, 516 F.2d 1081 (7th Cir. 1975); 

Grossman Steel & Aluminum Corp., 4 OSHRC, BNA, 1185 (1975) 

with Central of Georgia R.R. v. OSHRC 576 F.2d 620 (5th Cir. 19 78)-. . 

3/ At the hearing, Indiana Steel agreed to drop any 

further contest of this violation and to pay a penalty of 

$65.00. 

1571 
8. I note .that the contract between Fuel Fabricators 

and Indiana Steel expressiy limits the latter's responsibility 

for indemni.fication -of· Fuel Fabricators to violations cornmitted 

by Indiana Steel or its subcontractors. Thus, in addition 

to the f·act that Fuel Fabricators -was not at liberty to 

contract out its statutory responsibility as owner-operator, 

so also, ·it may not seek to have the Cornmission impose a 

duty·of contribution or indemnification where there is no 

basis in fact for finding the independent contractor jointly 

or severally liable. I realize that the right to indemnification 

may arise without agreement and by operation of law to 

prevent a result which is regarded as unfair or unjust. 

This ~emedy, however, it limited to indemnitees who are 

personally free from fault such as where an owner-operator is 

held vicarously liable for the violations of a culpable 

independent contractor.·w. Prosser, Handbook of the Law of 

Torts, § 51 at 310-311 (4th ed. 1971 . 

9. While it might have been logical for MSHA to charge 

Meyer Brothers as well as Fuel Fabricators with the four 

electrical violations, this is no defense to Fuel Fabricators. 4/ The fact that another.employer may be jointly 

responsibie,is irrelevant to a finding of violation by the 

employer actually cited. Central of Georgia R.R. v. OSHRC, 

supra, 576 F.2d 625. 

10. Based on an independent evaluation and de novo 

review.of the circumstances, I find Fuel Fabricators and not 

Indiana Steel was responsible for the four electrical 

violations. I further find that in each instance the 

gravity was low and the negligence ordinary and after taking 

into account the other statutory criteria the amount of the 

penalty warranted for each violation is that recommended by 

MSHA, namely: 

Citation 

846929 

846930 

846931 

846932 

ORDER 

Accordingly, it is ORDERED: 

Amount 

$122 

140 

66 

140 

4/ Meyer Brothers was not cited because its presence 

at the site had long since been terminated. 

l t"7'J f l (. 
1. ·That Fuel Fabricators' motion to implead third 

party respondent or for sunnnary decisron is DENIED; 

2. ·That Indiana Steel's motion to dismiss is DENIED 

as to Citation 846927 and otherwise GRANTED; 

3. That the Se~retary's motion for summary decision 

against Fuel Fabricators is GRANTED IN PART and otherwise 

DENIED; 

4. That for .the five violations found, Indiana Steel 

pay a penalty of ·$65 and Fuel Fabricators a penalty of $533 

on or before Wednesday, June 30, 1981 and that subject to 

payment the captioned matter be D MISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law Judge 

Timothy Parsons, Esq., Gary Kamarow, Esq., Loomis, Owen, 

Fellman & Howe, 2020 K St., NW, Washington, DC 20006 

(Certified Mail) 

Dwight L. Koerber, Esq., Box 1320, Clearfield, PA 16830 

(Certified Mail) 

Catherine Oliver, Esq., U.S. Department of Labor, Office 

of the Solicitor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

John O'Donnell, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION .(MSHA), 

v. 

Petitioner 

JOHN L. HAVILAND, ROBERT P. 

HAVILAND, AND CLEVE RENTSCHLER, 

d/b/a/ HAVILAND BROTHERS COAL 

COMPANY, 

Respondent 

-: 

Docket No. VINC 79-93-P 

A.O. No. 12-01433-03002 

Docket No. VINC 79-102-P 

A.O. No. 12-01433-03003 

Haviland Strip Mine 

DECISIONS 

Appearances: 

Before: 

Rafael Alvarez, Esq., Office of the. Solicitor, U.S. Department 

of Labor, Chicago, Illinois, for the petitioner; 

George A. Brattain, Esq., Terre Haute, Indiana, for the 

respondent •. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s·.c. § 820(a), charg·ing 

the respondent with two alleged violations of certain mandatory safety and 

health standards found in Part 71, Title 30, Code of Federal Regulations. 

Respondent filed timely answers and a hearing was convened in Terre Haute,· 

Indiana, on July 1, 1980, and the parties appeared _and participated therein. 

In view of a pending court action taken by the Secretary at the time the 

hearing was conducted, respondent's participation was limited to a jurisdictional argument asserting that respondent is not subject to the Act because 

it is a small, family-owned business, whose. products are sold only intrastate within the State of Indiana, and to a limited cross-examination of 

petitioner's witnesses. Aside f~om its jurisdictional arguments, respondent 

offered no defense to the citations and presented no testimony or other evi~ 

deuce disputing the citations. The hearing was recessed and continued until 

May 19, 1981, when a second hearing was conducted for the purpose of permitting respondent to present its case. The parties·appeared, but the 

respondent again declined to present any testimony or evidence in defense 

of the citations, _and reasserted its previously advanced jurisdictional 

arguments. 

1574 
Attached to, and incorporated by reference herein, is a copy of a previous order issued by me on January 22, 1981, summarizing the arguments presented by the parties at the July 1, 1980, hearing, as well as the testimony 

and evidence presented by the petitioner in support of its case, and certain 

stipulations and agreements entered into by the parties, including matters 

which are part of the record in the litigation pending in the district court. 

Issues 

In addition to the jurisdictional question, the issues presented in these 

proceedings are (1) whether respondent has violated the provisions of the Act 

and implementing regulation as alleged in the proposals for assessment of 

civil penalties filed in these proceedings, and, if so, (2) the appropriate 

civil penalties 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 by the parties are identified and disposed of in the 

course of these decisions. 

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 the 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 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 u.s.c. § 801 et~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et~· 

Findings and Conclusions 

The thrust of respondent's defense in this case is the assertion that 

it operates a small family-owned mining operation as a part-time venture 

employing no one but the owners, and that any coal which is mined is sold 

strictly intrastate to local customers. 

. Respondent contends that its operation does not meet the definition of 

"interstate commerce" as provided by law, and asserts that it is not subject 

to the Act since its activities are conducted solely within the State of 

Indiana, and because its activities do not in any way affect commerce. In 

order to decide this question, it is necessary to examine the constitutional 

underpinnings of Federal jurisdiction over the mining industry. 

157f.l 
Article I, Section 8, Clause 3, of the Constitution gave Congress the 

pow:er to "regulate Commerce-~ * * among the several States * * *·" The 

U.S. Supreme·. Court has a long history of upholding Federal regulations of 

ostensibly local activity on the theory that such activity may have some 

effect on interstate commerce. 

In Wickard v. Filburn, 317 U.S. 111 (1942), the Court upheld a Federal 

law regulating the production of wheat which was "not intended in any part 

for commerce but wholly for consumption on the farm." Id. at 118. The 

Court stated that "even if appellee's a~tivity be localand though it may not 

be regarded as commerce, it may still, whatever its nature, be reached by 

Congress if it exerts a substantial economic effect on interstate commerce, 

and this irrespective of whether such effect is what might at some earlier 

time have been defined as 'direct' or 'indirect.'" Id. at 125. 

In 1975, the Court elaborated on this idea, stating that "[e]ven activity 

that is purely intrastate in character may be regulated by Congress, where the 

activity, combined with like conduct by others similarly situated, affects 

commerce among the States or with foreign nations." Fry v. United States, 

421 U.S. 542, 547 (1975). More recently, the Seventh Circuit Court of Appeals 

relied upon Wickard when it said that the commerce clause "has come to mean 

that Congress may regulate activities which affect interstate commerce." 

United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979) (emphasis in 

original). ~~ 

These principles have often been relied on by the lower courts in ruling 

on the coverage of the present Act and its predecessor, the Federal Coal Mine 

Health and Safety Act of 1969. One leading case is Marshall v. Kraynak, 

457 F. Supp. 907 (W.D. Pa. 1978), aff'd., 604 F.2d 231 (3d Cir. 1979), cert. 

denied, 444 U.S. 1014 (1980). There, the Court upheld the applicability of 

the 1969 Act to a small mine which was owned and operated entirely by four 

brothers. No other personnel had worked there for at least 7 years, and the 

brothers had no intention of hiring other employees in the future. The 

brothers contended that all of the coal which they mined was sold and consumed 

within the State of Pennsylvania and did not involve interstate commerce. Id. 

·.at 908. The defendants admitted, however, that more than 80 percent of their 

production was sold to a paper-processing corporation which was "actively 

engaged in interstate commerce." ·Id. at 909. The Court held that "the 

selling by the defendants of over 10,000 tons of coal annually to a paper 

producer whose products are nationally distributed enters and affects interstate commerce within the meaning of * * * the Act." Id. at 911. 

A similar case was Secretary of the Interior v. Shingara, 418 F. Supp. 

693 (M.D. Pa. 1976), involving a mine which was operated entirely by twa 

brothers, Edward and Frederick Shingara. In the words of the Court, "Edward 

[went] underground, while Frederick [did] the hoisting." Id. at 694. The 

Court found that the fruits of their labor were sold as follows: 

The Shingara coal is sold primarily to Calbin V. Lenig 

of Shamokin, Pennsylvania who resells it, along with other 
coal whtch he has gathered, to Keystone Filler and Manufacturing Co., Inc. of Muncy, Pennsylvania an~ Mike E. Wallace 

of Sunbury, Pennsylvania. Keystone Filler combines the 

Shingara-Lenig coal with others in order to achieve a particular ash content, dries the mixture, and grinds i.t into a 

powder which is shipped to customers outside of Pennsylvania •. 

And, at pages 694-695: 

Congress intended to regulate connnerce to "the maximum 

extent feasible through legislation." S. Rep. No. 1055, 

89th Cong. 2d Sess. 1 (1966) U.S. CODE CONGRESSIONAL AND 

ADMINISTRATIVE NEWS, 89th Cong. 2d Ses~. 2072. 

* * * * * * * 

Even if it were determined that the Shingara coal.does 

not "enter connnerce" it must be concluded, under the extremely 

expansive intepretations given to the regulatory power of 

Congress, that the activity in question "affects connnerce" 

and is thereby subject to the Act. Cf. Heart of Atlanta Motel 

v. U.S., 379 u. s. 241, 85 s.ct. 348,l3 L.Ed2d 258 (1964); 

Kat"'Umback .v. McClung, 379 U.S. 294, 85 S.Ct9 377, 13 L.Ed.2d 

290 (1964). Although the activity in question here may seem 

on first·examination to be local, it is within the reach of 

Congress because of its economic effec·t on interstate connnerce. 

See Beckinan v. Mall, 317 U.S. 597, 63 §.ct. 199, 87 L.ed. 488 

(1942). 

The Shingara Court compared the facts of the case to the facts in Wickard 

and concluded that "the Shingara coal mining activity, which has an even more 

direct impact on the coal market, also 'affects connnerce' sufficiently to 

subject the mine from which it emanates to federal control." 

In both Kraynak and Shingara, the coal in question was being sold to 

parties who were engaged in interstate commerc-e. In other mining cases, 

such facts were not shown, but the courts nevertheless utilized the seminal 

Wickard decision to ·find that the activities in question "affected commerce." 

Marshall v. Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979), involved a specific 

agreement between the owner of a coal mine and his buyer that the latter 

would sell the coal only within the state and not place any of it into 

interstate commerce. In holding that interstate commerce was still 

affected, the Court went back to the following passage from Wickard: 

It can hardly be denied that a factor of such volume and 

variability as home-consumed wheat would have a substantial 

influence on price and market conditions. This may arise 

because being in marketable condition such wheat overhangs 

the market and if induced by rising prices tends to flow into 

the market and check price increases. But if we assume that 

1 r7r .A..d { 
it is never marketed, it supplies a need of the man who grew 

it which would otherwise be reflected by purchases in the 

open market. Home-grown wheat in this sense competes with 

wheat in commerce. 478 F. Supp. at 7, citing 317 U.S. at 128. 

The Kilgore Court found it "inescapable that the product of the defendant's mine would have an affect (sic) on commerce. The fact that the 

defendant's coal is sold only intrastate does not insulate it from affecting 

commerce, since its mere presence in the intrastate market would effect (sic) 

the supply and price of coal in the.interstate market." 478 F. Supp. at 7:-

See also Marshall v. Bosack, 463 F. Supp. 800, 801 (E.D. Pa. 1978) ("The Act 

does not require that the effect on interstate ~ommerce be substantial; any 

effect at all will subject [the operator] to the Act's coverage"). 

In Kraynak, the Court rejected the argument that since there were no 

miners, other than the partners, the Act's provisions did not apply to the 

mine, and in so doing stated as follows: 

The legislative history of the Act clearly indicates that 

Congress did not intend to create a special class of mines 

exempt from its coverage. The framers were concerned 

specifically with the Nation's attitude permeating the coal 

industry that mining was a hazardous occupation. Despite the 

hazardous nature, the Human Resources Committee was determined 

that these hazards be substantially reduced or eliminated. 

1977 U.S. Code, Cong.· and Adm. News, Vol.. 3 page 3403. To 

this effect, the Committee announced that it was essential 

that there be a common regulatory program for all operators 

and equal protection under the law for all miners. 

By requesting support for differentiation between owneroperated mines from non-owner miners where employees labor, 

the defendants seek to place a value on an owner-operator's 

life as far below that of a miner in any employer-employee 

setting. The fact that one is part owner of an enterprise 

does not, in and of itself, give a court leave to allow such 

an owner the right to expose himself to unnecessary harm 

where Congress has otherwise directed. 

Marshall v. Anchorage Plastering Company and OSAHRC, (9th Cir.), 

No. 75-2747, February 2, 1978, 6 OSHC, held that a company that used equipment and materials from out of state and used telephone and mails was engaged 

in business affecting interstate commerce and is subject to the Occupational 

Safety and Health Act. The court stated that: "It has been clear since 

Wickard v. Filburn, 317 U.S. 111 (1942), that an activity which in itself has 

a minimal effect on commerce is still subject to regulation if similar 

activities, taken as a whole, might have an impact." 

Godwin v. Occupational Safety and Health Review Commission, 540 F.2d 

1013 (9th Cir •. 1976), involved a company which was clearing land for purposes 

1578 
of growing grapes. During the administrative adjudication of that case, the 

Review Commission held that the company was not engaging in a business 

affecting commerce because at the time of the citation and hearing it had not 

completed its plans to plant a vineyard and hence had not engaged in a business affecting commmerce. The court reversed the Commission, and, in doing 

so, cited the Congressional statement of findings and declaration of purpose 

and policy found in the Occupational Safety and Health Act of 1979, 29 U.S.C. 

§ 651, the legislative history of the Act citing loss of life and injuries 

resulting from job-related hazards, and other circuit court decisions interpreting the phrase "affecting commerce" which appears in the Act, 29 U.S.C. 

§ 652(5). The court concluded that Congress intended the coverage of the Act 

to be as broad as the commerce clause, and cited Fry v. United States, 

421 U.S. 542 (1975), which held "even activity that is purely intrastate in 

character may be regulated by Congress, where the activity, combined with like 

conduct by others similarly situated, affects commerce." 

Perez v. United States, 402 U.S. 146 (1971), held that Congress may make 

a finding as to what activity affects interstate commerce, and by making 

such a finding it obviates the necessity for demonstrating jurisdiction under 

the commerce clause in individual cases. Thus, it is not necessary to prove 

that any particular intrastate activity affects commerce, if the activity is 

included in a class of activities which Congress intended to regulate because 

it finds that the class affects commerce. 

I am aware of only one case where a court held that a mine did not 

affect commerce within the meaning of the ~t.. Morton v. Bloom, 373 F. Supp. 

797 (W.D. Pa. 1973), involved a one-man mine which had no employees. The 

coal which the defendant produced was sold "exclusively within Pennsylvania." 

Id. at 798. The court held that this operation was not the type which the 

Congress intended to cover when it enacted the statute. More significantly, 

the court found itself unable to conclude "that defendant's one-man mine 

operation will substantially interfere with the regulation of interstate 

commerce." Id. at 799. Even under the Wickard standard, the court stated 

that the minewas "one of local character in which the implementation of 

safety features required by the Act will not exert a substantial economic 

effect on interstate connnerce." Id. 

I have carefully reviewed the court's reasoning in Bloom, and I conclude 

that it should not be followed in the instant matter. First, I do not believe 

the court properly considered all of the possible means by which the Bloom 

operation could have affected interstate commerce. At one point in the 

opinion, the court noted that the "defendant does use some equipment in his 

mine which was manufactured outside of Pennsylvania * * *" 373 F. Supp. at 

798. The court found that this d'id not bring the defendant's mine within the 

ambit of the commerce clause since the purchase of this equipment was "so 

limited that its use would be de minimis." Id. This reasoning, in my view, 

runs directly contrary to the Supreme Court's statement in Mabee v. White 

Plains Publishing Company, 327 U.S. 178, 181 (1946), that the de minimis 

maxim should not be applied to commerce clause cases in the absence of a 

157B 
Congressional intent to make a distinction on the basis of volume of business. 

Arid, as the -court _noted in Bosack, the Mine Safety Act does-not require that 

the effect on interstate commerce be substantial. See 463 F. Supp. at 801. 

Secondly, and perhaps more importantly, the court in_ Bloom did not consider the effects which many one-man coal mining operations, taken together, 

might have on interstate commerce. Going back once again to the Wickard 

case, the Supreme Court held that even if the wheat in question was never 

marketed, "it supplies a need of the man who grew it which would otherwise be 

reflected by purchases in the open market. Home-grown wheat in this sense 

competes With wheat in commerce." 317 U.S. at 128. Similarly, in the 

instant case, the- coal which the respondent supplies to its customer supplies 

the needs of that customer and ·would otherwise be reflected by purchases in 

the open market. I believe that such a practice in the open market would 

have enough of an effect, direct or indirect, on commerce to bring respondent 

within the purview of the commerce clause, and thus the Act. My conclusion 

in this regard is further supported by the following facts adduced in these 

proceedings. 

Judge Nolan~'s order of February 24, 1978, includes a finding that while 

Log Cabin Coal Company sells the coal it purchases from the respondent to 

the Logansport Municipal Utility Company, Logansport, Indiana, "there is no 

evidence concerning the area of customers serviced by the utility" (pg. 5, 

Judge's Order). However, a deposition by the Mayor of Logansport, taken on 

March 29, 1978, reflects that he also serves as the utility supervisor. He 

states that 30 percent of the utility coal consumption is purchased from 

Log Cabin, that the utility services the city of Logansport, as well as an 

area approximately 5 miles surrounding the city in all directions, that the 

utility has in excess of 12,000 meters encompassing residential, commercial, 

and industrial customers, excluding approximately 200 street lights. Some 

of its commercial customers include Alfa Industries, Electric Storage Battery, 

Krause Milling, Wilson and Company, the General Tire and Rubber Company, and 

Con-rail, formerly the Penn Central Railroad Company. The Mayor also indicated that there are approximately 18 manufacturing plants in the city, 

employing 9,000 to 10,000 people. -

The Mayor's deposition reflects that the public utility operates under 

the rules of the Federal Power Commission, that it is a publicly owned electrical gener-ating utility, and that it also purchases _some of- i.ts coal from 

Island Creek Coal Company, located in the State of Kentucky. He also indicated that the utility has purchased coal from out of state brokers during 

a strike for use by the utility, as well as from the State of Indiana Public 

Service Commission. He had no knowledge of the respondent's coal mining 

opera ti on s. 

Also included in the record are the March 29, 1978 depositions of 

Donald D. Kampenga, general manager of Essex Controls Division ElectraMechanical Group, a subsidiary of United Technologies, a Connecticut 

Corporation; Edward E. Boyles, Customer Services Supervisor, General Telephone 

Company of Indiana; and Harry A. Bahnaman, General Manager, Wilson Produce 

Company, all located in Logansport, Indiana. 
Mr. Kampenga testified as to the scope and ~xtent of Essex Control's 

operations in Logansport, the use ·of power in the plant, and t~e fact that 

its products are sold to the Carrier, Whirlpool, Frigidaire, General 

Electric, and.Westinghouse Corporations, both within and outside the State 

of Indiana. 

Mr. Broyles testified that the General Telephone Company of Logansport 

supplies local and long-distance service for some 18,000 telephones in its 

service area, including 2,000 business phones, and that the company purchases 

power from the Logansport Municipal Utility to change its batteries, which in 

turn operates the telephone equipment. 

Mr. Bahnaman testified that Wilson Product of Logansport is a hog 

slaughtering and food processing plant which is headquartered in Oklahoma 

City, Okalhoma. Ninety percent of the products produced in the Logansport 

plant are shipped outside the State of Indiana by truck and railroad. Power 

for the operation of the Logansport plant is purchased from the Logansport 

Ut:Uity Company and it is used to operate most of the plant equipment and 

machinery. The plant is one of the biggest consumers of electricity in 

Logansport, and it sells products in Iowa, Oklahoma, Minnesota, Kentucky, 

and Massachusetts. The plant is regulated by the U.S. Department of 

Agriculture, OSHA, and several State agencies. 

The record also contains the March 28, 1978, depositions of John and 

Robert Haviland, and they include the following testimony. 

1. The surface coal mine which is operated and mined by the 

respondents consists of approximately 20 acres, five of 

which have already been mined. 

2. The equipment used by the respondents in the mining 

operation includes a dump truck, tractor, front-end 

loader, backhoe, and a drag line, all of which is 

operated by use of diesel full or. gasoline. 

3. The coal which is mined is loaded onto trucks by means 

of a loader for sale to the Log Cabin Coal Company. 

4. The sales of coal to Log Cabin are consumated by 

telephone calls initiated by the respondents as well as 

by Log Cabin, or in person by Log Cabin, and payment is 

made by· Log Cabin by chech which is usually delivered by 

Log Cabin to the respondents. 

5. While no coal has been mined since January 1978, production was curtailed because of a strike and the presence 

of UMWA pickets at respondents mine. However, respondent 

intends to continue mining coal and to cQ.ntinue selling 

its coal to Log Cabin Coal Company. 

1 t 8 .• 

..A..\ J 
In addition to the aforesaid depositions of John and Robert Haviland, 

the record also contains a transcript of their testimony of January 4, 1978, 

before District Court Judge Noland, as well as the testimony of Cleve 

Rentschler. That testimony includes the fact that respondents operate a 

surface strip mine consisting of some 20 acres of coal, that during the 

calendar year 1977, two acres were mined, yielding 9,00P tons, ·that the 

expenses and profits are shared by the three respondents who operate the 

mine, that for the preceding years of o~erations, the respondents received 

eight dollars a ton for the coal which· they mined, that they employ no other 

employees, and that the coal is sold to the Log Cabin Coal Company located 

in Brazil, Indiana. 

In its Memorandum of Points and Authorities in support of its motion 

for summary judgment filed with the Court, the Secretary makes the following 

arguments: 

1. A search warrant is not required for an inspection conducted by MSHA pursuant to the Act. 

2. The operation of a mi.ne is a "Class of Activity" found 

by Congress to affect interstate commerce. In support 

of this argument, the Secretary traces the legislative 

history of the laws regulating the coal mining industry, 

including an assertion that Congress has rejected 

coverage of the law based on the number of persons 

working in a mine, and specificafiy· found that mining 

affects interstate commerce. 

3. The record in this proceeding clearly establishes that 

the coal mined by the respondent affects interstrate 

commerce in that it is consumed at Logansport, Indiana 

where it is converted to electrical power to. supply part 

of the needs of the local community of Logansport through 

a local utility company, as well as the needs of several 

manufacturers whose products directly enter interstate 

commerce. The Secretary also notes-that during a 1978 

strike when respondents were not mining coal, the 

Logansport utility was forced to purchase coal from a 

supplier in the state of Kentucky at higher prices and 

that this establishes an effect on interstate commerce. 

The Federal Coal Mine Health and Safety Act of 1969, and the 1977 

Amendments are remedial legislation and should be given a liberal interpretation. This was the intent of the Congress and it has been echoed in several 

court decisions• See Legislative History, page 1025, "In adopting these provisions, the managers intend that the Act be construed liberally when improved 

health or safety to miners will result." In a case involving the 1952 Coal 

Mine Health and Safety Act, the predecessor of the 1969 Act, the Third Circuit 

Court of Appeals stated as follows in St. Mary's Sewer Pipe Co. v. Director of 

U.S. Bureau of Mines, 262 F.2d 378, 381 (3d Cir. 1959): 

1 t) 1'::"8') , __ 
The statute we are called upon to interpret is the 

out-growth of a long history of major disasters in coal mines. 

The death toll from mine disasters became so appalling and 

voluntary compliance with the safety standards set by the 

Bureau of Mines so haphazard that in 1952 Congress determined 

to make compliance with the safety standards mandatory. It 

is so obvious as to be beyond dispute that in construing 

safety or remedial legislation narrow or limited construction 

is to be eschewed. Rather, in this field liberal construction 

in light of the prime purpose of the legislation is to be 

employed. 

The .st. Mary's Sewer case was cited by the Fourth Circuit in Reliable 

Coal Corporation v. Morton Et Al., 478 F.2d 257, 262 (4th Cir. 1973), a 

case involving the 1969 Act. The court quoted the above excerpt and said 

"We find this observation equally appropriate to the case at hand." Other 

courts have echoed this liberal construction and application of the. See 

Freeman Coal Mining Company v •. Interior Board of Mine Operations Appea~ 

504 F.2d 741 (7th Cir. 1974); Old Ben Coal Corporation v. IBMA, supra; 

Franklin Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 

772 (D.C. Cir. 1974). 

The legislative history of the 1977 Act clearly contemplates that 

jurisdictional doubts be resolved in favor of Mine Act jurisdiction. The 

report of the Senate Committee on Human Resources states: 

The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's intention 

that what is considered to be a mine and to be regulated under 

this Act be given the broadest possible interpretation, and it 

is the intent of this Committee that doubts be resolved in 

favor of inclusion of a facility within the coverage of the 

Act. 

S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 197) at 14; Legislative History 

of the Mine Safety and Health Act, Committee Print at 602 (hereinafter cited 

as Leg. Hist.). 

The Federal Mine Safety and Health Act of 1977 is intended to assure 

safe and healthful working conditions for the American miner, and Congress 

clearly stated its findings and purposes in this regard in the 1969 Act as 

well as in the 1977 Act which extended the jurisdiction of the Coal Act to 

all mining activities. The Congressional findings and purposes are set forth 

as follows in section 2 of the 1969 Act, and is equally applicable to all 

mines: 

(a) the first priority and concern of all in the coal 

mining industry must be the health and safety of i.ts most 

previous resource--the miner; 

158a 
(b) deaths and serious injuries from unsafe and 

unhealthful conditions and practices in the coal mines cause 

grief and suffering to the miners and to their families; 

(c) there is an urgent need to provide more effective 

means and measures for improving the working conditions and 

practices in the Nation's coal mines in order to prevent 

death and serious physical harm, and in ~rder to prevent 

occupational diseases o~iginating in such mines; 

·(d) the existence of unsafe and unhealthful conditions 

and practices in the Nation's coal mines is a serious 

impediment to the future growth of the coal mining industry 

and cannot be tolerated; 

(e) the operators of such mines with the assistance 

of the miners have the primary responsibility to prevent the 

existence of such conditions and practices in such mines; 

(f) the disruption of production and the loss of income 

to operators and miners as a result of coal mine accidents or 

occupationally caused diseases unduly impedes and burdens 

commerce. [Emphasis added.] 

Section 3(b) defines "commerce" in part as follows: "Trade, traffic, 

commerce, transportation, or communications, among the several states, or 

between a place in a state and any place outside thereof, * * *•" (Emphasis 

in original.) 

Section 3(g) defines a miner as follows: '"Miner' means any individual 

working in a coal or other mine." 

Section 4 stated as follows with regard to what mines are subject to the 

Act. "Each coal or other mine, the products of which enter commerce, or the 

operations or products of which affect commerce, and each operator of sue~ 

mine, and every miner in such mine shall be subject to the provisions of this 

Act." (Emphasis in original.) 

The matter of determining if a mining operation affects commerce takes 

into consideration many variables, whereas determining if a mirie product 

enters commerce is resolved by the single proof of its entry. In analyzing 

section 4 of the Act, I conclude that Congress intended the "enter commerce" 

and "affect commerce" clauses to be alternatives either of which subjects 

a mine to the provisions of the Act. However, I conclude that the.intent of 

the 1977 statute, as well as the preced.ing 1969 legislation, as manifested 

in the legislative history, is to be broadly construed to apply to all of 

the nation's mines as a class of activity which affects commerce, and the 

cases cited above support that conclusion. Accordingly, I accept petitioner's 

"class of activities" jurisdictional arguments and conclude the respondent's 
mining operation is covered by the ·1977 Act, and its arguments to the 

contrary are rejected. I also find that respondent's sales of coal to Log 

Cabin Coal Company affect connnerce within -the,meaning of the Act, and this 

also serves to bring the respondent within its reach. 

·In a recent case decided in the Ninth Circuit, Marshall v. Wait, 628 F~2d 

1255 (1980), the Court of Appeals held that a small family-owned rock quarry 

had not impliedly consented to a warrantless·inspection of its premises by 

the Secretary pursuant to the Act. The court found that while a rock quarry 

falls within the definition of a "mine" as that term is defined by the 1977 

Act, the Secretary .had not established to the Court's satisfaction ·that the 

respondent's excavation of decorative rock was a pervasively regulated 

activity so as to bring it within the warrantless search exceptions noted by 

the Supreme Court in United States v. Biswell, 406 U.S. 311 (1972), and 

Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970). The Court 

recognized that an industry's history of regulation is a releyant factor in 

determing the constitutionality of subjecting its operators to nonconsensual 

warrantless searches, cited the coal mining industry as an example of such an 

industry, and relying on Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980), 

impliedly observed that small, owner-operated mines may be subjected to 

warrantless searches, 628 F.2d 1255. 

In several other court decisions which I find relevant to the instant 

proceedings, the courts have recognized the right of the Secretary to inspect 

small, family-owned mining operations, and a discussion of these decisions 

follows below. 

On September 15, 1978, in the case of Ray Marshall v. Jesse Kintzel, 

Et Al., Civil Action No. 78-13 (E.D. Pa., filed September 14, 1978), the 

Kintzel brothers, doing business as the Kintzel Coal Company, were permanently 

enjoined in part as follows: 

(1) From denying the Secretary of. Labor or his authorized 

representative entry to, upon or through the Kintzel Coal 

Company, Lykens No. 6 Mine. 

(2) From refusing to permit the inspection of the 

Kintzel Coal Company, Lykens No. 6 Mine. 

In Marshall v. Thomas Wolfe, d/b/a Wolfe Coal Company, Civ. No. 79-1850 

(E.D. Pa.) (July 20, 1979), a Federal court enjoined the company from 

denying entry to MSHA inspectors for the purpose of conducting a mine 

inspection. The judge rejected arguments advanced by the mine operator that 

the Act does -not apply to mines without miner-employees. See also Marshall 

v. Donofrio, 605 F.2d ·1196 (3rd Cir. 1979), aff'g., 465.F. Supp. 838 

(E.D. PA. 1978), cert. denied No. 79-848 (February 19, 1980), where the same 

district court judge issued an identical ruling and decision as in Wolfe 

Coal Company. ~ 

Kintzel and Wolfe are examples of small, family-owned mining companies, 

similar to the respondent's where the courts have found them subject to the 
Act, and enjoined the owners from denying entry to MSHA's inspectors for the 

purpose of conducting inspections pursuant to the Act. 

Fact of Violations 

In Docket No. VINC 79-102-P, the respondent is charged with a violation 

of the provisions of mandatory standard 30 C.F.R. § 71.lOl(a) for failure to 

submit initial respirable dust samples to determine the amount of respirable 

dust to which mine employees are expos~a. The initial citation, No. 256040, 

was issued on August 14, 1978 (Exh. P-9), and after expiration of the initial 

abatement time and non-compliance by the respondent, the inspector issued 

a withdrawal order pursuant to section 104(b) of the Act on September 15, 

1978 (Exh. P-9), requiring the removal of all personnel from the mine. 

