SEPTEMBER 1992 

COMMISSION DECISIONS AND ORDERS 

09-02-92 Roy Farmer and others v. Island Creek Coal Co. 

09-03-92 sec. Labor for Robert w. Buelke v. Santa 

Fe Pacific Gold Corporation 

09-09-92 Sec. Labor for Michael Price & Joe John 

Vacha & UMWA v. Jim Walter Resources 

09-16-92 D J and M Coal Company, Inc. 

09-22-92 Ricky Hays v. Leeco, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-01-92 

09-03-92 

09-03-92 

09-11-92 

09-11-92 

09-14-92 

09-17-92 

09-17-92 

09-22-92 

09-23-92 

Bruce A. Williams v. Cimetta Engineering 

Gary Honaker v. Clinchfield Coal Company 

Sec. Labor for Wayne & Roger Kizziah v. 

C & H Mining Company 

Mountain coal Company 

Energy West Mining Company 

Roger Vogt v. N.A. Degerstrom, Inc., et al. 

Sec. Labor for Joseph A. Smith v. Helen 

Mining Company 

Ronald Weaver emp. by Consolidation Coal 

Meador Energy, Incorporated 

Sec. Labor for Billy B. Taylor v. Old 

Ben Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

09-08-92 

09-16-92 

09-18-92 

Contest of Respirable Dust Samples 

Contest of Respirable Dust Samples 

Contest of Respirable Dust samples 

VA 91-31-C Pg. 1537 

WEST 92-544-DM Pg. 1545 

SE 87-128-D Pg. 1549 

KENT 91-1109 Pg. 1565 

KENT 90-59-D Pg. 1567 

WEST 91-553-DM Pg. 1569 

VA 92-108-D Pg. 1570 

SE 92-420-D Pg. 1571 

WEST 92-64 Pg. 1572 

WEST 91-251 Pg. 1595 

WEST 91-225-DM Pg. 1625 

PENN 92-57-D 

WEVA 92-814 

WEVA 92-743 

LAKE 92-131-D 

MASTER 91-1 

MASTER 91-1 

MASTER 91-1 

Pg. 1626 

Pg. 1647 

Pg. 1654 

Pg. 1656 

Pg. 1675 

Pg. 1679 

Pg. 1683 

SEPTEMBER 1992 

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

Asarco, Inc. v. Secretary of Labor, MSHA, DocketNo. WEST 92-624-RM. 

Morris, August 25, 1992) 

(Judge 

Secretary of Labor, MSHA v. DJ & M Coal Company, Inc., Docket No. KENT 91-1109. 

(Chief Judge Merlin, Default Decision, August 11, 1992) 

Secretary of Labor, MSHA on behalf of Donald L. Gregory and Loy D. Peters v. Thunder Basin Coal Company, Docket Nos. WEST 92-279-D and WEST 92-280-D. (Judge 

Lasher, September 14, 1992) 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 91-1965. 

(Judge Weisberger, September 21, 1992) 

There were no cases filed in which review was denied. 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROY FARMER AND OTHERS 

v. 

ISLAND CREEK COAL CO. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

tember 2, 1992 

Docket No. VA 91-31-C 

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

DECISION 

BY THE COMMISSION: 

This complaint for compensation, arising under the Federal Mine Safety 

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

the Commission a second time. Respondent, Island Creek, seeks interlocutory 

review of Commission Administrative Law Judge Gary Melick's September 27, 

1991, decision denying the operator's motion to dismiss the complaint for 

compensation as untimely filed. 13 FMSHRG 1564. Judg~ Melick's decision was 

issued pursuant to the Commission's May 9, 1991, decision (13 FMSHRC 1226) 1 

vacating an earlier order of dismissal issued by Commission Administrative Law 

Judge James Broderick (12 FMSHRC 2641 (December 1990)) and remanding the 

matter to determine "whether appropriate circumstances exist to excuse the 

late filing of the compensation complaint and to allow this matter to go 

forward." 13 FMSHRC at 1233. 2 For the reasons that follow, we.affirm the 

judge's denial of Island Creek's motion to dismiss. 

I. 

Factual and Procedural History 

Island Creek operates the Virginia Pocahantas No.3 Mine in Southwest 

Virginia. On April 17, 1990, a representative of the Department of Labor's 

Mine Safety and Health Administration (MSHA) issued a section 107(a), 30 

U.S.C. § 817(a), imminent danger order alleging excessive methane 

concentrations in the mine's bleeder system and also issued a section 104(a), 

30 U.S.C. § 814(a), citation alleging a violation of the mine's ventilation 

plan. All miners were withdrawn from the mine until the order was terminated 

l 

2 

Melick. 

The decision appears in the August 1991 Volume of Commission decisions. 

Following remand, the case was reassigned from Judge Broderick to Judge 

1537 
on April 20, 1990. Under section 111 of the Act, 30 U.S.C. § 821, if miners 

are idled by a section 107(a) order issued for a failure to comply with a 

mandatory standard, they are entitled to compensation for the time they are 

idled, up to one week. 3 

Roy Farmer, a miners' representative, filed a "Request for Compensation 

per section 111 of the Coal Mine Safety and Health Act of 1977," by letter 

dated October 29, 1990, and received by the Commission on November 2, 1990. 

The request indicated the dates for which compensation was sought, stated that 

Island Creek had refused to provide the compensation, and included a list of 

approximately 275 miners alleged to have been idled by the imminent danger 

order. 

Island Creek filed an answer on November 28, 1990, wherein it asserted 

two affirmative defenses: that the complaint was not filed within the time 

period (90 days) set forth in Commission Procedural Rule 35, 29 CFR § 2700.35 

("Rule 35") and that Island Creek did not violate any mandatory standard that 

would give rise to a claim for compensation. On November 30, Island Creek 

filed a motion to dismiss the complaint for compensation as untimely filed, 

which Judge Broderick granted by order of December 20. In his order of 

dismissal, the judge noted that the_compla:int was filed 198 days after the 

idlement and 108 days beyond the time allowed in Rule 35. He also noted that 

Farmer's November 2, 1990 filing lacked any explanation for the delay. 12 

FMSHRC at 2641. 

On January 4, 1991, Farmer, acting pro se, filed a petition for review 

of Judge Broderick's order of dismissal, in which he alleged that he had been 

told by an Island Creek representative that the miners would be compensated 

for their idlement once the contest of the citation was resolved and if the 

operator was found to have violated the ventilation plan. Farmer also 

asserted that he had been told by ~epresentatives of both MSHA and this 

Commission4 that there was no time limit on filing such a complaint but that, 

even if there were a limit, it would not begin to run until the contest of the 

citation was resolved against Island Creek. Farmer asserted, additionally, 

that the local union's financial inability to retain counsel, coupled with 

Farmer's own lack of knowledge of procedural matters, justified the late 

filing of the complaint. 5 

3 Island Creek has contested the section 104(a) citation in a separate 

proceeding, Secretary v. Island Creek Coal Co., Docket No. VA 91-2, pending 

before Judge Broderick. By order issued October 10, 1991, Judge Melick stayed 

this compensation proceeding pending disposition of the contest proceeding. 

4 The record clearly establishes that Farmer did not speak with an attorney 

in this Commission as he once believed; rather, he spoke with an attorney in the 

Solicitor of Labor's Office. Tr. 118-120. 

5 The United Mine Workers of America ( "UMWA") filed a "Supplement" to 

Farmer's petition, which asserted that Farmer appeared to have been misled by 

Island Creek and government officials. The UMWA argued that, under those 

circumstances, Farmer's late filing of the complaint for compensation and his 

1538 
In vacating Judge Broderick's order and remanding the matter for further 

proceedings, the Commission noted that, unlike section lOS(c) of the Act, 30 

U.S.C.§ 81S(c), section 111 does not specify a time period within which 

complaints for compensation must be brought. Rather, the 90-day limit is 

derived solely from Rule 35 of the Commission's Procedural Rules. 13 FMSHRC 

at 1229. The Commission further noted that the 60-day limit in section 105(c) 

is not jurisdictional and that Congress specified that the time limit could be 

extended in justifiable circumstances. Citing Loc. U, 5429. UMWA v, 

Consolidation Coal Co., 1 FMSHRC 1300 (September 1979) ("Consol"), the 

Commission concluded that the 90-day requirement in Rule 35 also could be 

waived in appropriate circumstances. 13 FMSHRC at 1230-31. 6 

The Commission recounted the assertions made by Farmer in his petition 

and concluded that "[i]f true, those allegations could possibly establish 

adequate explanation or justification for the late filing." 13 FMSHRC at 

1232. However, since the Petition was unsworn and contained no details as to 

relevant dates and persons involved, the Commission remanded the matter to the 

judge to allow him to "assess the merits of [the] allegations". Id. The 

Commission indicated that, even if Farmer could establish an adequate excuse 

for the late filing, the complaint might nevertheless be dismissed if the 

delay resulted in material legal prejudice.to Island Creek. Id. 

On remand, Judge Melick first determined that good cause existed for 

Farmer's failure to respond to Island Creek's motion to dismiss.. He based his 

conclusion on the fact that Farmer had made reasonable efforts to obtain 

copies of the Commission's procedural rules but without success. The judge 

also concluded that Farmer "testified credibly" that he thought there would be 

a hearing on the motion to dismiss, thus obviating the need for a written 

response. 6 FMSHRC at 1566. 

The judge found that there was "adequate justification" for Farmer's 

late filing. The judge stated that there was "credible evidence" that Farmer 

was ignorant of the filing requirements. The judge also concluded that 

despite Farmer's undergraduate degree in business and his "reading the law" 

for the Virginia bar, "it cannot reasonably be inferred that he should have 

had or should even be expected to have such esoteric knowledge" (of the filing 

requirements of Rule 35). Id. 

Additionally, the judge found "sufficient credible evidence" that Farmer 

had conversed with mine manager Eddie Ball about compensation and that, at the 

very least, Ball advised Farmer that nothing would be done about compensatiop 

until the contest of the underlying citation was resolved. The judge further 

subsequent failure to file a response to the motion to dismiss should be excused. 

'.fhe UMWA cited Commission precedent allowing for relief from judgements rendered 

below in default cases. See,~. Secretary v. J.R. Thompson. Inc., 12 FMSHRC 

1194 (June 1990). 

6 In Consol, the Commission determined that Commission Interim Rule 29, the 

forerunner to Rule 35, which required complaints for compensation to be filed 

within 30 days of idlement, could be extended in appropriate circumstances. 

1539 
found that Farmer had contacted MSHA officials on the compensation issue but 

was not provided sufficient information to file a timely complaint with the 

Commission. Id. Lastly, the judge found insufficient evidence of "'legal 

prejudice' to otherwise warrant dismissal of these proceedings". Accordingly, 

the judge denied the motion to dismiss and ordered the case to proceed on the 

merits. Id. 

II. 

Disposition of Issues 

Island Creek argues that the judge's decision should be reversed on 

three general grounds: (1) that it is contrary to Commission precedent; (2) 

that it is not supported by substantial evidence; and (3) that it does not 

comply with Commission Procedural Rule 65(a), 29 CFR § 2700.65(a). 

The operator contends that, in light of Farmer's experience and 

education, the judge was bound to dismiss Farmer's complaint by Commission 

precedent established in Hollis v, Consolidation Coal Co., 6 FMSHRC 21 

(January 1984) aff'd mem., 750 F. 2d 1093 (D.C. Cir. 1984) (table). Island 

Creek notes that Farmer was both lo_cal union president and chairman of the 

union safety committee, that he has an undergraduate degree in business from 

the University of Virginia and is currently "reading the law" for the Virginia 

bar under the tutelage of an attorney specializing in workers' compensation 

cases. 

In Hollis, the Commission affirmed the dismissal of a section 105(c) 

discrimination complaint filed four months after the 60-day deadline by a 

union safety committee chairman with two years of college education. Island 

Creek contends that the Commission "endorsed an AW's finding that the 

claimant 'should have known of his rights under the Act' in light of his 

education and experience as a local union official". Br. 6, quoting 6 FMSHRC 

at 25. Island Creek argues that Farmer should be held to the same or higher 

standard of knowledge as the complainant in Hollis, and his complaint must, 

accordingly, be dismissed. The operator further contends that Farmer's 

education and experience constitute, at least, constructive knowledge of the 

requirement to file a written response to a motion to dismiss. 

Island Creek has inaccurately interpreted the Commission's holding in 

Hollis.. In that case the judge simply did not believe the claimant's 

assertion that he was unaware of his rights under section 105(c) of the Act 

and, consequently, was unaware of the filing requirements therein. The fact 

that Hollis was an active safety committee chairman and had completed two 

years of college were considered by the judge as indicators of Hollis' ability 

both to understand his rights and to waive them in order to pursue alternative 

remedies outside the Mine Act. 6 FMSHRC at 24-25. 

On review, the Commission upheld the judge's credibility determinations: 

When reviewing a judge's credibility 

resolutions, as here, our role is 

necessarily limited. The judge observed 

1540 
6 FMSHRC at 25. 

Hollis as a witness and did not believe 

his testimony of ignorance concerning 

his Mine Act rights. We discern nothing 

in the record that would justify our 

taking the extraordinary step of 

overturning this credibility resolution. 

While the Commission concluded that substantial evidence supported "the 

judge's inference that Hollis did know of his Mine Act rights during the 60-

day time period", the Commission made no mention of Hollis' educational 

background as a factor in its determination that the judge's inferences 

supported his disbelief of the complainant's assertions that he was ignorant 

of the filing requirements of section 105(c). Thus, Island Creek's contention 

that the Commission in Hollis, "endorsed an AL.J's finding that the claimant 

'should have known his rights under the [Mine] Act' in light of his education 

and experience as a local union official" (Br.6) is incorrect. We reject the 

operator's argument that Hollis dictates dismissal of Farmer's complaint for 

compensation. On the contrary, we are reluctant to disturb the judge's 

credibility determinations here as-we.were reluctant to disturb the same 

judge's credibility determinations in Hollis. The Commission has often stated 

"a judge's credibility resolutions cannot be overturned lightly." Hall v, 

Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (November 1986). 

In arguing that the judge's decision is not supported by substantial 

evidence, the operator first contends that the judge failed to address an 

issue remanded to him by the Commission. Island Creek notes that, at the start 

of the hearing Farmer withdrew his contention that the local union was 

financially unable to retain counsel to pursue the compensation claim. The 

operator argues that, since the local union's financial inability to retain 

counsel was a factor the Commission focused on in its decision to remand, it 

was incumbent on the judge to address the issue if only in terms of evaluating 

Farmer's credibility. Island Creek further contends that the·judge erred in 

ignoring the fact that Farmer had access to local and international UMWA 

counsel. 

Financial inability was only one of several allegations that, as we 

stated in our earlier decision, "could possibly establish adequate explanation 

or justification for the late filing." 13 FMSHRC at 1232. We conclude that 

the judge found sufficient additional justification to excuse the late filing. 

We further note that in its brief on review Island Creek concedes that 

Farmer's withdrawal of his assertion of financial inability to retain counsel 

"might only reflect his confusion about the financial status of his UMWA 

local." Br. 14. 

As for Farmer's access to UMWA counsel, in its brief on review the UMWA 

argues that Farmer had no reason to think he needed legal advice since he had 

been "lulled" by mine manager Ball into believing that the miners would be 

paid. In a somewhat similar vein, the judge concluded that Farmer and Ball 

did discuss the compensation issue and that "Ball at the very least advised 

1541 
Farmer that nothing would be done about compensation until' the contest of the 

underlying citation was resolved." 13 FMSHRC at 1566. Given the judge's 

conclusion on that issue as well as his earlier conclusion that Farmer was 

ignorant of the filing requirements for compensation claims, we infer that the 

judge did not find it relevant that Farmer had not sought legal advice from 

sources within the UMWA. 

Island Creek's other challenges to the judge's decision on substantial 

evidence grounds are, in large part, based upon its argument that Farmer, by 

reason of his education and experience, should have been charged with actual 

or, at least, constructive knowledge of the procedural requirements for filing 

complaints for compensation. This argument is, in essence, a reiteration of 

Island Creek's contention that Hollis compels dismissal of Farmer's complaint, 

an argument that we have rejected. 

The relative rarity of compensation complaints in litigation before the 

Commission may have led the judge to characterize knowledge of the procedural 

requirements relating to such complaints as "esoteric" in nature. 13 FMSHRC 

at 1566. Further, unlike section lOS(c) of the Act, which sets a 60-day 

deadline for filing discrimination complaints, section 111 is silent as to a 

filing deadline. That time constraint:. is s.et forth in the Commission's 

Procedural Rules, which are published in Title 29 of the Code of Federal 

Regulations. All other standards and regulations applicable to the Mine Act 

are in Title 30 of the Code. 

Island Creek's third argument is that the judge failed to comply with 

the requirements of Commission Procedural Rule 65(a). The operator contends 

that the judge's "summary conclusions" lacked "reasons or bases ... on all 

material issues of fact, law or discretion presented by the record." Br. 24. 

Essentially, Island Creek argues that, although the judge repeatedly refers to 

"credible evidence" supporting his decision, he does not address unrebutted 

evidence that contradicts Farmer's testimony. 

It is important to focus on what the judge concluded on the basis of the 

evidence presented. Farmer's petition for discretionary review indicates that 

he believed he was misled, intentionally or otherwise, by officials of both 

Island Creek and MSHA. The judge found that mine manager Ball said that 

"nothing would be done about compensation until the contest of the underlying 

citation was resolved" (13 FMSHRC at 1566), a characterization of the BallFarmer conversation that both Ball and Island Creek share. Tr.193-194; Br. 

19. The judge found that Farmer "was not provided sufficient information to 

file a timely complaint with this Commission." 13 FMSHRC at 1566. Our 

reading of the judge's decision with respect to Farmer's contacts with Island 

Creek and MSHA is that he concluded that Farmer could reasonably have 

believed, on the basis of those contacts, that no action on his part was 

necessary while resolution of the underlying citation was still pending. We 

find that substantial evidence supports the judge's conclusion. 

As for the operator's additional contention, that the judge did not 

explain his conclusion that there was "insufficient evidence of 'legal 

prejudice' to otherwise warrant dismissal of these proceedings" (13 FMSHRC at 

1566), we conclude that no explanation was necessary. At the close of the 

1542 
hearing, the judge asked whether Island Creek had anything to say with regard 

to the legal prejudice issue. Counsel for the operator replied, "Just that we 

aren't going to present any evidence in that re_gard, your Honor." Tr. 203-

204. 

In response to the Commission's remand order the judge determined that 

Farmer produced "credible evidence" that he was ignorant of Commission 

procedures and that he had made reasonable efforts, after filing his complaint 

but before Island Creek filed its motion to dismiss, to secure a copy of the 

Commission's procedural rules. 7 The Commission's remand order noted that "a 

miner's genuine ignorance of applicable time limits may excuse a late filed 

discrimination complaint." 13 FMSHRC at 1231, citing Yalter A. Schulte v. 

Lizza Indus. Inc., 6 FMSHRC 8,13 (January 1984). The Commission stated that 

this principle was "correspondingly valid in the compensation complaint 

context". 13 FMSHRC at 1231. Thus, we find that Farmer's reasons for his 

untimely filing, which were credited by the judge, meet the "genuine 

ignorance" requirement of Schulte, supra. 

7 Island Creek's own Exhibit 4 is a November 6, 1990, letter from Farmer to 

the Commission requesting party status in the contest proceeding on the 

underlying citation and requesting a copy of the Commission's Procedural Rules. 

The letter indicates that it was received by the Commission on November 14, 1990, 

eleven days prior to the date of Island Creek's motion to dismiss. 

1543 
Accordingly, the judge's order denying Island Creek's motion to dismiss 

is affirmed and the matter is remanded to the judge for further proceedings 

pending disposition of the issues in Secretary v, Island Creek Coal Co., 

Docket No. VA 91-2. 

Distribution 

Timothy 11. Biddle, Esq. 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Michael Dinnerstein, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Hr. Roy Farmer 

Miners Representative 

Island Creek Coal Company 

P.O. Box 63 

Swords Creek, VA 24649 

J yc:e A. Doyle, 

~e~Sioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1544 
FEDERAL MINE SAFETY AND. HEALTH .REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 3, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of ROBERT W. BUELKE 

v. Docket No. WEST 92-544-DM 

SANTA FE PACIFIC GOLD CORPORATION 

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

DECISION 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine Safety 

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

Fe Pacific Gold Corporation ("Santa Fe") has filed a petition for review of 

Commission Administrative Law Judge August Cetti's August 19, 1992, order of 

temporary reinstatement issued under Commission Procedural Rule 44, 29 C.F.R. 

§ 2700.44 (1986). We grant Santa Fe's petition for review and, for the 

reasons that follow, we affirm the judge's order. 

Section 105(c) of the Mine Act, 30 U.S.C. § 815(c), prohibits mine 

operators from discharging or otherwise discriminating against miners who 

exercise their safety rights under the Act. If a miner believes that he has 

been discriminated against in violation of section 105(c), he may file a 

complaint with the Secretary. If, after a preliminary investigation, the 

Secretary finds that the complaint is "not frivolously brought," she is 

authorized to apply to the Commission for an order of temporary reinstatement 

of the miner pending full resolution of the complaint. 30 U.S C. 

§ 815(c)(2). If the Commission finds that the complaint is "not frivolously 

brought," it must issue an order of reinstatement on an expedited basis. 