In Docket No. VINC 79-93-P, the respondent is charged with a violation 

of the provisions of mandatory standard 30 C.F.R. § 71.302(a), for failure 

to conduct an initial noise survey concerning the noise levels to which 

miners may be exposed during the course of their work shift, and for failure 

to report the results of the survey to MSHA as required by the cited 

standard. The initial citation, No. 1 B.E.P., was issued on October 12, 

1977 (Exh. P-3), but was subsequently modified on August 14, 1978, to correct 

an erroneous citation to the regulatory standard initially cited by the 

inspector and to clarify the fact that the citation was being issued under 

the 1977 Act (Exh. P-6). Subsequently, on August 14, 1978, the inspector 

issued a withdrawal order, No. 256242, after finding that the respondent had 

failed to abate the condition cited, and the order notes that the respondent 

had ordered the inspector off its mine property (Exh. P-7). It should be 

noted that since the issuance of the citations in question in these cases, 

and the subsequent court suit filed by the Secretary, MSHA has made no 

further attempts to inspect the mine site in question, and as far ·as I know 

the respondents are still mining coal. contary to the requirements of the 

withdrawal orders which have been issued by MSHA. 

Petitioner has presented evidence and testimony in support of the citations in question in these proceedings, and this is reflected in the attached 

January 22, 1981, order which I issued. However, while the respondent has 

had two full opportunities to present evidence ancJ testimony in its defense, 

it has declined to do so on the ground that it does not recognize my authority 

and jurisdiction to proceed with the administrative adjudication of these 

dockets. Aside from its jurisdictional arguments, respondent maintains that 

since the Secretary has seen fit to bring an injunction action in the United 

States District Court, the Secretary is bound by his action and that only the 

District Court has jurisdiction to conduct a trial on the merits of these 

cases. Respondent has vehemently objected to what it believes is "forum 

shopping" on the.part of the petitioner in these cases. In support of this 

argument, respondent cites the case of.Bituminous Coal Operators' Association, 

Inc., v. Marshall, 83 F.R.D. 350 (D.DC. 1979). After review of that decision, 

I conclude that it does not support the position taken by the respondent. In 

the BCOA case, District Court Judge Gessel dismissed the suit and noted 

that under the Act, Congress did not intend that the District Courts review 

the merits of orders and citations issued against mine operators, and he 

158b 
specifically stated that when an operator is adversely affected by any 

enforcement action taken by the Secretary, the proper procedure to follow is 

to allow the matter to run its course through the administrative procedures 

established for review through this Commission and then to an appropriate 

court of appeals. 

While it is true that Judge Gessel noted an exception when the Secretary 

institutes an injunctive action against an operator pursuant to section 108 

of the Act, as has been done in these cases, I take note of the fact that the 

District Court here has issued no further orders or dispositions staying or 

otherwise inhibiting the Secretary from proceeding with its case before the 

Commission. As a·matter of fact, even though counsel for the respondent 

stated in a motion of April 30, 1979, for a continuance and change of hearing 

site that the court would issue a stay "at any time," no such order has been 

forthcoming and the matter has been pending with the court since 1978. Under 

the circumstances, I find nothing in section 108 which prohibits me from 

bringing these cases to finality through the issuance of my decisions in 

matters which are before me for adjudication. In my view, hearings before 

this Commission provide a more than adequate mechanism for adjudicating all 

of the issues which are before the District Court, including the Constitutional and jurisdictional questions raised by the respondents, Secretary of 

Labor v. Kenny Richardson, BARB 78-600-P, decided by the Commission on 

January 19, 1981. 

The record adduced in this case reflects that the Secretary's court 

action was initially filed in the District ,Co~rt on December 20, 1977, and as 

indicated above, while the court denied the-·Secretary' s request for an 

injunction, it also denied the respondent's motion to dismiss the suit. The 

matter has been pending since that time, and aside from the filing of briefs, 

the court has made no further disposition of the matter other than to transfer 

it to another judge, and the Secretary has taken no further action to advance 

the case on the Court's docket or to otherwise initiate any action seeking to 

bring that suit to finality. 

I take note of the fact that prior to the filing of the court action by 

the Secretary, MSHA had on previous occasions inspected the respondent's 

mining operations in 1976 or 1977, and Inspector Bailey issued several citations. Respondent's prior history of violations includes citations which 

were issued on April 11, October 12, and November 28, 1977. The citations 

which are in issue in the instant proceedings have ripened into withdrawal 

orders and I have no information tqat the respondent has ever challenged 

those orders apart from its defense in the court suit and in its answers to 

the petitions for assessment of civil penalties filed here. 

In view of the foregoing, I conclude and find that the petitioner has 

established the fact of violations as to both citations which were issued in 

these proceedings and under the circumstances, both citations issued in 

these dockets are AFFIRMED. 

158? 
Size of Business and Effect. of Civil. Penalties on Respondent's Ability to 

Continue in Business. 

In its answer of January 22, 1979, to the proposal for assessment of 

civil penalties, respondent asserted that it had and has no employees and 

was self-employed. However, the record establishes that respondent's mining 

operation i_s carried on by a partnership consisting of the two Haviland 

brothers, and a brother-in-law, Cleve Rentschler; Respondent's counsel 

explained the scope and extent of respondent's mining operation for the 

years 1977 through 1979, an~ the parties agree that respondent is a small 

operator (Tr. 215-221; pgs. 3-4 of my previous order of January 22, 1981). 

Respondent has offered nothing to suggest that the civil penalties 

assessed for the two citations· in question will adversely affect the respondent's ahility to continue in business. Accordingly, absent any evidence to 

the contrary, I find that they will not. 

Good Faith Compliance 

The record reflects that the citations .issued in these cases have not 

been abated and ,that the withdrawal orders are still outstanding. Further, 

it seems obvious to me that the respondent's failure to comply, as well as 

its refusal to permit any MSHA inspectors on its property, stems from its 

belief that it is not subject to the law. In these circl,llllstances, I conclude 

that the question of good faith compliance is inapplicable in these cases. 

History of Prior Violations 

Petitioner has submitted a computer print-out which indicates that for 

the period October 13, 1975 to August 14, 1978, respondent has been served 

with eight citations for various violations of mandatory safety standards. 

While the print-out reflects total assessments amounting to $757, it also 

indicates that the respondent has made no payments for any of the assessed 

violations. Inspector Bailey confirmed that the ~espondent defaulted on 

several of the previous citations and that ·petitioner referred them to the 

Department of Justice for collection action (Tr. 155-156)., 

Two of the eight citations listed on the print-out are those which are 

in issue in these proceedings. The remaining six, which are unpaid, do not 

in my view, warrant any additional increases in the penalties which have been 

assessed against the respondent for the two citations which I have affirmed. 

Gravity 

Since the respondent has failed to submit any dust samples or to make 

any noise survey, I have no way of knowing whether respondent is in or out 

of compliance with those standards. Consequently, I am unable to determine 

the specific seriousness or gravity of the citations which are the subject 

of'these proceedings. 
Negligence 

Inspector Bailey testified that he.had, previously conducted inspections 

at respondent's surface mining operation and had issued other citations for 

violations wh:t,ch he found. These citations were issued prior to' the fili:ng 

of the injunction action by the Secretary. Accordingly, I conclude that the 

respondent was not oblivious to the fact that it was required to comply with 

the provisions of the Act as well as with the mandatory safety and health 

standards promulgated pursuant to the law. In the circumstances I conclude 

and find that the respondent failed to exercise reasonable care to prevent 

the condition cited in these cases, and that its failure in this r~gard 

amounts to ordina~y negligence. 

Penalty Assessment and Order 

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 penalties are reasonable and appropriate: 

Docket No. VINC 79-102-P 

Citation No. Date 30 CFR Se~tion Assessment 

256040 08/14/78 71.lOl(a) $100 

Docket No. VINC 79-93-P 

Citation No. Date 30 CFR Section Assessment 

1 B.E.P. 10/12/77 71.302(a) $125 

Respondent IS ORDERED to pay the civil penalties assessed, in the 

amounts indicated above, within thirty (30) days of the date of these 

decis~ons, and upon receipt of payment by the petitioner, these cases are 

dismissed. 

h.-Kot!a~ Attachment Administrative Law Judge 

Distribution: 

Rafael ~lvarez, Esq., Office of the Solicitor, U.S. Department of Labor~ 

230 s. Dearborn St., Chicago, IL 60604 (Certified Mail) 

George A. Brattain, Esq., Marshall, Batman, Dc;,y, Swango & Brattain, 

710 Ohio St., Box 1444, Terre Haute, IN 47808 (Certified Mail) 
FEDERAL MINi·~AFETY AND HEALTH REVIEW &.IAMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 2 1991 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

JOHN L. HAVILAND, ROBERT P. 

HAVILAND, and CLEVE RENTSCHLER, 

d/b/a HAVILAND BROTHERS COAL 

COMPANY, 

Respondent 

Docket No. VINC 79-93-P 

A.O. No. ;_12-01433-03002 

Docket No. VINC 79-102-P 

A.O. No. 12-01433-03003 

Haviland Strip }line 

ORDER TO SHOW CAUSE 

Appearances: 

Before: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department 

of Labor, Chicago, Illinois, for the petitioner; 

George A. Brattain, Esq., Terre Haute; Indiana, for the 

respondent. 

Judq;e Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 U. S.C. § 820(a), charging 

the respondent with two alleged violations of certain mandatory safety and 

health standards found in Part 71, Title 30, Code of Federal Regulations. 

Respondent filed timely answers and contests denying the alleged violations, 

and asserting that it is not subject to the Act because the products of its 

mining activity do not enter or affect interstate commerce. A hearing was 

convened in Terre Haute, Indiana, on July 1, 1980, and the parties appeared 

and participated therein. 

The July 1, 1980, Hearing 

An informal prehearing conference was conducted prior to going on the 

record, and the purpose of the conference was to afford counsel an opportunity to discuss the parameters of the hearing as well as to advise me as to the 

status of the court action initiated by the Secretary to enjoin the respondent 

1590 
from refusing entry to MSHA inspectors attempting to inspect respondent's mining operation, Ray Marshall, Secretary of Labor, U.S. Department of Labor v. 

John L. Haviland, et al., No. TH 77-178-C, District Court, S.D. Indiana, 

Terre Haute Division. 

Respondent's counsel asserted that while the initial injunction action 

was brought by the Secretary of the Interior, the Secretary of Labor was 

substituted as a party plaintiff when the 1977 Act became effective, and that 

a motion to stay further enforcement by the Secretary is still pending before 

the court (Tr. 36-37). Counsel asserted that the motion was filed November 3, 

1978, that it is in effect a motion to restrain the Secretary from continuing 

its enforcement activities at the subject mine (Tr. 38), and that the 

Commission is not a party to that court action (Tr. 40). 

Respondent's counsel objected to the commencement of the hearing on the 

ground that the motion is still pending and that the question concerning the 

Secretary's enforcement jurisdiction over the respondent's asserted "selfemployed" mining operation is still pending with the court. Counsel submitted 

a copy of a Memorandum Order issued by the Honorable James E. Noland, District 

Court Judge, on February 24, 1978, denying the Secretary's motion for a preliminary injunction to compel the respondent to permit MSHA inspections of its 

mine. Judge Noland reserved any ruling on the respondent's motion to dismiss 

the case, and as of the date of the hearing the matter was still pending 

before the court. 

Petitioner took the position that the respondent is engaged in the business of mining coal at its strip-mining operation and that the mine is subject to the Secretary's enforcement jurisdiction even though its operations 

may only be intrastate. In support of its jurisdictional argument, petitioner 

relies on sections 3(h) and 4 of the Act. Section 3(h) defines a "coal mine," 

and section 4 states that "[e]ach coal mine, the products of which affect 

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

operator of such mine, and every miner in such mine shall be subject to the 

provisions of this Act." Citing the cases of Secretary of Labor v. Shingara, 

418 F. Supp. 693 (E~D. Pa. 1976); Marshall v. Kilgore, 478 F. Supp. 4 (E.D. 

Tenn. 1979); Wickard v. Filburn, 317 U.S. 111 (1942); and Fry v. United Sta~es, 

421 U.S. 542 (1974), petitioner asserts that since the coal mining industry 

is a pervasively regulated industry which affects commerce, it is clear that 

respondent's mining operation is subject to the Act. 

Petitioner also asserted that since the court has not rendered a final 

decision as to the jurisdictional question, the Commission has jurisdiction 

to proceed with the instant civil.penalty proceedings without prejudicing 

respondent's rights in the pending court action (Tr. 30). 

With regard to the Secretary's policy concerning any further attempts to 

inspect respondent's mining operation subsequent to the October 18, 1977, 

refusal of entry to its inspec~ors, petitioner's counsel stated that when 

respondent Robert Haviland advised the inspectors not to return to the mine 

site without a warrant, that request was honored, and MSHA inspectors have 

1591 
made no fur~her attempts to inspect the mine (Tr. 30-31). Although counsel 

took the position that the Secretary has the authority to conduct warrantless 

inspections, no further attempts have been made to conduct such inspections 

at the mine in question (Tr. 32). 

Petitioner's motion to amend its pleadings t9 name two additional parties 

comprising respondent's coal company, a partnership, was granted (Tr. 8-11). 

The record reflects that copies of petitioner's motion to amend were served 

on respondent's counsel of record, and counsel's objection that the individual 

partners ~ere not served was rejected (Tr. 11). 

' 

In view of the.fact that the Commission was not joined as a party to the 

case pending before the court, and considering the fact that the Commission 

is independent of the Department of Labor, it is my view that Judge Noland's 

order does not enjoin or otherwise litnit the Commission's jurisdiction to continue with its administrative determination and adjudication of a case properly 

before it. Accordingly, counsel's objections were rejected and the hearing 

proceeded over his continuing objections (Tr. 45). Testimony and evidence in 

support of the two alleged violations were presented by MSHA during the course 

of the hearing, and respondent was given a full opportunity to cross-examine 

the inspectors and to present any testimony or evidence in defense of the 

citations. Aside from certain information concerning the size and scope of 

its mining operation, and its jurisdictional arguments, respondent declined 

to advance ~ny affirmative defense to the conditions ·or practices cited as 

alleged violations of the standards in question and it called no witnesses 

on its own behalf (Tr. 168-169). 

By agreement and stipulation, the parties agreed that the findings of 

fact made by Judge Noland in his February 24, 1978, Memora~dum Order may be 

incorporated by reference and adopted by me in these proceedings (Tr. 212). 

However, the parties were advised that I retain GOntinuing jurisdiction in 

these proceedings before the Commission and that the parties are not foreclosed from eliciting additional information at any subsequent hearing concerning any additional factual, jurisdictional, or other matters (Tr. 213). 

With respect to the statutory criteria found in section llO(i) of the Act 

concerning the size of respondent's mining operation and the effect of any 

civil penalties on this operation, respondent's counsel stated that he was 

prepared to show that in the year 1977 respondent's annual coal production 

was 9,654 tons, which sold for $8 a ton to the Log Cabin Coal Company, for 

approximately $77,200 in gross revenues. Production in 1978 was 6,565 tons, 

with gross sales to Log Cabin in the amount of $65,565. For the year 1979, 

respondent's annual production was 6,132 tons, with gross sales to ·Log Cabin 

in the amount of $73,534, and direct local sales amounting to $250. Counsel 

stated that all of these revenues for the period 1977 to 1979, are gross 

sales and do not reflect expenses for gas, oil, or the partnership profits 

rea1ized from such sales. As ar. example, counsel stated that net revenues to 

the partnership for the year 1979 amounted to $44,357, and he estimated that 

this reflects one of the smallest coal mining operations in the State of 

Indiana (Tr. 215-216). 
Respondent's counsel described the mining operation carried out by the 

partnership ~s a stripping operation consisting of a 10-acre tract of "gullyscr.ub" land which had originally been shaft mined before the year 1920. The 

operation is conducted by the two Haviland brothers, one of whom is a farmer, 

and Mr. Cleve Rentschler, their brother-in~law and a former elementary school 

principal. They strip mine the Brazil Block of low sulphur coal, 'which is 

some 20 to 30 feet deep, and. it is a source of extra income to the partner.:. 

ship. All of the coal is sold to Log Cabin Coal Company, a shale and clay 

mining operation located in Brazil, Indiana (Tr. 217~220). Petitioner's 

counsel expressed agreement with the extent and scope· of the mining operation as described by respondent's counsel and agreed that it is a small 

operation (Tr. 221). 

There is no dispute that the respondent in this case operates a surface 

coal mine within the State of Indiana, that it began its mining.operation in 

1974, that with the exception of some 250 tons of coal sold directly by the 

individual respondents locally in 1979, all of the .coal produced during the 

years 1977 to 1979 was sold intrastate to Log Cabin Coal Company located in 

Brazil, Indiana. It also seems clear that the mining operation is conducted 

solely. by the three named partners, John L. and Robert P. Haviland and Cleve 

Rentschler, doing business as th~ Haviland Brothers Coal Company (Tr. 88-90, 

187-188). 

Testimony and Evidence Adduced at the Hearing 

Fact of Violations 

Docket No. VINC 79-102-P 

This case concerns a section 104(a) citation (No. 256040) issued by an 

MSHA inspector on August 14, 1978, charging the respondent with a violation of 

the provisions of mandatory standard 30 C.F.R. § 71.lOl(a). The citation 

states as follows: nThe operator of the mine has not submitted the initial 

respirable dust samples to determine the a~ount of respirable dust in the 

atmosphere to which each employee is exposed." 

MSHA inspector Clarenc~ Bailey confirmed that he issued Citation 

No. 256040 on August' 14, 1978, chargi.ng a violation of section 71.lOl(a) for 

failure by the respondent to submit initial respirable dust samples to determine the amount of atmospheric respirable dust to which mine employees are 

exposed. MSHA's subdistrict office advis~d him that the mine had submitted 

no samples, and as a result of this he issued the citation. Inspector Bailey 

explained that dust samples are taken by means of individual dust pumps which 

each sampled employee wears during a full 8-hour shift, the dust cassettes 

are then sent to MSHA's Pittsburgh laboratory for analysis, and the operator 

is notified of the results. If the samples show more than 1 milligram of 

dust, another sample is required within 6 months, anq if the result is less 

than 1 milligram, only annual samples are require<t- He indicated that a mine 

operator may be temporarily certified to conduct dust surveys, and that dust 

samplers are available for purchase by an operator. The purpose of sampling 
is to determine whether there are any dust exposure problems at the mine, and 

while 2 milligrams of dust is acceptable, anything above that is a violation 

(Exh. P-8, Tr. 173-180). 

Inspector Bailey identified Exhibit P-9 as a copy of a withdrawal order he 

issued on September 15, 1978, after the expiration of the abatement period 

fixed for the citation, and that order affected the entire mine because each 

individual miner would have to be sampled. Inspector Bailey quoted from the 

condition or practice from the face of.the order as follows (Tr. 183-184): 

"The operator of the mine failed to submit the initial respirable dust sample 

to determine the amount of respirable dust in the atmosphere, to which each 

employee is exposed. After the issuance of Citation No. 254040, dated 

August 14, 1978." 

The order reflects that it was served by certified mail, and Mr. Bailey 

confirmed that this was the case (Tr. 184). He identified Exhibit P-10 as his 

"inspector's statement" concerning the order (Tr. 184). Mr. Bailey also indicated that samples were not required prior to 1978 because respondent was 

informed by MSHA that he need not submit samples, but Mr. Bailey could not 

specifically state why respondent was so informed (Tr. 197-198). 

Docket No. VINC 79-93-P 

This case concerns a section 104(b) notice issued under the 1969 Act, 

No. 1 B.E.P., on October 12, 1977, charging the respondent with a violation 

of 30 C.F.R. § 71.303(a), and it states as follows: "The operator has not 

conducted the initial survey of the noise levels to which each miner in each 

surface installation and at each surface worksite is exposed during his 

normal working shift." The notice contains a notation that it was. "served 

to Bob Haviland by certified mail because the inspectors were ordered off the 

property being mined by the person served." 

MSHA inspector Bryan E. Page testified as to his background and experience, and he confirmed that he attempted to conduct an inspection at the mine 

on October 17, 1977, for the purpose of ascertaining whether the respondent 

was in compliance with the noise level su'rvey requirements of section 71.302. 

A letter dated July 22, 1977 (Exh. P-2) put respondent on notice as to the 

requirements for such a survey, and respondent was. given until August 17, 

1977, to comply. Robert Haviland told him that he could make no inspections 

unless he had a warrant and he left the mine site. While there, he observed 

a dragline and bulldozer doing some reclamation work, and he also observed a 

coal shovel which was not in operation. He also observed three people there. 

Subsequently, on October 18, 1977; he issued a citation charging the respondent with a violation of section 71.303(a) and served it by certified mail 

(Exh. P-3). The citation charged the respondent with failure to submit an 

initial noise reading for each employee, and while the abatement time was 

fixed as November 30, 1977, the citation has never been abated (Tr. 67-77). 

The initial citation cited the wrong standard, but it was subsequently 

modified to cite fhe correct section, 77.302(a) (Tr. 79). 

1594 
Inspector Page identified Exhibit P-4 as an. inspection report "cover 

sheet" prepared after each mine inspection. The report contains a mine 

identification ntllllber which is issued after an operator submits his legal 

identification papers upon commencing his mining operations. Mr. Page 

stated that respondent is a strip-mine partnership mining the Brazil Block 

of coal, and mined about 25 tons of coal daily on one shift from one pit, 

and this information was based on previous reports filed with MSHA .(Tr. 81-

86). He also identified Exhibit P-5 as his "inspector's statement" which he 

filled out when he issued the citation (Tr. 92), confirmed that he was at 

the mine for 5 or 10 minutes, and that he went there on instructions of his 

supervisor because the respondent had not submitted a noise survey (Tr. 96). 

On ~ross-examination, Mr. Page confirmed that the persons he observed at 

the mine were the two Haviland brothers, and that any noise levels required to 

be surveyed were those levels to which they would be exposed. He confirmed 

that he has heard noise levels of 90 decibels and that this level does not 

offend his ears, although he has been exposed to noise levels requiring him 

to wear ear muffs (Tr. 96-8). 

In response to further questions, Mr. Page indicated that noise levels 

are measured with a noise meter device held close to a persons's head, and it 

registers the noise level by means of a dial (Tr. 99). The survey would be 

taken on the three pieces of equipment he observed at the mine, namely, a 

loading shovel, dragline, and a bulldozer. The survey results are recorded 

on cards provided by MSHA, and the requirements and procedures for submitting 

them are found in section 70 of the standards (Tr. 99-104). 

MSHA inspector Clarence Bailey testified as to his training and experience, and confirmed that he modified the citation issued by Mr. Page to reflect 

a failure to file an initial noise survey as required by section 71.302(a), 

and he did so on August 14, 1978 (Exh. P-6, Tr. 108). 

Mr. Bailey quoted the condition he cited on his modified citation as 

follows (Tr. 110-112): 

The operator of the mine has not conducted the survey 

of the noise levels to which each miner in each surface 

installation and at each surface worksite is exposed during 

the normal work shift. 

The subject violation No. 1 BIP dated 10-13-77 was 

issued pursuant to section 104(b) of the Federal Coal Mine 

Safety and Health Act of 1969, which was amended by the 

Federal Mine Safety and Health Act of 1977. This violation is modified to section 104(a) of the Amendments Act 

to reflect this change. 71.303(a) corrected to 71.302(a). 

Inspector Bailey identified Exhibit P-7 as a section 104(b) order of 

withdrawal he issued on August 14, 1978, for failure by the respondent to 

abate the previous citation concerning the noise level survey. Since MSHA 

159fl 
had no evidence that the survey had ever been submitted or received, he had 

~o alternative but to issue the order .which in effect ordered th.at all mining· 

cease (Tr. 114). The order·was transmitted to Robert Haviland by certified 

mail and the s·tamp date on the face of the order reflects that it was transmitted on. September 1, 1978 (Tr. 115-116). He could not confirm when it was 

actually mailed or when the respondent received it (Tr. 117); and he 

personally did not mail it (Tr. 118). 

On cross-examination, Mr. Bailey stated that since all such orders are 

mailed by certified mail, he believes that respondent received the order in 

question. However, he confirmed that he personally did not see the order or 

any cover letter actμally placed in the mail (Tr. 123). 

In response to further questions, Mr. Bailey stated that he had no 

personal knowledge that respondent continued mining subsequent to the issuance 

of the withdrawal order of August 14, 1978, because he never returned to the 

mine, nor did he attempt to go back to post an MSHA closure sign at the mine 

(Tr. 130). However, prior to the issuance of the citation and order, he had 

previously inspected the mine on a regular inspection during 1976 or 1977 and 

issued four citations. However, when the respondent learned that it would be 

subjected to civil penalties for all citations issued at the mine, it prohibited Inspector Page from coming back on the property (Tr •. 132). 

Regardi.ng his prior inspections, Mr. Bailey stat~d that he believed he 

issued citations for lack of a backup alarm, a seat belt, and a fire 

extinguisher and that they were abated and the citations terminated (Tr. 151). 

Respondent's counsel stated that respondent did not remit any civil penalties for these citations because they were issued against the Haviland Coal 

Corporation, and they were subsequently defaulted and turned over to the 

Justice Department for collection (Tr. 155-156). 

In view of the pending court action taken by.the Secretary in this case, 

I issued an order on September 22, 1980, directing• the parties to inform me of 

the status of the case pending with Judge Noland. In addition, the parties 

were also directe·d to advise me as to the necessity of any additional hearings 

so as to bring these cases to finality. By letter and enclosure filed 

October 23, 1980, petitioner's counsel filed a copy of a computer printout 

detailing respondent's prior history of violations, a copy of Judge Noland's 

Memorandum and Order of February 14, 1978, denying the. Secretary's motion for 

a preliminary judgment, six depositions, and additional documents and information concerning the pending court litigation. That record includes the 

following: 

1. Depositions of John Lee Haviland and Robert Paris 

Haviland, taken March 28, 1978. 

2. Deposition of Martin Eugene Monahan, Mayor, City of 

Logansport, Indiana, Chairman of the Board of Works and City 

Council, and Supervisor of the Logansport Municipal Utility, 

taken March 29, 1978. 
3.. Deposition of Donald D. Kampenga, General Manager, 

Essex Controls Division, Electrica-Mechanical Group, United 

Technologies, Hartford, Connecticut, taken March 29, 1978. 

4. Deposition of Edward E. Boyles, Customer Services 

Supervisor, General Telephone Company of Indiana, Logansport, 

Indiana, taken March 29, 1978. 

5. Deposition of Harry A. Bahnaman, General Manager, 

Wilson Produce Company, Logansport, Indiana, taken March 29, 

1978. 

6. Copy of the official transcript of the hearing held 

before the Honorable James E. Noland, on January 4, 1978, with 

respect to defendants' motion to dismiss the Secretary's suit. 

The transcript contains the testimony of John Haviland, 

Robert Haviland, and Cleve Rentschler. 

7. Several motions, briefs, legal memoranda, and copies 

of several court decisions dealing with the jurisdictional 

claims raised by the respondents in this proceeding, all of 

which have been filed in connection with the p~nding litigation befor~ Judge Noland. 

At the close of the hearing in these cases, the parties were informed 

that I intended to retain jurisdiction of this matter and that the cases 

would be continued and the record left open pending further disposition by 

Judge Noland. Since my order of September 22, 1980, no additional information 

has been forthcoming from the parties concerning the disposition of the matter 

before the court. Under the circumstances, and in order to insure timely 

adjudication of the_cases now pending before me, the parties are advised that 

I intend to go forward with the adjudication of these cases so as to finally 

dispose of the cases. Accordingly, IT IS ORDERED that the parties SHOW CAUSE 

within thirty (30) days as to why these cases should not now be scheduled for 

an additional hearing to afford the parties a final opportunity to present any 

additional factual or.legal evidence, testimony, or arguments as to the merits 

of the cases so as to enable me to issue timely decisions disposing of the 

dockets. The parties are also directed to advise me as to the feasibility of 

stipulating or agreeing as to any matters which are not in disp~te, including 

incorporating by ~eference any prior testimony or information generated by 

the court suit as reflected in the record now pending before the court. 

4~~/d...&e. George A. Koutras 

Administrative Law Judge 
Distribution: 

Rafael Alvarez,, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) 

George A. Brattain, Esq., Marshall, Batman, Day, Swango & Brattain, 

710 Ohio Street, P.O Box 1444, Terre Haute, IN 47~08 (Certified Mail) 

1598 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

JOHNNY HOWARD, 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Complainant 

June 19, 1981 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR 

INTERFERENCE 

MARTIN-MARIETTA CORPORATION, 

Respondent 

Docket No. SE 80-24-DM 

Appearances: 

Before: 

MSHA Case No. MC 79-93 

DECISION 

Nathan Kaminski, Jr., Esq., Schneider & 

O'Donnell, Georgetown, South Carolina, for 

Complainant; 

Elliott D. Light, Esq., Assistant General 

Counsel, Martin-Marietta Corporation, 

Bethesday, Maryland, for Respondent 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Complainant was discharged on July 31, 1979, from his 

job as a front-end loader operator with Respondent. Complainant contends that his discharge was the result of his 

refusal to work on an unsafe machine and his calling for a 

Federal inspection of the machine. Respondent contends that 

Complainant was discharged for insubordination and leaving 

the job site without permission. 

A hearing was held, pursuant to notice, in Georqetown, 

South Carolina, on March 26, 1981. Lawrence Snider, Mark 

Martin, Evelyn Statz, Johnny Howard, and Ezra Lee Killian, a 

Federal Mine Inspector, testified for Complainant. Jackie 

.Wilson, Eddie Mazyck, Buck Ridgeway, David Foy, Plant Fore-. 

man for Respondent, and David Brisley, Plant Manager, testified for Respondent. Both parties have submitted post 

hearing briefs. Based on the record and the contentions of 

the parties, I make the following decision. 

FINDINGS OF FACT 

1. Martin-Marietta operates a rock quarry in Jamestown, 

South Carolina which produces crushed stone for the construction industry. Johnny Howard was employed there from 

June 1977 until July 31, 1979. At various times, he operated a front-end loader, a bulldozer, and a· drag line. From 

Ap;ril 1979 to the date he was discharged, he operated a 

front-end loader. 

1599 
2 

2. Soon after his employment began, Howard experienced 

problems -with.the 980 front-end lo~der to which he was 

assigned. He periodically notified management that the 

brakes did not perform properly and management adjusted 

them. The adjustments would last no more than a day before 

the brakes became faulty again. This was a source of concern to Howard, for he believed the brakes were bey6nd 

repair. 

3. The loader's faulty brakes created a safety hazard. 

The physical exertion required to operate the loader tended 

to aggravate Howard's back condition, which was known to 

management. The procedure required to keep the loader 

stable while loading trucks was so unwieldy that the operator risked dropping the load or running into the truck. 

4. Howard arrived at work at about 6:00 a.m. on July 24, 

1979. He loaded 3 or 4 trucks and found that the loader had 

no brakes. μe became angry, and toid his foreman, David 

Foy, that the loader still was not working properly and he 

was leaving to call the Occupational Safety and Health 

Adm~nistration (OSHA). Foy, aware of Howard's anger and 

believing he might be quitting, acquiesced in Howard's 

decision to leave. 

5. As he.was leaving the premises, Howard met Plant 

Manager David Brisley, who asked him where he was going. He 

told Brisley that he was dissatisfied with the brakes on the 

loader and was leaving to call OSHA. Brisley urged him to 

stay and help repair the loader but he refused. 

6. Howard called OSHA while off the premises. OSHA 

ref erred his complaint to MSHA. He returned to work at 

approximately 3:00 p.m. and waited for 45 minutes outside 

Foy's -office, intending to talk to him. Foy did not emerge 

and, because it was then quitting time, Howard left. 

7. The next day, Howard returned to work and began to 

operate another front-end loader. He found its brakes too 

tight and decided to postpone work until Foy arrived. When 

Foy arrived, Howard asked him what he should do. Foy told 

him that he thought he had quit or had been fired, so Howard 

left the premises. He stopped at a nearby store. Brisley 

found him there and asked him to return to Brisley's office. 

Once there, Brisley told him that the company did not seem 

to be. able to satisfy him, that he was making people mad at 

'him, that he had few friends left at the company, and that 

he ought to seek other employment. Brisley told him to take 

the day off. Later, he advised him to return on July 31, 

1979, when the company would decide what to do with him. 

1800 
3 

-a. On Juiy 25, 1979, MSHA inspector Ezra Lee Killian, 

responding to Howard's reque.st for an inspection, issued a 

ci.tationi70 the company for failin,9 to tag out Howard's 

loader. -

9. Howard returned to the quarry on July 31, 1979, and was 

told that he· was being t.erminated, according to Brisley, 

"for leavi~q the job and insubordination with the plant 

foreman." - 1 

STATUTORY PROVISION 

Section 105 (c) (1), 30 U.S.C. § 815 (c) (1), reads 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 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 evalua 

tions 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 employ- ~nent on behalf of himself or others of any 

statutory right afforded by this Act. 

!/ The inspector did not state when he arrived at the 

quarry or when he issued the citation and the citation was 

not introduced in evidence. 

2

1 Martin-Marietta seems not to- have reduced this termination to writing. If it did, it did not introduce it in 

evidence. 

lBO.l 
4 

ISSUE 

Did Martin-Marietta violate § 105\c) when it discharged 

Johnny Howard? 

DISCUSSION 

In Secretary of Labor, ex· rel. Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980), the Commission announced 

a four-part test for weighing the evidence in a discrimination case. Id. at 2799-2800. To establish a prima facie 

case, Howardrnust show that he engaged in protected activity 

which played some role in the decision to fire him. 

Howard's complaints about the brakes on his loader were 

certainly protected by§ 105(c). The parties agree that the 

brakes were often faulty. The risk of harm this posed to 

individuals operating the loader or working near it is 

uncertain, but § 105(c) protects a miner when he notifies 

his employer of an "alleged" danger. 

It is equally clear that Howard's call to OSHA was protected by§ 105(c). The statutory right to request a safety 

inspection is the centerpiece of the Mine Act. 30 u.s.c. 

§ 813(g). Congress believed that "[i]f our national mine 

safety and health program is to be truly effective, miners 

will have to play an active part in the enforcement of the 

Act." S. Rep. No. 95-181, 95th Cong., 1st Sess., at 35, 

reprinted in (1977) U.S. CODE CONG. & AD. NEWS at 3435. It 

is immaterial that Howard called OSHA rather than MSHA. A 

layman cannot be expected to be familiar with the jurisdictional boundaries between the two agencies. 

The more difficult issue is whether Howard's absence 

from work on July 24, 1979, was protected by§ 105(c). His 

absence actually resulted from two events: his refusal to 

work on the loader and his departure from the premises to 

call OSHA. 

Howard's refusal to work on the loader was protected by 

§ 105(c). A miner may refuse an assigned task if he honestly and reasonably believes that the task is hazardous to 

him. Secretary of Labor, ex rel. Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (1981) .. Howard's good faith and 

reasonableness were corroborated by witnesses for MartinMarietta, who agreed that the brakes on the loader were 

faulty at the time he complained and on many previous occasions. The risk of harm posed by the faulty brakes is 

uncertain, but it is a fair inference that faulty brakes are 

a safety hazard. If it is reasonable to refuse to work on a 

machine that gives one a headache, Pasula, supra, at 2793, 

surely it is reasonable to refuse to work on a machine with 

faulty brakes. 

1602 
5 

Howard's departure from the premises on July 24, 1979, 

presents a close question. An employee has the right to 

remove himself from danger, but as a general rule, he is not 

protected when he leaves the premises, making himself unavailable for alternate work and disrupting production. 

However, Howard did more than simply leave the premises. 

Before he left, he told his foreman and the plant supervisor 

that he was leaving to call OSHA. He testified that he 

believed company policy prohibited him from using a phone on 

the premises for this purpose. Neither Foy nor Brisley disabused him of ·this belief. Had one of them informed Howard 

that he could call OSHA without leaving work, I might view 

his departure in a different light. But when a miner 

pelieves that there exists a situation requiring an immediate safety and health inspection, I hold that he has an 

absolute right to leave company property to call for an 

~nspection if he believes he cannot do so on company property. Martin-Marietta made no issue of the fact that Howard 

did not return until late in the afternoon. Therefore, I 

find that his absence from work from approximately 7:00 a.m. 

to 3:00 p.m. on July 24, 1979, was protected by§ 105(c). 

It is clear that Howard's protected activity played 

some role in the decision to discharge him. Brisley testified that "he was terminated for leaving the job and for 

insubordination with the plant foreman." Tr. at 165. 

"Leaving the job" obvi·ously refers to Howard's conduct on 

July 24, 1979. 

Martin-Marietta may affirmatively defend by showing 

that Howard engaged in unprotected activity and that he 

would have been fired for that activity alone. Pasula, 

supra, at 2799-2800. It has pointed to a number of factors 

which supposedly contributed to its decision to discharge. 

Brisley alleges that Howard had a drinking problem. However, he was disciplined for this months before the incident 

Jin question and there was no testimony that the alleged 

problem recurred. Howard once left work while he was on 

med~cation for his back problem. He testified that he had 

his supervisor's permission, however, and none of MartinMarietta's witnesses contradicted him. He left work one 

hight in October of 1978 because some truck drivers were 

teasing him. Brisley, however, came to his house to ask him 

~o r~tu7n ~ince he val~ed.him.as 7n employee. He received 

no discipline for the incident. - He left work on July 25, 

1979, soon after arriving in the morning. But he was told 

!/ "[I]f the unprotected activity did not originally 

concern the employer enough to have resulted in the same 

adverse action, we will not consider it." Pasula, supra, at 

2800. 

160B 
6 

by Foy that he had been fired or quit. Wh.en Brisley found 

him at the store and asked him to return, he obeyed. 

Th~ evidence simply does not support an inference that 

Martin-Marietta relied on any of these considerations when 

it fired Howard. Still, it did rely on "insubord~nation 

with the plant foreman," meaning his behavior toward Foy on 

the morning of ~?ly 24, 1979. Assuming that Howard was 

insubordinate, - I cannot conclude that he would have been 

fired if his insubordination had not been coupled with his 

departure from the premises to call OSHA. 

In my judgment, Howard was fired for requesting a 

safety inspection. I seriously doubt that there was even a 

"mixed motive" on the company's part, for while it has 

chronicled a number of unprotected activities, none of them 

played a role in Howard's discharge. Brisley's testimony 

shows that rather than invoking specific instances of misconduct, he told Howard that the company could not seem to 

satisfy hi~, that he was making people mad at him, that he 

was hurting feelings and losing friends. These remarks, 

coming so closely on the heels of Howard's announcement that 

he would call OSHA, lead me to believe that what upset 

Brisley was the fact that he had taken his complaint to 

"outsiders." Still, Brisley had apparently not decided what 

to do with Howard at the time he uttered these remarks. 

Only after the company had been visited and cited ~or a 

violation by an MSHA inspector did the company decide to 

discharge him. Under these circumstances, Respondent has a 

heavy burden to show that Howard would have been fired for 

reasons unrelated to his call for an inspection. It has 

failed to carry this burden. 

Therefore, I find that in discharging Howard, MartinMarietta violated§ 105(c). I will retain jurisdiction of 

this case until the relief to be awarded is determined. 

CONCLUSIONS OF LAW 

1. I have jurisdiction over the subject matter and 

parties to this proceeding. 

2. Martin-Marietta Corporation violated § lOS(c) of 

the Mine Act when it discharg,ed Johnny Howard on July 31, 

1979. 

~/ There is room for doubt on this matter. As commonly 

understood, insubordination is more than simply a display of 

anger and f.rustration directed at a machine and the company 

in general. It would seem to require some defiance or 

displeasure directed at a specific superior. 
7 

ORDER 

1. Martin-Marietta shall offer reinstatement to 

Howard i:r;i the position from which he was terminated, at the 

rate of pay fixed for that position on the date of reinstatement. 

2. Martin-Marietta shall pay to Howard back pay 

covering the period from July 31, 1979,-until the day he is 

offered reinstatement. Back pay equals the gross pay Howard 

would have received minus interim, earnings. Martin-Marietta 

shall be responsible for withholding from the award the 

amounts required by state or Federal law and for making any 

additional contributions which those laws require. Interest 

on the net back pay award shall be computed at, a rate of 6% 

for that portion attributable to the period July 31, 1979, 

through January 31, 1980, and 12% for the period thereafter. 

3. Martin Marietta shall pay a reasonable attorneys' 

fee for services rendered by counsel for Howard. 

4. Upon being notified that the decision 'in this case 

has become a final order of the Commission, the Secretary of 

Labor shall institute proceedings to assess a civil penalty 

against Martin-Marietta for the violation found herein. 

5. Martin-Marietta shall cease and desist from interfering with the rights of its employees covered by the Mine 

Act to bring safety or health complaints to the attention of 

state or Federal authorities. It shall post in a conspicuous place a notice that it has committed such a violation, 

that it will refrain from doing so in the future and that it 

e~courages its employees to exercise their rights under the 

Federal Mine Safety and Health Act. The notice shall be 

submitted to me for prior approval. 

6. Counsel for the parties shall advise me in writing 

by July 10, 1981, whether they have agreed on ths amounts 

due under paragraphs 2 and 3 of this order. If so, they 

shall subm,it those amounts to me together with the notice 

described in paragraph 5. Upon approval, I will issue an 

order which finally disposes of the present proceedings. If 

they a~e unable to agree, further post-hearing orders will 

be issued. 

--1c:uvAM ,/W3 n5 ~- ~ James A. Broderick 

Chief Administrative Law Judge 

Distribution: Next page. 

lflOb 
8 

Distribution: By certified mail. 

Nathan Kiminski, Jr., Esq., Attorney for Johnny Howard, Complainant, 

Schneider & O'Donnell, 601 Front Street, P.O. Box 662, Georgetown, SC 29440 

Elliott D. Light, Esq., Assistant General Counsel, Attorney 

for Martin-Marietta Corporation, 6001 Rockledge Drive, Bethesda, 

MD 20034 

Thomas A. Mascolino, Esq., Counsel for Trial Litigation, Office 

of the Solicitor, Division of Mine Safety, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Special Investigation, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

160(~ 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JU" 2 4 \g\\\ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. BARB 78-362-P 

A/O No. Ol-01310-02005V 

v. Gayossa Pit 

RON COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Murray Battles, Esq., Office of the Solicitor, U.S. 

Department of Labor, Birmingham, Alabama, for 

Petitioner; 

Ronald Morgan, President, Ron Coal Company, Inc., 

Jasper, Alabama, for Respondent. 

Judge Stewart 

The above-captioned case is a civil penalty proceeding brought 

pursuant to section 109 of the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 et ~· The hearing in this matter was held 

on May 11, 1981, in Birmingham, Alabama. 

The notice of violation at issue herein, Notice No. 5-A.B.C., dated 

March 2, 1977, was issued pursuant to section 104(c)(l) of the Act. The 

inspector cited 30 C.F.R. 77.1004(b) which reads as follows: 

Overhanging highwalls and banks shall be taken down 

and other unsafe ground conditions shall be corrected 

promptly, or the area shall be posted. 

The inspector described the condition or practice which led him to 

is~ue the notice of violation as follows: 

Unsafe conditions such as trees leaning over with 

roots pulled out of the ground were ~resent directly 

over the drill operator. The area had not been posted to 

keep persons from entering. The highwall was approximately 40 feet high. The tree was approximately 10 inches 

in diameter at the bottom. The drill operator was drilling 

a hole approximately 3 feet from the bottom of the wall. 

Notice No. 5 A.B.C. was terminated after the timely abatement of this 

condition. 

160? 
Inspector A. B. Cates conducted an inspection of Respondent's operation 

at the Gayossa Pit on the morning of March. 2, 1977. Ron Morgan, President 

of Ron's Coal Company, accompanied the inspector during his inspection. 

Both men testified at the hearing held in this matter. 

Respondent was mining in an area that had previously been mined by 

another company. At the time of the inspection, -Clyde Morgan, the father 

of Ron Morgan, was drilling a hole at the base of the highwall left by the 

earlier mining operation. The highwall was estimated to be between 35 and 

40 feet in height. The inspector observed a tree extending over the upper 

edge of this highwall above the area in which Clyde Morgan was drilling. 

The tree was approximately 40 feet high and 10 inches wide at its base. The 

inspector estimated that the tree extended 10 feet beyond the edge of the 

highwall. If the tree fell, it would have fallen into the pit. 

It is found that the overhanging tree presented a hazardous condition 

and that the failure to remove it or post the area was in violation of the 

cited standard. Ron Morgan testified that the tree had "been there" for 

a long time. The inspector, however, obseryed that one-half of the tree's 

roots were expo~ed. Furthermore, it had been raining prior to the inspection. 

As a consequence, the ground was "fairly wet" and the likelihood that the 

tree would fall was enhanced. In view of the inspector's uncontested 

testimony that an extensive portion of the root system of the tree was 

visible, Mr. Morgan's assertion that the tree was "just as solid as all the 

other trees in the forest" is rejected. 

It is also found that Respondent demonstrated a moderate d~gree of 

negligence in failing to remove the tree or post the area. The presence 

of the tree was readily observable. Even though the tree had "been there" 

for a long time, its condition was such that its stability should not have 

been presumed. 

It was probable that the tree would have f~llen into the pit sooner or 

later. It was improbable, however, that it would have caused injury to any 

of Respondent's employees. Respondent's employees took only one cut, and 

spent only part of one day in the vicinity of the overhanging tree before 

moving to "the other side of the hill." None of Respondent's employees 

drilled in the area in question again. 

The inspector testified that Clyde Morgan was drilling directly under 

the overhanging tree. Ron Morgan testified that drilling occurred 40 feet 

to one side of the tree. He qualified his testimony, however, by admitting 

that the tree could have struck the operator if it was forced in his direction. 

It is found that the drill operator was close enough to the tree while he was 

drilling to be threatened with injury .if the tree had fallen. It is also 

noted that there was nothing to prevent any of Respondent's employees from 

entering the area immediately below the overhanging tree. If the tree had 

fallen and struck someone standing underneath it, it is probable that the· 

injury would have been serious. 
Respondent demonstrated good faith in the abatement of the condition. 

Cl:yde Morgan cut the tree down immediately. It is noted that Respondent 

need only have posted the area to have met the·requirements of the mandatory 

standard. 

At the time the inspection was conducted, Respondent had 2 prior paid 

violations. The parties st~pulated that Respondent's prior history of violations was good,. It was a small operation with 5 employees and a daily output 

of 50 to 75 tons of coal. Finally, it was the unrebutted testimony of 

Ron Morgan that Respondent had cash flow problems and would have to borrow 

money against its assets. to pay a penalty. 

At the conclusion of the hearing, Petitioner moved that settlement in 

the amount of $175 be approved for the violation at issue herein. The 

violation had been assessed originally at $350. As grounds for the reduction 

in penalty amount, counsel for Petitioner asserted that the negligence 

demonstrated was "simple", that the violation was slightly s,erious, that 

Respondent demonstrated good faith in the abatement of the condition and 

that Respondent was a small operator. 

The motion for approval of settlement was granted at the conclusion 

of the hearing. The approval of the settlement is hereby AFFIRMED. 

ORDER 

IT IS ORDERED that Respondent pay the agreed upon sum of $175.00 within 

30 days of the date of this decision,:if payment has not already been made. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Murray A. Battles, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1929 Ninth Avenue South, Birmingham, AL 35205 (Certified Mail) 

Mr. Ronald Morgan, President, Ron Coal Company, Inc., Box 2282, 

Jasper, AL 35501 (Certified Mail) 

lfiOH 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 2 4 1981 

SECRETARY OF LABOR, Complaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF ~EONARD 

CUNNINGHAM, et al., 

Complainants 

v. 

SUBREG CORPORATION, 

Respondent 

Docket No. WEVA 80-668-D 

Alpine Mine 

DECISION AND ORDER 

The parties move to dismiss the captioned discrimination complaint 

on the ground that the matter has been settled by an agreement between 

the complainants and the operator dated June 4, 1981. 

Based on an independent evaluation and de novo review of the 

circumstances, I find the settlement proposed is in accord with the 

purposes and policy of the Act. 

Accordingly, it is ORDERED that settlement be, and hereby is 

APPROVED. It is FURTHER ORDERED that the operator pay the amount of 

the back pay and employment benefits stipulated to and'a penalty of $100 

on or before Wednesday, July 15, 1981 d that subject to payment the 

captioned matter be DISMISSED. 

Judge 

Distribution: 

Richard A. Steyer, Esq., Loomis, Owen, Fellman & Howe, 2020 K St., NW, 

Washington, DC·20006 (Certified Mail). 

Joyce Hamrla, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 

David E. Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Leonard Cunningham, Route 1, Box 161 A, Lost Creek, WV 26385 (Certified 

Mail) 

1610 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 2 4 \98l 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

DUCHARME SAND & GRAVEL, 

Respondent 

DECISION 

Docket No. YORK 80-55-M 

A.O. No. 27-00135-05002 

Ducharme Pit 

Appearances: Constance B. Franklin, Esq., U.S. Department of Labor, 

Boston, Massachusetts, for the petitioner; 

Before: 

Clifford R. Kinghorn, Jr., Esq., Nashua, New Hampshire, 

for the respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a~ 

of the Federal Mine Safety and Health Act of 1977, seeking civil penalty. 

assessments for 13 alleged violations of certain mandatory safety standards 

set forth in Part 56, Title 30, Code of Federal Regulations. Respondent 

filed an answer to the proposal, and pursuant to notice, a hearing was 

convened on June 2, 1981, in Lowell, Massachusetts, and the parties appeare~. 

and participated therein. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S .. C. § 801 et seq. 

2. Section llO(i) of the 1977 Ac,t, ~O u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of th~ Act and implementing regulations 

1611 
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-allged violation based upon the criteria set forth 

in section llO(i) of the Act. Additional issues raised by the parties 

are identified and disposed of where appropriate in the course of this 

decision~ 

In determining the amount of a civil penalty ·assessment, section llO(i) 

of the Act requi~es consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of such 

penalty tQ the siz_e of the business of the operator, (3) whether the 

operator was negligent, (4) the effect on the 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 violation. 

Stipulations 

The parties stipulated to the following: 

1. Respondent is subject to the provisions of the Act and to the 

enforcement jurisdiction of the petitioner. 

2. The citations in question were issued by an authorized representative 

of the Secretary of Labor and duly served on the respondent. 

3. The respondent is a small family-owned sand and gravel operator 

employing approximately seven full-time employees. 

Discussion 

The respondent in this case is charged with 13 alleged violations 

of certain mandatory safety standards found in Part 56, Title 30, 

Code of Federal Regulations. The citations and conditions or practices 

cited are as follows: 

1. 208669, 9/13/79, 30 CFR 56.9-87 

The Caterpillar 980 B S/N 89P 2580 front-end loader was 

not provided with an automatic reverse signa_l. The. loader 

was observed operating in close proximity to two welders 

that were prefabricating steel on ground level. 

2. 208670, 9/13/79, 30 CFR 56.9-2 

The Caterpillar 480-B 89P 2580 front-end loader was not 

provided with a working secondary braking system able to 

hold the equipment on the primary crusher hopper ramp. 

1 {) l ::· 
3. 208671, 9/13/79, 30 CFR 56.12-32 

Inspection electrical box covers were not replaced on the 

following areas after repairs had b'een made. Primary 

feeder vibrator, primary crusher motor, primary conduit ·elbow 

at crusher motor, and the secondary crusher. 

4. 208672, 9/13/79, 30 CFR 56.14-1 

The primary cr4sher counterweight was not provided with 

a guard. The work platform led an employee right up to the 

rotating coun.terweight. 

5. 208673, 9/13/79, 30 CFR 56.14-1 

The primary crusher flywheel and V-belt drive were not provided with a guard. The crusher work platform was so constructed 

that an employee could make physical contact. 

6. 208674, 9/13/79, 30 CFR 56.11-1 

Safe access was not provided to service ~he following conveyor 

headpuileys. The mine operator will have to survey the entire 

plant for other areas. 

Citation 208674 was subsequently modified by the inspector on 

9/17/79, as follows: 

The citation should read as follows. Safe access was 

not provided to service the following conveyor headpulleys. No. 1 conveyor, return conveyor, radial 

stacker feeder, and the radial stacker. The 

mine operator will have to survey the entire plant 

for other effected [sic] areas. 

7. 208675, 9/13/79, 30 CFR 56.9-7 

An automatic emergency stop device or a guard was not provided for both sides of return conveyor troughing idlers. 

8. 208676,. 9/13/79, 30 CFR 56.9-7 

An automatic emergency stop devi~e or a guard was not 

provided for the radial stacker feed conveyor troughing idlers. 

9. 208677, 9/13/79, 30 CFR 56.14-1 

An adequate tail pulley guard was not prdvided for the radial 

stacker feed conveyor. Back and top section missing and side 

sections were not covering the pinch point and tail pulley blades. 
10. 208679, 9/13/79, 30 CFR 56.14-1 

The Caterpillar 966-B S/N 75A 4309 front-end loader was not 

provided with an automatic reverse signal. 

11. 208679, 9/13/79, 30 CFR 56.14-1 

An adequate tail pulley guard was not provided for the return ,.. conveyor. Back and top sections were missing. 

12. 208680, 9/13/79, 30 CFR 56.14-6 

The front section of V-belt drive guard· was not replaced on 

the 3 foot telsmith crusher. 

13. 308681, 9/13/79, 30 CFR 56.9-22 

Berms were not provided on the primary hopper dumping ramp. 

Both sides were elevated approximately fifteen feet. 

Testimony and evidence presented by the petitioner 

MSHk Inspector Donald C. Fowler confirmed that he issued Citation No. 

208669, on September 13, 1979, after conducting an inspection of respondent's 

mining operation. He also confirmed the fact that he was accompanied on his 

inspection by a representative of the respondent company and he co~firmed 

that he issued the remaining citations which are in issue in these 

proceedings. Mr. Fowler testified as to the conditions which he found 

and which prompted him to issue the citation for a lack of a reverse 

backup alarm on the front-end loader in question, including his opinion 

concerning the gravity of the conditions cited as well as the question 

of negligence and good faith compliance on the part of the respondent. (Tr. 27-58). 

Testimony and evidence presented by the respondent 

Mine Operator Walter Ducharme cqnfirmed that he is a co-owner of the 

respondent mining company, and he testified concerning the circumstances 

surrounding the issuance of Citation No. 208669._ He indicated that the 

front-end loader in question had a factory-installed backup alarm, but 

that a wire had become disconnected and rendered it inoperative when 

the inspector observed it in operation. He also alluded to the fact that 

he was requested by a local town councilm~n to disconnect the backup 

alarms because they were making·too much noise and resulted in complaints _ 

from persons living in a near-by town. Mr~ Ducharme disputed the inspector's 

contention that two welders working near the loader were placed in a 

hazardous position by the lack of a backup alarm and he indicated that the 

workers were some distance away working behind a steel structure which 

isolated them from any possibility of being run· over by the loader in 

question (Tr. 61-78). 

1614 
Subsequent settlement disposition of the citations 

At the conclusion of the testimony and evide.nce concerning the first 

cited citation, and at the request of the parties, I rendered a tentative 

bench decision wherein I advised the parties that I believed the evidence 

established the fact of violation, that the violation resulted ~ram ordinary 

negligence, that it was serious, and that the respondent exhibited rapid 

good faith compliance in achieving abatement of the conditions cited. 

I also made tentative findings concerning the size of respondent's operation, 

the effect of the penalties on respondent's ability to remain in business, 

and an initial finding that the history of prior violations would not 

warrant any increases in the penalties assessed in this case. 

The -parties were afforded an opportunity to confer with each other 

out of the presence of the court for the purpose of finalizing a proposed 

settlement, and pursuant to Commission Rule 29 CFR 2700.30, were afforded 

an opportunity to present their oral arguments in support of a settlement 

of all of the citations in issue in this case for my consideration, and 

these arguments were made on the record (Tr. 79-88). In addition, the 

parties stipulated as to the authenticity and admissibility of copies 

of all of the citations and abatements issued in this case, including copies 

of the inspector's narrative statements pertaining to each citation 

wherein the inspector comments on the questions of gravity, negligence, and 

good faith compliance as to each of the citations (exhibits G-1 through G-13). 

After careful consideration of the arguments p~esented by the petitioner 

in support of the proposed settlement, including a consideration of the 

pleadings and exhibits, which are a part of the record in this case, I have 

made the following findings and conclusions concerning the statutory civil 

penalty assessment criteria found in section llO(i) of the Act. 

Fact of violations 

Respondent has conceded the fact of violation as to each of the 

citations issued in this case, and they are AFFIRMED. 

Size of Business and Effect of Civil Penalties on Respondent's Ability 

to Remain in Business 

The parties stipulated that the respondent is a small family-owned 

sand and gravel company employing seven full-time employees. Although 

respondent indicated that it has a "marginal" operation, no evidence 

was presented that the assessment of the civil penalties for the citations 

in question will adversely affect·its ability to remain in business and 

I conclude that they will not. 

Good faith compliance 

Petitioner agreed that the conditions and practices cited by the 

inspect<"l'.' in each of the citations issued in this case were abated in 

good faith by the ".'espondent prior to the time fixed by the inspector. I 

conclude that resi:Jondent exercised rapid good faith compliance in abating 

the citations issued and have considered this fact in approving the 

settlement disposition of' the citations in question. 

1 1.' 1 r:· . 0 . ,) 
History of Prior Violations 

Petitioner stated that the respondent had been served with two prior 

citations in July, 1978,, for alleged violations of 30 CFR 56.9-7 and 56.14-1. 

However, petitioner could not confirm that civil penalties were assessed 

or paid for those citations, and respondent asserted that the citations were 

subsequently dismissed, but could not confirm that fact. Under the circumstances, 

since there is no evidence of any paid prior citations, I can only conclude 

that respondent has no prior history of violations for purposes of the 

penalty assessments levied for the citations in question in this proceeding. 

Further 1 assuming that the respondent had paid the two previous assessments, 

I cannot conclude that two prior citations would warrant any additional 

increases in the assessments .for the citations in question here. 

Negligence 

I conclude and find that with the exception of Citations 208672, 208673, 

and 208679, the remaining citations resulted from the respondent's failure 

to exercise reasonable care to prevent the conditions cited and that this 

amounts to ordinary negligence. The three-citations listed concern 

violations of the guarding standards found in 30 CFR 56.14-1, and petitioner 

asserted that respondent had been led to believe by a prior inspection 

that the guards which were installed on the equipment cited by the inspector 

on September 13, 1979, were adequate. Under the_ circumstances, I cannot 

conclude .that respondent was negligent in those instances and I have considered 

this fact in approving the settlement dispositions for the citations in 

question. 

Gravity 

The information contained in the inspector's narrative statements 

fqr each of the cited violations reflects that all of the conditions and 

practices cited by the inspector were serious, and I adopt these observations 

by the inspector as my finding with respect to this question. 

Conclusion 

After careful review and consideration of the pleadings, arguments, 

and information of record in support of the proposed settlement, I conclude 

and find that it is reasonable and in the public interest. Accordingly, 

pursuant to 29 C.F.R. 2700.30, the settlement is APPROVED, and the citations, 

initial assessments, and the settlement amounts are as follows: 

Citation No. 

208669 

208670 

208671 

Date 

9/13/79 

9/13/79 

9/13/79 

30 CFR Standard 

56.9-87 

56.9-2 

56.12-32 

Assessment 

$ 60 

78 

40 

Settlement 

$ 35 

68 

30 
Citation No •• Date 30 CFR Standard Assessment Settlement 

208672 9/13/79 56.14-1 $ 36 $ 10 

208673 9/13/79 56.14-1 48 10 

208674 9/13/79 56.11-1 56 56 

208675 9/13/79 56.9-7 56 40 

208676 9/13/79 56.9-7 56 40 

208677 9/13/79 56.14-1 48 10 

208778 9/13/79 56.9-87 52 35 

208679 9/13/79 56.14-1 56 10 

208680 9./13/79 56.14-6 56 31 

208681 9/13/19 56.9-22 48 40 

$ 690 $ 415. 

Order 

Respondent IS ORDERED to pay civil penalties in the settlement 

amounts shown above in satisfaction of the citations in question within 

thirty (30) days of the date of this decision and order, and upon receipt 

of payment by MSHA, this.proceeding is DISMISSED. 

~~.~J~~ Administrative Law Judge 

Distribution: 

Clifford R. Kinghorn, Esq., Boyer, Kinghorn & Harkaway, 36 Chandler St., 

Nashua, NH 03060 (Certified Mail) 

Constance B. Franklin, Esq., U.S. Department of Labor, Office of the 

Solicitor, JFK Bldg., Govemment Center, Boston, MA 02203 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILLIA11 R. JEWETT, 

v. 

MISSOURI PORTLAND 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 25 9J1 

Complaints of Discharge, 

Complainant Discrimination, or Interference 

Docket Nos. DENV 79-3lf6-M and 

CENT 80-204-DM 

CEMENT COMPANY, 

Respondent Kansas City Mine and Plant 

DECISION DISMISSING COt1PLAINTS 

Counsel for respondent filed on June 8, 1981, in the above-entitled proceeding a copy of a release signed by complainant. The release states that 

complainant has released and forever discharged respondent from all suits, 

actions, causes of actions, damages, claims, or demands, in law or in equity, 

which complainant ever had, has, or hereafter might have, from the beginning 

of the world to the present time, with respect to any claims, including those 

involved in the complaints filed in this proceeding in Docket Nos. DENV 79-

346-M and CENT 80-204-DH. 

Complainant's release of all claims made in this proceed.ing are based 

on a settlement agreement between him and respondent dated May 21, 1981. 

That settlement agreement shows that respondent agreed to pay complainant 

$3,873.00 and agreed to abide by certain procedural matters in connection 

with an age discrimination complaint filed by complainant under the Age 

Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. 

A hearing was scheduled to be held in this pro~eeding on November 14, 

1979, but that hearing was indefinitely continued at complainant's request 

so that complainant could obtain an attorney to represent him at the hearing. 

After complainant had decided not to hire an attorney to represent him, the 

hearing was rescheduled to be held on October 15, 1980. The hearing was 

thereafter continued again at complainant's request because he stated that 

he was engaged in settlement negotiations with respondent. In the order 

granting the second continuance I specifically stated that complainant would 

b.e expected to file a request that his complaints be dismissed if he should 

reach a settlement with respondent. 

On December 17, 1980, respondent's counsel submitted for my approval a 

draft of a proposed settlement agreement. In a letter dated December 18~ 

1980, I returned the draft of the settlement agreement after I had signed 

the draft to indicate that it would.be a satisfactory method of discharging 

the complaints.filed in this proceeding. About 5 months after I had returned 

the draft of the settlement agreement, I wrote a letter dated May 11; 1981, 

in which I requested that an executed copy of the proposed release be sent 

to me along with a statement by complainant that he wished to have his complaints in this proceeding dismissed on the basis of the settlement agreement. 

Complainant ignored the letter of May 11, 1981, but respondent's counsel 

immediately replied to my letter by submitting on May 18, 1981, a copy of the 

1618 
settlement agreement and a letter in which he stated that complainant had 

apparently not yet signed the settlement agreement or release. On June 8, 

1981, counsel for respondent submitted a release signed by complainant on 

January 3, 1981. 

Complainant has still not filed a letter requesting that his complaints 

in this proceeding be dismissed, but the release sent to me by respondent's 

counsel shows that complainant has released respondent from any claims 

which could possibly be raised in this proceeding. Therefore, I find that 

the facts hereinbefore discussed support a conclusion that the complaints 

filed in this proceeding should be dismissed. 

WHEREFORE, for the reasons given above, it is ordered: 

The complaints of discharge, discrimination, or interferen~e filed in 

Docket Nos. DENV 79-346-M and CENT 80-204-DM are dismissed. 

Distribution: 

Richard 

~(]-~ C. Steffey7 

Administrative Law Judge 

(Phone: 703-756-6225) 

Mr. William R. Jewett, 4206 West 73rd Street, Prairie Village, Kansas 

66208 (Certified Mail) 

Lawrence E. Moncrief, Esq., Attorney for Missouri Portland Cement 

Company and H.K. Porter Company, Inc., Porter Building, Pittsburgh, 

PA 15219 (Certified Mail) 

lll1B 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BIG THREE COAL COMPANY, 

Respondent 

DECISION 

Docket Nos. Assessment Control Nos. 

KENT 80-289 

KENT 80-290 

KENT 30-324 

KENT 80-325 

KENT 80-329 

No. 1 Mine 

15-05179-03010 

15-05179-03012 

15-05179-03013 

15-05179-03014 

15-05179-03015 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Bafore: 

Charles E. Lowe, Esq., Lowe, Lowe & Stamper, 

Pikeville, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing dated November 17, 1980, as amended 

January 13, 1981, a hearing in the above-entitled proceeding was held in 

Pikeville, Kentucky, on March 5, 1981, under section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 315(d). 

The issues in civil penalty cases are whether violations of the mandatory health and safety standards occurred and~ if so, what civil penalties 

should be assessed, based on the six criteria set forth in section llO(i) 

of the Act. 