29 C.F.R. § 2700.44(b). 

Complainant Robert W. Buelke was employed as an electrician by Santa Fe 

at its Rabbit Creek Mine from June 6, 1990, until July 1, 1991, when he was 

discharged. Buelke filed a complaint of discrimination with the Secretary 

under section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). Following a 

preliminary investigation, the Secretary filed an application for temporary 

reinstatement with the Commission on February 7, 1991. Judge Cetti issued an 

1545 
order of reinstatement on February 27, 1992, after hearing: 1 Buelke 

returned to work on March 9, but was discharged for a second time on April 

13. It is this second discharge that is the subject of this proceeding. 

The Secretary once again filed an application for temporary 

reinstatement. At the close of the ensuing hearing on August 5, Judge Cetti 

issued a bench order, granting temporary reinstatement. The bench order was 

reduced to writing and issued on August 19. 2 

The Secretary alleges that Buelke, on several occasions, made safety 

complaints relating to the installation, maintenance and repair of the Rabbit 

Creek Mine's electrical system and that Santa Fe retaliated for those 

complaints through harassment, intimidation and, ultimately, discharge. The 

Secretary further asserts that Buelke's second discharge on April 13, 1992, 

was motivated by the filing of his initial complaint of discrimination and 

that it was the result of disparate treatment. 

Santa Fe responds that Buelke was discharged a second time for 

unexcused absences from April 4 through April 7, 1992. The operator further 

contends that it has a strict, evenhanded policy on absenteeism and that the 

record supports its arguments that Buelke's discharge was not the result of 

disparate treatment. 

"The scope of a temporary reinstatement hearing is narrow, being 

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

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

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

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

In his decision below, Judge Cetti concluded, "I am satisfied from the 

present record ... that the evidence presented on behalf of Mr. Buelke made a 

strong showing and established for purposes of the present proceeding for 

temporary reinstatement only that Buelke engaged in protected activity and 

that a viable non-frivolous issue exists as to whether or not either or both 

discharges were motivated by Respondent's desire to retaliate against him for 

1 This earlier complaint and temporary reinstatement are the subject 

of a separate Commission proceeding, Secretary on behalf of Robert W. Buelke v. 

Santa Fe Pacific Gold Corp., Docket No. WEST 92-243-DM. 

2 Santa Fe filed a petition for review of the judge's bench order on 

August 12, 1992, to which the Secretary filed opposition on August 19. After 

the judge's written order was issued, Santa Fe filed a second petition, which 

incorporated the initial petition by reference. The Secretary filed a 

supplemental response in opposition to the petition. Commission Procedural Rule 

44(e), 29 C.F.R. § 2700.44(e), requires that a judge's order granting or denying 

an application for temporary reinstatement include "findings and conclusions 

supporting the [judge's] determination." Thus, the rule contemplates a written 

order. Accordingly, for purposes of the time periods set forth in Rule 44, we 

deem the judge's written order of August 19, 1992, to be the starting point of 

the review process. All documents, including those filed before August 19, have 

been considered on review. 

1546 
his protected activity." Order pp. 4-5. 

Having carefully reviewed the evidence and pleadings, we conclude that 

the judge's order is supported by the record and is consistent with 

applicable law. We intimate no view as to the ultimate merits of this case. 

The only issue before us is whether Buelke's complaint of discrimination was 

not frivolously brought. 

Accordingly, the judge's order of temporary reinstatement is affirmed. 

Richard V. Backley, Commissioner -

Joyce 

~-~·d.~ A. Doyle, CommiSSiOne 

~£/~le~ 

L. Clair Nelson, Commissioner 

1547 
Distribution 

Charles W. Newcom, Esq. 

Sherman & Howard 

3000 First Interstate Tower North 

633 Seventeenth Street 

Denver, Colorado 80202 

Gretchen M. Lucken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge John ·Morris 

Federal Mine Safety & Health Review Conunission 

280 Federal Bldg. 

1244 Speer Blvd. 

Denver, Colorado 80204 

1548 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LA.BOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of MICHAEL L. PRICE 

and JOE JOHN VACHA 

and 

UNITED MINE WORKERS OF AMERICA 

v. 

JIM WALTER RESOURCES, INC. 

Septenber 9, 1992 

Docket No. SE 87-128-D 

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

DECISION 

BY: Backley, Doyle, Holen and Nelson, Commissioners 

This matter involves the Secretary of Labor's discrimination complaint 

against Jim Walter Resources, Inc. ("JWR"), alleging that it discharged 

complainants Michael L. Price and Joe John Vacha in violation of section 

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

seq. (1988)("Mine Act" or "Act"), 30 U.S.C. § 815(c), after they failed to 

provide urine samples as required by JWR's Substance Abuse Rehabilitation and 

Control Program ("Drug Program"). This is the fourth time that this 

discrimination proceeding has been before the Commission on review. In its 

earlier decision on the merits, Secretary on behalf of Price and Vacha v, Jim 

Walter Resources. Inc., 12 FMSHRC 1521(August1990)("Price and Vacha I"), the 

Commission reversed Commission Administrative Law Judge Broderick's finding 

that the Drug Program was facially discriminatory in violation of section 

lOS(c) of the Mine Act (10 FMSHRC 896 (July 1988)(ALJ)), and remanded the case 

to the judge to determine whether JWR's Drug Program had been discriminatorily 

applied against Price and Vacha. 

On remand, Judge Broderick found that the Drug Program had been 

discriminatorily applied against Price and Vacha, and that JWR had not shown 

it would have discharged Price and Vacha for unprotected activity alone. 12 

FMSHRC 2635, 2639 (December 1990)(ALJ) ("Decision on Remand"). The judge 

ordered the reinstatement of Price and Vacha. Id. Both JWR and intervenor 

United Mine Workers of America ("UMWA") filed petitions for discretionary 

review, which the Commission granted. For the following reasons, we affirm 

the judge's Decision on Remand. 

1549 
I. 

Factual and Procedural History 

A. Factual Background 

The factual background of this proceeding is set forth in Price and 

Vacha I, 12 FMSHRC at 1522-28, and is incorporated by reference. JWR operates 

five underground coal mines in Alabama, employing over 2,800 employees, 

including 2,200 hourly workers represented by the UMW"A. Each JWR mine has a 

local uni~n affiliated with District 20 of the UMW"A. At all times relevant to 

this proceeding, the UMW"A and JWR were signatories to a collective bargaining 

agreement governing labor relations in the JWR mines. 10 FMSHRC at 897-98; 

12 FMSHRC at 1522. That bargaining agreement establishes a mine health and 

safety committee at each mine composed of miners selected by members of the 

local UMW"A. Both Price and Vacha were members of such a committee. 

At the time of the incidents, both Price and Vacha had worked for JWR's 

No. 4 Mine for approximately nine years. 12 FMS.HRC at 1524. Price and Vacha 

and the safety committee had the reputation of being "safety activists." 10 

FMS.HRC at 903; 12 FMS.HRC at 2636. I:nsix years on the safety committee, Vacha 

had filed from 75 to 100 section 103(g) complaints and participated in 50 to 

75 safety grievances against JWR. In his eight and one-half years on the 

committee, Price had annually filed approximately 25 section 103(g) 

complaints, and handled approximately 70 safety grievances against JWR 

management. 

In 1987, JWR initiated its Drug Program. Most directly involved in this 

matter is section II.E. of the program, dealing with random drug testing, 

which states: 

Any employee whose duties, whether by job title or by 

reason of elected office, involve safety, shall be 

subject to random testing for substance abuse up to 

four times per calendar year. Physicals for hoistmen 

shall also include testing for substance abuse. All 

provisions of the program shall apply to employees in 

this category. 

12 FMS.HRC at 1523. 

1Nhen Price and Vacha failed to provide the urine samples required for 

testing, they were suspended with intent to discharge and subsequently 

discharged. 12 FMS.HRC at 1525. They were later reinstated by order of Judge 

Broderick. 

B. Procedural Background 

On May 14, 1987, pursuant to section 105(c)(2) of the Mine Act, 30 

U.S.C. § 815(c)(2), the Secretary filed an application for temporary 

reinstatement of Price and Vacha to their JWR positions. On June 29, 1987, a 

temporary reinstatement hearing was held before Judge Broderick. At the 

1550 
outset of the hearing, the judge orally granted the UMWA's motion to intervene 

in this matter. JWR did not oppose the UMWA's participation as an intervenor. 

TRH 11-12 . 1 

On July 7, 1987, the judge issued an order directing the temporary 

reinstatement of Price and Vacha. This unpublished order also confirmed the 

UMWA's right to intervene. JWR appealed the reinstatement order to the 

Commission. See 29 C.F.R. § 2700.44(e). The Commission affirmed the judge's 

order of temporary reinstatement. 9 FMSHRC 1305 (August 1987). JWR appealed 

the Commission's order to the United States Court of Appeals for the Eleventh 

Circuit (~o. 87-7484, filed 8-7-87). The Eleventh Circuit subsequently 

affirmed the Commission's order requiring Price and Vacha's temporary 

reinstat~ment. Jim Walter Resources. Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 

1990). 

In March 1988, Judge Broderick heard the merits of the case. In his 

decision of July 13, 1988, the judge ordered the permanent reinstatement of 

Price and Vacha. 10 FMSHRC at 911. He determined that paragraph II.E. of the 

Drug Program was facially discriminatory under section 105(c) of the Mine Act 

because it targeted safety committeemen, but no other rank-and-file miners, 

for random testing and that the complainants' discharges pursuant to the Drug 

Program were discriminatory. 10 FMSHRC at 906-08. As to whether the Drug 

Program, assuming facial validity, had been discriminatorily applied to the 

complainants, the judge concluded that Price and Vacha had established a prima 

facie case of discrimination in that their discharges were motivated, in part, 

by their protected activity. 10 FMSHRC at 909-10. Nevertheless, the judge 

held that JWR had affirmatively defended against the discrimination claims in 

that it had discharged Price and Vacha for insubordination, i.e., violation of 

a valid "work order," the Drug Program. 10 FMSHRC at 910. The Commission 

granted JWR's petition for discretionary review, which challenged only the 

judge's determination that the Drug Program was facially discriminatory. 

In its decision on the merits in Price and Vacha I, the Commission 

reversed the judge's conclusion that the Drug Program was facially 

discriminatory under section 105(c) of the Mine Act. 12 FMSHRG at 1531-33. 

Concerning the application of the Drug Program, the Commission affirmed the 

judge's determination that Price and Vacha had established a prima facie case 

of discriminatory discharge. 12 FMSHRC at 1533-34. However, the Commission 

remanded the case to the judge for reconsideration and further findings on the 

issue of whether JWR had established an affirmative defense, given certain of 

the judge's other findings. Those findings included the pre-testing 

supervisory harassment of Price and Vacha; the complainants' inability to 

urinate because of "genuine physical and psychological difficulties"; the 

different testing procedures at other JWR mines; and the evidence of 

accommodation of other miners who had experienced urination difficulties. 

12 FMSHRC at 1534-35. The Commission held: 

1 The Transcript of the Temporary Reinstatement Hearing of June 29, 1987, 

is referred to herein as "TRH." 

1551 
[A]n operator does not establish a Pasula-Robinette 

affirmative defense if a work rule or policy that the 

miner is alleged to have violated, was applied 

discriminatorily to the miner or in a manner 

deliberately calculated to render his compliance 

difficult or impossible. In such cases, the claimed 

"independent" basis for discipline is actually an 

extension of the operator's discriminatory conduct. 

12 FMSHRG at 1534. 

The Commission instructed the judge as follows: 

We find that the judge did not fully examine and 

explain, in the context of ruling on JWR's affirmative 

defense, the impact of the evidence summarized above. 

If, in fact, Price and Vacha were fired for failing to 

comply with discriminatorily applied drug testing 

procedures or "if those procedures were deliberatively 

manipulated to contribute to such failure, a PasulaRobinette affirmative defense based on those ~ 

procedures cannot stand. In other words, a discharge 

for failure to comply with a discriminatorily 

implemented work order would not satisfy the 

affirmative defense requirements of Commission 

precedent. 

12 FMSHRC at 1535-36. Accordingly, the Commission remanded the case to the 

judge, with instructions that the parties should be permitted the opportunity 

to brief the merits of the remanded issues. 2 

2 In Price and Vacha I, only JWR filed a petition for review. JWR did not 

Ghallenge the judge's "as applied" findings nor had the Commission sua sponte 

directed that: issue for review. The UMWA raised the "as applied" issue in its 

response brief. JWR moved to strike that portion of the UMWA's brief as being 

outside the Commission's direction for review. A majority of the Commission 

denied that motion (Commissioners Backley, Doyle, and Nelson). See 12 FMSHR.C 

at 1529 ("[W]e hold that ... the ~appellee' [in Commission review proceedings] 

may urge in support of the judgment below any matter or issue appearing in the 

record, even if it: involves an objection to some aspect of the judge's reasoning 

or issue resolution, so long as the appellee does not seek to attack the 

judgment itself or to enlarge its rights thereunder, in which case it would be 

obliged ·to file a cross-petition for discretionary review." (Emphasis in 

original)). Chairman Ford voted to grant JWR's motion to strike. 12 FMSHRC at 

1542-43. Commissioner Lastowka voted to grant the motion to strike, but would 

have remanded the matter to the judge for a "final, appealable order" concerning 

the "as applied" issue. 12 FMSHRC at 1538-41. JWR summarily repeats its 

argument that the UMWA' s "as applied" contentions were outside the proper scope 

of Commission review. For the reasons set forth in Price and Vacha I, 12 FMSHR.C 

at 1528-29, we again reject JWR's argument on this issue. 

1552 
JWR unsuccessfully moved the Commission for reconsideration. 12 FMSHRC 

2418 (November 1990). On December 20, 1990, Judge Broderick issued his 

Decision on Remand. He evaluated the evidence concerning "pre-testing 

supervisory joking directed at Price and Vacha, and the differences in 

procedures followed at other [JWR] mines." 12 FMSHRC at 2635. The judge 

found that: 

Price and Vacha were made to feel nervous and 

upset by the manner in which the testing was 

conducted. They did not refuse to submit the samples 

but were physically or psychologically unable to do 

so. I conclude that the fact that the procedure was 

supervised by those who often had an adversarial 

relation to them in safety disputes, contributed to 

their discomfort. I also conclude that the past 

safety activities of Price and Vacha were part of the 

motivation of these supervisors in their conduct of 

the drug testing program. 

12 FMSHRC at 2637. Judge Broderick also found that: 

The procedures followed in testing Price and 

Vacha which differed from those followed in other 

mines contributed to their inability to comply with 

the request for urine samples. They were in part 

related to Price and Vacha's prior safety activities 

in that they were conducted by those who bore an 

adversarial relationship to Price and Vacha in mine 

safety matters. 

12 FMSHRC at 2638-39. 

The judge concluded that the drug testing program had been 

discriminatorily applied to the complainants and could not se:i;ve as an 

independent nondiscriminatory justification for their discharges. 

Accordingly, he held: "JWR has not established that it would have discharged 

Price and Vacha for unprotected activity alone, i.e., without reference to the 

implicated drug testing program. Therefore, their discharges were in 

violation of section lOS(c) of the Mine Act." 12 FMSHRC at 2639. The judge 

directed the permanent reinstatement of Price and Vacha and ordered JWR to pay 

them back pay and benefits. 

The Commission granted JWR's petition for review, which, essentially, 

attacks the judge's conclusions that Price and Vacha established a prima facie 

case and that JWR failed to defend affirmatively against that case. For the 

first time, JWR also challenges the standing of the UMW'A to represent the 

individual claims of Price and Vacha. The Commission also granted the UMW'A's 

petition, which asserts pro forma that the Drug Program is facially 

discriminatory. 

1553 
IL 

Disposition of Issues 

The petitions raise four issues: 

(A) Whether Price and Vacha established a prima facie case of 

discrimination; (B) Whether JWR established an affirmative defense to the 

discrimination claims; (C) Whether the UMWA has the standing to bring an 

individual claim of discrimination on behalf of Price and Vacha; and 

(D) Whether JWR's Drug Program is facially discriminatory under section 

105(c)(l), 30 U.S.C. § 815(c)(l). 

We dispose of issue D summarily. That issue was decided by the 

Commission in Price and Vacha I, and the UMWA has presented no new arguments 

with respect to that issue. In Price and Vacha I, the entire Commission 

determined that section II.E. was not facially discriminatory under the Act. 

12 FMSHRC at 1531-33, 1538 (Lastowka opinion), 1542 (Ford opinion). The 

Commission reasoned that the Mine Act does not bar operators from adopting 

substance abuse programs and that "JWR advanced adequate and reasonable 

business justifications for including safety committeemen, along with other 

employees whose job duties involved safety matters, in the pool of miners 

subject to the drug testing provision of section II. E." 12 FMSHRC at 1532-33. 

The Commission concluded that safety committeemen were not "singled out" from 

all other miners, because JWR reasonably targeted all safety positions for 

drug testing. 12 FMSHRC at 1532. We reaffirm the Commission's holding that 

section II.E. of the Drug Program is not facially discriminatory under section 

105(c) of the Mine Act. 

A. Whether Price and Vacha established a prima facie case of 

discrimination 

The Commission also considered issue A in Price and Vacha I. There, a 

majority of the Commission concluded that Price and Vacha established a prima 

facie case of discrimination. We reaffirm that determination here. In its 

petition, JWR raises additional arguments that we will briefly discuss. 

To establish a prima facie case of discrimination, a complaining miner 

must prove that he engaged in protected activity and that the adverse action 

complained of was motivated in some part by that activity. Secretar.:y on 

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

(October 1980), rev 1 d on other grounds, 663 F.2d 1211 (3d Cir. 1981); 

Secretary on behalf of Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-18 (April 1981). See also,~. Donovan v. Stafford Construction 

Co,, 732 F.2d 954, 958-59 (D.C. Cir. 1984); Jim Walter Resources, 920 F.2d at 

750, citing with approval Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 

639, 642 (4th Cir. 1987). 

The judge found in his first decision on the merits that "the discharge 

of Price and Vacha was motivated in part because of protected activity, i.e., 

because of their activities as safety committeemen." 10 FMSHRC at 909-10. He 

based that holding on the following evidence: Price and Vacha had engaged in 

1554 
considerable protected activity as safety committeemen; Kelly was "clearly 

aware" that Price and Vacha were "notorious" for filing safety complaints; the 

supervision of the urine collection at No. 4 Mine was delegated to Andrews and 

Hendricks, company safety inspectors, rather than remaining in the Industrial 

Relations Department, as in other mines; JWR offered no accommodation to Price 

and Vacha when they were unable to urinate, although some accommodation was 

given to others involved in the Drug Program; and, Price and Vacha did not 

refuse to provide samples but were unable to do so. 10 FMSHRC at 909. 

The thrust of JWR's present argument is that Kelly's decision to 

discharge· Price and Vacha was not connected to their safety activities. 3 JWR 

argues that neither direct nor circumstantial evidence demonstrates JWR's 

(i.e., Kelly's) discriminatory intent. On questions of a judge's fact 

finding, the focus of JWR's contentions on review, the issue before the 

Commission is whether substantial evidence on the record as a whole supports 

the judge's findings. Donovan on behalf of Chacon v. Phelps Dodge Corp., 709 

F.2d 86, 92 (D.C. Cir. 1983). Substantial evidence means "such relevant 

evidence as a reasonable mind might accept as adequate to support [the 

judge's] conclusion. u See, ~. MidwContinent Resources. Inc., 6 FMSHRC 

1132, 1137 (May 1984), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 

229 (1938). Applying the substantialevidence test, the foregoing evidence 

shows protected activity, company knowledge of protected activity, and 

sufficiently disparate treatment of Price and Vacha during the drug testing 

procedures to support the judge's inference of discriminatory motivation. 

JWR contends, however, that discriminatory intent must be proven by 

direct evidence and that there is no such evidence in this case. The 

Commission has made clear that such direct evidence is rare and that 

discriminatory intent may be established by the kind of indirect evidence 

involved here. .lL..&..... Secretary on behalf of Johnny Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 709 F.2d 

86 (D.C. Cir. 1983). We note further that much of the evidence of 

discriminatory application of the Drug Program, which we discuss below in the 

affirmative defense analysis, bolsters our conclusion that a prima facie case 

has been established by Price and Vacha. 

JWR has added nothing on review that causes us to depart from the 

Commission's prior holding affirming Judge Broderick's finding that Price and 

Vacha established a prima facie case. Thus, we reaffirm the judge's 

determination that the complainants established a prima facie case that the 

Drug Program was discriminatorily applied to them. 

B. Whether JWR established an affirmative defense 

The issue here is whether JWR established an affirmative defense under 

the Fasula-Robinette analysis, which allows an operator to defend 

affirmatively against a prima facie case by showing that: (1) the adverse 

3JWR raised the same argument in challenging the judge's finding that JWR 

had not affirmatively defended. As discussed here and below, we reject JWR's 

argument on both counts. 

1555 
action was also motivated by the miner's unprotected activity and, (2) the 

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

activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 817; 

Stafford, 732 F.2d at 959. See also Jim Walter Resources, 920 F.2d at 750, 

citing Eastern Associated Coal, 813 F.2d at 642. An operator must prove this 

affirmative defense by a preponderance of the evidence. ~. Eastern 

Associated Coal, 813 F.2d at 642. 

JWR contends that it could legitimately discharge Price and Vacha solely 

on the unprotected basis of their refusal or failure to provide the required 

specimens, As noted, the Commission made clear in Price and Vacha I that if 

the Drug Program were discriminatorily applied to Price and Vacha, JWR could 

not legitimately raise the complainants' failure to comply with the Drug 

Program as justification for their discharges. We conclude that substantial 

evidence in the record as a whole supports the judge's conclusion that JWR 

applied the Drug Program in a discriminatory manner against Price and Vacha. 

Rayford Kelly, the Industrial Relations supervisor at the No. 4 Mine, 

testified that Price and Vacha were "notorious" for filing safety complaints 

against JWR management. TRH 362, 411, 421-23; 10 FMSHRC at 903, 909; 12 

FMSHRC at 2636. Price had been disciplined.and discharged for performing his 

duties as a safety committeeman; the discharge was reversed by an arbitrator. 

TRH 155, 157; 10 FMSHRC at 903. JWR Deputy Mine Manager Donnelly allegedly 

told Vacha that the Drug Program was a way of getting rid of Price and him. 

TRH 64. Another safety committeemen, Thomas Wilson, testified that Price and 

Vacha were "constantly targets of discipline" and that the mine foremen stated 

that "they [were] after Mr. Price and after myself." TRH 222, 223. Mr. 

Wilson testified that he attended meetings where JWR upper management, "Bill 

Carr, Buck Piper, complained about myself, Mr. Price and Mr. Vacha as to 

filing 103 G's, filing safety grievances, the way we took care of business." 

TRH 222; ~ generally 10 FMSHRC at 903, 909; 12 FMSHRC at 2636. 

Both Price and Vacha were subjected to joking by supervisors concerning 

their participation in the upcoming drug testing program. TRH 63-65, 68-75, 

152-155, 162-165; 10 FMSHRC at 900; 12 FMSHRC at 2636. On several occasions 

both Price and Vacha were given "practice cups," such as Coke cans with the 

tops cut off. 10 FMSHRC at 900. A urine specimen bottle with "UMWA, Mike 

Price" written on it was displayed on the desk of Wyatt Andrews, head of the 

safety department at the No. 4 Mine, for two days before it was finally 

removed. TRH 63, 70; 10 FMSHRC at 900. Kelly was aware of the displayed 

specimen bottle. TRH at 399-400; 10 FMSHRC at 900; 12 FMSHRC at 2638. Andrews 

also handed Vacha an empty self-rescuer container and said, "Here, practice 

up. This is your practice p--s cup." TRH 63-64, 162-164; 10 FMSHRC at 900. 

Kelly delegated the testing of Price and Vacha to Andrews and Hendricks, 

management safety officials. TRH 387-91; 10 FMSHRC at 901; 12 FMSHRC at 2638. 

At the No. 4 Mine, Kelly personally administered and observed the specimen 

collection of the management safety officials. TRH 385; ~ 12 FMSHRC at 

2637. At all other JWR mines, the Industrial Relations Supervisors 

administered the testing of all miners. 10 FMSHRC at 901; 12 FMSHRC at 2637. 

When Hendricks accompanied Vacha to the bathroom, Hendricks stood next to him 

in the toilet stall, tapping on the divider, singing and humming. TRH 62, 

1556 
129-30. See 10 FMSHRC at 901, 909; 12 FMSHRC at 2637. 

Price and Vacha attempted to provide urine specimens every half hour, 

for four hours. TRH 61; 10 FMSHRC at 901. They asked Kelly if they could 

return in the morning to provide specimens. TRH 89, 181-83. Kelly refused. 

TRH 89, 181-83. Price testified that he offered to strip naked if he would be 

permitted to enter the restroom by himself. TRH 177-78. This request was 

rejected. TRH 177-78. Vacha testified that he was taking medication that 

could inhibit urinating. TRH 81. See 10 FMSHRC at 901, 909; 12 FMSHRC at 

2637, 2638. The next morning, Price took a drug test at the company's medical 

facility, .and Vacha did so at a local hospital. They submitted the results, 

which were negative, to JWR. TRH 111, 183-184, 88; 10 FMSHRC at 901. 

In contrast, JWR accommodated other miners having difficulty urinating. 

See Tr. 730 (miner tested for cause permitted to return the next day to 

provide sample); Tr. 92 (miner who could not produce sample at beginning of 

his shift allowed to provide it at end of shift) 10 FMSHRC at 902, 909; 12 

FMSHRC at 2637, 2638. 

The foregoing constitutes substantial evidence to support the judge's 

conclusion that JWR applied its dr~g testing in a discriminatory manner 

against Price and Vacha. We regard as particularly important the evidence of 

the notoriety of Price and Vacha's safety efforts when combined with JWR's 

failure to accommodate them, while others were accommodated. We also find 

telling the delegation of testing of Price and Vacha to those same supervisors 

who had engaged in pre-testing joking, and who had often assumed an 

adversarial role in safety matters against Price and Vacha. However, the 

judge's Conclusion of Law II, which states that "[t]he evidence does not 

establish that the pre-testing joking and harassment directed toward Price and 

Vacha were related to their ... safety activities" (12 FMSHRC at 2638), is not 

supported by substantial evidence and, further, is inconsistent with the 

balance of the judge's decision. For example, the record is clear, and the 

judge so found, that a few months before the Drug Program began, a urine 

sample bottle labelled "Mike Price UMWA" was exhibited on supervisor Wyatt 

Andrews' desk in che safety office. 10 FMSHRC at 900; see also 12 FMSHRC at 

1535. Thus, the reference to the UMWA on the urine bottle and its location in 

the safety office demonstrate that the pre-testing "humor" was linked, at 

least in part, to the complainants' safety activities on behalf of the UMWA. 

JWR also contends that Kelly possessed no unlawful motive when he 

discharged Price and Vacha. JWR cannot escape liability by focusing on the 

motivation of supervisor Kelly while overlooking the actions of Hendricks and 

Andrews, the other supervisors involved. Even assuming that Kelly did not 

possess discriminatory motive, the record is clear that JWR's other 

supervisors applied the Drug Program in a discriminatory manner. Under such 

circumstances, the supervisors' discriminatory motive and behavior must be 

imputed to the company even though the officer who actually makes the firing 

decision may not share the animus. JMC Transport. Inc. v. NLRB, 776 F.2d 612, 

619 (6th Cir. 1985); Allegheny Pepsi-Cola Bottling Co. v. NLRB, 312 F.2d 529, 

531 (3d Cir. 1962). 

1557 
In sum, the record supports Judge Broderick's holding that JWR applied 

the drug testing in a discriminatory manner, in violation of section lOS(c), 

and that JWR failed to affirmatively defend against Price and Vacha's prima 

facie case. 

C. Whether the UMWA has the standing to bring an individual claim 

of discrimination on behalf 0£ Price and Vacha 

JWR now asserts, for the first time in this proceeding, that the UMWA 

lacks standing to represent the complainants' individual claims. JWR's 

contention is based on principles of constitutional standing, drawn from 

Article III, Section 2 of the Constitution, which defines the scope of the 

federal Judicial power. As the Commission has recognized, "the Article III 

'case or controversy' requirement does not literally apply to federal 

administrative agencies like the Commission." Mid-Continent Resources. Inc., 

12 FMSHRC 949, 955 (May 1990), citing Climax Molybdenum Co. v. Secretary of 

Labor, 703 F.2d 447, 451 (10th Cir. 1983), affirming Climax Molybdenum Co., 2 

FMSHRC 2748 (October 1980). 

In any event, miners' representatives, such as the UMWA, have standing 

to participate in Mine Act proceedings on behalf of miners, because the Act 

expressly confers such standing upon them. The Supreme Court in Warth v. 

Seldin, 422 U.S. 490 (1975), pointed out: 

Congress may grant an express right of action to 

persons who otherwise would be barred by prudential 

standing rules .... [P]ersons to whom Congress has 

granted a right of action, either expressly or by 

clear implication, may have standing to seek relief on 

the basis of the legal rights and interests of 

others .... 

422 U.S. at 501. The Mine Act authorizes miners' representatives to 

participate in a number of proceedings under the Act and section 105(c)(l) 

protects them from discrimination in so participating. Indeed, the Act 

expressly permits miners' representatives to take part in Commission 

discrimination actions: 

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. 

30 U.S.C. § 815(d). Commission Procedural Rules expressly authorize that 

"representatives of miners 4 may intervene and present additional evidence" in 

429 C.F.R. § 2700.2 defines representatives of miners as follows: 

(a) Any person or organization that represents two or 

more miners at a coal or other mine for the purposes of 

1558 
discrimination proceedings instituted by the Secretary. 29 C.F.R. 

§ 2700.4(b)(2). The Rules also authorize representatives of miners to 

practice before the Commission. 29 C.F.R. § 2700.3. Moreover, 29 C.F.R. 

§ 2700.l(c) provides: "These rules shall be construed to ... encourage the 

participation of miners and their representatives." (Emphasis added). 

UMWA. District 31. v. Clinchfield Coal Co., 1 IBMA 31, 1 MSHA (BNA) 1010, 1015 

(May 1971); Peabody Coal Co., 1 FMSHRC 1785, 1791(November1979)(UMWA as the 

representative of miners at the subject mine was authorized to bring 

compensation proceeding on behalf of individual miners under 30 U.S.C. § 821). 

Furthermore, as pointed out by the UMWA and the Secretary on appeal, 

JWR's argument as to standing was not first raised to the judge below. 

Section 113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(2)(A)(iii), provides: 

"Except for good cause shown, no assignment of error by any party shall rely 

on any question of fact or law upon which the administrative law judge had not 

been afforded an opportunity to pass." See Commission Procedural Rule 

70(d), 29 C.F.R. § 2700.70(d). This statutory review limitation precludes JWR 

from raising the UMWA's standing at this late stage. 

The UMWA moved to intervene on June 29, 1987, just prior to the 

temporary reinstatement hearing. The UMWA specifically requested intervention 

on behalf of Price and Vacha, individually, as well as on its own behalf as an 

organization. As noted earlier, that motion was not opposed by JWR. (At the 

temporary reinstatement hearing, JWR merely requested that the UMWA not be 

permitted, for purposes of that hearing, "to offer evidence beyond that and 

through individuals other than those identified as witnesses by the 

Secretary." TRH 11.) The judge granted the motion to intervene. TRH 12; 

Temporary Reinstatement Order, July 7, 1987, at 2. Since then, the UMWA has 

actively participated in every aspect of this case, without previous challenge 

from JWR. 

Because JWR never provided the judge with an "opportunity to pass" on 

this issue, we dismiss JWR's challenge to the UMWA's standing in accordance 

with section 113(d)(2)(A)(iii) of the Mine Act. 

the Act; and 

(b) Representatives authorized by the miners, miners or 

their representatives, authorized miner representative, 

and other similar terms as they appear in the Act. 

The UMWA falls under this definition of a miner's representative. 

1559 
III. 

Conclusion 

For the foregoing reasons, we reaffirm the Commission's prior ruling 

that section 11.E. of the Drug Program was not facially discriminatory. We 

reaffirm the judge's finding of a prima facie case of discrimination and 

affirm his holding that JWR failed to establish an affirmative defense. 

Finally, we dismiss JWR's challenge to the UMWA's standing in this matter. 

Accordingly, we affirm the judge's decision on remand. 

~~ Richard V. Backley, Commission 

.... Joyce Q~tf,~ A. Doyle, Commis~ 

Arlene Holen, Commissioner 

1560 
Chairman Ford, concurring in part and dissenting in part: 

I concur with the majority's reiteration of the prior ruling in Price and 

Vacha I, that section II. E. of Jim Walter Resources 1 (JWRs 1 ) Drug Program is not 

facially discriminatory. Furthermore, if this matter were properly before the 

Commission, I would agree to affirm the judge's finding of a prima facie case of 

discrimination and his rejection of the operator's affirmative defense. 

Notwithstanding my agreement with the majority's substantive conclusion that the 

Drug Program was discriminatorily applied, I continue to hold the view, first 

expressed in my earlier dissent (12 FMSHRC at 1542), that the "as applied" issue 

is not pr9perly before the Commission. 

In Price and Vacha I, the judge found that the Drug Program was facially 

discriminatory but went on to hold that it had not been discriminatorily applied 

to Price and Vacha. Only JWR filed a petition for discretionary review and that 

petition was limited to issues with respect to the judge's conclusion that the 

Drug Program was facially discriminatory. A£ter the deadline for petitions for 

discretionary review had passed, the United Mineworkers of America (UMWA), in a 

reply brief, challenged the judge's conclusion that the Drug Program had not been 

discriminatorily applied. JWR filed a motion to strike that section of the 

UMWA's brief, arguing that since the."a,s applied" issue had not been raised in 

JWR's petition, it could not be raised by the UMWA except in a petition of its 

own. 

A majority of the Commission denied JWR' s motion to strike by "adopting the 

general federal rule of appeal ... that ... the 'appellee' may urge in support of the 

judgement below any matter or issue appearing in the record, even if it involves 

an objection to some aspect of the judge's reasoning or issue resolution, so long 

as the appellee does not seek to attack the judgement itself or to enlarge its 

rights thereunder, in which case it would be obliged to file a cross-petition for 

discretionary review." 12 FMSHRC at 1529. In relevant part, I dissented from 

that holding as follows: 

Although general federal appellate procedure may 

permit an appellee to offer alternative grounds to 

support an ultimate judgement- even those rejected by 

the judge below the Mine Act by its clear terms 

constricts that option here. Section 113(d)(2) of the 

Act states that "review shall be limited to the 

questions raised by the petition" and that "the 

Commission shall not raise or consider additional issues 

in such review proceedings" unless it has complied with 

the procedures and criteria for granting TM sponte 

review. (Emphasis added). The issue of whether JWR's 

Drug Program was discriminatorily applied to Price and 

Vacha was not raised in JWR' s petition for discretionary 

review, nor was it directed for reviewTM sponte. It 

arose solely as a component of the UMWA's reply brief 

filed well outside the 30 day time limit for filing 

petitions under the Act. 

1561 
The UM.WA and the Secretary argue that they were 

not "adversely affected or aggrieved by [the] decision" 

of the judge so that there was no reason for them to 

file a petition for discretionary review. There is, 

however, a distinction here between a "judgment", i.e., 

a favorable outcome for the appellees, and the 

"decision" itself, and it is the term "decision" to 

which section 113(d)(2) refers. In this instance the 

judge's decision is composed of two distinct parts, each 

involving separate allegations of discriminatory 

treatment, separate legal theories to support those 

allegations, and separate modes of analysis to resolve 

the issues raised. Indeed, one might argue that within 

the single docket the judge was deciding two discrete 

cases: one generic case brought in the names of Price 

and Vacha on behalf of all safety committeemen against 

the Drug Program as designed (the "facially 

discriminatory" case), and one brought exclusively by 

Price and Vacha and involving only their particular 

relationship to and interaction with JWR and its Drug 

Program (the 11 discriminato.~Jly applied"case). In that 

context it cannot be said that the judge's decision with 

respect to the latter case was not adverse to Price and 

Vacha. 

The two matters were even tried somewhat 

separately. Price and Vacha did not testify at the 

hearing on the merits. Testimony at that hearing on 

behalf of the Secretary and the UM.WA was predominantly 

provided by safety committee members or potential 

members who were not disciplined but who testified to 

the inhibitive effects of the Drug Program generally and 

its impact upon their decisions to continue serving as 

committeemen or to run for committee office. That 

testimony went only to the "facially discriminatory" 

issue. The "discriminatorily applied" issue was tried 

in the June 29, 1987 hearing on temporary reinstatement 

wherein Price and Vacha testified to the specific 

circumstances under which they were subjected to random 

drug testing under the Drug Program, their history of 

activism as safety committeemen, and their perceptions 

of retaliatory link between the two. Secreta;i;:y/Price 

and Vacha v. Jim Walter Resources. Inc., 9 FMSHRC 1305 

(August 1987). 

Appellees also object on practical grounds to the 

filing of "protective" petitions for discretionary 

review by prevailing parties, characterizing such a 

requirement as "meaningless" , "cumbersome, " and 

"nonsensical." Given the time and treasure expended in 

this case, the odds of JWR's appealing the "facially 

discriminatory" issue so as to place the judge's 

1562 
determination thereon at risk were extremely high. In 

such circumstances a protective petition for 

discretionary review would not have been meaningless but 

would have been prudent. Furthermore, the judge's 

decision was issued on August 26, 1988 and JWR' s 

petition was filed on September 20, 1988, thus leaving 

the Secretary, the UMWA, or both, five days to file a 

pro forma petition on the "discriminatorily applied" 

issue. In any event, the procedural fault at issue lies 

with the restrictive review scheme devised by Congress 

and both the Commission and the parties are bound by it. 

In summary, Part III of the UMWA's brief raises 

important issues and compelling arguments. 

Unfortunately, at this juncture, I find no means by 

which the Commission can resurrect the "discriminatorily 

applied" charge when the statute limits our 

consideration to those issues contained within the four 

corners of the only petition for discretionary review 

before us. Chaney Creek Coal Corp. v. FMSHRC, 866 F.2d 

1424, 1429 (D.C. Cir. 1989). 

As noted above, my views on the tightly circumscribed scope of review set 

forth in section 113(d)(2) of the Act have not changed, 1and I am therefore again 

constrained to dissent. 

1 For example, if this case were properly before the Commission, I would 

agree with the majority that section 113(d) (2) would preclude the Commission from 

entertaining JWR' s challenge to the UMWA' s standing on the grounds that the judge 

had not been given an "opportunity to pass" on that issue. 

1563 
Distribution 

John W. Hargrove, Esq. 

Robert K. Spotswood, Esq. 

Bradley, Arant, Rose & White 

1400 Park Place iower 

Birmingham, AL 35203 

Patrick K. Nakamura, Esq. 

Longshore, Nakamura & Quinn 

2101 City Federal Bldg. 

Birmingham, AL 35203 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge James A. Broderick 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1564 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF I.ABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

D J AND M COAL COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 16, 1992 

Docket No. KENT 91-1109 

BEFORE: Ford, Chairman; Backley, Doyle, and Holen, Commissioners 1 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et gg. (1988)("Mine Act"). On August 11, 

1992, Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default, finding respondent D J and M Coal Company, Inc. ("DJ&M") in default 

for failure to answer the civil penalty proposal of the Secretary of Labor 

("Secretary") and the judge's Order to Show Cause. The judge assessed the 

civil penalty of $1,000 proposed by the Secretary. The judge's jurisdiction 

over this case terminated when his decision was issued. 29 C.F.R. 

§ 2700.65(c). 

Dexter Music, president of DJ&M, filed a letter with Judge Merlin on 

August 28, 1992, seeking relief from the judge's default order. Mr. Music 

requests that "the default order be withdrawn and that I be allowed the 

opportunity to state my position in this matter." As grounds for relief, Mr. 

Music states that upon receipt of the "original notice of the proposed 

assessment from MSHA in June of 1991, I immediately returned the blue card and 

asked for a hearing." He states that DJ&M did not receive "an answer to this 

request nor a hearing" and did not receive the judge's Order to Show Cause. 

1 Commissioner Nelson did not participate in the consideration or 

disposition of this matter. 

1565 
Under the Mine Act and the Commission's procedural rules, relief from a 

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

petition for discretionary review with the Commission. 30 U.S.C. § 823(d)(2); 

29 C.F.R. § 2700.70(a). We deem DJ&M's letter to be a timely filed Petition 

for Discretionary review. 29 C.F.R. § 2700.70. We are unable to evaluate the 

merits of DJ&M's position on the basis of the present record. In the interest 

of justice, we will permit DJ&M to present its position to the judge, who 

shall determine whether relief from the default order is warranted. 

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

for further proceedings. 

Distribution 

Dexter Music, President 

DJM Coal Company 

P.O. Box 478 

Hager Hill, KY 41222 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

·v~d.~ 

?lk:oy~ 

Arlene Holen, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1566 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RICKY HAYS 

v. 

LEECO, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 22, 1992 

Docket No. KENT 90-59-D 

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

ORDER 

BY THE COMMISSION: 

This discrimination case arising under the Federal Mine Safety and 

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

to the Commission from the United States Court of Appeals for the District of 

Columbia Circuit. Leeco. Inc. v. Ricky Hays & FMSHRC, 965 F.2d 1081 (1992), 

aff'g, 13 FMSHRC 670 (April 1991)(ALJ). (The judge's decision became a final 

decision of the Commission through operation of the statute. 30 U.S.C. 

§ 823(d)(l).) The Court remanded the case to the Commission "for 

reconsideration and, if appropriate, an explanation of how Hays' conduct 

qualifies as a protected activity under section lOS(c) of the Mine Act." 965 

F.2d at 1085. On July 27, 1992, the Commission received a certified copy of 

the judgment from the Court, in lieu of a formal mandate, remanding this 

proceeding to the Commission. 

On August 3, 1992, counsel for complainant Ricky Hays filed a motion 

requesting that this proceeding on remand be dismissed on the basis that "Hays 

and Leeco have entered into a settlement agreement of this matter." Oversight 

of proposed settlements is an important aspect of the Commission's 

adjudicative responsibilities under the Mine Act and is, in general, committed 

to the Commissionvs sound discretion. Birchfield Mining Co., 11 FMSHRC 1428, 

1430 (August 1989); UMWA v. Utah Power and Light Co., 12 FMSHRC 1548, 1554 

(August 1990). 

1567 
Accordingly, we remand this matter to Judge Koutras to consider Hays' 

Motion to Dismiss and, if necessary, for further proceedings consistent with 

the Court's opinion. 

Arlene 

~<LA, Holetr:c<>ID1Ilissloner 

Distribution: 

Timothy Joe Walker, Esq. 

Reece, Lang and Breeding, P.S.c. 

P.O. Box 5087 

London, KY 40745 

Tony Oppegard, Esq. 

Appalachian Research & Defence 

Fund of Kentucky, Inc. 

630 Maxwelton Court 

Lexington, KY 40508 

Administrative Law Judge George Koutras 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1568 

Commissioner 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SEP 1 1992 

BRUCE A. WILLIAMS, DISCRIMINATION PROCEEDING 

Complainant 

v. 