After the hearing had been convened i~ this proceeding, an inspector 

testified in support of Citation No. 703127 which alleged that respondent 

had violated 30 C.F.R. § 75.301 because the volume of air.in the last open 

crosscut was less than the minimum quantity of 9,000 cubic 'feet per minute 

required by section 75.301. The inspector stated that the air velocity was 

. so low that it would not turn the blades on his anemometer (Tr. 10-12). The 

inspector testified that he had gone to respondent's· No. 1 Mine to investigate 

a roof-fall accident. Hhile the inspector was in the mine, he wrote Citation 

No. 708127, but the inspector stated that the low air velocity in the last 

open crosscut had no bearing on the cause of the accident and that the citation should be considered as a routine citation written as if the inspector 

had been conducting a "spot" inspection, that is, an inspection other than 

the four regular inspections required each year by section 103(a) of the Act. 

The inspector did not consider the violation to be serious because no 

coal was being produced on the day the citation was written (Tr. 13-14). 
2 

The inspector stated that the anemometer w.ould not turn if the air velocity 

was less than 50 feet per minute. He concluded that the air velocity was 

somewhere between 0 and 50 feet per minute. He stated that other persons 

involved in investigatin& the accident were in the last open crosscut and 

that no one had any difficulty in breathing (Tr. 22-23). The inspector said 

that the cause of the air deficiency was the fact -that no curtain had been 

hung in the second open crosscut from the face and the lack of a curtain 

caused the air to be coursed from the second open crosscut to the return 

before being directed into the last open crosscut (Tr. 24). 

The inspector first based his belief that the violation was associated 

with ordinary negligence by stating that the preshift examiner should have 

noticed the lack of air in the last open crosscut and should have reported 

it to mine management, but the inspector retracted that claim after he 

acknowledged that the mine had been closed by an order written under section 

103(k) of the Act so that an investigation of the accident could be made. 

Since no one could have made a preshift examination while the mine was closed, 

the inspector was unable to say exactly how the operator could have known 

that a curtain had not been installed in the last open crosscut (Tr. 18). The 

inspector testified that the violation had been; corrected in less time than 

he had allowed for abatement in his citation (Tr •. 15). 

Larry Ratliff, who is a half owner of Big Three Coal Company, claimed 

that the curtain in the second open crosscut could have been knocked down 

between the occurrence of the accident on September 18, 1979, and the time 

that the inspector went into the mine the next day (Tr. 32). Although the 

inspector testified that occurrence of the accident had no bearing on the 

lack of a curtain in the second open crosscut, there is no real certainty 

as to whether the curtain had never been erected at all, or had been installed during the previous production shift and had been torn down after 

the accident occurred. · 

The evidence supports a finding that a violation of section 75.301 

occurred. As to the crit,eria of gravity and negligence, the evidence supports a finding that the violation was nonserious and that it was associated 

with a low degree of negligence in view' of the fact that neither the inspector nor the owner could say for certain that the curtain had been in place 

during the time that coal had last bee~ produced in the mine. 

After the parties had presented evidence with respect to the first violation alleged in this proceeding, Mr. VLarry Ratliff, who is half owner of 

Big Thre~ Coal Company, presented some detailed testimony bearing on the 

criteria of the size of respondent's business and whether the payment of 

penalties would cause respondent to discontinue in business. Mr. Ratliff 

testified that respondent had opened its mine in August 1979 and had closed 

the mine on June 15, 1980, after occurrence of~a massive roof fall which 

covered up respondent's continuous-mining machine, as well as a feeder and 

a shuttle car which respondent had been leasing from Island Creek Coal 

Company (Tr. 39). 

1H2J 
3 

Before respondent closed its mine, it had employed approximately 21 

miners and had produced about 150 tons of coal per day. Respondent was 

under contract to produce the coal for Island Creek Coal C~mpany. Island 

Creek paid respondent $19.25 per ton, less $4.80 per ton for such services 

as removal of impurities from the coal, and maintenance of a reclamation 

fund, providing electric power, and~use of bathhouse facilities. Respondent 

also had to pay all labor costs as·sociated with producing coal and pay for 

hauling the coal to Island Creek's prepearation plant (Tr. 37-39). 

Mr. Ratliff, in addition to having a 50-perce~t interest in Big Three 

Coal Company, also had a half interest in Vanhoose Coal Company. The Vanhoose 

Company stopped mining coal on April 4, 1980, and the 265 Lee Norse continuousmining machine being used by the Vanhoose Company was transferred to Big 

Three's Mine and Big Three assumed the payments on the Lee Norse whi.ch 

Vanhoose Company had been making prior to its discontinuance in business 

(Tr. 47). It was not possible to recover the continuous-mining machine 

after the massive roof fall occurred in respondent's mine. Respondent was 

also unable to recover a feeder and a shuttle car which were being leased 

from Island Creek. Mr. Ratliff testified that the cost of the timbers and 

other equipment required for recovering the equJpment was estimated to be 

$387,000, whereas the origi~al cost of the Lee Norse was $278,000. Respondent's insurance on the Lee Norse was sufficient to pay the remaining amount 

due on it as well as $49,000 in debts which respondent owed to Ingersoll 

Rand (Tr. a4; 46-47; 50). 

When Island Creek found that Mr. Ratliff was unable to recover its feeder 

and shuttle car which had been covered up by the roof fall, Island Creek 

cancelled its contract with Big Three Coal Company and Mr. Ratliff was unable 

to reopen the Big Tl:r.ee Hine at a different location. Mr. Ratliff's counsel 

mailed to me on May :..d, 1981, some financial data a:nd a copy of the only 

income tax return which Big Three has filed. The return covers the entire 

period that Big Three was in business. According to the tax return, Big Three 

incurred a net loss of $96,016.79. Other data submitted by respondent show 

that it has no assets to pay existing obligations amounting to $109,931.79. 

Respondent's counsel in this proceeding stated at the hearing that respondent planned to file a bankruptcy petition within a week or 10 days after 

the hearing was held on March 5, 1981 (Tr. 56). In a letter to me dated 

May 25, 1981, respondent's counsel stated that respondent still plans to 

file a bankruptcy petition in the near future. 

Mr. Ratliff now has no interest in any active coal mine (Tr. 35). He is 

now running a hardware store (Tr. 30) and Mr. Ratliff does not plan to mine 

coal at any time in the future. His position as to the business of producing 

coal was given at the hearing (Tr. 52): 

I would like to state it for the record, my feelings right 

to this day, if there is never another lump of coal mined until 

I have got any part in it, they will never mine another lump. 

1622 
4 

When the -evidence summarized above was obtained at the hearing, I asked 

Mr. Ratliff why he thought that any worthwhile good would be accomplished by 

having inspectors testify as to the remaining 25 violations involved in this 

consolidated proceeding in view of the fact that his only defense was inability to pay penalties. His reply to that question was (Tr. 53): 

Well my feeling is Big Three has no assets. He have got 

nothing that anybody can get. If Big Three had anything we would 

be more than happy to sell it and pay these debts. But we just don't 

have anything. 

The evidence in this proceeding shows that respondent did not request 

a hearing because it wishes to contest whether the violations occurred, but 

simply wanted to present evidence to show that respondent would be unable 

to pay penalties even if it agreed to a settlement under which it would pay 

a portion of the amounts proposed by the Assessment Office. Although respondent has not yet filed a petition in bankruptcy, there is no reason to doubt 

its statement that it is planning to do so. If large penalties were to be 

assessed, the Department of Labor could collect them only by filing as a 

creditor in the bankruptcy proceeding because respondent's evidence indicat·es that it has no assets which could be seized and sold in order to 

collect the penalties. Even if some assets could be discovered in the bankruptcy proceeding, the collection of large civil penalties would reduce the 

amount which other creditors could obtain. Since Mr. Ratliff is out of the 

coal business and does not intend to resume the business of producing coal, 

assessment of large penalties would have no deterrent effect because he 

would not personally be.paying the penalties from any assets which he has 

not already lost from his venture into the coal business. 

I stated at the hearing that I would review the citations and order 

which are the subject of the five Proposals for Assessment of Civil Penalty 

and would reduce the penalties "by a considerable amount'' in light of the 

fact that respondent is out of business and has no assets from which penalties can be paid (Tr. 56). If inspectors had been called to testify as· ·to 

each of the 25 alleged violations as to which no testimony was taken, a 

period of about 2 hearing days would have been required. Even if all of 

the violations had been shown to have been very serious and to have been 

accompanied with gross negligence, I would still have felt obligated to 

assess relatively small penalties because a small company is involved and 

because it is no longer in business and has no assets from which penalties 

can be paid. Therefore, the remaining portion of this decision will consist 

of a brief review of the total violations alleged in this proceeding and a 

tabulation listing the alleged violations and the amount of the penalty 

assessed for each violation, based on the six criteria. 

Docket No. KENT 80-289 

The first violation alleged by the Proposal for Assessment of Civil 

Penalty filed in Docket N.o. KENT 80-289 was the violation of section 75.301 

which was the subject of considerable testimony in this proceeding, as su~­

marized in the first part of this decision. I have already found that the 

violation was nonserious in the circumstances and that there was a low 

1623 
5 

degre~ of negligence. The violation .was abated in less time than the irtspector provided, and after it was abated, respondent was supplying a 

volume of 34,000 cubic feet per minute to the last open crosscut. Those 

facts support a finding that respondent demonstrated better than a normal 

effort to achieve compliance and that the penalty otherwise assessable 

should be reduced by a small amount under the criterion of good-faith abatement. Respondent's witness stated that respondent had not previously been 

cited for a violation of section 75.301. The foregoing "'findings, plus 

additional considerations as to respondent's small size, and. adverse financial condition, war.rant assessment of a civil penalty of $10 for the violation of section 75.301 alleged in Citation No. 708127. 

No te$timony was received with respect to the remaining three violations 

alleged in Docket No• KENT 80-289. Citation No. 708128 alleged a violation 

of section 75.1702 because the intake air escapeway was not properly separated from the conveyor belt entry because of respondent's failure to 

erect a stopping outby the belt tailpiece. The Assessment Off ice considered that the violation resulted from o_rdinary negligence, that it was very 

serious, and proposed a penalty of $114. The Assessment Office did not 

reduce the penalty under the criterion of good-faith abatement even though 

the violation was abated in less time than provided.for by the inspector. 

The Assessment Office shows assignment of no penalty points under the criterion of history of previous ·violations for any of the violations alleged 

in Docket No. KENT 80-289 because all of the violations were written in 

September 1979 shortly after respondent commenced producing coal. 

Citation No. 707945 alleged a violation of section 75.200 because 

respondent failed to install reflectors at the last row of roof supports. 

The Assessment Office considered that the violation was the result of ordinary negligence, that it was moderately serious, and proposed a penalty of 

$44. The Assessment Office did not reduce the penalty under the criterion 

of good-faith abatement although respondent ?bated the violation in 15 minutes 

which was 10 minutes less than the time given by the inspector. 

Citation No. 707946 alleged a violation of section 75.604(a) because a 

permanent type splice in the trailing cable to the coal drill was not mechanically strong and lacked adequate electrical conductivity and flexibility. 

The Assessment Office considered that the violat~on was th~ result of ordinary negligence, that it was moderately serious, and proposed a penalty of 

$66. Abatement was performed within the 30 minutes provided for by the . 

inspector. 

I find that the three violations, as to which no testimony was received, 

occurred. The penalties proposed by the Assessment Off ice are a litttle on 

the high side for failure to give respondent due credit for rapid abatement. 

Of course, the Assessment Office had no evidence as to respondent's financial 

condition. My order will hereinafter show reductions in the total penalties 

of $290 proposed.by the Assessment Office to a total of $122, or approximately 

50 percent, based on the fact that respondent is out of business and has no 

assets from which penalties can be collected. Of coμrse, the penalty of $10 

assessed for the violation of section 75.301 is based on evidence received 

at the hearing and does not have to be compared to the penalty proposed by 

the Assessment Office. 
Docket No. KENT 80~290 

The Proposal for Assessment of Civil Penalty filed in Do~ket No. KENT 

80-290 alleged occurrence of five violations. Citation No. 725312 alleged 

a violation of section 77.701 because respondent had failed to provide a 

frame ground for a-starter box. Citation No. 725313 alleged a violation 

of section 77.506 because respondent had used a solid wire, instead of a 

fuse, for the wire supplying power to the office and supply trailer. 

Citation No. 725314 a,lleged a violation of section 75.902 because a failsafe ground check monitoring circuit had not been provided for, the power 

circuit for the feeder on the conveyor beilt. Citation No. 725315 alleged 

a violation of section 75.1722 because respondent had failed to provide a 

protective guard for the conveyor drive chain on the feeder. Citation No. 

725316 alleged a violation of section 75.518 because respondent had used 

~ solid wire, in lieu of a fuse, for the wire providing power to the control 

transformer. The Assessment Office found that all of the violations re-

· sulted from ordinary negligence and found that the use of solid wires, instead of fuses, was the result of a very high degree of ordinary negligence. 

All· of the violations were properly considered to be serious. The Assessment Off ice appropriately reduced the penalties for the violations of 

sections 77.701 and 75.518 because they were abated rapidly. Finally, the 

Assessment Office assigned an amount of $8 to each penalty under the criterion of history of previous violations. 

The Assessment Office· proposed penalties of $52, $106, $56, $90, and $98, 

respectively, or a total of $402, for the five violations alleged in Docket 

No. KENT 80-290. I find that the Assessment Office proposed penalties 

which are well supported by the facts alleged in the citations. I find that 

all five violations occurred, but my order will hereinafter provide for 

reductions of approximately 50 percent in each of the penalties, or a total 

of $201, because_ of the fact that respondent is out of business and has no 

assets from which penalties can be coll~cted. 

Docket No. KENT 80-324 

The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80-

324 seeks assessment of civil penalties for eight alleged violations. Citation 

No. 709045 alleged a violation of section 75.1725 because a snuttle car lacked 

operable headlights and was, therefore, not maintained in a safe operating 

condition. Citation No. 708057 alleged· that respondent had violated s.ection 

77.1107 by failing to provide a slippage switch to stop the No. 1 belt auto-

·matically in case of excessive slippage: Citation No. 708059 alleged a 

violation pf section 75.1102 for failure to provide ~ slippage switch for 

the No. 2 belt head. Citation No. 705980 alleged a violation of section 

75.316 because respondent had not erected permanent_ brattices as close to 

the working face as is required. Citation No. 707996 alleged a violation of _,,, 

section 75.400 because respondent had allowed loose coal, float coal dust, 

oil cans, and paper boxes to accumulate for a distance of about 1200 feet in 

the No. 4 entry and adjoining crosscuts. Citation No. 707997 alleged a violation of section 75.200 because respondent had failed to provide additional 

supports in an area which was 28 feet wide. Citation No. 725317 alleged a 

violation of section 75.1710-1 because respondent had failed to provide a 

1625 
7 

cab or canopy for a shuttle car being used in 60-inch coal. Citation No. 

725318 alleged a second violation of section 75.1710-1 because respondent 

had failed to provide a canopy for its other shuttle car being used in 60-

inch coal. 

The Assessment Office considered that all of the eight violations 

were the result of ordinary negligence. All of the violations were considered to be serious or very serious. Respondent was given no credit for 

rapid abatement and the Subsequent Action she.ets show that no extraordinary 

effort was made to abate any of the violations. Finally, the Assessment 

Office assigned $8 to each penalty under the criterion of history of previous 

violations. 

I find that all eight violations occurred and that the Assessment Office 

proposed penalties which are supported by the conditions described in each 

of the citations. The penalties proposed by the Assessment Office were 

$78, $44, $150, $114, $225, $106, $90, and $90, respectively, or a total of 

$897, for the eight violations discussed above. My order will hereinafter 

reduce the penalties by approximately 50 percent to a total of $449 because 

of the fact that respondent is out of business and has no assets from which 

penalties can be collected. 

Docket No. KENT 80-325 

The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80-

325 alleged occurrence of seven violations. Citation No. 708054 alleged a 

violation of section 75.1710-1 because a canopy had not been installed on a 

cutting machine being used in 60-inch coal. Citation No. 70.8056 alleged· 

a violation of section 75.1710~1 because a canopy had not been installed on 

a shuttle car being used in 60-inch coal. Citation No. 709043 alleged a violation of section 75.313 because the methane monitor on the loading machine 

was not in operable condition. Citation No. 707989 alleged a violation of 

section 75.1725 because from 30 to 40 bottom rollers on the No. 2 conveyor. 

belt were stuck. Citation No. 707998 alleged a violation of section 75-1710-1 

because the canopy had been removed from the loading machine; the violation 

was abated by removal of the cutting machine from mine property. Citation 

No. 726231 alleged a violation.of section 75.1100-l(b) because respondent 

had failed to provide a waterline for firefighting purposes along the conveyor belt for a distance of about 800 feet. Citation No. 726234 alleged 

a violation of section 75.326 because air being used to ventilate the Nos. 1 

and 2 conveyor belts was traveling in reverse direction, the condition being 

the result of· adverse roof conditions and water seepage. 

The Assessment Off ice found that all of the violations were the result 

of ordinary negligence and that all of them were serious or moderately serious. 

The Assessment Office appropriately reduced no penalties because of respondent's 

having showh a rapid effort to achieve compliance. The Subsequent Action 

sheets show that no extraordinary effort was made to achieve compliance in 

any case. Finally, the Assessment Office assigned $8 to each penalty under 

the criterion of respondent's history of previous violations. The Assessment 

Office proposed penalties of $90, $90, $44, $52, $78, $72, and $150, respectively, or a total of $576, for the seven violations. 

1C2f· 
8 

It should be noted that Citation No. 726231 incorrectly alleged a violation of section 75.1100-l(b). That subsection refers to portable water 

cars, whereas the condition described in the citation was that respondent 

had failed to provide a waterline along a conveyor belt. A waterline is 

required by section 75.1100-2(b). Inasmuch as the Subsequent Action sheet 

terminating the citation shows that respondent did provide a waterline, 

there is no doubt but that respondent was aware of the section of the regulations with which it was required to comply. The Commissi~n held 'in 

Jir.i Walter Resources, Inc., 1 FMSHRC 1827 (1979), that a citation should 

not be vacated simply for failure to show the exact section of the regulations which has been violated, so long as the citation is sufficiently specific to explain to the operator the condition which is considered to be 

hazardous and which needs to be corrected. Therefore, my order in this 

proceeding will amend Citation No. 726231 to cite a violation of section 

75.1100-2(b) instead of section 75.1100-l(b). My order will also amend the 

Proposal for Assessment of Civil Penalty so as to allege a violation of 

section 75.1100-2(b) and will assess a penalty for a violation of section 

75.1100-2(b) instead of a penalty for a violation of section 75.1100-l(b). 

I find, after making the correction discussed in the preceding para~ 

graph, that all seven violations occurred and that the Assessment Office · 

proposed appropriate penalties in each instance. My order will hereinafter 

assess total penalties of $288 which are 50 percent less than those proposed 

by the Assessment Office because of the fact that respondent is out of 

business and has no assets from which penalties can be collected. 

Docket No. KENT 80-329 

The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80-

329 seeks assessment of civil penalties for two alleged violations of section 

75.200. The first violation was alleged in Citation No. 726230 which stated 

that respondent had failed to follow its roof-control plan by not installing· 

straps or crossbars for a distance of about 60 feet. The second violation 

of section 75.200 was cited in Order of Withdrawal No. 726235. issued under 

the inuninent-danger provisions, or section 107(a), of the Act. The violation 

alleged in the order was that respondent had removed seven cuts of coal from 

the.Nos. 4 and 5 pillar blocks and had installed only four breaker posts, 

whereas the roof-control plan requires installation of eight breaker posts 

and a row of line timbers installed on 4-foot centers. 

The Assessment Office found that the first violation of section 75.200 

was the resul~ of ordinary negligence, that it was moderately serious, and 

proposed a penalty of §98. The Assessment Office found that the second 

violation of section 75.200 was the result of gross negligence, was very 

serious, and proposed a penalty of $445. 

I find that both violations of section 75.200 occurred and that the 

Assessment Office appropriately evaluated the criteria in proposing the 

total penalties of $543 described above. My order will hereinafter reduce 

the proposed penalties to $272, or by about 50 perdent, because respondent 

is no longer in business and has no assets from which penalties can be 

cqllected. 

162'i 
9 

WHEREFORE, for the reasons hereinbefore given, it is ordered: 

(A) The Proposal for Assessment of Civil Penalty filed in Docket No. 

KENT 80-325 is amended to show that it seeks a penalty for a violation of 

30 C.F.R. § 75.1100-2(b) instead of 30 C.F.R. § 75.1100-l(b) and Citation 

No; 726231 is amended to show that it alleges a violation of 30 C.F.R. 

§ 75.1100-2(b) instead of 3o' C.F.R. § 75.1100-l(b). 

(B) Within 30 days from the date of this decision, respondent shall 

pay civil penalties totaling $1,332.00. The penalties assessed herein 

are allocated to the respective violations as follows: 

Docket No. KENT 80-289 

Citation No. 708127 9/19/79 § 75.301 . ..................... $ 10.00 

Citation No. 708128 9/19/79 § 75.1707 . .................... 57.00 

Citation No. 707945 9/24/79 § 75.200 . ..................... 22.00 

Citation No. 707946 9/24/79 § 75.604(a) . .................. 33.00 

Total Penalties Assessed in Docket No. KENT 80-289 ........ $ 122.00 

Docket No. KENT 80-290 

Citation No. 725312 1/28/80 § 77. 701 . .... ·• ................. $ 26.00 

Citation No. 725313 1/28/80 § 77. 506 . ..................... 53 .oo 

Citation No. 725314 1/29/80 § 75.902 . ..................... 28.00 

Citation No. 725315 1/29/80 § 75.·1722 . .................... 45.00 

Citation No. 725316 1/29/80 § 75.518 . ..................... 49.00 

Total Penalties Assessed in Docket No. KENT 80-290 ........ $ 201.00 

Docket No. KENT 80-324 

Citation No. 709045 10/12/79 § 75.1725 . .............. • ..... $ 39.00 

Citation No. 708057 10/16/79 § 77 .1107 . ................... 22.00 

Citation No. 708059 10/16/79 § 7 5 .1102 . ................... 75.00 

Citation No. 705980 1/3/80 § 75.316 . ...................... 57.00 

Citation No. 707996 1/29/80 § 75.400 . ..................... 113.00 

Citation No. 707'997 1/29/79 § 75.200 . ..................... 53.00 

Citation No. 725317 1/29/80 § 75.1710-1 . .................. 45.00 

Citation No. 725318 1/29/80 § 75.1710-1 . .................. 45.00 

Total Penalties Assessed in Docket No. KENT 80-324 ........ $ 449.00 

Docket No. KENT 80-325 

Citation No. 708054 10/12/79 § 75.1710-1 . ................. $ 45.00 

Citation No. 708056 10/12/79 § 75.1710-1 . ................. 45.00 

Citation No. 709043 10/12/79 § 75. 313 . .................... 22.00 

Citation No. 707989 10/17/79 § 75.1725 . ................... 26.00 

Citation No. 707998 1/29/80 § 75.1710-1 . .................. 39.00 

Citation No. 726231 5/5/80 § 75.1100-2(b) . ................ 36.00 

Citation ~o. 726234 5/6/80 § 75.326 . ...................... 75.00 

Total Penalties Assessed in Docket No. KENT 80-325 . ....... $ 288.00 

lfi2H 
10 

Docket No. KENT 80-329 

Citation No. 726230 5/5/80 § 75.200 .•••••••••••••••••••••• $ 

Order No. 726235 5/12/80 § 75.200 ••...•••••••..••••.•••••• 

Total Penalties Assessed in D.ocket No. KENT 80-329 • • • • • • • • $ 

49.00 

223.00 

272.00 

Total Civil Penalties Assessed in This Proceeding ••••••.•• $1,332.00 

Distribution: 

~ c' o:f*P"V_ .. Richard C. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 

Darryl•A. Stewart, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Charles E. Lowe, Esq., Attorney for Big Three Coal Company, Lowe, 

Lowe & Stamper, P.O. Box 69, Pikeville, KY 41501 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · JUN 251981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAL~TY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PIKEVILLE COAL COMPANY, 

Respondent 

DECISION 

Docket No. KENT 81-12 

Assessment Control 

No. 15-12272-03002 

Chisholm Mine No. 2 

Appearances: George Drumming, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Before: 

John M. Stephens, Esq., Stephens, Combs & Page, 

Pikeville, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued March 12, 1981, a hearing in the 

above-entitled proceeding' was held on May 7, 1981, in Prestonsburg, Kentucky, 

under section 105(d) of the F7deral _Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(d). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below (Tr. 84-95): 

This hearing involves a Proposal for Assessment of Civil Penalty 

filed on November 21, 1980, by the Secretary of Labor in Docket No. 

KENT 81-12, seeking to have a civil penalty assessed for an alleged 

violation of 30 c.F.R. § 75.1101 by Pikeville Coal Company. 

The issues in a civil penalty case are whether a violation of the 

mandatory safety standards or the Act occurred and, if so, what penalty 

should be assessed, based on the s~x criteria set forth in Section llO(i) 

of the Federal Mine Safety and Health Act of 1977. I shall first make 

some findings of fact. 

1. On June 9, 1980, Inspector Kellis Fields made an investigation at the Chisholm No. 2 Mine of the Pikeville Coal Company. At 

that time, he examined the belt drive, located on the surface, for 

the underground belt conveyor which extended up the No. 4 entry. He 

observed that there was no fire suppression system on the belt drive, 

and he therefore issued Citation No. 722892 alleging a violation of 

section 75.1101. The language in that citation reads as follows: 

"Deluge type water sprays or foam generators were not provided for 

the main belt conveyor drive that is installed within 25 feet of the 

No. 4 portal drift opening of the south side mains." Subsequently, 

1630 
2 

on June 18, 1980, the inspector issued a modification of that citation 

in which he inserted the words, "intake air" between the word "portal" 

and "drift opening," so that the language would read that the belt 

drive did not have "installed within 25 feet of the No. 4 portal intake 

air", etc., the proper fire suppression system required by section 

75.1101. 

2. At the hearing, the inspector explained that the reference in 

his citation to the 25-foot distance from the highwall had been alleged 

in the citation because the inspector's manual provided some guidelines 

for the requirement of application of section 75.1101 to surface belt 

drives, and those guidelines provide that the fire suppression system 

is required if the belt drive is within 25 feet of the portal. 

3. The inspector made it clear in his testimony that while he 

used the guidelines in the manual and made the measurement to show that, 

in his opinion, he was justified under the manual for citing a violation 

of section 75.1101, he believed that he was citing respondent for a violation of section 75.1101, not for a violation of a guideline in a manual. 

Technically, he said that he could cite respondent for a violation of 

section 75.1101 even if the belt drive were a thousand feet from the 

portal. In other words, in his opinion, the distance from the portal 

is not relevant for finding a violation of section 75.1101. 

4. Respondent presented its safety director at the Chisholm No. 2 

Mine as a witness. His name is Charles Dotson. Mr. Dotson presented 

as Exhibit A a diagram showing that the No. 4 entry has an apron located 

over it with solid walls on each side of the apron to support it, and 

he stated that when he measured the distance from the coal rib itself 

to the belt roller, that he obtained a measurement of 38 feet 7 inches. 

He also said that, in his opinion, the manual requires the measurement 

to be made to the belt roller, rather than to the motor itself, that 

had been used as a point of termination of measurement when the inspector obtained the distance of 25 feet from the motor on the belt conveyor 

drive to the highwall. Mr. Dotson's Exhibit A also shows that if the 

measurement had been made from the edge of the right wall facing the 

No. 4 entry of the apron, it would have been a distance of 18 lcet 

8 inches to the roller at the motor. The inspector obtained a distance 

of 15 feet when he made a measurement from the wall of the apron to the 

motor. The distance between the motor itself and the roller is two or 

three feet, and I think that the angle from which the two gentlemen 

made their measurements accounts for the remaining difference in the 

masurements obtained by Mr. Dotson and Inspector Fields. 

5. It was the inspector's opinion that any fire that might start 

on the belt drive, even though it was located outside the mine could 

get into the No. 4 entry, which is also the belt line, and he said that 

despite the fact that the belt line contains what is known as a neutral 

split of air, it does take air into the mine from outside, and it does 

therefore carry whatever is in the outside air, and if there were a fire 

outside, it was his opinion that some smoke from the fire would be carried 

up the belt line, and that it would be possible for the smoke to get into 

the intake, and therefore, reach the working faces. He admitted that if 

1631 
3 

that were to occor, there would have to be some problem in one or more 

curtains being out at the end of .the belt line, or between the belt line 

and the intake and return. 

6. Mr. Dotson presented as Exhibit B a diagram of the ventilation 

system .. in the Chisholm No. 2 Mine and his diagram shows that there are 

-- first of ail there's a check curtain just ·inby the No. 4' entry portal,_ 

and that is supposed to keep all but a small amount of air from going 

up the belt line, and, of course, some oxygen has to be in the belt line 

in order to supply life to the people who work along the belt line from 

time to time, or travel it. In addition to the check curtain at the 

intake or portal of the No. 4 entry, there are other check curtains 

arranged just inby the tailpiece of the 'belt line, and those check curtains prevent air from the belt line traveling to the face. Of ~course, 

there is also a check curtain just outby the belt tailpiece. All of 

the protective check curtains would prevent air from getting into the 

intake if the air should be carrying smoke from a fire from the outside. 

As all parties agree, there would have to be some kind of damage to the 

ventilation system in order for smoke from the outside to be carried to 

the working face up the No. 4 entry. 

7. From the standpoint of.gravity, not only would it be difficult 

for any smoke from a fire to get up the No. 4 entry, but at the time the 

citation was written, there was already installed in the vicinity of the 

head drive, about which we are talking, a large tank containing water, 

and that tank is equipped with pumps and water lines so that if ·a fire 

had occurred on the surface a person on the surface would have been 

able to combat the fire by the use of a hose attached to that water 

supply. 

8. Mr. Dotson testified that if the inspector had not written 

this citation that respondent would not have installed a fire suppression system using water on this belt drive on the outside. In fact, the 

citation was abated by the installation of a dry chemical system because 

Mr. Dotson said that outside the mine the deluge water system, referred 

to in 9ection 75.1101, would not have been appropriate because it would 

have frozen in the wintertime and would have become inoperative. 

I believe that those are the principal facts that should be controlling in a decision in this case. Respondent makes two primary arguments with respect to this notice of violation. First of all, Mr. Stephens 

for respondent, has argued that the fac;ility here, the belt drive, is on 

the surface of the mine, and that section 75.1101 clearly is a portion 

of the regulations which is designed to apply to underground mines, and 

he argues that it was improper to cite a belt drive on the surface for a 

violation of a safety standard which clearly applies only to underground 

facilities. Mr. Drumming, onbehalf of t{le Secretary of Labor, contends 

with respect to that arg4ment, that the beit conveyor involved definitely 

extended underground, and therefore the underground portion couldn't work 

if it didn't have a drive located somewhere, and even though the drive 

happened to be on the surface, that that drive was an integral part of 
4 

an underground belt conveyor system, and therefore was appropriately 

cited under a section of the regulations which is applicable to 

underground mines. 

I am in sympathy with Mr. Stephens' position and I think there is 

a lot of merit to his argument here, but I have for 8 years been applying that section to underground belt drives, even though some of those 

belt drives have been located on the surface, and I have taken the position that Mr. Drumming takes in this case, which is that since this 

belt drive is an integral part of that first flight of the belt conveyor that goes underground, there is no way that we can exempt the 

belt drive on this portion of the conveyor belt from the underground 

provisions of the regulations. Therefore, I agree that it is appropriate for section 75.1101 to be cited in connection with a belt drive 

which is located on the surface. 

We then come to Mr. Stephens' other argument, or at least one of 

his other arguments, and that is, he says that although he doesn't like 

certain portions of the manual because they also refer to application 

of section 75.1101 to surface facilities, he says that as a matter of 

fact, if you are going to follow the manual, that this particular belt 

drive was farther from the portal than 25 feet and, therefore, that 

Inspector Fields was not really following the guidelines when he cited 

section 75.1101. 