CIMETTA ENGINEERING 

CONTRACTORS, 

Respondent 

Before: Judge Merlin 

Docket No. WEST 91-553-DM 

ASARCO Hadenplant 

ORDER OF DISMISSAL 

On July 25, 1991, the c'6mplainant, Bruce A. Williams, filed 

with this Commission a complaint ot discrimination under section 

105{c) of the Federal Mine Safety and Health Act of 1977. On 

July 25, 1991, a letter was sent to Mr. Williams directing him to 

provide information regarding his complaint. On January 17, 

1992, my law clerk attempted to contact Mr. Williams by telephone 

to ascertain whether the information had been sent, but the phone 

had been disconnected. On January 24, 1992, an order was issued 

directing Mr. Williams to submit the information or show cause 

why the complaint should not be dismissed. The order was sent by 

certified mail, return receipt requested and was returned to the 

Commission marked unclaimed. Mr. Williams has failed to·respond 

and comply with the show cause order. The Commission has no 

alternative but to dismiss his complainto 

Accordingly, this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Mr. Bruce Williams, Box 25, Winkelman, AZ 85292 {Certified 

"Mail) 

Cimetta Engineering Contractors, 6701 s. Wilmoth, Tucson, AZ 

85706 (Certified Mail) 

/gl 

1569 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GARY HONAKER, 

Complainant 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 

. . 

. • 

DISCRIMINATION PROCEEDING 

Docket No. VA 92-108-D 

: NORT CO 92-03 

CLINCHFIELD COAL COMPANY, 

Respondent 

ORDER OF DISMISSAL 

Upon the request of Complainant, based upon a settlement, 

this proceeding is DISMISSED. 

Distribution: 

tJ)~~v~ William Fauver 

Administrative Law Judge 

Mr. Gary Honaker, Rt. 2, Box 123, F. Clintwood, VA 24228 

(Certified Mail) 

Mark E. Fryeu Esq.u Pennu Stuartu Eskridge & Jones, 

P. o. Box 2009u Bristol, VA 24203 (Certified Mail) 

Hilary K. Johnson, Esq., Clinchfield Coal Company, 

P. O. Box 4000u Lebanonu VA 24266 (Certified Mail) 

/fas 

1570 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION on behalf 

of WAYNE KIZZIAH AND 

ROGER KIZZIAH 

Complainants 

v. 

C & H MINING COMPANY, INC., 

Respondent 

1992 

DISCRIMINATION PROCEEDING 

DOCKET NO. SE 92-420-D 

BARB-CD-92-12 

BARB-CD-92-13 

Poplar Springs Mine 

: I.D. No. 01-02863 

ORDER OF DISMISS.AL 

Complainants, in essence, request approval to withdraw 

their complaint in the captioned case for the reason that the 

parties have reached a settlement agreement approved by the 

individual miners and full payment under the agree ent has been 

made. Under the circumstances herein, permission o withdraw is 

granted. 29 C.F.R. § 2700.11. This c se is there ore 

dismissed.). 

Distribution: 

William Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 35203 

(Certified Mail} 

James J. Jenkins, Esq., Phelps, owens, Jenkins, Gibson and 

Fowler, P.O. Box 20848, Tuscaloosa, AL 35402 (Certified Mail) 

/lh 

1571 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SEP 111992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN COAL COMPANY, 

Respondent 

MOUNTAIN COAL COMPANY, 

(Successor to BEAVER CREEK 

COAL COMPANY) , 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: CIVIL PENALTY PROCEEDINGS 

: 

: Docket No. WEST 9 2-64 

: A.C. No. 42-01211-03582 . . 

: Docket No. WEST 92-317 

: A.C. No. 42-01211-03589 . " 

: Trail Mountain Mine . . 

: CONTEST PROCEEDINGS . . 

: Docket No. WEST 91-489-R 

Citation No. 35825291 6/20/91 . . 

. . 

0 

0 

. . 

: 

. . 

Docket No. WEST 91-490-R 

Withdrawal Order No. 

35824661 6/27/91 

Trail Mountain Mine 

: Mine I.D. 42-01212 

DECISION 

Appearances~ Susan Jo Eckertu Esq,, 11 Office of the Solicitoru 

U.S. Department of Labor, Denver, Colorado, 

Beforeg 

for Pe ti tioner/Responden t; 

David Mo Arnolds 17 Esq. /1 Scott W a Anderson,. Esqa /1 

Denver 11 Coloradou 

for Respondent/Contestanto 

Judge Lasher 

These consolidated contest/civil penalty proceedings came on 

for hearing in Salt Lake City, Utah, on Ma.rch 3 and 4, 1992. 

Penalty Docket WEST 92-64 involves only the Citation (Np. 

3582529) involved in Contest Docket WEST 91-489-R. 

The Section 104Cd)(l) Withdrawal Order (No. 3582466) involved in Contest Docket WEST 91-490-R had not been the subject 

1572 
of a penalty proposal issued by MSHA's Office of Penalty Assessments for a sufficient time before hearing to permit creation of 

a penalty docket therefor ( T. 4). It is the subject of WEST 

92-317 which docket was created after the hearing. 

Stipulation 

The parties entered on the record of hearing CT.12-14) the 

following general stipulations having applicability to both the 

citation and the withdrawal order (T. 289): 

1. Mountain Coal Company (herein "MCC") is engaged in mining and selling of coal in the United States, and its mining 

operations affect interstate commerce. 

2. MCC is the owner and operator of Trail Mountain Mine, 

MSHA I.D. No. 4201211. 

3. MCC is subject to tti~ jurisdiction of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801, et~, referred 

to as the "Act" in the rest of the stipulations. 

4o The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citation and order were properly served by a 

duly authorized representative of the Secretary CMSHA) upon an 

agent of MCC on the date and place stated therein, and they may 

be admitted into evidence for the purposes of establishing their 

issuance and not for the truthfulness or relevancy of any statemen ts asserted thereino 

60 The exhibits to be offered by MCC and MSHA are stipulated to be authenticu but no stipulation is made as to their 

relevance or the truth of the matters asserted therein. 

70 The proposed penalties will not affect MCC's ability to 

continue in businesso 

80 MCC demonstrated good faith in abating the violations. 

9o MCC is a mine operator with 501,306 tons of production 

in 19900 1 

1 

(T. 20). 

MCC is found to be a medium-sized coal mine operator. 

1573 
10. The certified copy of the MSHA assessed violations history accurately reflects the history of the mine for two years 

prior to the date of the Citation and Order. 2 

11. The penalty (proposed by MSHA) for Order No. 3582466 is 

$700.00. 3 

The Standard 

Both the Citation and Order which are the subject of these 

proceedings were issued pursuant to the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § _801, et~ (herein the "Act") 

and both allege an infraction of 30 C.F.R. § 75.400 4 which 

provides: 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and 

not be permitted to accumulate in active workings, or on electric e:;rutpment therein. 

Section 75.400-1, containing pertinent definitions, 

provides: 

§ 75.400-1 Definitions. 

(a) The term "coal dust" means particles of 

coal that can pass a No. 20 sieve. 

Cb) The term "float coal dust" means the 

coal dust consisting of particles of coal that 

can pass a Noo 200 sieveo 

2 Based on this information~ it is concluded that MCC had 

a history of 18 prior violations in the pertinent two-year period 

prior to issuance of the Citation and 92 prior violations in the 

two-year period preceding issuance of the Withdrawal Ordero 

(To 17-20) 

3 MSHAus proposed penalty for the Citation was $2,000.00. 

(To 4-5)o 

4 Section 75.400 entitled "Accumulation of combustible 

materials" is contained in Subpart E entitled "Combustible 

Materials and Rock Dusting." 

15 74 
( c) The term "loose coal" means coal fragments larger in size than coal dust. 

Issues and Contentions 

MCC concedes the occurrence of both violations charged (T. 

289-290) but as to the Citation contends that the accumulations 

were not as extensive as the Inspector described therein. MCC 

challenges both the "Significant and Substantial" designations on 

both the Citation and Order, and also contends that neither violation resulted from an "Unwarrantable Failure" to comply with 

the infracted regulation. (T. 289-291). 

General Findings - Citation No. 3582529 

MSHA Inspector Donald E. Gibson issued Section 104(d)(l) 

Citation No. 3582529 on June·20, 1991, charging a violation of 30 

C.F.R. § 75.400 as follows: 

Accumulations of loose coal, coal pieces, and 

pulverized coal fine were permitted to accumulate 

on the 3d left working section. The accumulations 

were along the travel-road entry from the feeder 

breaker to the miner in the No. 4 entry and ranged 

from 3-10 inches deep x 11-12 feet wide x 400 feet 

long. There was accumulations in the outby entries 

and cross-cuts from cross-cut 31 to 33. These accumulations ranged when measured 3-10 inches deep x 

11-12 feet wide x 700 feet long. The back entries 

were in the return air course. 

These accumulations ranged from damp to dry 

in the travelroad and in the return entries was 

dry and powdery. The accumulations in the travelroad were being run over by diesel and electric 

equipmento The accumulations in the return had 

been run over ey mobile equipment as cables had 

been installed through the area. Also, isolation 

stoppings had been installed in the return entry 

to isolate the 4th left section from the 3d left 

sectiono 

Numerous discussions and violations have been 

issued for this condition. Management is aware 

of running over rib sloughage, coal spillings, and 

1575 
clean-up of initial "first" cuttings. Tne section 

foreman was present on the section and had made 

examination of the section during this shift but 

failed to clean these accumulations. Spot sample 

taken in the return for rock dust content. In this 

condition, poses the hazard of adding to any force 

or a fire should an occurrence happen. 

Accompanying Inspector Gibson on his inspection of the mine 

on June 20, 1991, were his immediate supervisor, William Ledford, 

other MSHA officials, and several management personnel of MCC 

including Maintenance Superintendent Steven D. Jewett who on the 

day in question was acting mine manager CT. 26-28, 85, 112, 124, 

260) and George Perla, Mine Manager. (T. 27). 

The accumulations in the Third Left working Section of the 

mine were in two general areas, along the travel road (roadway) 

from the feeder/breaker to the continuous miner, and in the outby 

entries and crosscuts from crosscuts 31 to 33. ( T. 85-90, 122, 

138-140, 145, 154, 250; Ex. G-4)·• Inspector Gibson, who had the 

responsibility to issue citations for any violations detected, 

and Ledford both observed accumulations of loose coal, coal 

fines, etc., in these outby entries, active roadways and travelways (T. 28, 36, 42, 60, 62, 87-93, 95, 113, 155; Ex. G-4). 5 

Loose coal was being allowed to accumulate in the haulage roads 

after being spilled or mined (T. 35, 151) and there was rib 

sloughage (coal which has fallen off the ribs onto the roadway) 

which was being run over by shuttle cars. CT. 30-31, 59, 67, 95, 

189, 268). In the roadway area where accumulations were observed 

(Ex. G-4; T. 34, 64), the roadway was "being run over and pulverized by shuttle cars" in the process of hauling coal. 

( Tr o 3 4-3 5 u 3 6 u 61-6 6 u 6 8 , 15 5) o 

5 Ledford did not personally observe all the areas cited 

by Gibsono (To 37)o In the are:i. where he personally observed 

accumulations being run over by shuttle cars, he testified that 

it was 11 dry"o (To 36 0 37)o He indicated the travel road was 

uuaamp 11 in other areaso ( T 0 4 9) 0 

Ledford felt Gibson's "evaluation" was correct in view of 

the amount of accumulations, the areas that were involved, the 

fact that mining was continuing and that "there was no evidence 

of any work being done to clean up the section." CT. 42). 

1576 
As to the extent and amount of the accumulations observed on 

the travel way, there were substantial accumulations of coal, 

loose coal fines, and pulverized coal. The travel way is indicated in orange on the mine map. (Ex. G-4; T. 88, 90). At point 

A on the map, near the feeder breaker, there were three to ten 

inches of coal accumulations. CT. 90-91). Gibson measured the 

overall dimensions of the accumulations in the travel way and 

determined that they were 3 to 10 inches deep, 11 to 12 feet 

wide, and 700 feet long. (T. 91). The volume of these accumulations would be 38 tons (at 3-inches depth) and 127 tons (at 

10-inch depth) of coal, filling up between 3 to 10 shuttle cars 

of coal. CT. 94-95). Gibson stated that this was a violation of 

section 75.400 because: 

••• the accumulations were excessive[;] I mean a 

person with normal mining background ought to 

recognize, and as many discussions as I have personally had with the company and citations that 

I've written for accunulations, this constitutes 

an excessive amount;· It's on an active roadway. 

We had electrical equipment[;] we had di es el, rnobi le equipment running over these accumulations. 

(T. 95). 

The second general area of accumulations was crosscuts 31-32 

and the five cutby entries. In crosscut 32, there were accunulations throughout the crosscut and into the No. 5 entry down to 

crosscut 31. According to Inspector Gibson "[t]he majority of the 

accumulations was in crosscut 31, but it was loose coal in 32, 

coal fines that had been left, some rib sloughage." CT. 113) Ledford confirmed that there were accumulations in piles and scattered all over the entrieso This area was marked in yellow on the 

mine map [Government Exhibit 4] o (To 36) o The volume of the accumulations in the yellow 10 area based on Gibson 1 s measurements 

was 3 to 10 inches deep, 11 feet wide, and 400 feet long, totaling 

between 22 to 77 tons of coal accumulations. (T. 122, 123). 

These accumulations were "dry, powdery coal accumulations," i.e., 

finev pulverizedo There were coal piecesf but for the most part 

it was powderyv dryv black coal dusto (T. 124)0 

Significant and Substantial 

Both enforcement documents (Citation and Order) were designated as "Significant and Substantial." 

1577 
A violation is properly designated "Significant and Substantial" if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably 

serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 

822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984), the Commission explained: 

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory safety standard~ (2) a 

discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation1 (3) a reasonable likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 

(5th Cir. 1988). 

The third element of the Mathies formula re:;iuires "that the 

Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury, 

and that the likelihood of injury must be evaluated in terms of 

continued normal mining operations. U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 {July 1984). See also Monterey Coal Co., 7 

FMSHRC 996 9 1001-1002 (July 1985). The operative time frame for 

determining if a reasonable likelihood of injury exists includes 

both the time that a violative condition existed prior to the 

citation and the time that it would have existed if normal mining 

operations had continued. Halfway, Inc., 8 ,FMSHRC 8, 12 (January 

1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985}0 

The question of whether any particular violation is significant 

and substantial must be based on the particular facts surrounding 

the violationv including the nature of the mine involved. Texasgulf v Inc.v 10 FMSHRC 498v 500-501 (April 1988)~ Youghiogheny and 

Ohio Coal Company, 9 FMSHRC 2007, 2011-2012 (December 1987) o The 

Commission has emphasized that it is the contribution of a violation to the cause and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 

(August 1984). 

1578 
With respect to the violation described in the Citation, it 

is found that it was reasonably likely that if normal mining had 

continued in the areas cited that the hazard posed by the accumulations, i.e., fires or explosions, would have occurred resulting 

in fatalities or serious injuries to miners since the three elements for the propagation of such--oxygen, fuel (ignitable coal), 

and ignition sources--were all present. (T. 52-53, 54, 55, 59, 

61-64, 95-97, 106-109, 115-119, 120, 126-129, 138-140, 159-163, 

165, 178, 183, 189, 192, 231-232, 262, 286). 

The ignition sources in the cited section were numerous, 

i.e, electric shuttle cars, 950-volt cables which could fault, 

roof bolters, a continuous miner, auxiliary fans, and dieselpowered equipment. (T. 53-55, 56, 64-66, 67, 73, 96, 110, 169, 

178) . 

The electrical equipment operating on June 20 was in permissible condition (T. 244-245) and no "permissibility" violations 

were cited on that day. CT. 55, 57, 70, 265). Nevertheless, in 

the perspective of there being continued mining in the section, it 

was reasonably likely that a'n ignition or fire could occur since 

failures in cables do occur even though not planned, and all 

equipment is "not maintained permissible at all times." Also, 

failures occur in electrical equipment. (T. 57, 58, 64-66, 102-

103u 170-178, 189, 268-269). 

While MCC contended there was no actual cutting of coal from 

the face being carried on on the day of inspection, it conceded 

that the continuous miner and shuttle cars were being operated. 

Since Mr. Ledford crisply and credibly testified he personally 

observed active mining going on at the face, I choose to accept 

his version of the facts on this issue. (See T. 59). 

In addition to the proliferation of ignition sources in the 

section" the likelihood of an ignition or fire was increased by 

the fact that shuttle cars were running over and pulverizing coal 

(rib slough) in the roadway" (T. 64, 95, 105). Since pulverizing 

the accumulation puts such into a powder form, it is made more 

volatile and easier to ignite. (To 64-66, 95-97u 103-105). There 

were ignition sources in the areao (To 104-106) o 

Inspector Gibsonus ex:planation why it was likely that the 

coal dust in the area where the roof bolter was operating would 

ignite was highly detailed and persuasive. CT. 96-98). He 

pointed out that there were various ways a fault could occur 

1579 
(T. 97) and that the area behind the roof bolter was "very dry, 

powdery, pulverized, etc." (T. 98) 6 

Likewise, he credibly explained how even the areas which were 

damp or wet could dry out (T. 98-101). He considered it "very 

likely" that a trailing could become damaged CT. 102) and pointed 

out that there were already splices in the trailing cable to the 

continuous miner. CT. 103). MCC, in many areas, was not cleaning 

up the accumulations. CT. 42, 50-51, 59, 71, 91, 120, 132-133, 

141-142, 150, 151, 157, 232). 

Had an ignition of coal dust or a fire caused b'j the accunulations occurred, it was likely that injuries would occur to 

miners working on the section. (T. 53, 108 ) • Such miners, approximately eight in number, would be exposed to burns, smoke inhalation injuriesf possible permanently disabling injuries, and 

fa ta 1 in j ur i es • ( T • 1 0 8-1 0 9 , l 3 6-13 7 , 1 7 8, 1 B 9-1 91) • 

MCC introduced evidence that on June 19 and the morning of 

June 20 it did some cleanup, that the roadway, which had a coal 

bottom CT. 227), was wet and rutted, and that there were no accumulations in the roadway CT. 207-211, 212, 250). MCC's witness, 

then section foreman Brent Migliaccio, claimed that the material 

cited by Inspector Gibson in the roadway was material that had 

been turned up from the road itself, rather than material which 

had been spilled from ram cars. CT. 213). He conceded that the 

condition of the outby entries was "dry" and that there was a lot 

of "floor heave," i.e. , floor that has buckled. ( T. 213-214) • 

He said the rib sloughage in the crosscuts was no worse than 

normal. 7 Based on his testimony, it is found that MCC has no 

history of fires resulting from coal accumulations. (Tr. 224). 

There was no methane in the section on the day of inspection. 

(To 224) o 

6 See also, Testimony of MCC's acting mine manager, Steven 

Do Jewettv at To262-263o 

7 On direct examination, it appears that this witness's 

testimony resulted from leading questions in some important areas. 

(To 209u 210u 211, 213) o This witness 1 s testimony was not particularly persuasive in the areas contradictory to Petitioner's 

MSHAgs witnesses (see To 231-231, 241, 242, 247) and it is not 

credited as to the presence, nature, and extent of the accunulations observed and reliably described b'j Petitioner's witnesses. 

1580 
John Perla, who was MCC's general mine foreman at pertinent 

times CT. 249) testified that in his "opinion" the accumulations 

observed by Inspector Gibson in the roadway was a mixture of fire 

clay, shale, and coal which was pushed up from the floor of the 

roadway by the tires of the ram cars traveling through, and was 

not actually coal spilled from the ram cars. (T. 251). He also 

stated his ''opinion" that there were no first cut tings from mining 

in the area 11 months previously because, in his words, "We would 

clean the place." (T. 252). He felt that there were no ignition 

sources in the area because the equipment was in permissible condition and that such equipment has fire suppression devices and 

fire extinguishers. CT. 255; see also T. 266). He said that 

while there was a cable running to the continuous miner, he had 

never seen a fire started by a cable and that there was no methane 

in the section above l/lOth of 1 percent. CT. 254-256). He did 

not know all the places which had been cleaned on the day of the 

inspection. CT. 256-257). In other respects, he was unable to 

remember or did not know, and some of his testimony on factua 1 

matters was qualified by the statement that he was giving his 

"opinion. 11 His testimony was not as certain or convincing as that 

of the MSHA witnesses. -. 

While MCC's witnesses all felt that some areas of the section 

which were cited for accumulations were wet or damp, or muddy, one 

witness indicated that there were areas which were dry and powdery 

CT. 262-263) and there was evidence from MCC's own samples of the 

roadway material that "many of the samples" had combustible 

content above 50 percent. CT. 286). 

I conclude that the testimony and description of violative 

conditions of MSHA's witnesses, Inspector Gibson and Mr. Ledford, 

are entitled to acceptance in this matter. 

In terms of the Commission's formulae for determining whether 

elations are significant and substantialv the violation of the 

mandatory standard here has been conceded and also otherwise 

clearly established by the evidence of record. 'lb.is violation 

contributed to the hazard of fire and/or explosion described 

hereinabove. 'Ihe primary question raised is whether there was a 

reasonable likelihood that the hazard contributed would come to 

fruition and cause an injuryu there being no question that if the 

hazard envisioned did occur that serious injuries and even fatalities would occur. 'Ihis eva lua ti on of "reasonable likelihood" is 

to be made in the perspective of the continuance of "normal mining 

operations. 0

' '.rhere was strong evidence that active mining including the cutting of coal from the face CT. 59) was actually ongoing 

at the time of inspection. See U.S. Steel Mining Co., Inc., 

supra. 

1581 
There are presently at least two analytical processes for determining the "reasonable likelihood" question. The first is a 

general, broad system of setting forth the conditions or practices 

which might lead to the occurrence of the contemplated hazard and 

then a reaching of the conclusion whether or not the hazard is 

v'reasonably likely" to come about. 'Ihe second approach is one 

which first appeared in Secretary v. Texasgulf, Inc., 9 FMSHRC 748 

(April 1987) where the concept of "substantial possibility" (9 

FMSHRC at page 7 64) was first raised. This test was urged as a 

refinement of "reasonable likelihood" for the reasons stated in 

the decision, including avoidance of confusion with the 11 imminent 

danger" concept, and also because it appeared as a practical matter to be the test actually being used by both tribunals, judges, 

and laymen involved at the various levels of mining safety enforcement and administrative and judicial review. Its strength is 

in its being less mysterious since it can be compared to other understandable concepts such as "remote possibility," "strong possibilityv" "probability,u' etc. 

Since understanding what a law means also is consistent with 

increased faith in American justice ahd £airplay, I adopt the 

'

1

substantial possibility" test, although the end result in the 

instant matter would be the same whichever method of analysis were 

used. Judge William Fauver, in his Decision in Secretary v. Coal 

Mac Incorporated, 9 FMSHRC 1600 (September 25, 1991) succinctly 

states the test as follows~ 

Analysis of the statutory language and the Commission's decisions indicates that the test of 

an S&S violation is a practical and realistic 

question whether, assuming continued mining operations the violation presents a substantial 

possibility of resulting in injury or disease, 

not a re:;ruirement that the Secretary of Labor 

prove that it is more probable than not that injury or disease will result. See my decision in 

Consolidation Coal Company, 4 FMSHRC 748-752 (1991) ~ 

The statute, which does not use the phrase "reasonably likely to occur'' or '

0 reasonable likelihood" 

n defining an S&S violation, states that an S&S 

violation exists if uthe violation is of such 

nature that an S&S violation exists if "the violation is of such nature as could significantly 

and substantially contribute to the cause and 

effect of a coal or other mine safety and health 

hazard'' (§ 104(d) (1) of the Act; e:nphasis added). 

Alsov the statute defines an "imminent danger" as 

any condition or practice o •• which could reasonably be expected to cause death or serious 

physical hann before [it] can be abated, 11 and 

expressly places S&S violations below imminent 

1582 
dangers. It follows that the Commission's use 

of the phrase "reasonably likely to occur" or 

reasonable likelihood" does not preclude an S&S 

finding where a substantial possibility of injury or disease is shown by the evidence, even 

though the proof may not show that injury or 

disease was more probable than not. 

A remote possibility of the violation's resulting in injury 

(or disease) is not sufficient. 01 the other hand, to meet the 11 S&S 11 requirements, MSHA would not seem to be required to show a 

"strong" possibility, a probability, or a certainty of a resultant 

injury. If, for example, one of the various ignition sources 

present here had been in impermissible condition, the Inspector 

might well have been justified in finding an imminent danger 

existed. 

In relating the 11 substantial possibility" test to the conditions present in the mine which constituted the violation and aggravated the potential of hatm to miners, it is clear that the 

accumulations were extensive in terms of depth, distance, and 

areas involved, 8 oxygen was present, the volatile conditions were 

on an active roadway as well as other places, the accunulations 

(even limited to the areas conceded by MCC's witnesses) were combustible and ignitable and there was not just one--but nunerous--

potential ignition sources in the areas involved. The contribution of the violation cited to the cause and effect of the contemplated fire or explosion hazard was clearly significant and substantial. Had normal mining continued there existed a substantial possibility and reasonable likelihood that the hazard contributed to would result in an injury or injuries of a reasonably 

serious nature or fatalitieso The "Significant and Substantial" 

designation on the Citation is AFFIRMEDo 

Unwarrantable Failure 

01Unwarrantable Failure" means u

1 aggravated conduct, constituting more than ordinary negligencef by a mine operator in relation 

to a violation of the Act. u Emery Mining Corporation 0 9 FMSHRC 

8 'Ihese accunulations are found to be dangerous. The 

greater the concentration, the more likely it is to be put into 

suspension or propagate an explosion. See, Pittsburg and Midway 

Coal Mining Co., 6 FMSHRC 1347, 1349 (1984); Mettiki Coal Corporation, 11 FMSHRC 331, 343 (1989). 

1583 
Coal Company, 

about which it 

than ordinary 

Secretary v. 

1997, 2004 (Decanber 1987), Youghiogheny and Ohio 

supra. An operator's failure to correct a hazard 

has knowledge, where its conduct constitutes more 

negligence, can amount to unwarrantable failure. 

Quinland Coals, Inc., 10 FMSHRC 705 (June 1988). 

is conduct that is 11 thoughtless," "inadvertent, 11 

conduct constituting an unwarrantable failure is 

or is "inexcusable." 

While negligence 

or "inattentive, 11 

"not justifiable" 

MSHA Supervisor Ledford said that MCC's conduct amounted to 

more than ordinary negligence and was aggravated conduct, stating: 

A. What I seen was large amounts of accunulation with no 

effort to clean it up. 

Q. How do you know there was no effort being made? 

A. I seen that. I was looking. 

Q. So there was none bein'g made at the time? 

A. There was none being made at the time, and they continued to mine coal at the face. 

Q. Do you know that they were mining coal at the face? 

A. Yes, sir. I watched them mine coal. 

Q. They weren't cleaning up at the face? 

(T. 59). 

As noted in prior findingsv MCC had failed to clean up the 

accumulationso This was a repeated failure. Thus 0 Inspector 

Gibson testified: 

A. Numerous occasions I 1 ve spoken to the president of the 

company u Richard Pick. At one time the mine manager 

was Dan Manners. On one particular occasion, I had the 

safety director, Dan Lucyv brought to the section o•• 

to let him see firsthand what I was talking about as 

far as accumulation. I 8 ve spoken to section foreman 

Doug Cox, who at one time worked at the mine. Section 

foreman, Mr. Peacock •e• I talked to John Perla. I've 

talked to Gary Curtis who was the maintenance foreman. 

Q. What did you talk to than about in relation ••• 

1584 
A. Cleanup, running over of rib slough. We've discussed 

that numerous, numerous times. And I had just recently 

conducted an electrical inspection at the mine and issued violations for this same condition, running over 

rib sloughage. {T. 132-133). 

Mr. Ledford testified that he "observed from the breaker 

itself all the way up to the face areas," and saw no evidence of 

any cleaning being done. CT. 71) 9 

There is no credible tasis to conclude that any of the accumulations--which were observed and cited by Inspector Gibson--were 

being cleaned up by MCC. CT. 42, 54, 59, 61, 95, 149-151). 

Neither Gibson nor Ledford saw any cleanup during the hour to 

hour and a half that they were present. {T. 42, 54, 59, 61-62, 

71, 95, 132-133, 149, 151, 179-180). 

The amount of the accumulations in the general areas cited 

demonstrates that they existed a considerable period of time, and 

constituted an obvious violation of which MCC's management should 

have been aware. (See T. 95). Inspector Gibson on the day of inspection did not see a scoop (used for cleanup) or shovels on the 

section. (T. 150-151, 180). 

MCC should have known, indeed must have known, of the existence of the accwnulations and failed to clean them up. In view of 

the obvious nature of this problem, the repeated warnings and effort of MSHA to bring about compliance in the past, and the tendency of MCC's responsible management to persist in allowing such 

conditions to exist, I find such conduct inexcusable, aggravated, 

and sufficient to justify the Inspector's conclusion that it constituted an unwarrantable failure to comply with the pertinent 

standarda 

Withdrawal Order No. 3582466 

MSHA Inspector John Ra 'furner issued Section 104(d) (1) Withdrawal Order NOo 358246 6 (originally issued on June 2 7 u 1991 as a 

104Ca) Citation) alleging an infraction of 30 C.F.Ro 75.400, to 

wib 

9 See also Transcript at pages 42, 54, 142-143, 149, 151, 

179) 0 

1585 
Accumulation of float coal dust and loose coal 

and coal fine were found to exist on and around 

all of the electical compartments of the continuous mining machine in the 1st South working Section. There was coal arched in back of the tram 

motors and around other electrical compartments 

up to eight inches deep. 

On June 28, 1991, Inspector Turner issued the modification 

changing the Citation to a Withdrawal Order basing it on underlying 104Cd)(l) Citation No. 3582529, and showing that the Order 

affected the Continuous Mining Machine in the 1st South Working 

Section. 'lllis modification from Citation to Order was issued at 

10 a.m. and was terminated at 3 p.m. on the same day, June 28, 

1991. CT. 293). 

As above noted, MCC concedes the occurrence of the violation, 

but contests the "Significant and substantial" designation on the 

basis that the condition was netther "reasonably, nor highly likely 

to cause injury," and also contends that the violation was not the 

result of an "unwarrantable failure" because the violative condition did not result from a high degree of negligence. 

On June 20, 1991 (seven days prior to the issuance of this 

Withdrawal Order and on the inspection previously discussed in 

connection with the Citation), Mr. Ledford examined the mine's new 

continuous haulage system. 'llle subject continuous miner was not 

in operation at the time, but Ledford observed that it was "quite 

dirtyn CT. 297, 315) explaining that: 

coo there was accumulations on the machineo 

Some of the plates that have small holesu you 

can see excessive accumulations of float coal 

dustu coal finesQ some grease and oil that need 

to be cleaned from the machine. CT. 297-298). 

Mr. Ledford advised Mro Jacobsu MCC 9 s maintenance foreman, 

that 9'the machine should be cleaned up prior to putting it back 

into operation, any production. 00 (T. 298) o He also advised acting mine manager Steve Jewett later the same day that the machinery should be cleaned. (T. 310) o After the Withdrawal Order was 

issued ~ Inspector Turner seven days later 0 Mr. Ledford felt that 

MCC had not complied with his instructions to clean the continuous 

miner. (To 300-301, 335-336}. Mr. Ledford indicated that some of 

the accumulations he observed on the miner on June 2 0 were both 

non the exterior" and "under some compartments" (T. 302-304, 307), 

1586 
contrary to MCC' s allegations. (See MCC' s Post-hearing Brief, 

p. 31). Mr. Ledford did not believe that the extent of accumulations found on June 27 could have reoccurred during the seven-day 

interim from the time he observed such had the miner been cleaned 

as he had instructed. (T. 304-306, 307, 308, 310, 311). He had 

advised Mr. Jacobs that coal fines were "under the covers" 

(T. 308). When the accumulations get "into the cracks and crevices and around the electrical compartments and motors and areas 

that just gather up loose coal and float coal dust and coal fines" 

it can cause the motors to overheat and if there is a failure in 

the electrical components, a "very serious fire hazard" is created. 

( T • 311, 312 , 313 , 315-31 6 , 3 4 5 ) • 

Inspector Turner issued the Withdrawal Order (then a Citation) while on a regular inspection on June 27, 1991. He was 

accompanied on this inspection by Lavon L. Turpinu a safety adviser for MCC. (T. 320). He issued a Citation for a permissibility violation on the subject continuous miner during this same 

inspection. (T. 323-324; Ex. G-1). He also issued a Citation 

(No. 3582464) for a violation involving the same continuous miner 

for not having proper fire-fighting e;iuipment, to wit: 

The fire-fighting e:;i:uipment was not being maintained in a usable and operable condition on the 

continuous mining machine on the first south 

working section. The fire suppression water ou.tlet above the left flange motor for the machine 

was inoperable. (Ex. G-2; T. 325-326). 

Inspector Turner described the situation as follows: 

000 The top of the machine was pretty much cleano 

As I get into the other components of the machineg 

the machine was very, very filthyo I could not 

get to the back side of the tram motors, the control motors and other areas with my feeler gauge 

and tools that I work in my tradeu because it was 

too dirtyo So I informed Mro Turpin that he had 

an S&S Citationu definitely that the machine was 

filthy, and he agreed, and we would have to agree 

on a time to abate. (To 327) o 

Inspector Turner specifically described ntnnerous electrical 

compartments on the miner, including in the operator's cabu on the 

main control box on the framework of the miner, the auxiliary 

lighting systems and light boxes, the tram motors on the sides of 

the miner and the pump motors. He said that nunerous electrical 

1587 
components had coal packed around them. CT. 327-328). The extent 

of such accumulations was up to "eight to ten inches of loose 

coal, float coal dust, coal tines and coal particles" which were 

packed around and on top of the compartments. (T. 328, 330). 

He discussed the matter with Mr. Turpin who said it would 

take a significant amount of time to remove the accumulations 

because it would be necessary to pull off the covers and to "get 

somebody in here to clean it ofL" ( T. 3 28-329) • The accumulations were dry and were visible without removing the covers. 

( T. 3 2 9, 3 4 2-3 4 4) • 

While the continuous miner was not being operated at the time 

it was observed by Inspector Turner, it had been in operation 

earlier on the day of inspection. (T. 322). 

Numerous sources of ignition were present (T. 331, 332, 333, 

345, 346-347) including overheated motors, "blown up cable," "bits 

off of the machine," and from "rock spars or cut ting of the coal" 

CT. 345) and sparks off a cutting head. (T. 346). '!he existence 

of so much potential ignition increased the likelihood that a fire 

would be started or that an ignition would occur. (T. 346-347). 

After being cited for the violation, it took MCC over four 

hours to clean the continuous miner. CT. 329, 339). 

The hazards posed 1:::¥ this violation, taking into consideration the background factors in which they occurred (including the 

fire suppression system inadequacy and the impermissibility violations) were fire and a coal dust ignition. ( T. 3 31-3 34). Inspector Turner's analysis and rationale concerning the existence of 

these hazards, the reasonable likelihood that such would occur in 

the context of continued miningu and the serious injuries which 

would likely ensue had the hazards come to fruition were wellstated credible, and convincing. (T. 331, 332, 332-334). 

After pointing out that MCC's practice was not to remove the 

accumulations (T. 331) he said: 

Left in this state, the hazard involved there 

would be the heating scenario from the motors 

which are pulling 950 volts from this particular machine, which is the highest voltage that 

we have on any piece of equipment therein, and 

the amperage there and the current flow that 

can get out of those electrical motors, for 

ex.ample, the auxiliary lighting box, and if we 

1588 
were to ignite the float coal dust and the 

amounts that we had there, and with the little 

effect that the fire suppression would have had 

over that particular tram motor, that thing 

would have went rapidly. 

Q. Why wouldn't the fire suppression system have 

any effect on the motor? 

A. The fire suppression couldn't have no effect 

over that one tram motor because it was inoperable. There was no water coming out of it when 

we activated it. 

Q. was there any connection between the gap that 

you found for the permissibility violation and 

the accumulations? 

A. Just the fact that they were within four inches 

of one another. Th'e permissibility viola ti on 

that I found on the one auxiliary box was on 

top of the machine. This is the only permissibility that I completed on this machine because 

I could not get to the other compartments, they 

were too filthy. (Tr. 331). 

Inspector Turner considered it highly likely that serious 

injuries CT. 334) would occur from the fire hazard: 

The contributing factor would have been the 

amount of accumulations that we had on the tram 

motors and things that existed at the time of 

my observationo The permissibility gap that we 

could expose an arc to the outside atmosphere 

and these accumulations, and the fact that the 

fire suppression system would not help you, in 

factv if those things were to happenv and normal 

cutting procedures in there. We have rock bars 

in that mine, and all tied together, it would 

have made it very highly likely that it would 

occuro (To 332) o 

It is noted that Inspector Turner on June 28, 1991, modified 

the Order to change the likelihood f rorn "Reasonably Likely" to 

1589 
"Highly Likely." At hearing he appeared to back off this modification CT. 351) and there is not sufficient explanation therefor 

to justify the "Highly Likely" determination. There is more than 

adequate support for a determination of 11 Reasonably Likely, 11 however, and the Withdrawal Order will be subsequently modified to 

reflect this. 

I conclude that it was reasonably likely that injuries such 

as severe burns, smoke inhalation, and possibly fatalities would 

have occurred had the contemplated hazard happened. CT. 334, 

3 38). 

'lbere was also a reasonable likelihood of a coal dust ignition had mining continued. (T. 331, 334, 336-·337, 345-347). As 

the Inspector explained: 

The coal dust ignition could occur from the normal mining cycle of the machine. The machine 

generates coal dust which it extracts from the 

coal from the faces. We have the water sprays, 

but if the other dust that is suppressed around 

the machine and the amount of float coal dust 

and stuff that was on the machine, if an arc 

were to come out of that control panel and ignite the coal dust, then it would ignite the 

whole area wherever the coal dust was to exist. 

(T. 334). 

'lbe violation occurred as a result of MCC's high degree of 

negligence and unwarrantable failure to comply with the infracted 

safety standardo (To 336, 331u 339, 340) o MCC's history of preous violations indicates a persistent pattern of violations of 

this standa.rdo Inspector Turner pointed out that on June 20 9 

Mr o Ledford had told MCC i

1

that the machine needed cleaning" and 

that it was wobvious that all they did was sprayed off the top of 

the machine; they did not spray off the motors or get any integral components of the machine and make any effort to clean i to" 

To 336) o He also persuasively indicated that~ 

From my m1n1ng experience~ I know that the 

amount of accumulations that were on that machinev cannot accumulate in a day or two or 

three dayso That amount of accumulations has 

1590 
to occur over several shif ts6 days, possibly a 

week or better. (T. 336). 1 

Inspector Turner's l:::e.sis for determining "unwarrantable 

failure" was because of the negligence involved, and "because of 

what the coal company has been made aware of in the past and six 

days prior by my supervisor, and on many occasions on pre-inspection and post-inspection on accumulations, and our concern for the 

accummulations on the working section and the a:;iuip:nent is the 

number one priority •••• 11 (T. 339). 

Respondent's Evidence 

Steven D. Jewett, MCC's maintenance superintendent, indicated 

that he accompanied Mr. Ledford on June 20 and that there aren't 11 openings" on the miner that one could see through to determine if 

there were accumulations under the covers. (T. 359). He said he 

was "not aware" that Mr. Ledf'ord moved any of the hoses or peered 

down to look closely so as to be able to see holes and determine 

if there were accumulations. CT. 358-359). He denied that Ledford mentioned accumulations, other than some "oil spillage" 

CT. 358, 361). He indicated that the machine would be cleaned on 

the outside after each entry was cut, but that it would be cleaned 

under the covers on a weekly basis. (T. 361, 362, 372). Mr. Jewett•s testimony was for the most part brief and general and it in 

no way approached the detail and specificity of MSHA's witnesses. 

He was not present on June 27 when Inspector Turner issued the 

withdrawal order. CT. 368). He did not know about the permissibility citation and the "fire suppression" citation "until this 

started" (To 3 71) , nor did he know when the last time the covers 

on the miner were ra:noved for cleaning or if such were cleaned 

during the period from June 20 to June 270 (To 372) o 11 

10 See also To 337v where the Inspector testified the negligence was high because .• o "Mr. Ledford's notifying six days before. 

They had a weekend there. So youvre talking a minimum of three 

days or four days where there must not have (been) no effort to 

clean the machine. They cleaned the top of the machine." 

11 As to whose responsibility this was, there was some 

ambiguity in his testimony. (T. 369-370). 

1591 
MCC's second witness, safety adviser Lavon Turpin, testified 

that the accumulations violation was discovered when he and Inspector Turner pulled one of the covers on the machine to see if 

a hose to the fire suppression system was broken. (T. 374). He 

felt it would be "very difficult" for a person to look through the 

"holes" and see the accumulations four to eight inches deep under 

the covers. ( T. 381). He said the accumulations were 11 somewhat a 

damp compact condition" CT. 375) under the first cover pulled (T. 

383) but did not know the condition of the accumulations under the 

covers subse:;ruently pulled. CT. 383). 

As with Mr. Jewett, Mr. 'l\lrpin's testimony was brief and not 

of a sutticiently probative nature to rebut the more positive, 

reliable testimony of MSHA's witnesses, whose accounts and opinions I credit in determining the issues of reasonable likelihood 

("Significant and Substantial") and "Unwarrantable Failure." 

In conclusion, the extent of the accumulations and the amount 

of time it took to achieve abatement (cleanup) are strong evidence 

in support of the expert opinions of MSHA's witnesses that they 

existed a considerable length of time and had not been cleaned up 

during the interim between June 20, 1991, and June 27, 1991. The 

lack of knowledge and generality of MCC's witnesses on this point 

certainly in no way weakened the prima facie presentation of MSHA 

that MCC's failure to clean up constituted inexcusable, aggravated 

conduct, particularly in view of its less than commendable history 

of violations of this standard, and the frequent (and proximate) 

warning it had received concerning such, and the fact that these 

accumulations were present in dangerous amounts for a long period 

of time with obvious ignition sources extant. 

It is therefore concluded that MSHA has established that the 

violation resulted from MCC's unwarrantable failure to comply with 

the standard and from a high degree of negligence on the part of 

MC Co 

'l"he violation was both proven and conceded and, in addition, 

MSHA established that it contributed a measure of danger of safety 

by the hazards it posed and contributed too It has previously 

been determined at some length that there was a reasonable likelihood and a substantial possibility that the envisioned hazards 

would occur in the event of continued mining and that such would, 

upon occurrence, result in serious injuries or fatalities. 'lhe 

contribution of the violation to the hazards of fire and or ignition was significant and substantial. The Commission's four prere:;ruisites to the existence of a "Significant and Substantial" 

violation are found to have been established by MSHA and these 

special findings are here AFFIRMED. Mathies Coal Company, 

supra" 

1592 
Penalty Assessment 

Based on the parties' stipulations and information of record 

it is found that MCC is a medium-sized coal mine operator CT. 20) 

which proceeded in good faith to promptly achieve compliance with 

the standard in question after notification of the two violations. 