As to whether Inspector Fields followed his guidelines depends in 

large part on how you look at the measurements of the two individuals 

who were witnesses in this case. I think we must get back to the fact 

that the possibility of any smoke going underground would depend on 

that smoke going into the No. 4 entry, and to get into the No. 4 entry, 

the smoke has to pass by the two supports of the apron, which are on 

the outside of the mine, and which really are the beginning of the No. 4 

entry. So, if you considered the belt drive to be within the 25-foot 

distance required by the manual, then even under Mr. Dotson's measurements, the belt drive would be within 25 feet of the No. 4 portal. Consequently, I think that the manual would have been complied with in this 

instance, even if that were necessary. 

I think, however, that I have to agree with Mr. Drumming and Inspector Fields that we're here dealing with a citation of a regulation and not 

with a policy in a manual. The Commission stated in Secretary of Labor 

v. Old Ben Coal Company, 2 FMSHRC 2806 (1980), that failure to follow a 

manual by itself is not a sufficient basis for vacating a notice of violation or a citation. The Commission held in that case that such instructions are not officially promulgated and do not prescribe rules 

of law binding upon an agency. So, I would say, if I were confronted 

with a choice here wh~re the inspector is required to follow the manual 

down to the last inch in order for him to cite section 75.1101, I would 

not say that he has to follow the manual. Therefore, even if the 

measurements didn't come within the 25-foot provision, I would, and do, 

hold that it is not necessary for him to follow the manual in order to 

cite a violation of section 75.1101. 

1633 
5 

I believe that I have taken care of the basic legal arguments 

that M~. Stephens has made, and having found that those arguments 

should not prevai1, I find that a violation of section 75.1101 

occurred. 

Having found that a violation occurred, it is uow necessary to 

assess a civil penalty based upon the six criteria. The parties have 

stipulated that Pikeville Coal Company is subject to thr Act and that 

I have jurisdiction to hear and decide the case, and that respondent 

operates the Chisholm No. 2 Hine. It has also been stipulated that 

respondent is a large operator, that respondent would not be adversely 

affected by the assessment of a civil penalty, and that its ability to 

continue in.business would not be adversely affected by pa'.)'ing a civil 

penalty. Those stipulations cover two of the criteria that have to be 

considered. 

It has been stipulated as to a third criterion, that respondent 

demonstrated a good-faith effort to achieve rapid compliance. As to 

a fourth criterion,· history of previous violations, it was stipulated 

that respondent has not previously been cited for a violation of section 

75 .1101. 

The remaining criteria to be considered are negligence and gravity. 

As to negligence, Mr. Dotson stated that he thought that there was almost 

no possibility that smoke from any fire on the outside could get up this 

No. 4 entry where it would endanger anyone working underground, and he 

stated for that reason, the company interpreted, and he interpreted, 

section 75.1101 as not being applicable to this belt drive. In addition 

.to the other reason that has already been given, namely; that the belt 

drive was on the surface, section 75.1101 was, in his opinion, not applicable because the belt drive was more than 25 feet from the drift opening, 

.and was subject to freezing in winter. All these factors, in his opinion, 

made this belt drive exempt from having to have an aut9matic fire suppression system on it. Moreover, he pointed out that someone had to be 

stationed on the surfa~e, in the vicinity of this belt drive, and was 

stationed on the surface; that all the employees in this company, both 

those stationed on the surface and assigned to work underground, a e 

trained to apply fire-fighting equipment and methods and, therefore, 

could have fought any fire that might have developed. They could have 

done so through the use of the fire hose and other facilities on the 

surface. Consequently, I cannot find that Respondent was negligent in 

having violated sect.ion 75.1101 under those conditions. 

As to the criterion of gravity, I have already indicated in my 

findings of fac~ above tpat there was almost no probability that any 

.smoke from a fire on the belt drive would have gone underground and 

would have been a hazard to anyone working underground. In view of 

the fact that someone was on the surface ~t all times, it is very likely 

that any fire that might have started would have been seen pS soon, or 

about as soon, as an automatic system could have taken affect. It 

should be pointed out also that the company installed a dry chemical 

system so that it would work in any kind of weather regardless of 

freezing temperatures. 

1B34 
6 

In.addition to that, I might say that I've had several cases involving Pikeville Coal Company, and it is a very safety-oriented 

company. It does try to see that hazards are reduced around its mine 

and I think it has an excellent reputation in that regard. 

Because of all the aforestated extenuating factors and circumstances, I believe that a civil penalty in this instance should be 

the minimum permitted by the Act. Therefore, I assess a civil penalty 

of $1. 00. 

WHEREFORE, it is ordered: 

Within 30 days from the date of this decision, Pikeville Coal Company 

shall pay a civil penalty of $1.00 for the violation of section 75.1101 

alleged in Citation No. 722892 dated June 9, 1980. 

Distribution: 

~ C. S-t=-JJJJ_,, 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

George Drumming, Jr. Attorney, Office of the Solicitor, U.S. Department of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

John H. Stephens, Esq., Attorney for Pikeville Coal Company, Stephens, 

Combs & Page, P.O. Drawer 31, Pikeville, KY 41501 (Certified Mail) 

1L'3! . 0 ,_) 
FEDERAL MINE S~FETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINJSTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 25 9ll 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

V AND M MINING COMPANY 

OF PAINTSVILLE, INC., 

Respondent 

Docket No. KENT 81-49 

Assessment Control 

No. 15-11566-3007. F 

No. 3 Mine 

DECISION APPROVING SETTLEMENT 

Appearances: 

Before: 

George Drumming, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

G. C. Perry III, Esq., Paintsville, Kentucky, for 

Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing dated March 12, 1981, a hearing in the 

above-entitled proceeding was held in Prestonsburg, Kentucky, on May 5, 1981, 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. t 815(d). 

After the hearing was convened, counsel for the parties stated that 

they.had entered into a settlement ·agreement under which respondent had 

agreed to pay a penalty of $2,000 for the single violation of 30 C.F.R. 

§ 75.200 alleged in this proceeding, instead of the penalty of $4,000 proposed by the Assessment Off ice. 

Section llO(i) of the Act gives six assessment criteria which are required to be used in determining the size of civil penalties. The parties 

had been able to stipulate as to all of the six criteria except the question 

of whether the operator was negligent with respect to the occcurrence of the 

violation. Therefore, counsel for the parties asked that they be permitted 

to present evidence solely on the.criterion of negligence. The testimony 

of three different MSHA inspectors was· introduced·. After testimony had been 

received by three different inspectors, the parties reopened their settlement 

discussions and agreed that a settlement penalty of $2,000 was not supported 

by the record. Consequently, the final settlement agreement was that respondent would pay a penalty of $1,000. 

The parties stipulated that respondent is subject to the provisions of 

the Act, that I have jurisdiction to decide the issues, that respondent is 

the operator of the No. 3 Mine which produces 137,000 tons of coal annually 

and employs about 21 miners, that a miner named Elijah Jude was fatally 

injured in a roof fall which occurred in respondent's No. 3 Mine on February 25, 

1980, that the inspector who issued the withdrawal order and citation involved 

1B3b 
2 

in this case is a duly authorized representative of the Secretary of Labor, 

that respondent has violated section 75.200 on three.prior occasions during 

the 24 months preceding the occurrence of the violation at issue in this 

proceeding, that respondent demonstrated a good-faith effort to achieve 

compliance after the citation and order were written, and that the violation 

was serious in view of the fact that it caused the death of one miner (Tr. 4-5) • 

• 

Inspector John S. South wrote Citation and Order No. 707822 whiGh is 

the subject of the Proposal for Assessment of Civil Penalty • He testified 

that he is responsible for investigating accidents and that he was asked to 

investigate the cause of a roof 'fall which occcurred at respondent's mine 

on February 25, 1980 (Tr. 10). The roof fall consisted of a single piece 

of sandstone which measured 53 feet in length, 23 feet in width, and from 

15 to 20 feet in thickness (Exh. 10). The roof fel_! without warning while 

the continuous-mining machine was cutting coal. The operator of the 

continuous-mining machine ran in one direction and escaped the fall, but 

the victim ran in another direction and was caught beneath the·massive rock 

(Exh. 10, p. 4). The rock was so heavy that it could not be_moved with two 

300-ton jacks and two 50-ton jacks (Tr. 32; 36). The body of the miner who 

wa~ killed had to be removed by chipping away the rock and digging into the 

floor of the mine. A period of 15 hours was required to recover his body · 

(Tr. 32-33). Three inspectors assisted in the removal of the miner's body 

and each of them testified that they had never seen a roof fall which was 

made up of a single rock as large.as the one here encountered •. 

The inspector who.wrote the order stated th~t respondent had violated 

the first safety precaution in its roof-control plan which provides that if 

hazardous conditions are encountered, the operator is to install roof supports in addition to the standard 30-inch bolts required by the roof-control 

plan (Tr. 12; Exh. 9). The inspector explained that, in this instance, the 

additional support would normally consist of installing straps along with 

roof bolts. The inspector agreed, however, that even if the operator had 

been using straps in this instance, they would have had no effect whatsoever 

on holding the roof because the piece that fell was from 15 to 20 feet thick 

and no roof bolt would have been able to anchor above a rock that size •. The 

inspector agreed that there is no known technology which could have prevented 

a roof fall of the size that occurred in respondent's mine (Tr. 14-15). 

Another aspect of the roof fall which tended to exonerate respondent 

from any negligence was the fact that, although a hill seam existed in the 

huge piece of sandstone that fell, the inspector was unsure that the hill 

seam could have been observed on both sides of the entry prior to the fall 

(Tr. 17). Another inspector was positive that the hill seam could not have 

been detected before" the roof fall occurred. He testified that if he had 

been mining in the same entry involved in the accident, he would have been 

·proceeding in the same way respondent was produc.ing coal. It was his belief 

that the roof fall could not have been prevented by any known technology 

(Tr. 25). Another factor which contributed to the roof fall was the fact 

that a strip mine on the surf ace had been shooting coal directly above 

respondent's mine and that work could have loosened the roof of respondent's 

mine (Tr. 20). 
3 

After three different inspectors had presented testimony indicating 

that they did not believe respondent could have foreseen the fact that the 

roof fall would occur and that they were unaware of any roof-control methods 

which could have prevented the fall, the parties agreed that the settlement 

penalty should be reduced from the $2,000 first discussed (Tr. 5) to the 

amount of $1,000 agreed upon at the end of the hearing (Tr. 37). 

The preponderance of the evidence which I have discussed above shows 

that respondent could not have detected any hill seams prior to the accident. 

If so, respondent·would have had no reason to install the additional support 

which is required by its roof-control plan when hazardous conditions are encountered. When it is considered that a small operator is involved, one may 

be inclined to wonder if a settlement amount of $1,000 was fair to respondent. 

I believe that a penalty of $1,000 is appropriate if one considers all 

the implications which can be derived from the total record. Since therhearing opened with a statement by counsel that the case had been settled, ·I did 

not go into all the conditions describ.ed in Citation and Order No. 707822 

which I would normally have pursued with the inspectors. For example, no 

testimony was received as to allegations in the citation and order to the 

effect that respondent had been driving some entries and crosscuts at widths 

greater than were permitted by the roof-control plan. Also it was alleged 

that respondent had performed some work 25 feet inby permanent roof support 

(Exh. 4). Moreover, respondent has been cited for three prior violations 

of its roof-control plan (Exh. 1). I am not finding that the allegations 

discussed in this paragraph were proven because no testimony was received 

with respect to them and respondent had no reason to address them since the 

witnesses were presented as to a single aspect of the settlement agreement. 

I am referring to these matters solely to show that in a fully contested 

proceeding, it is very likely that the evidence would have supported findings 

as to the six criteria which would have warranted assessment of a penalty as 

large as the penalty of $1,000 agreed upon by the parties. 

I find that the evidence presented by the parties did fully justify a 

reduction of the penalty of .$4,000 proposed by the Assessment Office to the 

settlement amount of $1,000. 

WHEREFORE, it is ordered: 

(A) The motion for approval of settlement is granted and the settlement 

agreement is approved. 

(B) Pursuant to the settlement agreement, respondent shall, within 

30 days from the date of this decision, pay a penalty of $1,000 for the violation of section 75.200 alleged in Citation and Order No. 707822 dated 

February 27, 1980. 

1H3H 

Richard 

~C-~ C. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 
4 

Distribution: 

George Drumming, Jr., Attorney, Office of the Solicitor, U. S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

G. C. Perry III, Esq., Attorney for V and M Mining Company of Paintsville, 

Inc., P.O. Drawer C, Paintsville, KY 41240 (Certified Mail) 

163~J 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 25 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ELKINS ENERGY CORPORATION, 

Respondent 

DECISION 

Docket No. VA 80-166 

Assessment Control 

No. 44-03761-3019 V 

No. 2 Mine 

Appearances: Leo J. McGinn, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Robert T. Copeland, Esq., Copeland & Thurston, 

Abingdon, Virginia, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued Ma~ch 3, 1981, a hearing in the 

above-entitled proceeding was held on April 21, 1981, in Wise, Virginia, 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(d). 

After the parties had completed their presentations of evidence, 

I rendered the bench decision which is reproduced below (Tr. 107-118): 

This proceeding involves a Petition for Assessment of Civil Penalty 

filed in Docket No. VA 80-166 on October 24, 1980, by the Secretary of 

Labor seeking to have a civil penalty assessed for an alleged violation 

of 30 C.F.R. § 75.200 by Elkins Energy Corporation. 

I shall make some findings of fact on which my decision will be 

based. 

1. Inspector Charles Reece went to Elkins Energy Corporation's 

No. 2 Mine on June 4, 1980, to make some respirable dust investigations. 

He traveled to the face area ~bout 8:00 a.m. While he was in the face 

area, he observed that the No. 3 entry had been cut to a depth which 

appeared to be more than the 20 feet permitted under the roof:control 

plan. He talked to the roof-bolting machine's operator who advised 

the inspector that he had made a test hole that morning, and also 

that he had just finished completing the installation of a row of 

bolts 4 feet outby the row of bolts on which he was working at that 

time. The inspector made a measurement from the row of bolts which 

had last been installed up to the face area ·after the place had been 

completely bolted, and determined that the distance was 28 feet. 

1640 
2 

2. The inspector's measurement of 28 feet was based upon a 

statement made by a witness who was not· available to testify in the· 

proceeding today. The inspector, however, drew a diagram, which is 

Exhibit 4 in this proceeding, and that diagram shows that the inspector's own observation would permit him to testify, which.he did, 

that the distance from the roof bolts which were being installed at 

the time the inspector was on the section was a diatance of 24 feet. 

The evidence shows in this case that a 14 Joy continuous-mining 

machine was being used to produce coal; and ·that the distance from 

the forwardmost bit on the Joy continuous-mining machine to the 

controls is a distanc~ of 21-1/2 feet. If the measurement of 24 feet 

is used as the distance which the machine was trammed beyond the last 

permanent roof support, the controls of the machine would have been 

out from under the supported roof a distance.of 'only 2-1/2 feet. 

One of the company's witnesses testified that under that situation 

the hand of the operator would have been.under unsupported roof 

but not his body. 

3. The continuous-mining machine here involved was equipped 

with a canopy so that the controls of the miner are under the canopy, 

and the result is that, even if the operator's hands and arms were 

beyond the last permanent roof support, the operator and his hands 

and arms would have been under the canopy. Additionally, if the 

continuous-mining machine had been advanced a distance of 8 feet 

beyond the last row of permanent supports, the canopy would have 

protected the operator from a possible roof fall. 

4. The roof-control plan is Exhibit 2 in this proceeding. That 

plan provides oa page 4 that the maximum depth the continuous-m~ning 

machine may be advanced beyond the last row of. permanent supports is 

20 feet. Page 11 of Exhibit 2 provides in paragraph 3 that the operator of the continuous-mining machine shall not advance the controls 

of such equipment inby the last row of roof bolts. 

5. The inspector's citation, which is Exhibit 1 in this proceeding; states that several mountain breaks existed in the face . 

area. He testified, however, that he observed no mountain breaks in 

the No. 3 entry where the mining machine advanced beyond the last 

row of permanent supports •. One of the operator's witnesses testified 

that he observed mountain·breaks in the entry adjacent to the No. 3 

entry, but that he saw none in the No. 3 entry. The main roof and 

innnediate roof in this mine are comprised of sandstone. The inspector 

testified that, while he didn't think any roof was completely safe, 

of the various types of innnediate roof that he encounters, that he 

considered sandstone to be the least subject to falling parti~les 

and hazardous conditions. The inspector was not aware of any:roof 

falls which had occurred in this mine at the time he made his inspection. One of the operator's witnesses testified that no roof falls 

had occurred. The inspector testified that the roof-bolting machine 

operator and his helper had installed the proper number of safety 

supports prior to connnencing bolting in the No. 3 entry. 

1H41 
3 

6. The chief financial officer of the Elkins Energy Corporation testified in this proceeding. His name is W. Jack Davis. 

Mr. Davis testified that Elkins Energy has been showing a net loss 

for a considerable period of time. In 1977 the company had a net 

loss of $306,847 (Exh. D). In 1978, it showed a net loss of 

$2,274,925 (Exh. C). In 1979 the company went through some formal 

bankruptcy proceedings. At that time another company by the name 

of Sylvia Ann Coal Company acquired the stock of Elkins Energy and 

began making a joint return with Elkins Energy, and in that 1979 

return, Elkins ·Energy itself showed a loss of $36,000 and the joint 

return showed a loss of $86,313 (Exh. B). Under the bankruptcy 

provisions, the secured creditors started receiving payments in 

September 1979, and those payments vary over different periods, 

depending upon the decisions made in the bankruptcy proceeding. The 

unsecured creditors, however, are to be paid off on a quarterly basis 

over a 4-1/2-year period. In 1980 Elkins Energy showed a net income 

of $200,752.24 (Exh. A). Some of that net income has been used 

to make payments to unsecured creditors beginning on March 13, 1980, 

and some more will be used to make a payment as of June 13, 1981. 

The company's liabilities are $4,130,140.91 in excess of its assets 

(Exh. E). 

7. Und~r the bankruptcy provisions, there are four operating 

officers and an additional management person, namely, Mr. Davis, who 

received from $25,000 to $30,000 a year in salary, but the bankruptcy 

provisions control payments of funds out of the company's cash flow. 

The company has a certain amount of flexibility so that it might 

be able to pay a penalty of up to $500 without having to discharge 

payment of the penalty under the provisions of payments to unsecured 

creditors. Any amount over $500, and this is purely an estimate 

by Mr. Davis, would have to be done on a quarterly basis over a 

period of 4-1/2 years. Therefore, any large penalty that I might 

assess in this proceeding would have to ~e paid in the same manner, 

that is, on a quarterly basis. 

8. Elkins Energy Corporation, at the present time, is not producing any- coal because of the strike. If it were producing coal, 

and assuming the strike ends and prod~ction resumes, the company 

operates three different mines, the No. 6A Mine, the No. 10 Mine, 

and the No. 12 Mine. The average production from all three mines 

totals 35,000 tons per month, and the total employment, including 

managerial personnel, is 125 employees. All of the company's coal is 

sold under a contract with either Clinchf ield Coal Company or Flat Gap 

Mining Company. The No. 6A Mine has an estimated life of 5 to 7 years. 

The No. 10 Mine has an estimated life of 6 months, and the No. 12 Mine 

has an estimated remaining life of from 10 to 15 years. 

I believe that those are the primary findings of fact which I have 

gleaned from the testimony given here today. I believe that the testimony supports a finding that a violation of section 75.200 occurred 

because, even if we restrict the testimony to the personal observations 
4 

of the inspector, there is no doubt but that the evidence supports 

the fact that the continuous-mining machine controls were advanced 

·beyond the last row of permanent supports, which would be a violation of the provisions in the roof-control plan which I mentioned in 

my findings above. 

Having found that a violation occurred, it is necessary that I 

assess a penalty. The Act does not permit a judge to find that,a 

violation occurred and waive the assessment of a penalty. The size 

of the company's business has been discussed in the findings of fact, 

and they indicate that the company is a relatively small operator. 

I did not include anything as to the criterion of history of previous 

violations in my findings above because those previous vioiations are 

set forth in Exhibit 3 in this proceeding and Exhibit 3 indicates that 

the company has a history of only four previous violations for the 

last 24 months preceding the occurrence of the violation cited in 

this case. 

One of those was a violation of section 75.200 which was cited 

in February of 1980. It has been my practice over the years to 

increase the penalty otherwise assessable under the other five criteria 

if I find that an operator has violated on a prior occasion the same 

section of the Act or regulations which is before me in any given 

proceeding. Since there has been a previous violation of section 

75.200, I find that whatever penalty is otherwise assessable should 

be increased by $25 .under the criterion of history of previous 

violations. 

I made no reference in the eight·findings of fact set forth above 

to the criterion of whether the operator demonstrated a good-faith 

effort to achieve rapid compliance. The entries on Citation No. 687711 

shows that it was issued at 9:45 a.m. by the inspector, and that the 

violation was abated by 3:15 p.m. the same day. The evidence in this 

case shows that the inspector waited until the No. 3 entry had been 

completely bolted before he measured the distance from the last row 

of permanent supports to the face, and he testified that he didn't even 

write the citation until the area had been completely bolted. Consequently, at the time the inspector wrote the citation, the roof bolting 

that needed to be done in this entry had already been completed. 

The inspector said that roof bolting was only a portion of the 

abatement that he required, the other portion being that when a violation of the roof-control plan occurs, the operator is required to 

explain the roof-control plan to the crew so that they will know that 

a violation occurred and will avoid similar oversights in the future. 

The company's safety director, Mr. Donnie Short, explained the 

roof-control plan about 3 o'clock to both the day shift, which was 

leaving the mine, and to the oncoming shift, which was due to begin 

working at 3:00 p.m. Consequently, the total abatement of the violation is based on the explanation of the roof-control plan by the 

operator's safety director at approximately 3:00 p.m. 

1643 
5 

It was speculated in this proceeding that the tramming of the 

controls of the continuous-mining machine beyond the last row of 

permanent supports was an act which was done by the second shift 

which came to work at 3:00 p.m. Consequently, the inspector appropriately waited until both shifts had had the plan explained to them 

before he abated the citation. I believe that those facts· support 

a finding that the operator demonstrated a good-faith effort tQ 

achieve rapid compliance, and that the penalty should neither be 

increased nor decreased under the criterion of good-faith effort 

to achieve rapid compliance. 

The last findings of fact set forth above, that is, Nos. 7 and 8 

show that the operator is currently carrying on its business under 

provisions of the Bankruptcy Act and, consequently, can only pay penalties based on the provisions of the court's disposition of that filing 

in bankruptcy. Since respondent has an outstanding obligation to pay 

off both secured and unsecured creditors in a considerable a~ount, 

I think it would be appropriate to find that large penalties would 

have an adverse effect on the company's ability to continue paying 

off its creditors and, therefore, any penalty assessed in this proceeding should take that criterion into consideration. 

The remaining two criteria are negligence and gravity. Insofar 

as negligence is concerned, the evidence supports a finding that there 

was at least ordinary negligence because the continuous-mining machine's 

controls were advanced farther than they should have been. Although 

the roof-control plan, which is Exhibit No. 2 in this proceeding, 

became effective only a few days before the citation was written, 

Mr. McGinn stated in his closing remarks that the old roof-control 

plan, which has a date of March 2, 1979, contained the same provisions that I used in finding that a violation of the roof-control plan 

occurred. Consequently, the operator was aware of the provisions of 

his roof-control plan, and we cannot say that the section foreman was 

unaware of the fact that the controls of the continuous-mining machine 

should not have been advanced beyond the last permanent roof supports. 

As to the criterion of gravity, the evidence and the findings 

of fact that I have already made show that the immediate roof was 

sandstone which is less hazardous than some shales and other types 

of immediate roofs. Also, fortunately, the continuous-mining machine 

was equipped with a canopy which did have a safety factor built in 

to it, if a person does go beyond permanent roof support. 

Additionally, there is no evidence in the case to show that anyone 

other than the operator of the continuous-mining machine went beyond 

permanent roof support, and the operator of the roof-bolting machine 

had installed the proper temporary supports before he began to install 

the permanent supports. Consequently, we do not have any evidence 

that a large number of people went beyond permanent sup'port in this 

instance. Consequently, the gravity of the situation is not as great 

as it might have been. Of course, as the.inspector pointed ou~, roofcontrol violations are the most serious ones in the coal mines because 

1644 
6 

roof falls still are a primary contributor to death and serious 

accidents in the mines. Therefore, none of them are to be taken 

lightly. 

By way of summary, since we have a situation in which the 

company is already in bankruptcy, and one which involves a small 

operator, and a situation where there was ordinary negligence, 

and not a great degree of gravity, I believe that a penalty of $200 

should be assessed, to which $25 should be added for the history of 

previous violations, so that a penalty of $225 will be assessed 

in this proceeding. 

WHEREFORE, it is ordered: 

Respondent, within 30 days from the date of this decision, shall pay 

a civil penalty of $225.00 for the violation of 30 C.F.R. § 75.200 alleged 

in Citation No. 687711 dated June 4, 1980. 

Richard 

~~-~' C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Distribution: 

Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Robert T. Copeland, Esq., Attorney for Elkins Energy Corporation, 

212 West Valley Street, P.O. Box 1036, Abingdon, VA 24210 (Certified Mail) 

· 1645 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEES~URG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 25 t98\ 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

Civil Penal.ty Proceeding 

Docket No. WEVA 80-614 

A.O. No. 46-01283-03043F 

Hampton No. 3 Mine 

DECISION AND ORDER 

On June 24, 1981, this matter came on for a hearing on the parties' 

motion to approve settlement of charges that the operator's faulty 

pillaring practices in the No. 9 Right Section of the Hampton No. 3 

Mine resulted in the deaths of a section foreman and an assistant mine 

foreman. The settlement proposed is a reduction in the amount initially 

assessed from $13,000 to $4,000. 

The parties' prehearing submissions and the information adduced 

at the settlement hearing showed that: 

A. The charge that the operator had engaged in partial 

pillaring practices in violation of 30 C.F.R. 75.201-2(d) 

was of doubtful validity because (1) the adverse roof 

conditions and falls of roof in the 4th and 5th p_illars 

in the third pillar line may have justified leaving 

substantial portions of the outby wings (30 C.F.R. 

75.201-2(e)), and because of (2) the inconclusive nature 

of the testimony as to the size of the partial pillars, 

if any, left .in the challenged pillar line. 

B. The charge that the operator violated its approved roof 

control plan by failing to set trisets or cribs before 

pulling the pushout stump in the No. 5 pillar in the fourth 

pillar line (the scene of the accident) was clearly 

established as the proximate cause of the roof fall that 

killed the two foremen and endangered the lives of three 

other miners. In mitigation, the operator showed (1:') 

a disturbing lack of clarity (now corrected) in the roof 

control plan, a deficiency for which MSHA shares responsibility, and (2) the institution of management controls 

that will effectively preclude the exercise of bad judgment that led the foremen to risk their lives and those 

of the contract miners. 

lli4b 
In the light of the foregoing, the parties proposed to amend their 

motion so as to allocate $1,000 to the first violation and $3,000 

to the second violation. Based on an independent evaluation and de novo 

review of the circumstances the trial judge concurred and directed 

that the motion to approve settlement be granted. 

Accordingly, it is ORDERED that the motion to approve settlement, 

as amended, be and hereby is GRANTED. It is FURTHER ORDERED that the 

operator pay the amount of the settlement agreed upon, $4,000, on or 

before Wednesday, July 15, 1981. and tha subject to payment the 

captioned matter be DISMISSED. 

Distribution: 

David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Robert Steinberg, Esq., Crowell & Moring, 1100 Connecticut Ave., NW, 

Washington, DC 20036 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 JUN 26 1111 

LESLIE COAL 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. 

LESLIE COAL MINING.COMPANY, 

Respondent 

Contests of Citations 

Docket No. KENT 79-375-R 

Citation No. 713366; 8/31/79 

Docket No. KENT 79-376-R 

Citation No. 715998;·9/5/79 

Docket No. KENT 80-217-R 

Citation No. 729889; 3/18/80 

Leslie Mine 

Civil Penalty Proceedings 

Docket No. KENT 80-259 

A/O No. 15-07082-02028S 

Docket No. KENT 80-314 

A/O No. 15-07082-03035 

Leslie Mine 

DECISION 

Appearances: John M. Stephens, Esq., Stephens, Combs & Page, 

Pikeville, Kentucky, for Contestant-Respondent; 

Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Respondent-Petitioner. 

Before: Judge Charles C. Moore, Jr. 

These combined civil penalty and review proceedings were heard 

February 24, 1981, in Prestonsburg, Kentucky. Two citations and a 

withdrawal order alleging violations of 30 C.F.R. §75.200 are at issue. 1/ 

Per stipulations introduced at .the hearing, Leslie Mine is medium-sized, 

producing 177,818 tons of coal annually, has a moderate prior history 

consisting -of 235 violations during two and one-half years, and imposition of the maximum civil penalty will not adversely affect Contestant-. 

Respondent's ["Contestant's"]. ability to remain in business. 

1/ 30 C.F.R. §75.200 prescribes, in part, "[t]he roof and ribs of all 

active underground roadways, travelways, and working places shall be 

supported or otherwise controlled adequately to protect persons from 

falls of the roof or ribs." 
The first citation became the basis of a withdrawal orde~ five days 

later. A second citation alleging a violation of §75.200·in ·a diffe.rent 

section of the mine was issued by Inspector Oney, who had·issu,ed.the 

withdrawal order. 

Inspector Smith issued citation 713366 on August 31, 1979, during 

an investigation of a non-fatal roof fall in the 009 working section of 

the Leslie Mine. The roof fall, not at issue here, had occurred in the 

third entry between Spads 971 and 999 (see Contestant's Exhibit ["Ex."] C-2). 

The fall encompassed most of the entry between the crosscuts (Ir. 43-46). 

The remaining portion of the entry had been timbered to ·prevent the fall 

from spreading to a power center inby Spad 999 in the third entry •. '.!:../ A 

power cable had been routed around the fall into the second entry and 

back to the power center. 

The inspector observed large cracks and cutters in the roof around 

the fall (Tr. 11). 3/ Water was dripping and flowing from the roof in 

large quantities, "like a faucet" (Tr. 14-15). Tbis roof is composed of 

laminated or layered shale with additional parts of sandstone and 

fossilized material (Tr. 15). As such, it is structurally weak and the 

presence of dripping and flowing water increases the likelihood of roof 

falls (Tr. 16). Ten roof falls had occurred in the Leslie Mine during 

the five months before this citation was issued (Tr. 27, 152).. Metal 

straps and four, five and six foot resin roof bolts supported the roof 

and metal plates were also put up in some areas (Tr. 16, 17, 40, 173 and 

Ex. C-6). It was stipulated that Contestant was following an approved 

roof control plan when both citations and the order were issued and that 

a violation of the plan is not alleged. Section 75.200 may be violated, 

however, if roof 1.s inadequately. supported regardless of whether a plan 

is being followed. 

After observing these conditions, Inspector Smith issued a citation 

pertaining to three areas near the fall. !±_/ The citation was to have 

been abated five days later. Inspector Oney entered the area September 5, 

1979, while conducting a regular inspection and observed cracks in the 

roof and dripping water (Tr. 51). He saw no evidence of additional roof 

support and issued withdrawal order 715998 intending to cover the same 

area as the citation. The order differed from the citation, however, in 

that it failed to include an area around Spad 999 that was included in 

the citation, and was unclear with respect to the measurements of the 

l.I "Inby" is a term of direction meaning toward the working face, an<;l 

"outby" refers to the direction away from a working face. a dictionary. 

of mining, mineral and related terms, Bureau of Mines, U.S. Department of 

the Interior, 1968. 

1/ The inspector. defined a "cutter" a:s a crack occurring where the roof 

meets the ribs, indicating stress (Tr. 13). 

!±_/ The first area was the crosscut between Spad 971 and 997; the second 

was a section of roof in the second entry beginning 60 feet inby Spad 997 

and extending 100 feet into the intersection; the tliird was a: section of 

roof beginning at Spad 999 and extending outby 40 feet. 

1B4B 
area cited around Spad 997. An additional ambiguity in the citation's 

language, carried over into the order, was not discovered until the 

hearing. The first inspector had intended to cite the crosscut between 

the second and third entries (between 997 and 971) but the citation 

read, "80 feet to the left of Spad 997," which could have been interpreted to mean that part of the crosscut between the first and second 

entries. This caused some confusion for Contestant as to·the proper 

placement of cribs and timbers to abate"the citation. A witness for 

Contestant testified that he first realized that some of the timbers and 

cribs had been misplaced while accompanying the inspector who issued the 

order. He requested that the compliance date be extended in order to 

remedy the error but the inspector refused (Tr. 181). On redirect 

examination, the inspector stated that he did not recall the witness 

making such a request'(Tr. 185). The order was abated three months 

later after cribs and timbers had been installed to the satisfaction of 

the inspector. 