The penalties assessed will not affect MCC's ability to continue 

in business. During the pertinent two-year periods preceding the 

issuance of the Citation and Order, MCC had a history of 110 and 

92 violations, respectively. CT. 17-19). MCC had committed numerous violations of the pertinent safety standard involved in 

this matter during the two-year period in question. Its history 

of violations is not commendable. 'lhe violations involved in both 

the Citation and the Order resulted from a high degree of negligence on MCC's part, were inexcusable and since aggravated conduct 

was involved were also found to have resulted from MCC' s unwarrantable failure to comply with the standard. Further, both violations were very serious in nature, both in terms of the gravity 

of the hazards they created and contributed to and the likelihood 

of such hazards occurring and'··causing serious injuries or 

fa tali ties. 

In Black Diamond Coal Company, 7 FMSHRC 1117, 1120 (August 

1985), the Commission stated as follows: 

We have previously noted Congress's recognition 

that ignitions and explosions are major causes 

of death and injury to miners: 'Congress included in the Act mandatory standards aimed at 

eliminating ignition and fuel sources for explosions and fires. [Section 75.400] is one of 

those standards. 0 Old Ben Coal Co.v l FMSHRC 

1954, 1957 (December 1979). We have further 

stated [i]t is clear that those masses of combustible materials which could cause or propagate a fire or explosion are what Congress intended to proscribe.~ Old Ben Coal Co., 2 

FMSHRC 2806, 2808 (October 1980). The goal of 

reducing the hazard fire or explosions in a 

mine by eliminating fu sources is effected cy 

prohibiting the accumulation of materials that 

could be the originating sources of explosions 

or fires and ~ also prohibiting the accunulation of those materials that could feed explosions or fires originating elsewhere in a mine. 

1593 
Substantial penalties are warranted. Accordingly, a penalty 

of $3,000.00 is assessed for Citation No. 3582529 and penalty of 

$1,500.00 is assessed for Withdrawal Order No. 3582466. 

ORDER 

1. Withdrawal Order No. 3582466 is MODIFIED to change 

paragraph 10 A thereof from "Highly Likely" (as shown in Inspector 

Turner's modification thereof dated June 28, 1991) to "Reasonably 

Likely" and this Wi thdrawa 1 Order in eluding the special findings 

theron is otherwise AFFIRMED. 

2. Citation No. 3582529 (Docket No. WEST 91-489-R and WEST 

92-64) including the special findings thereon is AFFIRMED. 

3. Contestant/Respondent MCC, within 40 days from the date 

of this decision SHALL PAY to the Secretary of Labor the total 

sum of $4,500.00 as and for the civil penalties assessed herein. 

Distributiom 

~A:'-6.!~· ~ ~pt. Mi cha el A. Ia sher, Jr. 

Administrative Law Judge 

Susan Jo Eckertv EsqoQ Office of the Solicitorv U.S. Department 

cf Labor 0 1585 Federal Office Building, 1961 Stout Street, 

Denver" CO 80294 (Certified Mail) 

David l\L Arnolds, Esqeu Scott W. Anderson, Esq., 555 - 17th 

Streetu 20th Floorv Denver, CO 80202 (Certified Mail) 

ek 

1594 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

( 303) 844-5266/FAX (303) 844-5268 

SEP 11 J992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

~ Docket No. WEST 91-251 

A.C. No. 42-01944-03586 

v. 

Docket No. WEST 91-256 

: A.C. No. 42-01944-03585 

ENERGY WEST MINING COMPANY, 

Respondent . . Cottonwood Mine 

Appearances: 

Before: 

In 

origina 

tions 

Withdrawal 

Safety and 

DECISION 

Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Thomas c. Means, Esq., Claire Brier, Esq., 

CROWELL & MORING, washington, D.C., 

for Respondent. 

Judge Lasher 

proceedings, the Secretary of Labor (MSHA) 

penalties for a total of eight alleged violaeight enforcement· documents (Citations and 

) pursuant to Section 110(a) the Federal Mine 

Act of 1977u 30 U.S.C. § 820(a) 1977. 

Prior to hearing, citations numbered 3413895 (in Docket West 

91-251) and 3413829 (in Docket WEST 91-256) were severed (To 6-7) 

from the ect docketsr processing thereof was stayed, and 

these two Citations were placed ancillary "A" dockets for 

separate processing (To 7-8) since they involved so-called 

on excess storyw1 questions. After adm.inistrati ve action, 

two Citations remained in Docket WEST 91-251 and four remained in 

Docket WEST 91-256. Of the four in this last docket, two were 

settled when the partiesr prior to hearing, filed their written 

motion for approval of an amicable resolution concerning such. 1 

This motion, which was approved on the record of 

hearing (T.5-6), indicated that the violative conditions described in the two citations (3414063 and 3415064) were not 

"reasonably likely to cause serious injury or illness" that the 

"significant and substantial" designations thereon should be 

1595 
Four enforcement documents remained and were litigated, numbers 3413898 and 3414071 in Docket No. 91-251, and numbers 

3414062 and 3413883 in Docket No. 91-256. 

stipulation 

At the commencement of the proceedings, the parties stipulated to the following: 

1. Energy West is engaged in mining and selling of bituminous coal in the United States, ·and its mining operations affect 

interstate commerce. 

2. Energy West is the owner and operator of the Cottonwood Mine, MSHA I.D. No. 42-01944. 

3. Energy West is subject to the jurisdiction of the 

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

seq. (the "Act 11 ) • 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject Citations were properly served by duly 

authorized representatives of the Secretary upon agents of Energy 

West on the dates and places stated therein; and may be admitted 

into evidence for the purposes of establishing their issuance, 

and not for the truthfulness or relevancy of any statements asserted therein. 

6. The exhibits offered by Energy West and the Secretary 

are stipulated to be authentic but no stipulation is made as to 

their relevance of the truth of the matters asserted therein. 

lo The proposed penalties will not affect Energy West's 

abi~ity to continue in business. 

Sc Energy West demonstrated good faith in abating the 

violations. 

removedu that the g'gravity'' designation of such should be modified to 99 unlikely, @

9 and that the proposed penalties therefor 

should in such circumstances be reduced to $20 each. My bench 

order approving this disposition is here AFFIRMED and appropriate 

execution of such appears in tbe "Order" at the end of this 

decision. 

1596 
9. Energy West is a large mine operator with 3,317,397 

tons of production in 1989. 

10. The certified copy of the MSHA Assessed Violations 

History (Ex. G-1) accurately reflects the history of this mine 

for the two years prior to the dates of the citations. 2 

Docket No. WEST 91-256 

Citation No. 3414062 (T. 12-90). 

This Citation was issued by Inspector Marietti on October 

16, 1990, and described the alleged violation as follows: 

The fire-fighting equipment at the No. 20 

Crosscut in the 16 West Section belt return 

entry was not beirig maintained in a usable 

and operable condition. The fire hose nozzle 

for the two lengths of fire hose, located at 

this location, was missing and could not be 

located in the area. 

MSHA seeks a $20 penalty for this alleged infraction of 30 

C.F.R. S 75.1100-3 which provides: 

All fire-fighting equipment shall be maintained in a usable and operative condition. 

Chemical extinguishers shall be examined 

every six months and the date of the examination shall be written on a permanent tag 

attached to the extinguisher. 

Although it concedes that there was no nozzle present with 

the cited fire equipment 0 Respondent questions the occurrence of 

2 The computerized history shows 277 "Paid" violations 

during the two-year period from 10-18-88 to 10-17-90. The four 

citations were issued at different times during the period 10-3-90 

through 11-8-90. I thus find a.nd infer from this evidence and the 

stipulation that Energy West had a previous history of approximately 277 violations. 

1597 
a violation with respect to this Citation, which was not characterized as "Significant and Substantial" by the Inspector. 

(T. 13-14). 3 Respondent contends that it has installed "two to 

three times" the amount of fire hose that MSHA required, that 

nozzles were available in other locations, that a nozzle is not 

required for every hose at a mine, and that a nozzle is not 

necessary for a hose to be "usable and operative." (T. 14-15). 

Findings 

Inspector Marietti spotted the alleged violation (hose without a nozzle) while on inspection accompanied by Energy West's 

safety representative Dixon Peacock. He was in the 2 Entry 

section and was walking the belt return when he examined a 30-

gallon garbage can {where Energy West stores the fire hoses) and 

could not find the nozzle "in the storage area." (T. 24, 25). 

The nearest nozzle was 1000 feet away. {T. 25, 61). 

The Inspector did not assert that the hose itself was faulty 

or damaged. It would have ope~~ted properly when attached to a 

hydrant or to another hose. (T. 38, 47, 58). 

The regulations do not mention or specifically require fire 

hose nozzles. (T. 25, 36, 68). 

The regulations require at least 500 feet of fire hose to be ~•stored at strategic locations along the belt conveyor." 30 

C.F.R. § 75.1100-2(b) (T. 66). The regulations also specify that 

enough fire hose to reach the working face must be provided at 

each section loading point and 500 feet of fire hose must be 

stored within 300 feet of the belt drive. According to MSHA's 

interpretation of the regulations, this means that, altogether, 

Energy West was required to have a total of 600 feet of fire hose 

along the belt line and at the belt drive in the section in ques-

~ion. (T. 34, 66, 67). Since Energy West stored 500 feet of 

hose at the tailpiece and 500 at the belt drive, in addition to 

the 200 feet every tenth crosscut, Energy West actually had 2000 

feet of hose (more than three times the amount required by the 

regulations) along the 16 WEST belt line on the date the citation 

was issued. (T. 53u 54u 69). 4 

3 Hearing was held on two days, March 5 and 6, 1992, and 

the two sections of transcript (one for each day) begin with page 

1. Accordingly u the transcript references will be shown as "T. " 

and II-T. _ 00 , respectively. 

4 Further, al though the two lengths of hose at crosscut No. 

20 did not have a nozzle stored with them there were eight nozzles 

stored along the belt line. (T. 51, 69). 

1598 
Although Inspector Marietti conceded that there is no requirement in the regulations that a hose be at the location in 

question with the nozzle (T. 25), he explained that he issued 'the 

citation: 

Because 1100-3 says that all tire-fighting 

equipment at the mine will be maintained 

usable and operable. And it's just prudent 

that if it's not going to be maintained as 

such for people to rely on it in the event 

they need to use it would create a problem 

for the users and possibly a serious fire for 

the mine. (T. 26-27). 

Although a fire hose could be used without a nozzle to fight 

a fire, it would generally be more effective if the hose had a 

nozzle. (T. 26, 27, 35-38, 46, 47). Without a nozzle, as much 

water would be supplied, but the water would shoot out from the 

hose 20-25 feet; with a nozzle, water would propel from the hose 

approximately 60-70 feet. (T. 45, 46). However, a hose without 

a nozzle could be used to fight a fire by flooding the area. 

(T. 35-36, 38). 

While Inspector Marietti testified that he interprets 30 

C.F.R. § 75.1100-3 as requiring each hose to have a nozzle stored 

with it (T. 51), the alleged violation was considered abated by 

providing a single nozzle in the can, even though two hose 

lengths were stored there. (T. 55-56). Moreover, in his view, 

if only one long hose were stored along the belt line or if several pieces of hose were connected together to form one long 

hose, then MSHA's regulations would be satisfied by only a single 

nozzle for all of the hoses along the entire belt line (To 51, 

56); and even though the fire hydrants, located at 300-foot intervals along the belt line, did not have fire hose stored with 

them, Inspector Marietti considered the hydrants to be fully 

usable and operative within the meaning of S 75.1100-3. 

(T. 54, 57). 

Randy Tatton 0 Chief Safety Engineer for the Cottonwood Mineu 

testified that since the hose at crosscut 20 was extra hose that 

was intended to be used as a part of one long hose, he did not 

believe that nozzles were required by regulation to be stored 

with the hoses at all" (T. 69-70, 71, 87}" Mr" Tatton testified 

that if a piece of hose from crosscut 20 had to be used alone to 

fight a fire, not only could the hose be used to fight a fire 

without a nozzle, but a nozzle could also be obtained from another nearby location along the belt line. (T. 70, 71, 73, 87). 

1599 
The hose could be kinked to simulate the spray a nozzle would 

produce, or a miner could place his fingers or part 'of his hand 

over the mouth of a hose. (T. 70, 78, 87). Mr. Tatton conceded 

that the hose is usually more effective with a nozzle, but in 

some circumstances, such as if a small smoldering fire occurred, 

the hose would be more effective without a nozzle. (T. 70). 

Mr. Marietti agreed with this assessment. (T. 47). 

Energy West's practice at the Cottonwood Mine was to store 

two 100-f oot lengths of fire hose at every tenth crosscut along 

each of its belt lines. (T. 24, 25, 34, 68, 72). 

Conclusion 

Although not required by law to provide this hose or store 

it in these locations, Energy West adopted this practice so that 

miners would have extra lengths of hose available and readily 

accessible if needed and know where to find it, as part of a 

policy of supplying fire protection in excess of MSHA's requirements. (T. 25, 27, 38, 50, 51, 52, 53, 66-70, so, 88). MSHA 

concedes that, by providing thgse hoses at every tenth crosscut, 

Energy West went "way beyond the requirements of the law." (T. 

53) . 

When Energy West instituted this practice, it anticipated 

that these extra pieces of hose would be used as segments of a 

longer hose. (T. 70, 71, so, 87). However, it is also possible 

that a piece of this hose could be used alone to fight a fire if 

the fire happened to break out near a cache of extra fire hose, 

although this was not Energy West's intention in storing the hose 

in these locations. (T. 70, 71, 87). Energy West also has adopted the practice of storing one fire hose nozzle with each of the 

caches of hoses. (T. 50 1 52v 68). Cottonwood has never experienced a belt fire and thus has never had reason to use the hose 

or nozzles stored in these caches. (T. 48-50 1 52, 68-72 1 87)c 

The fire hose at issue here was extra fire hose, not required by the regulations, which Energy West stored in this location in order to provide additional firefighting equipment in 

readily accessible locations. The extra hoseu because it was in 

good working orderu was usable and operative even though a fire 

hose nozzle was not stored with it. 

Because the hose itself was maintained in good working order u it was usable and operative. Energy West stored this extra 

hose at crosscut 20 so that it would be readily available to a 

miner if it were needed. (T. 50, 52, 53, 70, 80, 87, 88). It 

was intended for the extra pieces of hose to be attached to other 

pieces of hose to form one hose to fight a fire in the area or in 

another part of the mine. (T. 69-70, 80, 81, 88). The hose, 

being vastly in excess of what was required, was thus fully 

usable and operative even though a nozzle was not stored with it. 

1600 
The regulations required Energy West to store 600 feet of 

hose along the belt line in 16 West. (T. 51, 54, 66, 67). In an 

exercise of caution and as a matter of safety policy, Energy West 

stored l.Q_QO teet of fire hose along this belt line - 1400 feet 

more than required. (T. 53, 54, 69). As Energy West argues, it 

could have stored this extra 1400 feet of hose anywhere (for 

example, in a storage room or in one central location in the 

mine}. (T. 86-87). Instead, it chose to spread out the 1400 

feet of hose along the belt line in specific, evenly spaced 

locations so that a piece of hose could be located and obtained 

quickly if it were needed. (T. 50, 52, 53, 70, BO, 87, 88). 

In this matter, Energy West, for the purpose of enhancing 

safety, stored extra hose (in good usable and operative condition) without nozzles in amounts beyond that required by the 

regulations. In such pursuit of safety, Energy West should not 

be penalized because it stored such extra hose along the belt 

line rather than in some remote area, such as (as Energy West 

points out) in a storage area. This is particularly true, where 

the regulations do not speak of any requirement for hose nozzles, 

where the extra hose potentfally had beneficial purposes in the 

event of a fire, and where this hose was in excess of the regulation's requirements. 

Accordingly, it is concluded that no violation occurred. 

It is noted in reaching this determination that no intimation 

was made or intended that as to required hose, i.e., that which 

is not in excess of the regulations' requirements, hose nozzles 

are not required. It may well be that in a given situation "required" hose, to be in "usable and operative condition," must be 

stored with a nozzle. 

Docket No. West 91-251 

Citation Noe 3414071 (To 95-196)0 

This citation0 issued by MSHA Inspector Fred L. Marietti on 

November 8 0 1990 0 charges an infraction of 30 C.F.R. § 75.316 0 

and describes the violative condition as follows: 

The approved ventilation and methane and dust 

control plan was not being complied with in 

the 2 North double-split miner sections. The 

belt was moved up to 42 crosscut on graveyard 

11-8-90. The brattice installed between the 

belt and the 2 N.E. and the 2 N.W. designated 

intake escapeways was not installed in a 

workmanlike manner and maintained in the 

condition to serve the purpose for which they 

1601 
were intended. The 41 crosscut, west side 

next to the roadway was open on the outby 

side six feet at the top and tapered down to 

one foot at the bottom for a distance of sixf oot high. The 40 crosscut, west side, the 

brattice was gapped down from the roof four 

inches for 15 feet. The inby side was open at 

the top one foot and tapered out for three 

feet at the bottom for a distance of 6.5 foot 

high. The outby side was open 30 inches by 6 

feet high. The 40 crosscut, east side, was 

gapped open at the top from 4 inches to 5 

inches for 12 feet. The inby side was open 3 

feet by B feet high. The outby side was open 

4 feet by B feet high. There was coal running out on the belt and the section was 

mining. Refer to Citation Nos. 3414072 and 

3414073. 

The standard infracted, 30-c~F~R. § 75.316, provides: 

A ventilation system and methane and dust 

control 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 28, 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 1 the quantity and velocity of air 

reaching each working face, and such other 

information as the Secretary may require. 

Such plans shall be reviewed by the operator 

and the Secretary at least every 6 months. 

The pertinent provisions (Par. E, Subparagraphs 1(a) and (b) 

of Respondentus plan (Ex. G-2) provide: 

Ventilation Controls 

a. All ventilation controls such as 

stoppings, overcasts, undercasts, 

doors, regulators, shaft partitions, etc., shall be of substantial and incombustible construction; installed in a workmanlike 

manner and maintained in the condi1602 
tion to serve the purpose for which 

they were intended. 

b. Permanent stoppings shall be erected between the intake and return 

air courses, a minimum of 8 11 thick, 

and shall be maintained to and including the third connecting crossoutby the faces of the entries. 

Whenever the third connecting 

crosscut is broken through, work 

shall be started on building the 

stopping as soon as possible and 

shall be continued in a reasonable 

and diligent manner until completed. Similarly, whenever a belt 

move is completed, curtains shall 

be installed immediately and work 

shall be started on building the 

permanent stoppings as soon as 

possible and-shall be continued in 

a reasonable and diligent manner 

until completed. 

Energy West concedes the occurrence of this violation but contends that it was not "Significant and Substantial." (T. 10). 

Violation of an approved ventilation plan is the same as a 

violation of a mandatory safety standard. Ziegler v. Kleppe, 536 

F.2d 398 (D.C. Cir. 1976); Jim Walter Resources, Inc., 9 FMSHRC 

903 (1987). 

On November 8 1 1990, a belt move was conducted in the 2d 

North Section at the end of the graveyard shift which ended at 8 

a.m. The temporary curtains in question were installed in 

crosscuts 40 and 41 east and west either at the end of the shift 

or between the graveyard and day shifts. Materials for the 

construction of permanent stoppings had been brought to each 

crosscut by the beginning of the day shift and a miner had begun 

work on the permanent stopping at crosscut 40 east. Miners were 

also working on constructing a permanent stopping across crosscut 

41 east. All permanent stoppings would have been completed and 

in place by the end of the day shift. At this time, the faces 

were approximately 200 to 300 feet inby crosscut 41 and 40. (T. 

141)Q Air was flowing north (inby) up the intakes, across the 

faces and then south (outby) down the returns and the belt entry. 

(Ex. R-4; T. 142). The ventilation at the faces was 25,967 cubic 

feet per minute ("cfm") and 13,000 cfm of air was entering the 

belt entry at the feeder breaker. (T. 143, 178). Because the 

volume and pressure of air traveling up the intakes was greater 

than that traveling outby in the belt, any air that escaped 

through the temporary curtains flowed from the intakes into the 

1603 
belt entry. (Tr. 118-119, 120, 142, 146, 177-178}. , That air was 

then forced to flow south down the belt entry, outby the cited 

curtains, and away from the faces. (T. 142-143). 

At approximately 9 a.rn. on November 8, 1990, while coal was 

being produced, Inspector Marietti entered the 2d North section 

and found that the temporary brattices installed at crosscut 41 

west, crosscut 40 west, and crosscut 40 east were not drawn up 

tight against the crosscut ribs, allowing some air to leak from 

the intake entries into the belt entry through the curtains. (T. 

108-110). The Inspector did not measure the amount of air escaping through the curtains, but did a smoke test which showed some 

leakage from the intakes into the belt entry. (T. 118, 1199, 

177-178). He then issued S 104(a) Citation 3414071 which, as 

noted, alleges a significant and substantial ("S&S") violation of 

the ventilation plan under 30 C.F.R. § 75.316. The violation was 

promptly abated when the gaps in the curtains were closed. 

Inspector Marietti felt there were two hazards posed by this 

violation: (1) contaminated air entering the intakes through the 

gaps in the temporary curtains lbrattices) should a fire have 

occurred in the belt entry, 5 and (2) "short-circuiting" of air, 

i.e., air escaping, which was intended for the face. (T. 119, 

12 0) • 6 

It appears that his primary concern was of a fire occurring 

in the belt entry (T. 120-121, 126) since the direction of the 

air coming through the curtains was away from the face and toward 

the belt entry (T. 119, 120): 

At the belt drive, if you had a fire there, 

for one thing, the air would be corning 

through those stoppings to feed the fire. 

And in all of the experiences that rvve seen, 

which rvve seen many mine fires and more than 

I want to see and have been at some of the 

investigations, and the fire has a tendency 

to follow the oxygen so it gravitates towards 

5 This hazard was dependent on the happening of a separate 

hazard, a belt entry fire, to which it would have contributed and 

worsened. This is ·why the question narrows on whether there was 

sufficient proof that a belt entry fire was reasonably likely. 

6 The viability of this contemplated hazard was not dependent on the occurrence of some other separate hazard, and determination of the reasonable likelihood of its occurrence can be 

made without reference to some other independent hazard. 

1604 
the direction that the oxygen is--or the air 

is coming in. It'd have a very good tendency 

to pull right through there and burn right 

out into the intake escapeway. (T. 121) 

(Emphasis added). 

As to the first hazard mentioned, the Inspector's basis for 

considering that there was a reasonable likelihood that the 

hazard contributed to would occur and result in an injury was 

general: 

a. Belt entries are the number one cause of fires. 

b. "Fires are expected in mines." 

c. Potential ignition sources were present in 

the form of "friction," coal on the belt, a 

feeder breaker (electrical source), a pick 

breaker, and a conveyor. 

d. The mine has had fires in the past. (T. 122-123). 7 

He said it was "possible" for the hazard to occur but he did not 

find specific conditions present which would raise the degree of 

likelihood, such as: 0 hot rollers" or accumulations. (T. 124). 

He thought that if there had been hot rollers present, the 

situation might have constituted an imminent danger. (T. 124). 

Although there were fire-detecting devices in the area and also 

fire-fighting equipment (T. 127), he did not consider the presence of these devices and equipment in determining whether the 

violation was "Significant and substantial." (T. 127-128). 

As to the Inspector 1 s belief that air intended for the face 

could have been short-circuitedQ his testimony was speculative. 

He admitted that a door would have had to be opened outby for 

short-circuiting to occur. (T. 128-131). 

Energy Westvs witnessesu Chief Safety Engineer Tatton and 

Mro Steve Radmallu the Safety Engineer who accompanied Mro 

Marietti on his inspectionu both gave their general opinion that 

it was not reasonably likely that a serious injury or illness 

would have resulted from the violation" (To 154, 180). As the 

7 He testified that if a fire did occur, a serious injury 

would result, which would result in lost workdays or restricted 

duty for the injured miner(s) (T. 123) due to smoke inhalation. 

1605 
smoke test by Mr. Marietti demonstrated and as Mr. Marietti 

admitted, the direction of the flow of air in the section was 

such that air flowed from the intakes into the belt entry through 

the curtains. (T. 118-119, 120, 142, 146, 177, 178; see Ex. R-4. 

Thus, it was unlikely that contaminated air from the belt entry 

would have entered the intakes through the curtains. Had the 

contaminated air somehow flowed in the opposite direction, it was 

not likely that a fire would have broken out on the belt line at 

the location of the curtains before the permanent stoppings were 

erected. (T. 145, 179). 8 The mine has never had a belt fire 

(T. 146) and it was not likely that one would have occurred here 

and certainly not before the permanent stoppings were completed. 

(T. 145-146). 

Because the ventilation at the face was 25,967 cfm (T. 178), 

such indicates that adequate air was reaching the face and that 

intake air was not being short-circuited in any meaningful 

amount--in other words, the ventilation system was operating 

properly despite the air leaking through the curtains. Finally, 

it appears that the regulator in the section would not have 

allowed short-circuiting since'it assured that a constant level 

of air circulated through the area. (T. 150). 9 

Significant and Substantial 

The Commission's formula, as set forth below, is employed 

here to determine this question. 

A violation is properly designated "significant and substantial" if, based on the particular facts surrounding that violation1 there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature. Cement Division 0 National Gypsum co., 3 

FMSHRC 822 0 825 (April 198l)o In Mathies Coal Co., 6 FMSHRC 1, 

3-4 (January 1984) 0 the Commission explained: 

8 The temporary curtains would have lbeen replaced with 

permanent stopping by the end of the day shift. (T. 138). 

9 Nor was it reasonably likely that inadequate ventilation 

would have caused a methane ignition since no methane had been detected in the area. (T. 179). Ignitable levels of methane have 

never been detected in the mine. (T. 145, 163, 172). This finding 

is based on the record relating to this Citation. · 

1606 
In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of Labor must prove: (1) the underlying 

violation of a mandatory safety standard; (2) 

a discrete safety hazard--that is, a measure 

of danger to saf ety--contributed to by the 

violation; (3) a reasonable likelihood that 

the hazard contributed to will result in an 

injury; and (4) a reasonable likelihood that 

the injury in question will be of a reasonably serious nature. 

Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th 

Cir. 1988). 

The third element of the Mathies formula requires "that the 

Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury, 

and that the likelihood of fnjurymust be evaluated in terms of 

continued normal mining operations. U.S. Steel Mining Co., 6 

FMSHRC 1572, 1574 (July 1984). See also Monterey Coal co., 7 

FMSHRC 996, 1001-1002, July 1985). The operative time frame for 

determining if a reasonable likelihood of injury exists includes 

both the time that a violative condition existed prior to the 

citation and the time that it would have existed if normal mining 

operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 (January 

1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). 

The question of whether any particular violation is significant 

and substantial must be based on the particular facts surrounding 

the violation, including the nature of the mine involved. Texasgulf a Inc.f 10 FMSHRC 498, 500-501 (April 1988); Youghiogheny & 

Ohio Coal Company, 9 FMSHRC 2007 9 2011-2012 (December 1987). It 

is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial. U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984}. 

This analytical process for determining the "reasonable 

likelihood" question is a generalu broad system of setting forth 

the conditions or practices which might lead to the occurrence of 

the contemplated hazard and then proceeding to the conclusion 

whether or not the hazard is reasonably likely to come about and 

cause injury. A useful companion method is one which was utilized in Secretary v. Texasgulf, Inc., 9 FMSHRC 748 (April 1987), 

where the concept of "substantial possibility" (9 FMSHRC at page 

764) was mentioned. This was used as an enhancement of "reasonable likelihood" for the reasons stated in the decision, including avoidance of confusion with the "imminent danger" concept, 

and also because it appeared as a practical matter to be the 

thinking actually being used by both tribunals, judges, and 

laymen involved at the various levels of mining safety enforce1607 
ment and administrative and judicial review. Its value is in its 

being less ambiguous and at least somewhat more comprehensible. 

Since understanding what a law means also is consistent with an 

increased faith in American justice and fairplay, I adopt here, 

as an aid to the general formula, the "substantial possibility" 

test. The end result would be the same whichever method of 

analysis were used. 

Judge William Fauver, in his Decision in Secretary v. Coal 

Mac Inc., 13 FMSHRC 1600 {Sept. 25, 1991) succinctly states the 

"substantial possibility" concept as follows: 

Analysis of the statutory language and the 

Commission's decisions indicates that the 

test of an S&S violation is a practical and 

realistic question whether, assuming continued mining operations, the violation presents 

a substantial possibility of resulting in 

injury or disease, not a requirement that the 

Secretary of Labor prove that it is more 

probable than not that injury or disease will 

result. See my decision in Consolidation 

Coal Company, 4 FMSHRC 748-752 (1991). The 

statute, which does not use the phrase "reasonably likely to occur" or "reasonable likelihood'' in defining an S&S violation, states 

that an S&S violation exists if "the violation is of such nature as could significantly 

and substantially contribute to the cause and 

effect of a coal or 6ther mine safety or 

health hazard" (§ 104{d) (1) of the Act; emphasis added) o Alsor the statute defines and 00 imminent dangern as ouany condition or practice ... which could reasonably be expected 

to cause death or serious physical harm before [it] can be abated," and expressly 

places S&S violations below imminent dangers. 

It follows that the Commission's use of the 

phrase "reasonably likely to occur" or "reasonable likelihood" does not preclude an S&S 

finding where a substantial possibility of 

injury or disease is shown by the evidence, 

even though the proof may not show that in?cury or disease was more probable than not. 0 

10 The observation is made that the phrase "more probable 

than not" has origins from the beginning attempts of the development of construction principles for the Act's "S&S" terminology. 

It would seem that substitution of the single word "probable" for 

the entire phrase "more probable than not" is a simpler, less 

1608 
Utilizing the phrase "substantial possibility" for purposes 

of analysis seems consistent with the Commission's "reasonable 

likelihood" phraseology in Cement Division, supra, and Mathies, 

supra, and permits comparing and contrasting such with the commonly understood ideas (T. 97, 101-106) of "remote" possibility, 

"strong" possibility, and "probability." See Texasgulf, supra. 

Turning to the first alleged hazard, that if a fire developed in the belt entry contaminated air could have entered the 

intakes through the curtains (T. 116, 126), the Inspector himself 

testified that the air was flowing in the direction from the intakes (the area of high pressure) to the belt entry (the area of 

low pressure) through the curtains. (T. 118, 119, 120). Energy 

West's witnesses agreed that this was the direction in which the 

air flowed through the curtains. (T. 142, 146, 177-178). There 

was no explanation how contaminated air would have been able to 

flow in the opposite direction--from the belt entry into the 

intakes. 

The Inspector conceded that if a fire had occurred inby the 

curtains, the curtains wouldnothave posed a contamination hazard at all since the contaminated air could not have entered the 

intakes through the curtains. (T. 120). And if a fire had occurred outby the curtains, he admitted that the curtains would 

not have caused a contamination hazard because the direction of 

the flow of air in the belt entry would have sent the air down 

the belt entry and "out" of the mine (away from the curtains and 

the faces). (T. 121}. Nevertheless, he concluded that if a fire 

occurred at the belt drive (1700 to 1800 feet outby the curtains 

(T. 149}, then the curtains would pose a hazard. He believed 

that the air coming through the curtains could feed a fire at the 

belt drive. He also said - without explanation - that if a fire 

had occurred at the belt drive, the fire itself would have entered the intakes through the curtains because fire has a tendency to follow oxygen. Even under Inspector Marietti's own 

theory, the only fire that could have affected the intakes would 

have been a fire at the belt drive. 

Howeveru there is no evidence to support a finding that 

there was a substantial possibility or reasonable likelihood that 

a fire would have broken out at the belt drive at any time, 

whether or not before the permanent stoppings were completed. 

Beyond the broad allegations that a belt entry is "the number one 

major cause of fires in mines," that "fires are expected to be in 

cola mines,n and that there is "friction" and "coal on the belt, 

etc. v 01 there is no basis to conclude that it was reasonably 

confusing way to express the same thought. 

1609 
likely that a fire would occur. See Eastern Association Coal 

corporation, 13 FMSHRC 178 (February 1991). No specific conditions were present to indicate that there was increased likelihood of a fire or that such was a substantial possibility. 

(T. 124). 

To conclude otherwise would require a finding that normal 

mining in and of itself involved a substantial possibility of a 

fire occurring. It is found only a remote possibility existed 

that a fire could have occurred. Thus the mine has not previously experienced belt fires. Where it is merely "possible" that a 

fire hazard "could" occur, a violation is not S&S. Seaver Creek 

Coal Co., 12 FMSHRC 153, 157 (Jan. 1990) (ALJ Cetti) (violation 

of § 75.316 improperly designated S&S where fire was merely 

possible); Beth Energy Mines, Inc., 11 FMSHRC 1999, 2001 (Oct. 

1989) (ALJ Weisberger). See Union Oil Co. of California, 11 

FMSHRC 289, 298-299 (March 1989). 

The second theoretical hazard was that the air leaking 

through the leaky curtains migbt have prevented an adequate level 

of air from reaching the face. The Inspector did not measure the 

amount of air that was leaking through the curtains, but he 

thought that it was enough to deprive the face area of ventilation. However, ventilation at the face measured 25,967 cfm. (T. 

150-151, 178). This indicates that the air leaking through the 

curtains was not adversely affecting the ventilation at the face. 

Therefore, there is no basis to conclude it was likely that 

ventilation at the face would have become inadequate before the 

permanent stoppings were completed. 11 Unless the Secretary can 

prove that ventilation at the face has been affected or was likely to have been affected by ~ violation of 30 C.F.R. § 75.316, 

the violation is not S&S. See Cyprus Emerald Resources Corp., 

12 FMSHRC 2107v 2110-2111 (Oct. 1990) (ALJ Weisberger); Cyprus 

Emerald Resources, Corp., 10 FMSHRC 1417, 1421 (Oct. 1988) (ALJ 

Melick); Jim Walters Resources, Inc., 7 FMSHRC 2187u 2216 (Dec. 

1985) (ALJ Koutras). 

conclusion 

It is concludedv in the terminology of the 3d prerequisite 

of Mathiesv supra, 12 that there was not a"reasonable likelihood" 

11 Inspector Marietti did state that if a door had been left 

open outby the curtains, that could have triggered short-circuiting. (T. 130). However, this was not shown to be likely. 

12 The first and second evidentiary prerequisites of 

Mathies, supra, are clear, the violation having been conceded and 

the violation's contributing a measure of danger to safety. These 

points are not in issue. 

1610 
that the hazards contributed to (contaminated air from fire in 

the belt entry and short circuiting of air from the face) would 

result in injury to miners. 13 It was not established that it 

was certain, probable in some degree--or, minimally, that there 

was a substantial possibility--that the hazards envisioned and 

contributed to by the violation would have occurred. The "Significant and Substantial" designation on this citation will be 

stricken and the penalty adjusted to reflect such. 

In connection with the two remaining penalty assessment 

criteria, it is determined that Energy West was negligent in the 

commission of the violation since it was obvious and flagrant, 

the gaps in the brattice were visible from 25 to 30 feet away and 

existed at least 1 hour and 15 minutes (T. 112, 125-126), and 

Inspector Marietti considered it "one of the worst cases'' he had 

ever seen "of anyone installing brattices." (T. 111-115). (See 

also T. 123-124). 

Although the violation did not meet the special "Significant 

and Substantial" prerequisites, it nevertheless is found to be 

serious since had the unlikely event of a fire in the belt entry 

actually occurred, the hazard of contaminated air entering the 

intakes could have occurred, and as Inspector Marietti indicated, 

the fire in the belt drive might have had the "tendency to pull" 

through the area "and burn right out into the intake escapeway." 

(T. 121). It is therefore found to be a moderately serious 

violation. 

In consideration of these findings and the other four 

mandatory penalty assessment criteria set forth in the "stipulation" section, a penalty of $400 for this violation is found 

appropriate. 

Docket No. WEST 91-256 

Citation Woo 3~13883 (T. 196 - II-T. 112). 

Inspector Donald E. Gibson issued this "Significant and 

Substantial" Citation on October 3, 1990, alleging an infraction 

of 30 C.F.R. § 75.1725(a), to wit~ 

13 '!'here is insufficient evidence to determine that had an 

injury occurred that such would be of a reasonably serious nature. 

Thus, as to both hazards, I also conclude that as to the fourth 

prerequisite of Mathies, the burden of proof was not met. 

1611 
The speed reducer being used on the 

stage loader on the 11th East longwall working section was not maintained in safe operating condition. A seal in the speed reducer 

was damaged/burst allowing gear oil to leak 

from the reducer on to the surf ace of the 

tailpiece, the fluid coupling housing and the 

electric motor driving the speed reducer. 

The motor is supplied 950 VAC. 

Oil was observed dripping out of the 

fluid coupling housing onto the belt tailpiece. This oil was cleaned periodically but 

the leak persisted from the reducer. 

In this condition, the hazard of a fire 

is present due to the consistent leak and the 

power source (motor) in the area. The stage 

loader was removed from service immediately 

by management after b~ing notified of the 

violation. 

30 C.F.R. S 75.1725(a), pertaining to "Machinery and equipment; operation and maintenance," provides: 

Mobile and stationary machinery and equipment 

shall be maintained in safe operating condition and machinery.or equipment in unsafe 

condition shall be removed from service immediately o 

Respondent Energy West 8 while acknowledging that there was a 

leak in the speed reducer, denies that such leak made it unsafe 

(To 198) and further contends that this condition was not reasonably likely to result in serious injury or death and thus, assuming arguendo, there was a violationQ the violation was not "SigIrllificant and Substantial" 00 

A speed reducer is a device consisting of gears of different 

sizes and configurations that is used to slow down or speed up a 

given apparatuso In this case it was used to reduce the speed of 

the stage loader motoro Such equipment is used in long-wall 

mining. (To 206-207)0 

Inspector Gibson said oil, which he believed was gear oil, 

was running down the shaft of the speed reducer into the coupling 

housing guard. He observed oil on the face of the electric motor 

of the stage loader. He indicated he was able, from experience, 

1612 
to identify "gear" oil. (T. 208-209}. 14 The Inspector also 

observed oil "that dripped down on the tail piece out of the 

fluid coupling housing" which he identified as gear oil. 

(T. 215-216, 249). 15 

As Inspector Gibson stated in the Citation, the leak was 

caused by a burst seal in the speed reducer of the stage loader. 

Energy West contends the leak could not have been fixed at the 

mine and that the entire loader would have had to have been taken 

to a fabrication shop to replace the seal. (T. 211; II-T. 80-

81) • 

At the time of his inspection, Inspector Gibson was advised 

by the section foreman, Leonard Reid, that he (Reid} was aware of 

the leak and that it had been leaking for three days. (T. 210). 

Later on, Chief Safety Engineer Randy Tatton told the Inspector 

that he (Tatton) did not believe the condition was a violation 

and that it was not "Significant and Substantial." (T. 211). 

According to Inspector Gibson, Mr. Tatton made the following 

explanation to him: 

And he made me aware at that time that 

the mine superintendent and longwall coordinator, Mine Superintendent, Garth Neilson, 

and Longwall Coordinator, Bud Warrington, had 

approached him a week and a half to two weeks 

earlier about this condition - that they had 

an oil leak, in fact, on the stage loader and 

wanted to know if they should change the oil 

- change the speed reducer out or repair it 

or could they continue mining and wash the 

oil away until they finished or completed 

that panel which was at that time 2- to 300-

feet left the panel then the long wall 

would have been removed off that particular 

face recovered this, we determined. And this 

stage loader or speed reducer would have been 

sent off for repair at that time. (T. 211-

212) 0 

14 Energy West contends that it was not gear oil, but 

hydraulic fluid mixed with coal dust, which was on the fluid 

coupling housing and the inside face plate of the motor. (II-T. 

22-25). 

15 

gear oil. 

Energy West concedes that the oil on the tail piece was 

(II-T. 24-25). 

1613 
~he leak was thus allowed to continue for approximately two 

weeks. (T. 212). 

The vital question to be determined is whether the combustible gear oil leak from the burst seal constituted an unsafe operating condition mandating that the equipment be removed from 

service immediately, 

A preliminary question is whether the oil observed by 

Inspector Gibson was indeed gear oil from the leak or hydraulic 

fluid mixed with coal dust. 

Inspector Gibson was quite certain it was gear oil and 

Energy West did not question this determination on the day of 

inspection or at any time in proximity thereto. . (T. 210, 222; 

II-To 47, 104-105). 

Frank Zmerzlikar, general maintenance foreman, nevertheless 

testified at the hearing that the oil on the fluid coupling 

housing and the face plate of the motor was hydraulic fluid and 

:not gear oil. (II-T. 21-27; but see II-T. 46-47). Mr. Tatton 

first mentioned that the oil was hydraulic fluid some 6-7 weeks 

before the hearing in this matter. (II-T. 104). Thus, as MSHA 

contends in its brief (p. 12, fn 7): 

In August 1991, Energy West in responses to 

interrogatories failed to mention its belief 

that the oil was fluid coupling oil, however, 

in supplemental answers filed in January 

1992, seven weeks prior to the hearing and 29 

months after the citation was issued, it 

first offered its theory that the oil was 

fluid coupling and not gear oil. (II-T. 100-

104) 0 

I find the Inspector's determination that the oil was gear 

Ol.l. reliable and consistent, 16 with what he observed on the 

inspection day (T. 219) and it credited. 

Energy West established thatu after learning of the leak, 

NielsonJ then the Longwall Superintendent, and Randy Tatton 

conferred and decided that it would be safer to finish the panel 

as long as the leaking oil was not allowed to accumulate. (II-T. 

27 0 64 0 67 0 84 0 87-90). 

X6 Energy West's version is not so found. (II-T. 46-47, 

48). 

1614 
To prevent the leaking oil from accumulating, Energy West 

employed a program of adding gear oil and washing oil which had 

leaked on the tailpiece away with a hose at every pass of the 

longwall shear (approximately every 35 minutes) and appropriate 

personnel, foremen, and miners were instructed in this task. 

(II-T. 63-71). 

It is noted that this program, however well-intended, did 

not alleviate the problem of the oil leak so as to keep oil from 

accumulating at the three places observed by Inspector Gibson on 

the day of Inspection. 

Inspector Gibson described several hazards from the condition he observed as a fire hazard, stating: "The motor itself is 

a source of fire; the speed reducer itself is a source of fire; 

and the motor is subject to fail at any time .•.• 0 He also said 

that, while the amount of the oil did not constitute an "accumulation," it could "create the fire" if there was a motor or cable 

failure and there was some "type of arc to ignite the oil." 