The inspector gave several reasons for his opinion that the roof 

was not adequately supported. As a roof control specialist, these were 

the worst conditions he had ever seen (Tr. 14-15). A fall had recently 

occcurred in the area of the citation as had ten roof falls at this mine 

in the five months preceding issuance of the citation. Water flowing 

from the roof posed a threat of electrical shock should a piece of wet 

roof fall on the high voltage cable (Tr. 25). Although he admitted it 

was possible to have sound roof despite the presence of large quantities 

of water, the inspector felt that such was not the case here (Tr. 38~39). 

Three witnesses for Contestant testified that the roof was adequately 

supported before the citation was issued, and that the timlters and cribs 

installed to abate the order had not taken weight since their installation 

(Tr. 124-125,'144, 158-159, 166, 173-174). Two of those witnesses had 

recently visited the area; the third had only spoken to miners who 

regularly worked there (Tr. 124-125). Mr. Wooten, who.was Contestant's 

safety director when the citation was issued (Tr. 165), testified that a 

crack was discovered up in the roof when test holes were drilled in the 

area in preparation for mining (Tr. 166). Contestant then began using 

five and six foot bolts instead of four foot bolts, as required by the 

roof control plan (Tr. 166). . 

In view of the fact that this was admittedly bad roof, that a roof 

fall had just occurred and that Contestant did not prove to my satisfaction 

that greater roof support was used in the cited area than had been used 

in the fall area, I think the inspector was justified in issuing the 

citation. It follows that since no action was taken to abate the citation 

by September 5, 1979, the withdrawal order was also proper. Both the 

citation and the order are affirmed. 

While I disagree with Contestant's evaluation of its roof condition, 

I find that Contestant knew of the conditions and did not consider the 

area dangerous. Its degree of negligence was therefore small. As to 

gravity it must be remembered that the inspector did not issue an imminent 

danger order. A penalty of $300 will be assessed. 

lll50 
Citation 799889 was issued when Inspector Oney was conducting a 

regular safety and health inspection in the 010 working section of the 

Leslie Mine.and observed a vertical crack, one-half inch wide and 24 

feet long, extending the length of the intersection between the entry 

and the crosscut at Spad 1608 (Ex. C-3, Tr. 69). After speaking to the 

roof bolting machine operator and using the "sound and vibration" method, 

he also found a horizontal crack 48 inches up the roof (Tr. 75-77). 2_/ &_/ 

He saw that the cribs and timbers immediately outby the intersection had 

taken weight (Tr. 69), so much so in fact that the wedges installed 

between the timbers and the roof to insure a tight fit were "mashed 

almost flat," (Tr. 77). Eight foot roof bolts were being installed (Tr. 

90). Four, five, six and eight foot roof bolts and metal straps supported 

the area (Tr. 117). Timbers and cribs had been installed in the second 

entry outby Spad 1608 before the citation was issued. The entry was an 

active coal haulage road when the citation was issued but is no longer 

actively used (Tr. 102., Ex. C-3). 

A witness for Contestant, Mr. Vaughan, testified that he visited 

the area after the citation was issued and found only one crib had taken 

weight (Tr. 127). Two timbers were so loose that he was able to knock 

them out with a small mason hammer (Tr. 116). 

The inspector and one witness for Contestant testified that cribs 

and timbers in the area have taken weight since the citation was abated 

(~r. 97, 159-160). Upon returning to the area after the citation was 

abated, the inspector observed that more timbers had been added and that 

others had broken so that it was difficult to tell which timbers had 

been installed to abate the citation, and whether they had taken weight, 

in order to determine whether or not the additional -support mandated in 

the citation was needed (Tr. 97). One witness for Contestant testified, 

however, that the area was timbered off pursuant to a company policy 

requiring escapeways to be timbered regardless of roof conditions in 

order to prevent falls (Tr. 127). This testimony was refuted by another 

witness for Contestant who testified that the cited area was not an 

escapeway; that the witness was "off one overcast" (Tr. ·162). ]_/ 

Although the existence of the vertical crack was well established 

at the hearing there was some ques.tion as to whether MSHA proved the 

existence of the ho.rizontal crack. All of the Contestant's witnesses, 

'if "Sound and vibration" testing is an accepted method for detecting 

horizontal cracks. It consists of placing one hand on the roof then 

tapping the roof with a hammer. In this case the inspector found that 

the roof "sounded heavy" indicating weight on the roof bolts, suppor.ting 

his conclusion that a horizontal crack existed (Tr. 77). Peabody Coal· 

Company, 2 FMSHRC 987 (April 1980) and Itmann Coal Company, 1 FMSHRC 1591 

(October 1979). 

&_I A vertical crack is a crack in the roof visible to the naked eye. 

A horizontal crack is a separation of strata up in the roof not visible 

to the naked eye. Its existence is established by using the sound and 

vibration method, above, or by drilling test holes. 

7/ An "overcast" is "[aJn enclosed airway to permit one air current 

to pass over another one without interruption." a dictionary of mining 

mineral and related terms, supra. 

l. ~) 5 l 
however, acknowledged that detection of a horizontal crack was the 

reason longer bolts were installed (Tr. 121, 122, 134, 159, 173-174). 

The real dispute was whether the roof was adequately supported when the 

citation was issued. 

The inspector felt more support was needed and that the intersection 

would have fallen had not additional support been installed (Tr. 81). 

Contestant, on the other hand, was of the opinion that the area was 

adequately supported when the citation was issued (Tr. 159-160). 

When experts disagree as to the .safety of a particular situation it 

presents a difficult question. The Government has the burden or proof, 

but I believe a close question should be decided in favor of safety. I 

hold that on balance, the Secretary has shown that the intersection 

needed more roof support. I accordingly affirm the citation. 

As to the penalty, I find a low degree of negligence. As to gravity, 

I take into consideration the fact that no imminent danger order was 

issued. A penalty of $100 will be assessed. 

ORDER 

Contestant is ordered to pay to MSHA, within 30 days, a penalty of 

$400. 

· Distribution: 

~sf1lz,rwA Charles C. Moore, Jr. 

Administrative Law Judge 

John M. Stephens, Esq., Stephens, Combs & Page, P .• O. Drawer 31, 

Pikeville, KY 41501 (Certified Mail) 

Darryl A. Stewart, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Robert Carter, President, United Mine Workers of America, 

District 30, Williamson Road, Pikeville, KY 41501 (Certified Mail) 

1652 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATlVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041. 

SECRETARY OF LABOR,. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AEARTH DEVELOPMENT, INC., 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. CENT 81-40 

A/O No. 03-01401-03008V 

Bradley Stephens #1 Mine 

Appearances: Eloise Vellucci, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, on behalf of 

Petitioner 

Michael Walker, President, Aearth Development, Inc., 

Little Rock, Arkansas, for Respondent. 

Before: Judge Stewart 

The above-captioned case is a civil penalty proceeding brought 

pursuant to section 110 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. 801 et~ (hereinafter, the Act). The hearing in this 

matter was held on May 13, 1981, in Fort Smith, Arkansas. 

Two orders pursuant to section 104(d)(l) of the Act were at issue in 

this proceeding. Both orders were issued by Inspector Les·ter Coleman· on 

July 8, 1980, for alleged violations of 30 CFR 77.1710(e). Section 

77.1710(e) requires that each employee working in a surface coal mine 

shall be required to wear suitable protective footwear. In both instances, 

it was established that mine management knew that these two employees were 

not wearing protective footwear. Michael Walker asserted at the hearing 

that management had informed both employees that protective footwear was 

required. Although the Respondent's employees were expected to pay for the 

shoes themselves, Respondent had arranged for credit to be extended to those 

employees who could not afford to pay for the shoes immediately. It is also 

evident that management permitted these employees to continue work even 

though they had not obtained safety shoes. Respondent notified its employees 

of the requirement that they wear protective footwear, but did not enforce 

the requirement. In so doing, Respondent violated Section 77.1710(e). 
Respondent demonstrated a moderate degree of ?egligence in permitting 

these two employees to work without protective footwear. Management knew 

that the men were not wearing safety shoes but, as the result of misinformation provided by a state inspector, believed that hard-toed shoes·were 

required by law only if the employee was working under hazardous conditions. 

Furthermore, both individuals had been apprised of the requirement that they 

wear protective footwear and provision had been made for them to procure it. 

The inspector issued Order No. 793090 upon observing a laborer wo.rking 

in the pit while wearing only ordinary leather shoes. The laborer was 

cleaning coal with a shovel. The spoil bank was located immediately adjacent 

to the pit. The spoil was comprised of loose material and contained debris 

which ranged in size up to two or thr_ee feet in diameter. The inspector 

was concerned that material would fall from the spoil bank into the pit and 

strike the laborer. If a large enough piece of material struck the laborer 

on the foot, it could have caused bruises or broken bones. 

The testimony of Michael_Walker, president of Aearth, established that 

the height of the spoi1 bank above the floor of the pit was approximately 

39 feet. The pit itself was estimated by the inspector to have been 

approximately 65 feet wide and 150 feet long. The laborer was working 

approximately 35 feet away from the edge of the spoil at the time he.was 

observed by the inspector. The inspector believed that the laborer was 

close enough to be struck by debris falling from the spoil pile. Moreover, 

the laborer's responsibilities also brought him into the area of the pit 

immediately adjacent to the spoil bank. 

The inspector issued Order No. 793091 after he observed a laborer 

wearing non-steel toed boots while assisting in the repair of a front-end 

loader. The individual involved was a trainee equipment-oiler. When 

observed, the laborc.r was helping to remove a turbocharge-r: from the loader. 

The turbocharger was approximately 18 inches by 24 inches and weighed 35 to 

40 pounds. Michael Walker admitted that if it had dropped on the laborer's 

foot, it would have caused inJury. He suggested, however, that the laborer 

would not have lifted the turbocharger himself but would have used a boom 

to do so, thereby reducing the likelihood that it would have fallen onto 

his foot. 

At the outset of the hearing, the parties stipulated that the information 

presented on the conference worksheet concerning Respondent's history of 

violations and size was accurate. The parties agreed that Respondent's 

history of violations was minimal anμ that its mine was small. Michael 

Walker admitted that the ability of Respondent tb continue in business 

would not be adversely affected by any penalty assessed herein. 

1()54 

1--:. 
The parties proposed at the conclusion of the hearing to settle this 

case for $100 per violation. The assessment proposed for each violation 

had been $300. On the basis of the testimony given and evidence adduced 

at the hearing, the settlement was approved at that time and Respondent 

was ordered to pay the sum.of $200 within 20 days of the hearing. 

The approval of settlement· is hereby AEFIRMED. 

ORDER 

IT IS ORDERED that, if it has not yet done so, Respondent pay the sum 

of $200 to Petitioner within 30 days of the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administra~ive Law Judge 

Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 (Certified 

Mail) 

Michael Walker, President, Aearth Development, Inc., P. 0. Box 3514, 

Little Rock, AR 72203 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 29 1981 

UNITED STATES FUEL COMPANY, Application for Review · Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Respondent 

Petitioner 

UNITED STATES FUEL COMPANY, 

Respondent 

Docket No. WEST. 79-81-R 

Citation No. 789508; 4/10/79 

King No. 5 Mine 

Civil Penalty Proceeding 

Docket No. WEST 80-62 

A.O. No. 42-01389-03011 V 

King No. 5 Mine 

DECISION 

Appearances: 

Before: 

Richard H. Nebeker, Esq., Callister, Greene & Nebeker, 

Salt Lake City, Utah, for United States Fuel Company; 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the Mine 

Safety and Health Administration. 

Judge Cook 

I. Procedural Background 

On May 7, 1979, United States Fuel Company (U.S. Fuel) filed an application for review in Docket No. WEST 79-81-R pursuant to section 105(d) 1/ of 

the Federal Mine Saf-ety and Health Act of 1977, 30 u.s.c. § 801 et seq:-

(Supp. III 1979) (1977 Mine Act), requesting that Citation No. 789508 be 

·!: ./ Section 105(d) provides as follows: 

"If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) 

of this section, or the reasonableness of the length of abatement time fixed 

1656 
declared invalid. The citation was issued at U.S. Fuel's King No. 5 Mine on 

April 10, 1979, pursuant to section 104(d)(l) 2/ of the 1977 Mine Act and 

contains allegations (1) that a condition or practice in violation of mandatory standard 30 C.F.R. § 75.316 existed in the mine; (2) that the violation 

was caused by U.S. Fuel's unwarrantable failure to comply with such mandatory 

standard; and (3) that the violation was of such nature as could significantly 

and substantially contribute to the cause and effect of a mine safety or 

health hazard. U.S. Fuel's application for review alleged, inter alia, 

(1) that no violation of the cited mandatory standard existed; (2) that the 

condition or practice set forth in- ·the citation was not caused by U.S. Fuel's 

unwarrantable failure to comply with the 1977 Mine Act; and (3) that the 

condition or practice set forth .in the citation was not of a nature which 

fn. 1 (continued) 

in a citation or modification thereof issued under section 104, or any miner 

or representative of miners notifies the Secretary of an intention to contest 

the issuance, modification, or termination of any order issued under section 

104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall 

immediately advise the Commission of such notification, and 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 on findings of fact, 

affirming, modifying, or vacating the Secretary's citation, order or proposed 

penalty, or directing other appropriate relief. Such .order shall become 

final 30 days after its issuance. The rules of procedure prescribed by the 

Commission shall provide affected miners or representatives of affected miners 

an opportunity to participate as parties to hearings under this section. The 

Commission shall take whatever action is necessary to expedite proceedings 

for hearing appeals of orders issued under section 104." 

2/ Section 104(d)(l) provides as follows: 

- "If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory 

health or safety standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such violation is of 

such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include such 

finding in any citation given to the operator under this Act.· If, during the 

same inspection or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authorized representative of the 

Secretary finds another violation of any mandatory health or safety standard 

and finds such violation to be also caused by an unwarrantable failure of 

such operator to so comply, he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by such violation, except 

those persons referred to in subsection (c) to be withdrawn from, and to be 

prohibited from entering, such area until an authorized representative of the 

Secretary determines that such violation has been abated." 

165~ 
:ould significantly and substantially contribute to the cause and effect of anine safety or health hazard. An answer was filed by the Mine Safety and 

iealth Administration (MSHA) on May 25, 1979. 

Various notices of hearing were issued which ultimately scheduled the 

proceeding in Docket No. WEST 79-81-R for hearing on the merits on November 7, 

ind 8, 1979, in Salt Lake City, Utah. Such hearing was held as scheduled with 

representatives of both parties present and participating. The parties made 

:losing arguments following the presentation of the evidence. 

On November 21, 1979, U.S. Fuel filed a motion styled "Motion to Re-open 

the Hearing, or in the Alternative to Have Admitted as Evidence, the Affiiavits of Walter L. Wright, General Superintendent, and Bruce Sherman, the 

i.finers' Representative, Attached Hereto." The same day, MSHA fi~ed a statenent in opposition thereto. On December 4, 1979, an order was issued granting 

J.S. Fuel's motion to reopen the hearing for the purpose of presenting the 

testimony of Messrs. Walter L. Wright and Bruce Sherman. The order contained 

i notice of hearing scheduling the hearing to reconvene on February 4, 1980, 

ln Salt Lake City, Utah. Thereafter, an order was issued continuing the 

1earing to 2 p.m., on June 2, 1980, in Salt Lake City, Utah. 

On November 26, 1979, MSHA filed a proposal for a penalty in Docket No. 

11EST 80-62 pursuant to section llO(a) of the 1977 Mine Act alleging one 

rlolation of 30 C.F.R. § 75.316, as set forth in 104(d)(l) Citation No. 

789508, issued on April 10, 1979. 

U.S. Fuel had not filed an answer to the proposal as of May 16, 1980. 

[t should be noted that the Rules of Procedure of the Federal Mine Safety 

ind Health Review Commission (Commission) require a party against whom a 

)enalty is sought to file and serve an answer within 30 days after service 

,f a copy of the proposal on the party. 29 C.F.R. § 2700.28 (1979). As a 

result of such failure to file an answer, Chief Administrative Law Judge 

James A. Broderick issued an order on May 16, 1980, requiring U.S. Fuel to 

;how cause on or before May 30, 1980, as to (1) why it should not be deemed 

to have waived its right to a hearing and contest of the proposed penalty, 

ind (2) why the proposed order of assessment should not be summarily entered 

iS the final order of the Commission and collection procedures instituted. 

)n May 22, 1980, the Commission's docket office received a telephone communi-

:ation from counsel for U.S. Fuel pertaining to the order to show cause, and, 

>n May 23, 1980, the case was assigned to the undersigned Administrative Law 

Judge. 

Thereafter, a telephone conference was held during which the undersigned 

~dministrative Law Judge and represent~tives of the parties participated. 

[t was agreed that both cases would be submitted for decision based upon the 

~ecord developed in Docket No. WEST 79-81-R on November 7 and 8, 1979, in 

>alt Lake City, Utah, and based upon a stipulation to be filed by the parties. 

~dditionally, a schedule was set for the filing of briefs. As a result of 

:he telephone conference, an order was issued on May 29, 1980, cancelling the 

June 2, 1980, hearing. 

lo5H 
Both the stipulations and U.S. ·Fuel's brief were filed on June 17, 1980. 

U.S. Fuel filed its answer to the proposal for a penalty on June 20, 1980. 

"MSHA filed a brief on July 9, 1980. 

After the briefs were filed, it was decided to postpone the issuance of 

a decision in these cases until such time as the Commission issued its decision in Secretary of Labor, MSHA v. Cement Division, National Gypsum Company, 

Docket No. VINC 79-154-PM, addressing the issue as to when a violation is of 

such nature as could significantly and substantially contribute to the cause 

and effect of a mine safety or health hazard, as that criterion is used in 

section 104 of the 1977 Mine Act. 3/ Chief Administrative Law Juqge James A. 

Broderick issued his decision in the National Gypsum case on December 26, 

1979, wherein he applied the rule of law announced by the Interior Board of 

Mine Operations Appeals in Alabama By-Products Corporation, 7 IBMA 85, 94, 

83 I.D. 574, 1 BNA MSHC 1484, 1976-1977 CCH OSHD par. 21,298 (1976). See, 

1 FMSHRC 2115 (1979). The Connnission granted the mine operator's petition for 

discretionary review on January 31, 1980, and issued its decision on April 7, 

1981. See, Secretary of Labor, MSHA v. Cement Divison, National Gypsum 

Company~ FMSHRC 822, 2 BNA MSHC 1201, 1981 CCR OSHD par. 25,294 (1981). 

II. Violation Charged in Docket No. WEST 80-62 

Ci ta tiOI). No. Date 30 C.F.R. Standard 

789508 April 10, 1979 75.316 

III. Witnesses and Exhibits 

3/ An article appearing in 4 Mine Regulation & Productivity Report No. 25 

(New York: McGraw-Hill, Inc.) (July 4, 1980) at pg. 2 stated, in part, as 

follows: 

"The Mine Safety and Health Review Commission has expressed dissatisfaction with the legal precedents that federal inspectors follow to decide 

whether operators' violations are significant and substantial (S&S). In a 

public meeting, the commission. voted 3 to 1 (Commissioner Al Lawson dissented) 

to overturn a decision of Administrative Law Judge James Broderick that upheld 

nine S&S findings attached to citations issued to National Gypsum (MR, 1/11). 

"Broderick indicated that he was bound to follow the test for S&S violations laid out by the old Interior Board of Mine Operations Appeals (IBMA) in 

its 1976 Alabama By-Products decision. Operating under that test, which says 

that all violations could be S&S except technical ones or ones posing only a 

remote chance of injury, federal coal mine inspectors have found about 61% of 

coal violations to be S&S, while metal/nonmetal mine inspectors have found 

about 91% of violations to be S&S, according to figures of the Mine Safety 

& Health Administration. 

"What will remain unanswered until the commission issues a final opinion 

is how far MSHRC will move in the direction of the IBMA's pre-Alabama 

By-Products definition of an S&S violation as one posing a risk of serious 

bodily harm or death." 

165B 
A. Witnesses 

U.S. Fuel called as its witnesses Mr. Eddie Edwards, the continuous 

miner operator; Mr. William Russell Allred, the miner's helper; Mr. Jose 

Carlos Salas, the shuttle car operator; Mr. Buddy Gines, the section foreman; 

Mr. Robert s. Martinez, a company safety inspector on April 10, 1979, and a 

section foreman at the time of the hearing; and Mr. Louis J. Mele, the 

<lirector of safety and training. 

Both U.S. Fuel and MSHA called Federal mlne inspector Ted R. Milovich 

as a witness. 

B. Exhibits 

1. MSHA introduced the following exhibits in evidence during the 

hearing: 

M-1 is a typed copy of Citation No. 789508; April 10, 1979, 30 C.F.R. 

§ 75.316. 

M-2 contains copies of Inspector Milovich's handwritten notes pertaining 

to M-1. 

M-2A is a typed copy of M-2. 

M-3 is a copy of the ventilation system and methane and dust control 

plan in effect at the King No. 5 Mine on April 10, 1979. 

M-4 is a drawing prepared by Inspector Milovich. 

M-5 is a copy of the inspector's statement pertaining to M-1. 

2. U.S. Fuel dia not introduce any exhibits in evidence during the 

hearing. 

3. The parties filed stipulations on June 17, 1980, stipulating the 

admission in evidence of (a) the November 15, 1979, affidavit of Bruce 

Sherman; (b) an attached Exhibit "A," which is a copy of U.S. Fuel's controlling company information report; and (c) an attached Exhibit "B,." which 

is a computer printout compiled by the Directorate of Assessments setting · 

forth the history of previous violations at U.S. Fuel's King No. 4 and King 

No. 5 Mines for which assessments have been paid, beginning January 1, 1970, 

and ending May 29, 1980. 

IV. Issues 

A. The following issues are presented in the above-captioned application 

for review proceeding: 

1B60 
1. Whether the condition described in 104(d)(l) Citation No. 789508 

constitutes a violation of mandatory standard 30 C.F.R. § 75.316. 

2. If the condition described in 104(d)(l) Citation No. 789508 consti-. 

tutes a violation of mandatory standard 30 C.F.R. § 75.316, then whether 

such violation was of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health hazard, and 

whether such violation was caused by the mine operator's unwarrantable 

failure to comply with mandatory standard 30 C.F.R. § 75.316. 

B. Two basic issues are involved in the above-captioned civil penalty 

proceeding: (1) .did a violation of mandatory standard 30 C.F.R. § 75.316 

occur, and (2) what amount should be assessed as a penalty if a violation 

is found to have occurred? In determining the amount of civil penalty that 

should be assessed for a violation, the law requires that six factors be 

considered: (1) history of previous violations; (2) appropriateness of the 

penalty to the size of the operator's business; (3) whether the operator was 

negligent; (4) effect of the penalty on the operator's ability to continue 

in business; (5) gravity of the violation; and (6) the operator's good faith 

in attempting rapid abatement of the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. During the hearing on November 7, 1979, the parties·stipulated that 

the King No. 5 Mine is involved in interstate commerce (Tr. 7). 

2. The parties filed stipulations on June 17, 1980, stating, in part, 

as follows: 

·[a] The above two docket numbers concern the same 

identical citation, Number 789508 issued on April 10, 1979, 

by MSHA Inspector Ted R. Milovich. 

[b] A hearing was held in Docket No. WEST 79-81-R 

in Salt Lake City, Utah, on November 7 and 8, 1979, before 

Administrative Law Judge John F. Cook. 

[c] The parties stipulate that the two cases should be 

consolidated and the record should be closed with the 

inclusion of the Affidavit of Mr. Bruce Sherman being 

admitted as part of the record. The Secretary specifically 

states that he is not opposed to the addition of Mr. Sherman's 

affidavit dated November 15, 1979, but further that he does 

not attest to the accuracy or truth of said Affidavit. 

ll16J 
[d] The parties stipulate that the attached Exhibit "A" 

com.titut-es a copy of U.S. Fuel's Controlling Company 

Info.·mation Report which indicates a total production of 

746,298 tons of coal was mined in 1979. 

[e] The parties stipulate that the attached Exhibit "B" · 

constitutes a printout of all paid violations by the company 

and ma; be used in determining· the company's history or [sic] 

prior violations. 

[f] The payment of any penalty in this matter will not 

affect U.S. Fuel Company's ability to remain in business. 

[g] The violation was abated in normal good faith. 

[h] The parties will file short briefs in this matter 

with U.S. Fuel's brief to be mailed on or by June 16, 1980, 

and MSHA's brief will be mailed on or by July 9, 1980. 

B. Occurrence of Violation 

Federal mine inspector Ted R. Milovich issued section 104(d)(l) Citation 

No. 789508 at U.S. Fuel's King No. 5 Mine during the course of his April 10, 

1979, inspection. The citation alleges a violation of mandatory standard 

30 C.F.R. § 75.316 in that "[tlhe ventilation, methane and dust control plan 

was not being complied with in the No. 1 right entry of the first south 

section. The line brattice was 28 feet outby the point of deepest penetration and coal was being cut with a Joy continuous mining machine. No methane 

[was] detected. The plan allows 15 feet." (Exh. M-1). The applicable provision of the King No. 5 Mine's approved ventilation system and methane and 

·dust control plan required that 11 [l]ine brattice or tubing will be installed 

at a distance no greater than 15 feet from the area of deepest penetration to 

which any portion of the face has been advanced in working faces from which 

coal is being cut, mined, or loaded." (Fourth and fifth pages of Exh. M-3, 

Tr. 45-46). A parenthetical statement following the requirement states that 

"15 feet is needed to allow proper maneuvering of the continuous miner. The 

King Mine has never in 70 years of mining, generated Methane of detectable 

quantity in any working place. 11 (Fifth page of Exh. M-3)~ Mandatory s':andard 

30 C.F.R. § 75.316 requires that: 

A ventilation system and methane and dust co.ntrol plan 

and revisions thereof suitable to the conditions and the 

mining system of the coal mine and approved by the Secretary 

shall be adopted by the operator and set out.in printed form 

on or before June 29, 1970. The plan shall show the type 

and location of mechanical ventilation equipment installed 

and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity 

of air reaching each working face, and such other information 

as the Secretary may require. Such plan shall be reviewed 

by the operator and the Secretary at least every 6 months. 

1662 
The applicable portion of the regulation requires the mine operator to 

adopt a ventilation system and methane and dust control plan approved by 

the Secretary. The mine operator violates 30 C.F.R. § 75.316 by failing to 

comply with the approved plan. Peabody Coal Company, 8 IBMA 121, 84 I.D. 469, 

1 BNA MSHC 1573, 1977-1978 CCH OSHD par. 22,111 (1977); Zeigler Coal Company, 

4 IBMA 30, 82 I.D. 36, 1 BNA MSHC 1256, 1974-1975 CCH OSHD par. 19,237 (1975), 

aff'd sub nom. Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). 

The evidence presented by MSHA and U.S. Fuel paint starkly different 

pictures of the facts surrounding the issuance of the citation. In the 

absence of these two patently inconsistent versions of the events, the 

findings of material fact in these cases could be concisely stated without a 

prolonged discussion and analysis of the testimony of the individual witnesses. 

However, because the two versions are patently inconsistent, it is considered 

appropriate to discuss the testimony of the various witnesses in some detail. 

Federal mine inspector Ted R. Milovich was accompanied on his inspection 

by Mr. Robert Martinez, the company safety inspector, and Mr. Bruce .Sherman, 

a representative of the miners (Tr. 34). They entered the section and pro--

ceeded toward the face areas by walking inby through the belt entry (Tr. 34, 

43). As the inspection party approached the feeder breaker, the inspector 

observed a shuttle car, operated by Mr. Jose Carlos Salas, dumping a load of 

coal (Tr. 34-36). Being a somewhat suspicious person, 4/ the inspector 

quickened his pace to follow the shuttle car into the w0rking place (Tr. 34). 

Following the shuttle car required the inspector to make a right turn into 

a crosscut after passing the feeder breaker, and to thereafter make a left 

turn into the No. 1 right entry. This entry was adjacent to the belt entry 

(See,~·.£•, Exh. M-4). Messrs. Martinez and Sherman followed the same route 

as the inspector, but, because the inspector had quickened his pace, they 

arrived at the face area of the No. 1 right entry shortly after the inspector 

arrived there (See ~·.B_•, Tr. 301, 312). 

Upon reaching the face area, the inspector made a series of observations 

which resulted in the issuance of the subject citation. A box cut on the 

right side of the entry was the point of deepest penetration to which the 

face had been advanced (Tr. 38). The evidence presented d~ring the hearing 

establishes that the box cut was 5 feet deep. (See, ~·.B_•, Exh. M-4). Face 

ventilation was being provided through the use of line brattice which had 

been installed on the left side of the entry (Tr. 38). The line l~attice was 

attached to timbers, or posts, which appear to have been installed for that 

purpose (See,~·.£·, Exh. M-4). According to the inspector, Mr. Eddie Edwards, 

the continuous miner operator, was cutting coal from the left side of the face 

!!./ Inspector Milovich testified on this point as follows: 

"As he was leaving I stepped up my pace to follow this shuttle car into 

the working place, because I am somewhat of a suspicious person. I suspect 

that when a shuttle car operator observes an inspector they go up to the face 

and they say, 'the inspector is coming,' and things can change rapidly." 

(Tr. 34). 

1U63 
and loading it aboard Mr. Salas' shuttle car, which was positioned under the 

continuous miner's tail (Tr. 35-36, 96, 370, 373). The inspector testified 

that he observed sparks being generated from the left side of the cutting 

wheel when the continuous miner's ripper head made contact with the roof · 

(Tr. 30, 346, 347, 370, 373). Visual observation enabled the inspector to 

determine immediately that the line brattice was not being maintained to 

within 15 feet of the point of deepest penetration. The inspector .testified 

that he knew immediately that the 15 foot requirement had been violated 

because the continuous miner's cab was inby the end of the line brattice (Tr • 

. 364, 369). The cab is approximately 20 feet from the cutting bits on the 

front of the machine (Tr. 121). 

The inspector exchanged comments with members of the crew, and requested 

that nothing be moved or disturbed until such time as he discussed the matter 

with mine management (Tr. 36-37). Members of mine management were summoned 

to the scene and arrived shortly thereafter. 

The continuous miner was backed out of the face area after management· 

personnel were accorded the opportunity to observe the condition (Tr. 63) • 

. The inspector testified that the line brattice was attached to and terminated 

at the fourth post outby the face (fourth post). The _third post outby the 

face (third post) was standing, but no line brattice was attached to it. The 

first post outby the .face (first post) and the second post outby the face 

·(second post) were lying on the ground on the left side of the entry. The 

cap pieces for the two downed posts were on the right rib siding (Exh. M-4, 

Tr, 57-62). The inspector's testimony reveals that the four posts and the 

line brattice were in that same position and condition when he first entered 

the face area and observed the continuous miner cutting coal from the left 

side of the face (Tr. 364, 373-374). His testimony further reveals that no 

line brattice was lying on the ground or was otherwise immediately available 

which could have been extended inby the fourth post (Tr. 50-51, 624 360, 362, 

367, 373, 381-382, 384-386). In fact; the inspector testified that. he asked 

the company personnel to extend the line brattice on the fourth post to its 

maximum extension, and .that when they did so he discovered only approximately 

16 or 17 inches of line brattice which could be extended inby that post 

(Tr. 39-50). 

A series of measurements were made using the fourth post as·the point 

of reference. These·measurements revealed that the line brattice terminated 

at a point approximately 28 feet outby the point of deepest penetration to 

which any portion of the face had been advanced, i.e., 13 feet, or almost a 

full cut, more than permitted by the approved ventilation system and methane 

and dust control plan (Tr. 37-38, 46-47, Exh. M-4). The inspector testified 

that none of the company personnel present expressed the view that the 

measurement was being made using the wrong post as the point of reference, 

or stated that additional line brattice was present either on the ground or 

under the miner which should have been accounted for in the measurement. 

(See !:_•_g_., Tr. 43, 362, 374-375, 379). 

1664 
The inspector further testified tpat the citation was abated by two men 

who brought in additional brattice material, erected the two fallen posts 

and thereafter extended·the line brattice (Tr. 50-51, 64, 376). 

In summary, the testimony of Inspector Milovich maintains that actual 

mining and loading activities were being performed at the face of the No. 1 

right entry at a time when the line brattice terminated at a point approximately 28 feet outby the point of deepest penetration to which any portion 

of that face had been.advanced. His testimony further maintains that there 

was no additional line brattice in the area which could have been used to 

comply with the applicable provision of the approved ventilation system and 

methane and dust control plan. 

U.S. Fuel maintains that Inspector Milovich's version of the events surrounding the issuance of Citation No. 789508 is patently erroneous. Briefly 

stated, U.S. Fuel maintains that the crew began work on the left side of the 

No. 1 right entry by cleaning up some sloughage along the left rib. According to U.S. Fuel, Mr. Salas had transported one shutt!e car load of this 

material to the feeder breaker and had just returned for a second load when 

the inspector arrived in the face area. According to U.S. Fuel, the contin~ 

uous miner was pushing.sloughage into the face when Inspector Milovich 

·arrived. U.S. Fuel maintains that the first post was knocked down by the 

continuous miner while maneuvering to clean up the sloughage, and that it was 

the only post that had been knocked down prior to the time that the inspector 

had the continuous miner operator back the machine out of the area along the 

left rib. U.S. Fuel maintains that this post was knocked down while the crew 

was working on the first shuttle car load of sloughage from the left side of 

the entry. It is U.S. Fuel's position that the second post was knocked down 

when ~he inspector had the miner operator back the machine out of the area 

along the left rib. Additionally, U.S. Fuel maintains that the line brattice 

was properly installed to within 15 feet of the point of deepest penetration 

at all relevant times, and that the line brattice ~as accid~ntly knocked down, 

along with the post, while maneuvering the continuous miner to clean up the 

sloughage. 

U.S. Fuel employed the testimony of six witnesses and the affidavit of 

Mr. Bruce Sherman to set forth its version of the events surrounding the 

issuance of Citation No. 789508. However, their evidence contains numerous 

inconsistencies, especially in nine key _areas, which reflect adversely on 

their credibility. Specifically, their evidence is inconsistent insofar as: 

(1) when the posts were installed on the left side of the entry; (2) identifying the post to which the line brattice was attached; (3) when the two 

posts were knocked down; (4) what activities were occurr;J.ng .in the face area 

when the inspector arrived there; (5) the location of the\ line brattice after 

it was knocked down and what the various witnesses did or 'did not.say to the 

inspector concerning the location and condition of the lin~' orattice; . 

(6) whether the witnesses saw measurements being made; (7) wqether additional 

brattice material was brought in to abate the violation; (8) ~hether the 

inspector and Mr. Eddie Edwards, the continuous miner operator, engaged in 

a conversation at the kitchen; and (9) whether Mr. Buddy Gines, the section 

1''61 ,) ,. 
foreman, was in the face area shortly prior to the inspector's arrival there. 

Eight of these areas are discussed in detail below. The ninth, whether 

Mr. Gines was in the face area shortly prior to the inspector's arrival, will 

be discussed in a subsequent portion of this decision. 

The first area of inconsistency is of a somewhat minor nature and 

relates to when the line posts were installed on the left 3ide of the entry. 

Mr. Edwards, the continuous miner operator, affirmat~vely testified that he 

installed those line posts (Tr. 127-128). Mr. William Russell Allred, the 

miner's helper, indicated that at least one of the four posts at issue was 

standing up from the previous shift (Tr. 160). 

The second area of inconsistency relates to identifying the inby most 

post to which the lin~ brattice was attached immediately prior to the time 

that such line brattice was supposedly knocked down by the continuous miner. 

Mr. Edwards testified that the line brattice was attached up to and including 

the first post outby the face (Tr. 116, 123, 130-131, 133-134). Mr. Allred 

testified that the line brattice was attached only up to and including the 

second post outby the face prior to Mr. Edward's beginning his activities on 

the left side of the entry (Tr. 162, 163, 165, 192-193). Mr. Salas, the 

shuttle car operator, testified that the line brattice was attached up to 

and including the second post outby the face, and that the brattice came off 

of the first post outby the face when the miner operator knocked the first 

·timber down on his way going in (Tr. 202, 215-216). The affidavit of 

Mr. Sherman states, in part, that he "observed that one timber (1st outby 

from the face) was knocked out and the brattice was still wrapped around it." 

This statement indicates that Mr. Sherman maintains that he observed evidence 

that the line brattice had been attached up to and including ·the first post 

outby the face. The testimony of Mr. Buddy Gines, the section foreman, 

indicates that he maintains that the line brattice was attached up to and 

including the first post outby the face (Tr. 271-272). 

The third area of inconsistency relates to when the first and second 

posts were knocked down. Messrs. Edwards and Salas maintained that the first 

post was toppled by the continuous miner while maneuvering to clean up the 

sloughage, and that the second post was knocked down when the inspector had 

the miner operator back the machine out of the area along the left rib (Tr. 

115, 123, 202, 205, 207). However, Mr. Edwards testified·at a later point 

that he did not know whether he toppled one post while going in and the other 

post while going out, or both while going in or both while going out (Tr. 

129-130). Mr. Allred testified at one point in his testimony that it was 

necessary to topple the first post in order to clean up the material present 

(Tr. 162). However, he later contradicted himself by testifying that he did 

not remember when Mr. Edwards knocked the posts down, that he did not even 

remember Mr. Edwards knocking them down, and that he really did not know 

whether Mr. Edwards knocked them down while going in or while pulling out 

(Tr. 173-174). Of even greater significance on this point is the testimony 

of Mr. Louis J. Mele, U.S. Fuel's director of safety and training. Mr. Mele 

was one of the company officials summoned to the face area of the No. 1 right 

entry by Mr. Martinez. Mr. Mele testified that he observed the two posts 

166b 
lying on the ground when he arrived in the face area. He further testified 

that he did not observe the two posts in thei~ entirety because they were 

partially covered with coal (Tr. 397-398). His testimony that the two posts 

were partially covered with coal is inconsistent with the position of other 

witnesses for U.S. Fuel that the two posts, and particularly the second post, 

had just been knocked down. Mr. Mele's testimony that the two posts were 

partially buried is consistent only with Inspector Milovich's assertion that 

. the two posts were down when he arrived in the face area and observed actual 

mining activity in progress, because some type of activity would have been 

required in order to partially bury the two posts. 

The fourth area of inconsistency relates to what activities were 

occurring in the face area when Inspector Milovich arrived there. Mr. Edwards 

testified that he was cleaning sloughage from along the left rib, using the 

head of the miner to break up some large pieces that had sloughed down from 

the left rib, and loading the material aboard the shuttle car which was 

positioned under the continuous miner's tail (Tr. 114-115, 146-147, 151-152). 

On direct examination, he testified as follows: 

I backed the miner up, I moved over, and I was moving 

in, and there was sloughage from the rib that had fallen 

down, and I was continuing to clean that sloughage up with 

my machine. In order to get that sloughage cleaned up --

there is chuncks in there as big as [the bench in the 

courtroom where the hearing was held] and you have to start 

the cutter head to cut the coal to let it go up to the 

conveyor into the [shutt1le car]. That's what I was doing. 

I was cutting up the sloughage; I entered the face, and then 

there was a big chunk right there; I started to cut it, and 

when I turned around to see how full the [shuttle car] was, 

and I seen Mr. Milovich coming down, and then I shut the 

machine off and I started back, and that's when he wrote up 

the citation. 

(Tr. 114-115). 

Mr. Allred's testimony on this point, although not as detailed, indi-

·cates that the crew was in the process of loading the shuttle car when the 

inspector arrived (Tr. 162). Mr. Salas' testimony, however, contradicts the 

testimony of Messrs. Edwards and Allred because he maintained that no loading 

was in progress. Mr. Salas testified as follows on direct examination: 

Q. Now, was your shuttle car in the position approximat~ly that is shown on Exhibit M-4 at the time Mr. Milovich 

arrived? 

A. No. I was back a ways. I was behind the tail. 

Q. When you say you were behind the tail were you ready 

to receive coal or was there something that would still be 

necessary to do before the miner pumped coal into your buggy? 
A. Before I go in the tail has to be up, but his tail 

was down at the time and he was breaking up some gob in there. 

Q. So he has a rear boom which is shown as -that projection from the miner over the shuttle car, and that boom had 

not been raised sufficiently for you to get underneath at 

the time that he was breaking up these lumps? 

A. No, not at the time. 

(Tr. 198-199). 

The fifth area of inconsistency relates to the location of the line 

brattice after it was knocked down and what the various witnesses pid or did 

not say to the inspector concerning the location and condition of the line 

brattice. Generally, the operator's witnesses and the affiant maintain that 

the toppled line brattice was on the floor of the entry, and that an argument 

ensued over the subject of mining without proper ventilation. 

Mr. Sherman's affidavit maintains that the toppled line brattice was 

plainly visible. 

Mr. Edwards testified at one point that the line brattice was on the 

ground underneath the continuous miner, and that that was why the inspector 

did not see it (Tr. 116-117). However, he later testified that the line 

brattice was on the ground when the measurements were made and that it was 

visible to anyone taking the trouble to walk around the left side of the 

continuous miner (Tr. 154)°, and that he did not know why the inspector did 

not see it (Tr. 143~144). As relates to any conversations with the inspector, 

Mr. Edwards testified that Inspector Milovich came in, stopped, shook his 

head and asked him "what the hell" he, Edwards, though he was doing (Tr. 124). 

Curiously, for a man who maintains that the line brattice had been up; 

Mr. Edwards never told the inspector (1) that the line brattice had been in 

place, (2) that it had just been knocked down by the continuous miner, or 

(3) that the line brattice was lying on the ground (Tr. 117, 129-130, 

139-140). In fact, he testified that he did not respond to any of the inspector's direct questions concerning why the line brattice was not up (Tr. 117). 

At one point he testified that he did not know why he failed to mention the 

presence of the line brattice to the inspector upon learning that a ventilation violation had occurred (Tr. 152). He thereafter testified that he 

failed to mention it because he was shaken by the experience (Tr. 152-153). 

It appears that Mr. Allred was suffering from a poor memory insofar as 

this, the most cr'bcial aspect of U.S. Fuel's case, was concerned. He testified that he did not know where the line brattice was (Tr. 171); that he did 

not see the brattice cloth when the continuous miner was pulled back and the 

measurements were taken (Tr. 172); and that he did not recall seeing any 

brattice cloth tucked underneath the machine (Tr. 173). As noted previously, 

Mr. Allred maintained at various points in his testimony that the line 

brattice was attached up to and including the second post outby the face. 

1668 
Yet he testified, in the following passage, that he never brought this matter 

to the inspector's attention simply because he never says much to Inspector 

Milovich: 

JUDGE COOK: If that was true, didn't you say something 

to the Inspector as to what you thought the situation was? 

THE WITNESS: Myself, no. I don't say very much to him; 

never did. Never did. 

(Tr. 188). 

Mr. Salas testified that he ~aw the line brattice on the ground after 

the inspector's arrival on the section and before the continuous miner was 

backed out of the face (Tr. 203-204). He further testified that the line 

brattice was on the ground after the continuous miner was backed out of the 

face, but he could not remember whether it was visib;L~ on the left side or 

whether it was underneath the continuous miner (Tr. 205). However, he later 

testified that he never saw the line brattice on the floor after the miner 

pulled out (Tr. 212). Additionally, Mr. Salas testified that he did not say 

a word to the inspector concerning the violation, and indicated that he did 

not look for the brattice cloth after the section was shut dow or while the 

argument was in progress (Tr. 206, 217) even though he could have easily seen 

the brattice cloth from his vantage point in front of the continuous miner 

(Tr. 216-219). In fact, he claimed that he was unable to remember the topic 

of the argument (Tr. 219). The implausibility of and apparent contradictions 

contained in his testimony are amply illustrated by the following excerpts 

from his cross-examination: 

Q. Did you ever walk in front of the brattice I mean 

in front of the miner? Did you ever stand in fr~nt of the 

miner? 

A. Yes. 

Q. When did you ever do that? 

A. After everybody was there. 

Q. Everybody was there and you were standing in front 

of the miner? 

A. They was just arguing. 

Q. Everybody was arguing. Where was the brattice cloth? 

A. I didn't look around for it. 

1o6B 
Q. Oh, Jesus. The bratti~e cloth was hanging on the 

second, third and.fourth posts when you were coming in; it 

falls off the second post when Mr. Edwards moves his machine 

in? 

A. Right. 

Q. It falls off the third post and the second post falls 

doW11 when he backs the machine back, and then you are standing 

in front of he miner, with.everybody standing around· arguing, 

and you don't know where the brattice cloth is? 

A. I didn't know it was a violation before or I would 

have looked for it. 

(Tr. 216-217). 

* * * * * * * 

You remember [the condition and location of the brattice 

prior to th~ time the machine was backed out of the face] but 

you don't remember when you were standing in front of the 

miner? Did it disappear? 

A. I wasn't looking for it. 

Q. What were they arguing about? 

A. I can't remember. It. was none of my business. They 

were the ones. 

Q. But you don't remember? That's what you are· telling 

me, you really don't remember where the·brattice·cloth was at 

the point in time that you were standing in front of the 

machine? Would you answer verbally for the record? 

A. No. 

(Tr. 219). 

Mr. Buddy Gines was summoned to the face area and arrived there prior to 

the arrival of Mr. Mele's party. Mr. Gines testified that an·argument ensued 

upon his arrival during which the inspector "got on me pretty bad for mining 

without air" (Tr. 237). Mr. Gines testified that the inspector kept saying 

that it was his responsibility to make sure that the crew did not cut past 

their ventilation; and that he got the impression that Inspector Milovich 

thought the crew had mined some considerable time with the posts and line 

brattice down (Tr. 237-238). Mr. Gines further testified that he attempted 

to explain to Inspector Milovich that the posts and line brattice wer~ there, 

but that the inspector just kept getting on him about his responsibilities 

16l0 
and would not let him explain the matter (Tr. 238). This·angered Mr. Gines 

and he therefore simply terminated the discussion with the inspector and took 

a seat along·the right rib. He testified that he remained seated there during all subsequent activities and that he did not assist in the taking of 

measurements or in anything else (Tr. 237-238, 252, 256, 262). 

According to Mr. Gines, the line brattice and timbers were present (Tr. 

271). Yet curiously, he did not brief Mr. Mele and his party about the 

situation before they talked to the inspector. In fact, he did not even 

speak to them when they arrived (Tr. 282). Such conduct is inconsistent 

with Mr. Gines position that the crew had not mined past their ventilation. 

Logically, one would expect Mr. Gines to explain the situation to Mr. Mele's 

party and point out to them that the inspector's accusation was unfounded, 

that the inspector would not let him proffer an explanation, and that the 

inspector appeared unwilling to listen to reason. Instead, he said absolutely 

nothing to them. 

Additionally, Mr. Gines did not affirmatively testify that someone told 

the inspector that measurements were being made in the wrong location. He 

testified only that he thought he heard someone tell the inspector that the 

measurement was being made ·in the wrong spot (Tr. 255). 

Mr. Martinez testified that when he arrived at the.face, the first post 

was lying on the ground and the line brattice was attached to the third post 

and was angling down to the second post (Tr. 302-303). Mr. Martinez testified 

that he assisted in making the 28 foot measurement (Tr. 304). It does not 

appear that Mr. Martinez had any discussion with the inspector concerning the 

fact that the posts had just been knocked down (Tr. 303). However, he testified on direct examination that other people made comments to the inspector 

as relates to the point of reference used in making the measurement: 

Q. You helped take that measurement? Did anyone from 

the crew or supervisory personnel state to Mr. Milovich that 

he was measuring from the wrong poi'nt? 

A. Yes, Sir. 

Q. Do you know who said that? 

A. There were several comments on the measurement. The 

supervisory, Andy Barnett and the. crew members appeared to be 

-- as the brattice.was angled the[y) didn't believe it was 

where it should be taken at. He was taking it from where it 

was intact all the way to the roof, the way the measurement 

was made. 

(Tr. 304-305). 

How~ver, he appeared to become evasive when cross-examined. on this point, 

maintaining that he did not really remember what was said: 

1671 
Q. Did Mr. Mele or Mr. Barnett take the lead in advancing the company's position at the time? Was either one of 

them more dominant than the other in talking to Milovich? 

A. Not that I recall. 

Q. Both of them were talking to him at the same time? 

A. People were talking. 

Q. But you don't remember what was said? 

A. Not really. 

Q. Can you give me the flavor of what was said, what is 

your recollection of what was said? What were the arguments 

about? 

A. People were arguing about the angle of the brattice 

after we had backed out, talking about where the measurements 

were taken. I really can't recall what they was talking. I 

was going about my job. 

(Tr. 331-332). 

Mr. Mele testified that the line brattice was probably on the fourth 

post on an angle when-he arrived in the face area (Tr. 390). He testified 

that he saw the brattice cloth on the ground, but he had no idea as to how 

such observation squared with Mr. Edwards' testimony that the brattice cloth 

was under the continuous miner (Tr. 397). 

It was apparent to Mr. Mele that Inspector Milovich had already taken 

some measurements, because when the two men first met the inspector stated 

that "the violation was 28 feet" (Tr. 390-391). Mr. Mele responded with the 

statement that it did not appear that far (Tr. 390-391). Thereafter, 

Mr. Mele assisted the inspector in making measurements. However, Mr. Mele 

indicated at several points in his testimony that nobody mentioned to 

Inspector Milovich that he was taking the measurements in. the wrong location. 

He testified that he had no discussion with the inspector as to whether the 

measurement should be made from where the line brattice was actually hung on 

the post, or whether it should account for any of the additional brattice 

that was sloping down (Tr. 391). He further testified that while he was 

assisting in the measurement, nobody indicated that the measurement was being 

made in the wrong spot (Tr. 399-400). His testimony on this point flatly 

contradicts Mr. Martinez testimony on direct examination that he overheard 

supervisors or crew members tell the inspector that the measurements were 

being made in the wrong location. 

In short, the reliable evidence shows that no statements were made to 

Inspector Milovich indicating either that the line brattice had just been 

167:! 
knocked down, or that the measurements should have been made by taking irito 

account additional line brattice that U.S. Fuel maintains was present. The 

failure of U.S. Fuel's personnel to make such statements to the inspector 

tends to prove that Inspector Milovich gave an accurate portayal of the 

conditions existing at the face of the No. 1 right entry. The failure of 

U.S. Fuel's personnel to point out such key facts to the inspector is conduct which is inconsistent with the position advanced by U.S. Fuel's witness' and affiant. The alternative would require the acceptance of an absurd 

proposition in which discussions take place concerning mining without proper 

ventilation, and measurements are made to determine how far the line brattice 

terminates from the point of deepest penetration to which any port~on of the 

face has been advanced, and yet nobody bothers to point out the crucial facts 

necessary to avoid the issuance of a citation. Additionally, U.S. Fuel's 

evidence contains numerous inconsistencies as to the position and location of 

.the brattice cloth that it maintains had just been knocked down. 

The sixth area of inconsistency concerns whether the witnesses saw 

measurements being made. The inconsistency in this area is confined to the 

testimony of Mr. Edwards. 

Briefly stated, measurements were taken in the following fashion: The 

first measurement was made by the inspector prior to the arrival of 

Mr. Mele's party. He threw his tape measure, which had a nut on the end, 

into the face and obtained a reading of approximately 28 feet (Tr. 37-38, 

390-391). Inspector Milovich informed Mr. Mele of the reading when the 

latter arrived. Mr. Mele responded that the distance did not appear that far 

(Tr. 390-391). Company personnel assisted the inspector in taking another 

set of measurements, with Mr. Mele holding the tape at the face. Once again, 

a reading of approximately 28 feet was obtained (Tr. 37-38, 304, 317, 394). 

At one point during cross-examination, Mr. Edwards denied that he saw 

measurements being made: 

Q. Now, did you watch any of the measurements going on? 

Did you see the Inspector throw his tape up into the face with 

a nut on the end of it and read out about twenty-eight feet? 

A. I didn't see nothing like that. I wasn't there. I 

wasn't paying any attention. All I know is that he started 

to write out the citation. 

(Tr. 122). 

However, he contradicted himself at a later point in his cross-examination: 

Q. Did you see the Inspector measure the area? 

A. Yes, I seen him measure it. 

Q. Did you look at the tape at all? 
(Tr. 

A. No, I didn't. 

Q. He measured it twice when you were there? 

A. Yes, I know he measured it. 

Q. Do you remember seeing him measure it twice? 

A. Yes. 

Q. You saw him throw it up once by himself and then he 

had somebody else walk up to the face at the roof support~ 

A. Yes. 

Q. Who did he have walk up to the face? 

A. Lou Mele. 

Q. Who? 

A. Lou Mele. 

137-138). (Emphasis added). 

The seventh area of inconsistency relates to whether additional brattice 

cloth was brought in to abate the violation. The inspector testified that 

the violation was abated by two men who brought in and installed additional 

line brattice (Tr. 50-51, 64, 376). U.S. Fuel maintains, however, that the 

violation was abated by reinstalling the line brattice which ..had fallen on 

the ground, and that additional brattice cloth was not brought in for this 

purpose. The most probative evidence adduced. )>y U.S. Fuel. in support ·of its 

position 5/ is the affidavit of Mr. Sherman which states, in part, that: "We 

rehung the brattice that had fallen off the timbers using the the [sic] 

brattice laying on the ground along the rib line and some wrapped around the 

5/ The testimony of Messrs. Edwards, Gines, Martinez and.Mele is less than 

conclusive on this point. Mr. Edwards testified that he did not see additional brattice cloth brought in to abate the citation (Tr. 125), and that 

nobody brought in extra brattice cloth (Tr. 141). However, the evidence 

presented indicates that Mr. Edwards was in no position to make a personal, 

firsthand observation of the abatement procedures because he was at the 

kitchen, and not the face, when abatement occurred. Mr. Gines testified only 

that he did not observe anybody bring in additional brattice cloth to abate 

the citation (Tr. 257). Mr. Martinez testified only that he did not know 

whether additional brattice cloth was brought in or, indeed, whether such 

action was necessary (Tr. 310). Mr. Mele testified only that to his knowledge new brattice cloth was not brought in to abate the citation (Tr. 398). 

1G7 ':t 
timber. There was approximately 30 feet of the line curtain laying there." 

However, Mr. .Allred gave testimony during cross"""examination which supports 

the testimony of Inspector Milovich. Mr. Allred's testimony on this point is 

as follows: 

Q. Okay. Where was the brattice cloth that was 

connected to the three posts that were inby point "C" 

[on Exhi bi.t M-4] ? 

A. I don't know. 

Q. Did you see any brattice cloth there? 

A. Did I see any? 

Q. Yes. 

A. After we backed up? 

Q. Yes. 

A. No, I don't recall what happened to it. Somebody 

else come in and fixed the place up. I don't know who did it. 

I don't know why they went back out to brattice. I do know 

the brattice was up to the farthest roofbolt post, but I am 

the miner helper and I did put it out there. 

Q. You have just told me several thi~gs: [The testimony 

is omitted as relates to the first two topics identified.] 

Three, you told me that somebody went out and got new 

brattice cloth and came back in. Right? 

A. Right. 

Q. Did you see that hung? 

A. No. If I remember right, I think we went to dinner 

and had somebody else do the hanging up and measuring. I 

can't remember for sure what happened there. 

Q. But you do remember somebody brought new brattice 

cloth in? 

A. No, I don't remember that. I think somebody told me 

somebody brought some brattice cloth in. I didn't see no.body 

bringing no brattice in. (Tr. 171-172). 

The eighth area of inconsistency concerns whether Mr. Edwards and 

Inspector Milovich conversed at the kitchen. According to Inspector 
Milovich, a conversation did occur there during which Mr. Edwards once again 

requested the .inspector to overlook what he had found (Tr. 376-377). ~/ 

Mr. Edwards denied ever making such statements at any time (Tr. 125-126), 

and, in fact, maintained that he had had no conversations at all with the 

inspector in the kitchen area (Tr. 196). Mr. Salas, however, testified that 

the two men did converse in the kitchen area, but appeared to imply that they 

simply reminisced about "old times" (Tr. 210). He testified that he was 

unable to remember whether Mr. Edwards requested the inspector to overlook 

the violation (Tr. 211). Additionally, Mr. Allred testified that the two men 

engaged in a conversation in the kitchen area, but claimed that he was unable 

to remember whether Mr. Edwards made the request (Tr. 178-179). However, 

Mr. Allred's testimony does reveal that Mr. Allred discussed the violation 

with the inspector at that time (Tr. 187). 

In summary, Mr. Edwards maintained that he had no conversation with the 

inspector in the kitchen area, while Messrs. Salas and Allred maintain that 

the two men did converse there. The two positions are inconsistent. 

Mr. Allred's testimony further indicates that the violation was discussed 

with the inspector in the kitchen area. Inspector Milovich's testimony as to 

the subject matter of his conversation with Mr. Edwards is considered 

accurate. 

In view of the foregoing, I conclude that the testimony of Federal mine 

inspector Ted R. Milovich accurately sets forth the conditions existing in 

the face area of the No. 1 right entry when the citation was issued, and that 

U.S. Fuel has not produced credible evidence to rebut his testimony. J_/ 

6/ According to the inspector, the request was initially made in the face 

area of the No. 1 right entry moments after he caught Mr. Edwards mining 

without the required line brattice (Tr. 359). Zf It appears that Messrs. Edwards, Allred, Salas and Gines may have·had 

a motive to be less than candid in their testimony. According to Inspector 

Milovich, Mr. Walter Wright, the mine superintendent, arrived at the face 

with Mr. Mele. Inspector Milovich testified that Mr. Wright appeared 

particularly surprised at and quite upset with the condition, and that 

Mr. Wright stated that he would fire everybody on the section (Tr. 37, 

51-52, 378). Mr. Edwards testified that Mr. Wright was not present (Tr. 

134). Messrs. Allred, Gines and Mart~nez testified either that they did not 

remember seeing Mr. Wright or that they could not recall whether Mr. Wright 

was present (Tr. 185-186, 253, 265, 331). There is, however, evidence in 

the record which tends to corroborate the inspector's testimony that 

Mr. Wright was present and that he made the statement attributed to him. 

Mr. Mele testified that Mr. Wright could have been present, although 

he was not certain (Tr. 388-389). Yet, Mr. Mele's testimony indicates that 

the statement is characteristic of Mr. Wright. According to Mr. Mele: 

"He said that many times when we had such violations. I heard that 

several times, but I'm not too sure he was in there that day. I've heard 

him say that many times when I talked to him about violations, 'We are ·going 

to fire the boss; we are going to fire the crew.' That's just something that 

he -- that is one of his -- we have never done it yet." (Tr. 398-399). 

167h 
Accordingly, it is found that a preponderance of the evidence establishes a 

violation of mandatory standard 30 C.F.R. § 75.316. Actual mining and loading operations.were underway in the face area of the No. 1 right entry of the 

King No. 5 Mine's first south section, and the line brattice terminated at a 

point approximately 28 feet outby the point of deepest penetration to which 

any portion of the face had been advanced. This condition violated the 

provision .of the approved ventilation system and methane. and dust control 

plan which required the line brattice or tubing to be installed at a distance 

no greater.than 15 feet from the area of deepest penetration to which any 

portion of the face has been advanced in working faces from which coal is 

being cut, mined, or loaded. 

C. Negligence of the Operator 

The facts presented in these cases reveal that as of April 10, 1979, 

U.S. Fuel should have been more cognizant than usual of the need to maintain 

good ventilation because the King No. 5 Mine had experienced a series of 

three frictional coal dust ignitions during the recent past. The three ignitions occurred on March 21, March 23, and April 5, 1979, in another section 

of the mine located approximately 2,600 or 2,700 feet from the section 

involved in these proceedings (Tr. 14-15, Exh. M-4). 8/ Yet, the evidence 

shows that the line brattice terminated at a point 28-feet outby the point of 

deepest penetration to which any portion of the face of the No. 1 right entry 

had been advanced while coal was being cut, mined or loaded, i.e., 13 feet, 

or almost a full cut, more than the distance permitted by the-approved ventilation system .and methane and dust control plan (Exh. M-3, Tr. 46-47). 

Under the plan, 15 feet is a full cut (Tr. 46-47, Exh. M-3). The findings 

of fact set forth previously in this decision show that a substantial amount 

of mining and loading had occurred without the required line brattice 

installed. The only remaining question is whether U.S. Fuel's supervisory 

personnel knew or should have known that the condition existed. The evidence, 

as set forth below, shows that the section foreman had actual knowledge of 

the condition and failed to· take corrective action. 

As noted previously, the inspector quickened his pace to follow 

Mr. Salas' shuttle car into the working place. As he went through the crosscut into the No. 1 right entry, he observed three miner's lights in the face 

fn. 7 (continued) 

Mr. Gines testified that he did not remember seeing Mr. Wright, and that 

he did not hear Mr. Wright say that the whole crew should be fired (Tr. 253). 

However, he testified that a union man told him later that he had heard that 

Mr. Wright was going to fire him. 

Finally, Inspector Milovich's testimony is in accord with statements 

contained in his contemporaneous handwritten notes. The notes, written while 

underground (Tr. 95), record Mr. Wright's presence and the statement that he 

"would fire everyone on the section." (Exhs. M-2, M-2A). 

8/ Counsel for MSHA indicated during the hearing that the three prior coal 

dust ignitions were flash, self-extinguishing situations, and not explosions 

(Tr. 106). 
area (See, Exh. M-4). One of the three individuals had a lighted flame 

safety lamp (Tr •. 34-35). Mr. Salas, the shuttle car operator, was not one 

of the three men observed at the face because he was still driving the 

shuttle car into the section when the observation was made (Tr. 44). A series 

of observations and conversations enabled the inspector to determine that 

Mr. Gines, the section foreman, was the individual in the face area with the 

lighted flame safety lamp. 

Shortly after the inspector observed the three lights, he and Mr. Gines 

passed each other at a point approximately 175 feet from the face while walking down the No. 1 right entry. The inspector was walking inby and Mr. Gine~ 

was walking outby (Tr. 34-35, 71). The inspector did not actually see 

Mr. Gines leave the face area because it appears that the shuttle car 

obstructed his view at the crucial point in time (Tr. 45). However, Mr. Gines 

was carrying a flame safety lamp when he and the inspector passed each other 

(Tr. 34-36). Additionally, there were only two people present at the face, 

discounting Mr. Salas, when the inspector arrived there. Neither of the two 

men had a flame safety lamp. An unlighted flame safety lamp was inside the 

continuous miner (Tr. 36, 45). 

It appears that Inspector Milovich wanted to confirm his belief that 

Mr. Gines had been in the face area, i.e., that Mr. Gines had been in a position to actually see the violation. After he stopped the mining activity, 

he asked Mr. Allred where Mr. Gines was (Tr. 78). Mr. Allred stated that 

Mr. Gines had just left (Tr. 36-37). When Mr. Gines returned to the face 

area, the inspector asked him whether he had just left the face area. 

Mr. Gines responded in the affirmative, stating that he had left "a little 

while ago." The inspector followed up his question by asking Mr. Gines 

whether he had seen how far the.line brattice terminated from the point of 

deepest penetration. Mr. Gines answered by stating that it "didn't look that 

far to me" (Tr. 37, 77). The inspector thereupon reached the conclusion .that 

Mr. Gines, a supervisory employee of U.S. Fuel, had seen the violation, and, 

accordingly, that the violation was caused by an unwarrantable failure to 

comply with mandatory standard 30 C.F.R. § 75.316 (Tr. 35, 77). 

U.S. Fuel's evidence was directed toward disproving both that Mr. Gines 

was in the face area shortly before the inspector arrived there, and that 

Mr. Gines had stated that the line brattice had not appeared that far back 

when he was in the area a short time earlier. However, U.S. Fuel's witnesses 

are not considered credible on these points. 

Messrs. Allred and Edwards gave testimony which, if believed, would last 

place Mr. Gines in the area before activities began on the left side of the 

No. 1 entry (Tr. 155, 162, 167-170). Their testimony is inconsistent with 

that of Messrs. Salas and Gines. The testimony of Messrs. Salas and Gines 

places Mr. Gines in the vicinity of the face moments before the inspector's 

arrival at the face, a much later point in time than that testified to by 

Messrs. Edwards and Allred. Specifically, Mr. Salas had already taken one 

load of material from the left side of the entry and had just returned to 

the face area to pick up another load when the inspector arrived there. Yet, 

lll7H 

/ 

( 

{ 
Mr. Salas specifically recalled seeing Mr. Gines in the No. 1 right entry 

while driving the shuttle car toward. the face (Tr. 201). In fact, Mr. Gi.nes 

admitted passing the inspector in the No. 1 right entry (Tr. 235-236).-. 

Additionally, Mr. Gines contradicted Mr. Allred's testimony on a crucial 

point. Mr. Gines testified that he had just finished speaking to Mr •. 'Allred, 

who was straightening the cable on the continuous miner, before passing the 

inspector (Tr. 234-255). Mr. Allred confirmed talking to 'Mr. Gines while 

straightening the cable, but indicated that the conversation occurred before 

activities began on the left side of the entry (Tr. 167-170). 

Furthermore, part of U.S. Fuel's evidence tends to confirm Inspector 

Milovich' s account. Mr. Gines, by his own admission, places himself itt the 

vicinity of the face at the relevant time. Mr. Allred confirms telling the 

inspector that Mr. Gines had "just left" the area (Tr. 167). 

In view of these considerations' I find that Inspector Milovich correctly 

deduced that Mr. Gines had just left the face area of the No. 1 right entry. 

I further find that Mr. Gines admitted to the inspector that he had observed 

the violative condition, but attempted to exculpate himself by maintaining 

that "it didn't look that far" when he was last at the face a few minutes 

earlier. Additionally, the evidence shows that Mr. Gines failed to take corrective action. His knowledge and his failure to act are imputable ·to U.S. 

Fuel. See, ~·~·, Nacco Mining Company, 3 FMSHRC 848, 2 BNA MSHC 1272, 1981 

CCH OSHD par. 25,330 (1981). 

In view of the recent history of frictional coal dust ignitions at the 

King No. 5 Mine, U.S. Fuel was under an affirmative obligation to be even 

more cognizant than usual of the need to maintain proper ventilation. This 

obligation was clearly not met. A substantial amount of mining and loading 

was performed without complying with.the cited provision of the approved 

ventilation system and methane and dust control plan. The section foreman 

had actual knowledge of the violative condition and fa1led.to take corrective 

action. The violation was readily visible (See, Tr. 121, 364, 369). Accordingly, it is ·found that U.S. Fuel demonstrated gross negligenc~. 

D. Unwarrantable Failure Criterion 

The subject 104(d)(l) citation contains the allegation that th~ cited 

violation was caused by the mine operator's unwarrantable failure to comply 

with mandatory standard 30 C.F.R. § 75.316. A violation of a mandatory 

health or safety standard is caused by an unwarrantable failure to comply 

where "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 a lack of 

due diligence, or because of indifference or lack of reasonable care." 

Zeigler Coal Company, 7 IBMA 280,, 295-296, 84 I.D. 127, 1 BNA MSHC 1518, 

1977-1978 CCH OSHD par. 21,676 (1977). 

The findings of fact-and the discussion set forth in Part V(C) of this 

decision clearly show that U.S. Fuel failed to abate a violative condition 

ll>7B 
that it knew or should known existed because of a lack of due diligen~e, or 

because of indifference or lack of reasonable care. Accordingly, it is found 

that the violation was caused by U.S. Fuel's unwarrantable failure to comply 

with mandatory standard 30 C.F.R. § 75.316. · 

E. Significant and Substantial Criterion 

The citation contains the allegation that the violation was of such 

nature as could. significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. In National Gypsum Company, 

3 FMSHRC 822, 2 BNA MSHC 1201, 1981 CCH OSHD par. 25,294 (1981), the 

Commission held "that· a violation is of such nature as could significantly 

and substantially contribute to the cause and effect of a mine safety or 

health hazard if, based upon the particular facts surrounding the violation, 

'there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." 3 FMSHRC at 

825. Additionally, the Commission stated that "[a]lthough the [1977 Mine 

Act] does not define the key terms 'hazard' or 'significantly and substantially,' in this context we understand the word 'hazard' to denote a measure 

of danger to safet.y or health, and that a violation 'significantly and substantially' contributes to the cause and effect 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." 

3 FMSHRC at 827. (Footnote omitted.) The particular facts surrounding the 

violation reveal the following: 

As a general matter, the concentration of ·float coal dust in suspension 

is reduced if the proper amount of air and water is delivered to the face. 

Float coal dust is a potential fuel for an ignition or explosion. Proper 

ventilation reduces, but does not completely eliminate, the possibility of 

an ignition (Tr. 16, 18-19). 

The King No. 5 Mine is a relatively new mine. It is close to the surface 

and has a large fan. There is adequate air in the mine, if it is properly 

directed (Tr. 33). The inspector found 8,500 feet of air going over the continuous miner, and the plan required only 6,000 feet of air (Tr. 22). However, the inspector was of the opinion that the violation was of such nature 

as could significantly and substantially contribute to the cause and effect 

of a nμ.ne safety or health hazard because air will naturally follow the 

shortest, most direct route into the return. With the line brattice installed 

so far from the face, very little air would be ventilating the face because it 

would be following the shortest route out the return. Therefore, there would 

be a possibility that the velocity would not be as great at the face (Tr. 53). 

A methane test was made and no methane was detected. Previous samples 

collected for analysis had indicated that the mine did not liberate methane 

(Tr. 54-55). However, an ignition source for float coal dust was clearly 

present. Rock was being cut and was generating sparks and heat (Exh. M-5, 

1H80 
Tr. 30, 346-347, 370, 373). The injury resulting from or contemplated by 

the occurrence of an ignition or explosion could reasonably be expected to 

be serious. 

In view of the foregoing, I find that the violation could have been a 

major cause of a danger to safety or health. The particular facts surrounding the violation show the existence of a reasonable likelihood that the 

hazard contributed to would result in an injury or an illness of a reasonably 

serious nature. Accordingly, I conclude that the violation was of such nature 

as could significantly and substantially contribute to the cause and effect 

of a mine safety.or health hazard. 

F. Gravity of the Violation 

The findings of fact set forth in Part V(E) of -this decision show that 

the violation was serious. 

G. Good Faith in Attemptin& Rapid Abatement 

The citation was issued at approxitqately 10:25 a.m.,.on April 10, 1979. 

Abatement was due by 11:05. a.m. that same day. The citation was terminated 

within the time set for abatement (Exh •.. M-1). The parties stipulated that 

the violation was abated in normal good faith (June 17, 1980, stipulations). 

H. Size of the Operator's Business 

The parties stipulated that U.S. Fuel mined 746,298 tons of coal in 

1979. U.S. Fuel's controlling company information report reveals that 

496,078 tons of that coal was mined at the King No. 4 Mine, and that the 

remaining 250,220 tons was mined at the King No. 5 Mine (June 17, 1980, 

stipulations). 

I. History of Previous Violations 

On June 17, 1980, the parties filed a computer printout prepared by the 

Directorate of Assessments setting forth the history of previous violations 

at the King No. 4 and King No. 5 Mines, beginning January 1, 1970, and ending 

May 29, 1980. The parties stipulated that such computer printout may be used 

in determining U.S. Fuel's history of previous violations. 

Only those paid assessments for violations charged prior to April 10, 

1979, may be properly considered in determining u.s Fuel's history of previous violations. See Peggs Run Coal Company, 5 IBMA 144, 82 I.D. 445, 

1 BNA MSHC 1343, 1975-1976 CCH OSHD par. 20,001 (1975). The computer printout 

reveals that U.S. Fuel had paid assessments for the time period beginning 

January 1, 1970, and ending April 9, 1979, as follows: 

1681 
Mine 

King No. 4 

King No. 5 

Totals 

Mandatory Standards 

All § 

1277 

37 

1314 

§ 75.316 (highest fine) 

57, ($2,500) 

1 ($30) 

58 ($2,500) 

(Note: All figures are approximations). 

J. Effect of a Civil Penalty on the Operator's Ability to Remain in Business 

The parties stipulated that the payment of any penalty in this matter 

will not affect U.S.· Fuel's ability to remain in business (June 17, 1980, 

stipulations). 

VI. Conclusions of Law 

1. United States Fuel Company and its King No. 5 Mine have been subject 

to the provisions of the 1977 Mine Act at all times relevant to these 

proceedings. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, these proceedings. 

3. Federal mine inspector Ted R. Milovich was a duly· authorized"representative of the Secretary of Labor at all times relevant to the issuance 

of Citation No. 789508. 

4. The violation of mandatory standard 30 C.F.R. § 75.316 charged in 

Citation No. 789508 is found to have occurred as alleged. 

5. The subject violation of mandatory standard 30 C.F.R. § 75.316 

was caused by the mine operator's unwarrantable failure to comply with such 

mandatory standard. 

6. The subject violation of mandatory standard 30 C.F.R. § 75.316 was 

of such nature as could significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard~ 

7. Citation No. 789508 was properly issued under section 104(d)(l) of 

the 1977 Mine Act. 

8. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 
VII. Proposed Findings of Fact and Conclusions of Law 

The parties made closing arguments at the conclusion of the hearing on 

November 8, 1979. U.S. Fuel and MSHA filed briefs on June 17, 1980, and 

July 9, 1980, respectively. Such closing arguments and briefs, insofar as 

they can be considered to have contained proposed findings and conclusions, 

have been considered fully, and except to the extent that such findings and 

conclusions have been expressly or impliedly affirmed in this decision, they 

are rejected on the grounds that they are, in whole or in part, contrary to 

the facts and law or because they are immaterial to the decision in these 

cases. 

VIII. Penalty Assessed in Docket No. WEST 80-62 

Upon consideration of the entire record in these cases and the foregoing 

findings of fact and conclusions of law, I find that the assessment.of a 

penalty is warranted as follows in Docket No. WEST 80-62: 

Citation No. Date 30 C.F.R. Standard Penalty 

789508 4/10/79 75.316 $3,000 

ORDER 

Accordingly, IT IS ORDERED that the application for review in Docket 

No. WEST 79~81-R be, and hereby is, DENIED, and that Citation No. 789508 be, 

and hereby is, AFFIRMED. 

IT IS FURTHER ORDERED that U.S. Fuel pay the civil penalty in the amount 

of $3,000 assessed in Docket No. WEST 80-62 within 30 days of the date of 

this decision. 

Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Richard H. Nebeker, Esq., Callister, Greene & Nebeker, 800 Kennecott 

Building, Salt Lake City, UT 84133 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 JONao• 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

CAPTIOL AGGREGATES, INC. , 

Respondent. 

) 

) CIVIL PENALTY PROCEEDING 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

. ) 

DOCKET NOS. CENT 79-059-M 

CENT 79-211-M 

CENT 79-300-M 

CENT 79-361-M 

DENV 79-531-M 

(Consolidated) 

DOCKET NOS. CENT 80-192-M 

CENT 80-213-M 

(Consolidated) 

MINES: Capitol Cement Quarry & Plant 

and Del Rio Pit and Plant 

DECISION 

Appearances: 

Sandra Henderson, Esq., Office of the Solicitor 

United States Department of Labor, 555 Griffin Square Building 

Dallas, Texas 75202 

For the Petitioner, 

Robert W. Wachsmuth, Esq., KELFER, COATNEY & WACHSMUTH, 311 Bank 

of San Antonio, One Romana Plaza, San Antonio, Texas 78205 

For the Respondent·, 

Richard L. Reed, Esq., JOHNSON, KROZ & VIVES, 2600 Tower Life 

Building, San Antonio, Texas 78205 

For the Respondent. 

Before: Judge Virgil E. Vail 

Administrative Law Judge 

The above-captioned civil penalty proceedings were brought pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq., (hereinafter referred to as "the Act"). The violations were 

chargedin 8 citations issued to the respondent. following inspections. at 

the respondent's Capitol Cement Quarry and Plant and Del Rio Pit and 

Plant. 

Prior to the presentation of evidence in the above cases, the parties 

entered into a stipul~tion wherein specified citations would be settled 

subject to a ruling on the issue raised by the respondent as to whether the 

Federal Mine Safety and Health Administration had ·jurisdiction over the 

1684 
respondent's two mines involv.ed herein. The parties stipulated to certain 

facts, presented oral arguments and submitted briefs in support of their 

respective positions on the question of jurisdiction. 

I. Issues 

1. Whether respondent's mines involved herein are subject to the Act 

under 30 U.S.C. § 803 (Supp. 1977), .and 

2. Whether respondent violated standards of the Act. 

II. Jurisdiction 

The respondent argues that the products from its mines are not sold 

out of state and do not otherwise affect interstate commerce, and therefore 

its mines are not subject to regulation under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 803 (Supp. 1977). 

The petitioner argues that a de minus effect or even purely 

intrastate activities may be foundto affect inters.tate commerce. 

The undisputed and stipulated facts show that of over 200 customers to 

whom respondent sell.s its products there is one customer, the State of 

Texas, to which sales are used for the purpose of highway construction, 

within the state of Texas. That it o'nly sells within the feasible shipping 

and market area of the resp'ondent, which is a 200 mile radius of the plant 

in San Antonio, Texas. Further, of the 200 customers to whom respondent 

sells, tnere are three customers who have requested that their billings be 

sent to an out-of-state address, but whose products are shipped within the 

200 mile radius of respohdent' s plant and that no materials from the 

respondent's plants were shipped outside the state of Texas (Tr. 22-26). 

Section 4 of the Act provides: "Each coal or other mine, the products 

of which enter Comriierce, o'r the operations or products of which affect 

Connnerce, and each operator of a mine, and every· miner iri such mine shall 

be subject to the provisions of the Act." 

Section 3(b) of the Act define·s "Connnerce" as "trade, traffic, 

conunerce, transportation, or connnunication among the several States, or 

between a pla~e in a State and any place outside thereof, or *** between 

points in the same State but thr~.ugh a point outside thereof." 

I conclude that respondent's mine operations come within the Gonunerce 

coverage of the Federal Mine Safety and Health Act of 1977. The material 

mined by the respondent is used for construction of highways in the State 

of Texas which are used in the regular stream of interstate connnerce. 

Highway construction and maintenance have been held to be within interstate 

coverage of Federal statutes. See N.L.R.B. v. Custom Excavating Inc., 

575 F. 2d 202 (7th Cir: 19)8} .. 

In Fry v. United States, ''421 U.S. 542, 547 (1975), The Supreme Court 

said, "Even activity that is purely intrastate in· character may be 

1"8. J 

'l ' ' 
regulated by Congress, Where the activity, combined with like conduct by 

othe~s similar situated,' affects commerce among the States or with Foreign 

Nations." See Heart of Atlanta Motels, Inc. v. United States, 379 U.S. 

241, (1964); Wickard v. Filburn, 317 U.S. 111, (1942). In the oft-quoted 

case of Wickard v. Filburn, supra, the Supreme Court held that wheat grown 

by an individual farmer for his own consumption is subject to federal 

regulations if it exerts a substantial economic effect on interstate 

connnerce. The Court said that, even though the farmer's contribution to 

the demand for wheat may be trivial, that is "not enough to. remove him from 

the scope of federal regulations where, as here, his contribution taken 

together with that of many others similarly situated, is far from trivial." 

At p. 127. 

In considering the narrow set of facts submitted in this case, that is 

the use of materials for state highways, the use of the government postal 

system for transporting the billings to addresses of customers outside the 

State of Texas, and use of materials by over 200 customers within the State 

of Texas, I find that the respondent's mines' products affected cormnerce, 

and as such, are subject to the Act. 

III. Settlement Proposals 

CENT 79-211-M 

At the hearing, the parties stated that they had agreed to settle the 

two Citations nos. 169799 and 169.800 which involve citations issued at the 

Del Rio Pit and Plant and are contained in DOCKET No. CENT 79-211-M. The 

agreement for settlement provided that Citation no. 169799, with a proposed 

penalty assessment of $12.00, be reduced to $8.00 arid that Citation no. 

169800 with a proposed assessment of $22.00 be reduced to $17.00, subject 

to my ruling on the ;urisdictional issue. ·.Having ruled that the mines 

are covered under the Act, and having considered the proposed settleme.nt 

and the six criteria as set forth in Section llO(i) of the Act, I conclude 

the proposed settlements should be approved. 

CENT 79-59-M 

The Secretary moved at the hearing to vacate Citation no. ·169732. The 

reason given for vacating this citation was a belief that the evidence 

would not support the charge. Citation no. 169732 is therefore vacated. 

CENT 79-361-M, CENT 80-213-M, CENT 80-192-M 

At the hearing the parties agreed, subject to my ruling on the 

jurisdictional matter, that the Secretary would vacate Citation no. 169476 

(Docket No~ CENT 79-361-M) and respondent Would pay the full amount of the 

proposed penalty assessments for Citation no. 170993 (Docket No. 80-213-M) 

in the amount of $36.00 and Citation no. 170913 (Docket no. 80-192-M) in 

the amount of $44.00. After reviewing the record, the statements of 

counsel, and considering the six criteria of section 110( i) of the Act, and 

further, based on my ruling that the mines involved herein are subject to 

the jurisdiction of the Act, I approve the motion vacating Citation no. 

168b 
169476 and the proposed settlement of Citation no. 170993 and 170913 for 

$36.00 and $44.00 respectively. 

CENT 79-300-M 

The parties entered into a stipulation at the hearing regarding 

Citation no. 170405 which alleges a violation of 30 C.F.'R. 56.9-22. Said 

standard provides that, "Berms or guards shall be provided on the O\.lter 

bank of elevated roadways." 

The parties agreed that there was no dispute regarding the facts 

surrounding the issuanc~ of Citation no. 170405 but the respondent 

contested whether the standard, alleged to·have been violated, applied in 

this instance. The parties stipulated to the facts and then argued the 

application of said facts to the law in their p~st-headng briefs. 

A decision in this matter was also contingent upon my ruling on the 

jurisdictional issue. 

Citation no. 170405 reads~ in part, as follows: "The elevated ramp 

leading to the solid fuel loading hopper was not equipped with a berm or 

guard creating a hazard for the operator on the front end loader in. case of 

running off the ramp." 

The stipulated facts are ·:as follows: 

1. The length of the ramp involved was approximately thirty feet. 

2. The height of the ramp at the highest point was approximately four 

feet. 

3. The ramp was only used by a caterpillar front-end loader, or that 

was the only piece of equipment that used it. 

4. The ramp in que.stion was used for dumping solid fuel in the form 

of petroleum coke into a solid fuel loading hopper. (Tr. 8). 

In the responden~'s post-hearing brief, he argues that the only 

question presented here is whether a ramp constitutes an "elevated roadway" 

within the meaning of the standard .cited by the Compliance Officer (p. 14). 

Altho.ugh respondent later in his pof?t-hearing brief raises the issue that 

evidence as to ~he lack of berms on· the ramp was not included in the 

stipulation. I discard his argument, as the transcript of the hearings 

indicates the parties understood and agreed that the only issue to be 

decided was "(w)hether the ramp involved is an elevated roadway within the 

interpretation of the cited standard." (Tr. 8). This statement was made 

by the attorney for the respondent and he is bound by such a representation. If he wished to raise the issue of whether there were berms on the 

ramp the hearing would have been the proper time to do it. 

The eviden-ce as stipulated to shows the "ramp" involved herein was 

approximately thirty feet long, four feet high at the highest point and 
used by a front-end loader to dump solid fuel into a loading hopper. (Tr. 

8). 

The standa.rd, 30 C.F.R. 56.9-22, refers to "elevated roadways" 

requiring berms or guards. The definition of "roadways" in Webster's Third 

New International Dictionary is: "A strip of land through which a road is 

constructed and which is physically altered." 

A "road" is defined as: "An open way or public passage for vehicles, 

persons and animals . • . a private way." 

In the reference to area travelled by the front end loader herein the 

parties, at the hearing and in their post~hearing briefs, referred to the 

structure as a "ramp." Webster's New Collegiate Dictio.nary (1979 Ed.) ' 

defines "ramp" as: "a sloping way: as a sloping low walk or roadway ·leading 

froll). one level to another." .(emphasis added). 

In view of the above and the fact that this "ramp" was used to drive a 

piece of machinery back and forth over the structure, I find that the so 

called "ramp" was a "roadway" as described in the standard •. 

The respondent argues that the standard requires only installation of 

a berm on "the outer bank of elevated roadways'' (emphasis supplied). This 

question was considered by the Federal Mine Safety and Health Review 

Commission and they rejected this argument. The Review Commission stated 

that, "(i)f protection were extended only to .those elevated roads with one 

open bank, while elevated roads with two opert banks were not required to be 

bermed or guarded, miner safety would certainly be adversely affected." We 

agree with the Corrnnission that the standard applies to all elevated banks. 

Secretary of Labor (MSHA) v. Cleveland Cliffs Iron Co., Inc. Docket nos. 

VINC 76-68-M and VINC 79-240-PM (February 1981). 

I find froin the stipulated facts that the respondent did violate the 

standard by failing to provide for berms on the roadway and based upon said 

stipulation approve a penalty of $52.00. 

DENV 79-531-M 

On May 16, 1978, federal mine inspector, Dan Haupt, issued Citation 

no'. 161704, alleging a violation of ~andatory safety standard 56.5-

50(b). I The citation charged that, "The 988 caterpillar loader operator 

was exposed to 168 percent of the permissible limit for an eight hour exposure to noise. ·Feasible engineering or administrative controls were not 

being used to reduce this level in order to eliminate the need for hearing 

protection." 

1/ 56.5-50 (b) When employees' exposure exceeds that listed in the above. 

table, feasible administrative or engineering controls shall be utilized. 

If such controls fail to reduce exposure to within permissible levels, 

personal protection equipment shall be provided and used to reduce sound 

levels to within the levels of the table. 

1l>8H 
Respondent raises several legal and factual issues concerning the 

validity of the citation. It. is not necessary to address all those 

arguments in order to determine whether or not the citation should be 

affirmed. 

Mr. Haupt testified that he took a sound level reading of the loader, 

and since the reading was very high, he decided to samp'le the noise level 

of the operator. A DuPont D-100 dosimeter was used in conducting the eight 

hour test. (Tr. 34). The inspector stated that the re·adout was 168% of the 

allowable 100% level, or approximately 93.5 to 94 dBA. (Tr. 42). 

On c·ross examinatio.n Mr. Haupt testified that he had received the 

dosimeter from the district office in Dallas. He was uncertain as to how 

long he had had it, although it had been at least one year. The dosimeter 

had been calibrated before it was sent to him and had not been calibrated 

since that time. (Tr. SO). Furthermore, he tesitifed that he did not know 

how long it had .been since the calibration had been checked prior .to the 

inspection. (Tr. 51). He stated, however, that the calibration was checked 

on a monthly basis. (Tr. 51 & 63). 

In the case of Secretary of Labor v. Maudlin Con$tniction Compan CENT 

80-114-M (December 18, 1980 , I held that dosimeters must be calibrated 

irmnediately prior to testing, in order to assure accurate test results. 

The facts in that case and the one now under consideration are for all 

practical purposes identical. The burden of proving the accur_acy of the 

test results i-s with the Petitioner" ~e record is void of any facts that 

would persuade me to depart from my previous position. 

Therefore, Petitioner having failed to prove the accuracy ·of the test 

results, the citation is vacated and the case dismissed. 

ORDER. 

CASE CITATION NO. FINAL DISPOSITION 

CENT 7'9-59-M 169732 Vacated 

CENT 79-:-211-M 169799 $ 8.00 

169800 $17.00 

CENT 79-300-M 170405 $52.00 

CENT 79-361-M 169476 Vacated 

DENV 79-531-M 169704 Vacated 

CENT 80-192-M 170913 $44.00 

CENT 80-213-M 170993 $36.00 

It is hereby ORDERED that Respondent pay the penalties totaling 

$157.00 within forty (40) days from the date of this decision. 

Administrative Law Judge 

168B 
Distribution: 

Sandra Henderson, Esq. 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square 

Dallas, Texas 75202 

Robert W. Wachsmuth, . Esq 

KELFER, COATNEY & WACHSMUTH 

311 Bank of San·At\tonio 

One Romana Plaza 

San Antonio, Texas 78205 

Richard L. Reed, Esq. 

JOHNSON, KROZ & VIVES 

2600 Tower Life Building 

San Antonio, Texas 78205 

.lllHO 
FEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 JUN301MJ\ 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

Petitioner, 

• 

v •. 

ASARCO, INCORPORATED, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) ~~~~~~~~~~~~~~~~~-

Appearance: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner, 

Earl K. Madsen, Esq. 

BRADLEY, CAMPBELL & CARNEY 

1717 Washington Avenue 

Golden, Colorado 80401 

For the Respondent 

Before: Judge John A. Carlson 

CIVIL PENALTY PROCEEDINC.. 

DOCKET NO. WEST 79-124-M 

MSHA CASE NO. 05-00516-05010 

DOCKET NO. WEST 79-125-M 

MSHA CASE NO. 05-00516-05011 

DOCKET NO. WEST 79-126-M 

MSHA CASE NO. 05-00516-05012 

DOCKET NO. WEST 79-207-M 

MSHA CASE NO. 05-00516-05013 

DOCKET NO. WEST 79-310-M 

MSHA CASE NO. 05-00516-05014 

DOCKET NO. WEST 81-12-M 

MSHA CASE NO. 05-00516-05022 

DOCKET NO. WEST 81-13-M 

MSHA CASE NO. 05-00516-05023 

MINE: Leadville Mine 

DECISION 

These cases involve the same parties and similar issues of fact and 

law. Accordingly, they are consolidated. 

The Secretary of Labor has charged Asarco, Inc., with violations of 

several safety standards promulgated under the Federal Mine Safety and 

Health Act. 30 U.S.C. § 801 et seq. At a hearing held on May 20, 1981, the 

parties offered the followingdisposition of these cases. 

1691 
WEST 79-124-M 

The Secretary moved to withdraw citation nos. 333491, 333492 and 

328533 and their proposed penalties. (Tr. 6). AWI"ittenmotion ,_.as 

submitted at the hearing .. As reas·on therefor, petitioner stated that there 

was insufficient evidence to support these citations. (Tr. 6). 

Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation nos. 

333491, 333492 and 328533 and the corresponding proposed penalties are 

vacated. 

As· 'to the remaining cit at ions, Asai:co moved to withdraw its not ice of 

contest. (Tr. 6). Pursuant to 29 C.F.R. 2700.11, the motion is granted. 

The following citations and their respective penalties are affirmed. 

Citation No. 

328524 

.328525 

328526 

. 328527 

328530 

333486 

328532 

328534 

328536 

333488 

333489 

333490 

333493 

333494 

333495 

Penalty 

$180.00 

195.00 

275.00 

195.00 

180.00 

160.00 

345.00 

370.00 

195.00 

160.00 

225.00 

225.00 

180.00 

210.00 

210.00 

$3,305.00 

WEST 79-125-M 

The Secretary moved to withdraw citation nos. 333397, 333390 and their 

proposed penalties. (Tr. 8). A written motion was also submitted. 

As reason therefor, petitioner stated that these citations had no 

precedential value and.the Mine Safety and Health Administration (MSHA) 

inspector who issued them. is no longer employed by the Agency. The 

inspector is the only individual who can testify in. support of these 

citations (Tr. 8). In the written motion the Secretary stated that there 

was a lack of evidence to support these citations. Pursuant to 29 C.F.R. 

2700.11·, the motion is granted. Citation nos. 33~397 and 333390 and their 

respective proposed penalty are vacated, 

Respondent moved. to withdraw its notice of contest to the remaining 

c~tations. Pursuant to 29 C.F.R. 2700.11, the motion is granted. (Tr. 9). 

1692 
The following cit at ions and the corresponding penalties are afftrmed. 

Citation No. 

333385 

333386 

333387 

333388 

333389 

333391 

333392 

333393 

333394 

333395 

333396 

333399 

333400 

333881 

333883 

333885 

WEST 79-126 

Penalty 

$ 170.00 

170.00 

122.00 

170.00 

170.00 

160.00 

160.00 

130.00 

240.00 

122.00 

150.00 

170.00 

90.00 

195.00 

90.00 

90.00 

$2,399.00 

Asarco moved to withdraw its notice of contest to all of the citations 

at issue. (Tr. 10). Pursuant to 29 C.F.R. 2700.11, the motion is granted. 

The following citations and corresponding penalties are affirmed. 

Citation No. 

333889 

333890 

334435 

334436 

334438 

334439 

Penalty 

$ 98.00 

98.00 

150.00 

180.00 

225. 00 

305.00 

$1,056.00 

WEST 79-207 

The Secretary moved to withdr'aw cit at ion nos. 333882, 333884, 333887, 

330411 and 334437 and their proposed penalties. (Tr. 9, 10). A written 

motion was also submitted. 

As reason therefor, petitioner stated that as to the first three 

citations, the MSHA inspector who issued them is no longer employed by the 

Agency. The inspector is the only individual who can testify in support of 

these citations. (Tr. 9). The Secretary also stated at the hearing and in 

his motion that there is insufficient evidence to support the five 

citations. (Tr. 10). 
Purrnant to 29 C.F.R. 2700.11, the motion is granted·. Citation nos. 

333882, 313884, 333887, 330411, 334437 and their respective penalty are 

vacated. 

Asarco 1ooved to with~raw its notice of contest to the remaining 

citations. (Tr. 11~. Pursuant to 29 C.F.R. 2700.11, the-motion iJ grant~d. 

The followirg citations and the corresponding penalties are aff~rmed. 

Citation No. 

328535 

328537 

333398 

334440· 

330412 

330413 

3°30414 

330416 

334402 

334403 

Penalty 

$' 170.00 

130.00 

130.00 

J8o.oo 

225.00 

210 .00 

305.00 

210.00 

150.00 

210.00 

$1,920.00 

WEST 79:...310-M 

Asarco moved to withdraw its notice of contest to citation no. 330415 

which is the subject of this proceeding-. (Tr. 12). Pursuant to 29 C.F .R. 

2700.U, the motion is granted. Citation no. 330415 and the penalty of 

jl80.00 are affirmed. 

WEST 81-12-M 

The Secretary moved to withdt.?·1 Citation nos. 566731, 566407, 566.408, 

567031 and 567033 (Tr. 12, 13). A written motion ·was also submitted. 

In support thereof, the Secretary stated as to Citation no. 566731 

'that he had· insufficient evidence. (Tr. 12). Concerning Citation nos. 

·566407, 566408 and 567031, the Secretary· stated that Asarco had a program 

of regular inspections of the posts involved which may have revealed that 

some were loose, the condition cited ·by the inspector. Therefore, the 

circumstances may not have constituted a violation of the standard •. (Tr. 

13). 

As to Citation no. 567033, petitioner stated that the blasting wire in 

question was properly supported, and therefore, no violation occurred. 

Respondent stated that proper shunting and equipment were used and there 

was no improper handling of the blasting box (Tr. 13). The Secretary 

agreed to these facts~ (Tr. 15). 

Pursuant to 29 C.F.R. 2700.11, the Secretary's motion is granted. The 

above citations and their respective penalties are vacated; 

169'1 
Asarco moved to withdraw its 

Ci tat ions. (Tr. 14). · Pursuant to 

The following Citations and their 

Citation No. 

566404 

566405 

566406 

567026 

567027 

567028 

567029 

567030 

567032 

567034 

566409 

566410 

567035 

567036 

56.7037 

notice of contest to the remaining 

29 .C. F. R. 2700 .11, the mot iori is g.ranted. 

respective penalties are affitmed. 

Penalty 

$ 84.00 

60.00 

255.00 

34.00 

48.00 

78.00 

78.00 

240.00 

140.00 

180.00 

98.00 

84.00 .. 

90.00 

60.00 

90.00 

44.00 

$1,663.00 

WEST 81-13-M 

The Secretary moved to withdraw Citation no. 566732 and the proposed· 

penalty. (Tr. 15). A written motion was also submitted. In support 

thereof the Secretary stated that there was insufficient evidence to 

support the Citation. (Tr. 15). 

Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation no. 

566732 and the proposed penalty are vacated. 

As to the remaining cit at ions, Asarco moved to withdraw its not ice of 

contest. (Tr. 16). Pursuant to 29 C.F.R •. 2700.11, the motion is granted. 

The following citations and corresponding penalties are affirmed. 

Cit at: ion No. 

567038 

567040 

Penalty 

$114 .00 

·90.00 

$204.00 

The Secretary stated that as to all citations he proposed to withdraw, 

in the above cases except those withdrawn because of the unavailability of 

the inspector, the petitioner and respondent reviewed all the evidence and 

the. Secretary discussed the matters thoroughly with MSHA before submitting 

its motion. (Tr. 15, 16). 
E.espondent shall pay the penalty amount assessed for each docket' 

number within 30 days of the date of this order. 

SO ORDERED. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

~585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Earl K. Madsen, Esq. 

BRADLEY, CAMPBELL & CARNEY 

1717 Washington Avenue 

Golden, Colorado 80401 

169b 

Judge