(T. 216-217, 234). Such an arc could be created by electrical 

component or failure of the'motoror trailing cable. Such fires 

are not uncommon. (T. 217, 234). 

The Inspector, in emphatic and convincing contradiction to 

Energy West's contention to the contrary, said the motor and the 

speed reducer were at the same level and were joined together by 

the fluid coupling, thus making it possible for the gear oil to 

leak from the speed reducer onto the electric motor. (T. 218, 

269). Since Energy West's witness Mr. Tatton was not particularly clear with respect to the juxtaposition of the motor and the 

speed reducer (II-T. 100-104), and Inspector Gibson's testimony 

on this point and throughout was certain and reliable in tenor, 

the Inspector 11 s testimony is credited. 17 

The Inspector pointed out that if the gear oil (a combustible material; To 272) continued to leak from the speed reducer, 

the speed reducer itself was subject to having a bearing go out, 

creating another source of fire. (T. 220; see also II-T. 54). 

The tailpiece was another source of fire (T. 226) and two 950-

volt longwall power cables from the section transformer to the 

master controller went through the area (T. 227) which could fail 

(To 242-244u 272; II-t. 58-59) or be cut (T. 245) or damaged (IITo 58-59). 

17 As I have noted elsewhere in this decision, Energy West's 

position that the dripping fluid was not gear oil also seems to 

have dawned many months after the Citation was issued. (II-T. 100-

104). 

1615 
Inspector Gibson also pointed out that there was a smoke 

inhalation hazard because the air was traveling over the equipment (stage loader) in question headed inby to the face about 100 

feet away. He testified: 

... So the entire mining crew, consisting of 

13 people this particular day, were inby that 

location as I observed.them. So if you had a 

fire to occur the smoke would go long--or go 

inby or move inby across the people, which 

could lead to smoke inhalation of CO (Carbon 

Monoxide). (T. 226). 

MSHA's evidence that the condition cited was unsafe is reliable and persuasive. Various hazards to the safety of miners 

were created by the oil dripping from the leak. Inspector Gibson 

measured the puddle of oil which had dripped down on the tailpiece out of the fluid coupling.J1ousing and it was 1/16th of an 

inch deep x 6- to 8-inches wide by 15- to 16-inches long. Oil 

was found in two other places. Various potential ignition 

sources were present. While the "washing and refilling" program 

employed by Energy West may have reduced the likelihood of a fire 

occurring, it didn't eliminate the hazard. It is concluded that 

the machinery in question had not been maintained in safe operating condition and that Energy West, by allowing such to remain in 

service, violated the safety standard as charged. 

The analytical formula for determining "Significant and Substantial" issues has been set forth previously. I have found 

that a violation was established and that such created safety 

hazards in the foregoing analysis. The decisive issue, in terms 

of the four criteria set forth in Mathies, supra is whether a 

reasonable likelihood existed that the hazard contributed to by 

the violation would result in an injury. 

Although the Inspector considered it "more than likely" that 

the possibility of the motor or trailing cable failure could 

happen (To 242) he conceded that the shielding of the cables to 

prevent arcing or sparking did lessen the possibility of cable 

failureo At the same time he pointed out such would not prevent 

cable failure from happening. (To 243-245)0 18 Should the motor 

or cable fail, the voltage was high enough to ~likely" ignite the 

oilo (To 222-223u 243-244)0 

18 This distinction is one example of the line to be drawn 

between the condition being "unsafe" and its being "Significant and 

Substantial." 

1616 
The question of likelihood thus turns on the initial link in 

the chain, i.e., whether the motor or cables would fail in the 

first place. As to this issue, the net effect of the Inspector's 

testimony is that the occurrence of such failure was merely 

possible, not that there was a substantial possibility, even 

though he summed up his opinion as being that the occurrence of 

motor or cable failure was "likely". [Compare T. 224, 242 with 

T. 228 (possibility) 229 and 234 (motor failure "could" happen); 

243-245 (likelihood reduced by protective measures); 247-248, 

262, 264, 270]. 

Energy West established, in diminution of the likelihood of 

the occurrence of the hazards that: 

1. The speed reducer was regularly refilled on the graveyard shift (II-T. 29-30); 

2. If the speed reducer started to heat up, a smell and a 

noise would be created which would alert miners working in the 

area (T. 241; II-T. 29-30); 

3. The warmth of the speed reducer which was noticed by 

the Inspector was "normal" (II-T. 34); 

4o The motor is checked a minimum of once a week for 

permissibility (II-T. 43); 

5. It was not a common occurrence for electrical cables 

to be cut of damaged (II-T. 42, 73). 

6. Had a fire occurred, it was likely that such would have 

been detected in its early stages and there were various types of 

fire-fighting equipment in the area, ioe•u the washdown hose, 

fire hoseu a fire hydrant 0 a foam eductor, and fire extinguishers. (II-T. 94-96). 

In conclusion, the overall evidence of record indicates that 

the occurrence of the fire hazard created by the violation (and 

contributed to by it) was a possibility but that it was not reasonably likely (there was not a substantial possibility) that the 

hazard would come to fruition and result in an injury to miners. 

Accordinglyu is found that the third prerequisite of Mathies 

has not been established and that the "Significant and Substantial" designation on this Citation should be strickeno 

The violative condition was known to Energy West's management personnel and was allowed to continue for a considerable 

period of time (II-T. 50) until the same was detected by Inspector Gibson and abated. As MSHA points out in its brief, Energy 

West's general maintenance foreman made a significant concession 

in his testimony: 

1617 
Q .••. and if this--if this seal had started 

leaking, say, when you just began work on the 

panel which--would you, as the maintenance 

foreman, wait until you completed the entire 

panel removal before you stopped production 

and fixed the seal or would you just keep 

adding oil? 

A. I.would have fixed the seal or changed the 

reducer. (II-T. 56). 

It is concluded that Enerqy West was negligent in the 

commission of this violation. ~-

Even though it has been found that this violation was not 

"Significant and Substantial," it did create the various hazards 

described by the Inspector and indicated heretofore in this 

decision. Since the hazards were not "reasonably likely" to 

occur, that is, there was only.~ remote possibility of the occurrence of the hazards, the violation is found to be only 

moderately serious. A penalty of $300 is assessed therefore. 

Docket No. WEST 91-251 

Citation No. 3413898 (II-T. 112-166). 

This "Significant and Substantial" Citation was issued by 

MSHA Inspector Donald E. Gibson on October 24, 1990, charging an 

infraction of 30 C.F.R. S 75.503, and describing the following 

violation: 

The Joy Shear mining machine 2G-3675A-Ov 

being used on the 16th West working section 

was not maintained in permissible condition. 

An opening in excess of .005 inch was observed between the cover lid and the plane 

rlange joint on a light ballast box located 

at face shield #770 The ballast box is supplied 120 VAC. In this condition 1 poses the 

hazard of an ignition source. 

30 C.F.R. S 75.503, pertaining to "Permissible electric face 

equipment; Maintenance," provides: 

19 See also II-T. 48-50. 

1618 
The operator of each coal mine shall maintain 

in permissible condition all electric face 

equipment required by Sections 75.500, 

75.501, 75.504 to be permissible which is 

taken into or used inby the last open crosscut of any such mine. 

Respondent concedes the occurrence of this violation (II-T. 

115) but challenges that the violation was "Significant and 

Substantial" (T. 10) and the propriety of MSHA's proposal of a 

$350 penalty. 

The ballast box in question is approximately the size of an 

8.5 by 11-inch sheet of paper, is 2 inches thick, and is used to 

provide power for the lighting system for the longwall section 

( I I -T • 11 7 , 14 3 ) • 

Inspector Gibson testified that the hazard posed by the 

opening was that it could "emit" w gases or coal dust inside 

the box or permit arcs to th'e outside atmosphere (II-T. 125). He 

pointed out that since the opening of the flange joint was in 

excess of .004 inches (the maximum clearance permitted by 30 

C.F.R. § 18.31 for this plane flange joint), and since it was 

inby the last open crosscut and within 150 feet of pillar extraction, such created the "potential for an ignition source of 

either methane or (float) coal dust" (II-T. 125). He said the 

longwall shearing machine generates and puts into suspension coal 

dust and that permissibility requirements are the first line of 

defense in preventing ignitions of methane and/or coal dust. 

(II-T. 125-126, 138). 

In support of his conclusion that it was reasonably like 

that the violation could cause a serious injury if the ballast 

box were left the condition he found itu the Inspector 

testified: 

20 

During the normal mining operation methane is 

released from the coalo Thatus the process 

of coal miningo Methane is there and certain 

amounts are emitted as the coal is being 

extracted. A lot of dust is put in 

suspension sometimes on those long wallso So 

this poses the hazards of an ignition to 

either the methane and/or the coal dust that 

could be in suspension. 

I interpret this to mean "admit." 

1619 
Q. In other words, what you're saying is 

that this opening is large enough that either 

escaping methane from the coal being cut off 

or coal dust in the air could enter this 

opening and combine with the flame path to 

cause an explosion? 

A. Yes. Sir. 

Q. And that's why you labeled it S&S violation? 

A. Yes, Sir. 

Q. Are there any other factors that you 

considered? 

A. Well, there have been instances:where 

lighting packages or lighting systems and 

components of lighting systems have been 

involved with or have been determined by MSHA 

through investigations to be the causes of 

ignitions. One was in 1981 at Mid-Continent 

Resources in which 15 miners were killed. 

There·· was another one--I ·was ·trying-to think 

where the other one is but it slips my mind 

right now where that one is. (II-T. 129-

130). 

This is a gassy mine and even though the mine had never 

experienced ignitable levels of methane (II-T. 133, 139, 140) 

methane ·is always 'present"and '·the· Inspector testified that (1) 

the "potential for ignitions is always there· in coal mining." 

(II-To 139) and since methane is always present, there could be 

an occurrence of an e~ignitable amount at any time which the mine 

has had 00 even though the Inspector personally had never detected 

such (II-To 139-140)0 (Emphasis added)o 

Energy West presented two witnesses, Maintenance Foreman 

Thomas Kerne. and 7 Chief Safety·Engineer Tatton.·-Mr. Kerns 

indicated that for. an ignition to occur inside the ballast box ~-.2u.1Li -.ti:::._ ... ~ :-"j·~·~b -t.::.-,..j>.!o(: ~ :<. c~ :C:'* . .::: ··~ •. i,-,,.-<·~-: .... .. :·-.;;_::-.,,; ~sf:.::rc: s\r-1 

;.:.1,;w \/"1!-'·-'!f<,"'.'. o~t a~combustible·mixture-,·-~being 5 percent•at r;0h::0f:<v~-, 

least and that is 5 to 15 percent air and 

methane mixtureu would have had to enter into 

the box and then an incendiary spark--that is 

a spark with enough energy· to ignite the 

1620 
mixture--would have had to occur within this 

box. (II-T. 144). 21 

Energy West established that the ballast box was 

"electrically sound" before and after the inspection (II-T. 145); 

that the methane level is checked frequently, i.e. at least twice 

each production shift by the foreman, and by the Joy Shear mining 

machine operators every 20 minutes while in operation. (II-T. 

162-163). 

Mr. Kerns who said that it was "highly unlikely" that the 

ballast box would have sparked or arced, also indicated that he 

carries a methane detector on his shift and he has never detected 

an ignitable level of methane (II-T. 145) and that he was not 

aware of there ever having been detected an ignitable level of 

methane at the Cottonwood Mine (II-T. 146). There is also a 

methane sensor detector system in the longwall itself. (II-T. 

146-147). 

Mr. Kerns also felt that the approximately 45,000 cfm of air 

on the face would have "diluted any methane below explosive 

levels" and carried it away. (II-T. 148). See also II-T. 163. 

He also pointed out that there were permissibility checks on 

the ballast box - once every weekend - and that there was firefighting equipment in the area involved. (II-T. 149-152). 

Mr. Tatton felt it unlikely that coal dust would get ignited 

unless in the presence of methane. {II-T. 163-164). 

The Commission's analytical formula for determining whether 

the violation was "Significant and Substantial" has been 

previously set forth. The application of this formula must be 

made in the perspective of continued mining operations 1 not as 

Energy West seems at times to argueu at or in proximity to the 

time inspection onlyo U.S. Steel Mining Co. 8 6 FMSHRC 1573u 

1574 (July 1984). 

In terms of the Mathies prerequisites, the violation is 

concededo Since the unargued hazard~ however likely one party or 

the other views its occurrence, is of a methane and or coal dust 

explosionu it is concluded that a measure of danger to safety was 

21 Mr. Tattonfs version of what it would take for an 

ignition to occur inside the ballast box is / upon analysis, 

basically the same as Mr. Kerns'. See II-T. 161-162. On crossexamination Mr. Kerns retreated somewhat from his 5 percent methane 

level assertion and conceded that a 2 percent level of methane 

could ignite although this was "very marginal" or "very slightly." 

{II-T. 157-158). 

1621 
contributed to by the violation. The record reveals that there 

would have been miners who worked nearby the area of the 

violation with some frequency (II-T. 125, 162-163) so, although 

the Petitioner's evidence did not directly address the fourth 

Mathies element, I infer and find that if an explosion of methane 

and/or coal dust had occurred there would have been serious 

injuries or fatalities ensuing from such event (II-T. 128-130, 

139-140, 162-163}. 

In concluding that there was a reasonable likelihood that 

the ignition hazard contributed to would result in an injury, it 

is first noted that this is a gassy mine. While there was no 

specific evidence of prior high levels of methane having been 

detected, nevertheless the essence of the Inspector's testimony, 

which was credible and convincing, was that such could occur at 

any time. This must be considered in connection with the fact 

that the permissibility violation occurred within 150 feet of 

pillar extraction and the fact that the longwall shearing machine 

also generates and puts into suspension coal dust. The Inspector 

testified that the opening in the plane flange joint was large 

enough that either methane e escapihgfrom the coal being cut or 

coal dust in the air could enter the opening and combine with the 

flame path to cause an explosion. (II-T. 129). 

Summing up, there were two kinds of ignitable substances 

involved in this situation which could have been ignited. The 

Commission has previously recognized that one factor which increases the likelihood of the occurrence of an ignition hazard is 

the presence of a "more flammable substance," i.e., methane, and 

a mine's classification as "gassy." See Secretary v. Eastern 

Associated Coal Corporation, 13 FMSHRC 178, fn. 4 (Feb. 1992). 

In this case, where the combustible substance was hydraulic oil, 

the Commission contrasted the difference of such with methane~ 

Methane is ignitable by a spark and is much 

more flammable and explosive than hydraulic 

oilo Further 0 the mines in both those 

proceedings {cited by the Secretary in urging 

an S&S finding) were gassy mines as defined 

lby the Mine Act o 00 

Inspector Gibson. testified that the subject mine 11 has had" 

ignitable levels of methane in the past" 

It is therefore determined that there existed a substantial 

possibility that the hazard contributed to by the violation would 

have resulted in an injury or fatality occurring, and that therefore the "reasonable likelihood" requirement of the third element 

of Mathies, supra, has been satisfied. 

1622 
The Inspector testified that the gap in the plane flange 

joint occurred because of rust, which process would have taken a 

considerable length of time to develop. I therefore conclude, in 

the absence of rebuttal testimony, that Energy West was negligent 

in allowing such condition to develop. (II-T. 123-124). Because 

of the seriousness of the ignition hazard which was contributed 

to by the violation (II-T. 128-130) and the presence of miners 

inby the place of violation (II-T. 162-163), I find this to be a 

serious violation. 

Considering various stipulations in connection with mandatory penalty assessment criteria and the above findings as to 

negligence and gravity, it is concluded that a penalty of $750 is 

appropriate and such is here ASSESSED. 

ORDER 

1. citations numbered 3414063 and 3414064 (in Docket WEST 

91-256) are MODIFIED to change the "Likelihood" characterization 

in the "Gravity" section (para. 10 A) from "Reasonably Likely" to 

"Unlikely" and to delete the'·"Signif icant and Substantial" 

designation thereon. 

2. Citation No. 3413898 (Docket No. WEST 91-251), 

including the "Significant and Substantial" designation thereon 

is AFFIRMED. 

3. Citation No. 3414071 (Docket WEST 91-251) is MODIFIED 

to delete the "Significant and Substantial" designation and is 

otherwise AFFIRMED. 

4. Citation No. 3413883 (Docket No. WEST 91-256) is 

MODIFIED to delete the 01 significant and Substantial" designation 

and otherwise AFFIRMED. 

5o Citation No. 3414062 (Docket WEST 91-256) is VACATED. 

6. Respondent, within 40 days from the date of issuance of 

this decision 0 SHALL PAY to the Secretary of Labor the total sum 

$1490 as and for the civil penalties agreed to and/or assessed 

($20 each for Citations numbered 3414063 and 3414064; $400 for 

Citation No. 3414071u $300 for Citation No. 3413883; and $750 for 

Citation No. 3413898). 

1623 

~d~~~-fo, 

Michael A. Lasher, Jr. 

Administrative Law Judge 
Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, co 80294 

(Certified Mail) 

Thomas C. Means, Esq., Claire Brier, Esq., CROWELL & MORING, 1001 

Pennsylvania Avenue, NW, Washington, DC 20004 (Certified Mail) 

ek 

1624 
FEDERAL MINE SAFETY J\ND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SEP 141992 

ROGER VOGT, 

complainant 

v. 

N.A. DEGERSTROM, INC., and 

ZORTMAN MINING, INC., 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 91-225-DM 

RM MD 92-02 

ORDER OF DISMISSAL 

Before: Judqe Morris 

All parties herein reached an amicable settlement and a 

motion to dismiss these proceedings with prejudice was filed. 

For good cause shown, the motion to dismiss is GRANTED and 

the case is DISMISSED. 

Distribution~ 

Paul Ro Haffeman, Esq., CURE, BORER & DAVIS, P.C., P.O. Box 2103, 

Great Falls, MT 59403-2103 (Certified Mail) 

Michael D. Cok, Esq., COK & WHEAT, 108 West Babcock, P.O. Box 

1105, Bozeman, MT 59771-1105 (Certified Mail) 

Thomas E. Hattersley III, Esq., GOUGH, SHANAHAN, JOHNSON & 

WATERMAN, 301 First National Bank Building, P.O. Box 1715, 

Helena, MT 59624-1715 (Certified Mail) 

ek 

1625 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 17 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

ON BEHALF OF 

JOSEPH A. SMITH, 

Complainant 

v. 

HELEN MINING COMPANY, 

Respondent 

DECISION 

DISCRIMINATION PROCEEDINGS 

Docket No. PENN 92-57-D 

PITT CD 91-04 

Docket No. PENN 92-58-D 

PITT CD 91-11 

Homer City Mine 

Appearances: Gretchen Lucken, Esq., Tana M. Adde, Esq.,Office of 

the Solicitor, u. s. Department of Labor, 

Arlington, Virginia, for Complainant; 

J. Michael Klutch, Esq., Polito & Smock, P.C., 

Pittsburgh, Pennsylvania, for Respondent. 

Before~ Judge Maurer 

STATEMENT OF THE CASE 

The Secretary brings these cases on behalf of Joseph A. 

Smith and claims that Smith was twice unlawfully discriminated 

against and discharged (on December 20, 1990 and July 2, 1991) 

for engaging in protected safety-related activity. Smith filed a 

union grievance concerning the December 1990 discharge and an 

arbitrator reduced the discharge to a 60 working day suspension. 

He was reinstated to his former position on March 11, 1991. As 

regards the latter discharge on July 2, 1991, the Secretary of 

Labor applied for and I ordered the temporary reinstatement of 

Smith to his previous position on November 5, 1991, where he 

remains pending this decision. Secretary v. Helen Mining Co., 

13 FMSHRC 1808 (November 1991) (AIJ ORDER OF TEMPORARY 

REINSTATEMENT) . 

Pursuant to notice, hearings were held on the merits of 

these cases on March 24, 25, 26, and 31, 1992, in Ebensburg, 

Pennsylvania, and the parties have filed posthearing arguments 

which I have considered in the course of my adjudication of this 

matter. 

1626 
FINDINGS OF FACT 

1. At all relevant to this complaint, Smith was 

employed by respondent as a shearer operator on the€longwall at 

the Homer City Mine; he has been employed at the He\en Mining 

Company for approximate 20 years; he is the UMWA Local Safety 

committee Chairman; and he is also a certified mine examiner 

( "f ireboss 11 } • 

2. At all times relevant hereto, Helen Mining Company, a 

Pennsylvania corporation, was engaged in the production of 

bituminous coal at underground mine, known as the Homer City 

Mine, and is, , an "operator" as defined by section 3(d) 

of the Federal Mine and Health Act of 1977 (the "Act"}, 

30 u.s.c. § 802(d). 

3. The Homer c 

Pennsylvania, and is 

which enter commerce 

and 4 of the Act, 30 

Mine is located in Indiana County, 

an underground coal mine, the products of 

within the meaning of sections 3(b), 3(h}, 

u.s.c. §§ 802(b), 802(h}, and 803. 

4. On October 25, 1990, some 2 months prior to his 

December 1990 discharge, Smith filed a section 105(c) 

Discrimination Complaint against Thomas Hofrichter, the Mine 

Superintendent, Jack Woody, the President, and Jim Slick, the 

Mine Foreman, for allegedly denying himself / in his capacity as 

the UMWA Safety Committee Chairman, access to the mine to 

investigate a safety complaint that men were working under an 

unsupported roof. MSHA declined to pursue that case and that was 

the end of the section 105(c) action, However, Smith also filed 

a grievance under the UMWA Contract, which was subsequently 

settled by an agreement stipulating that the Safety Committee has 

the right to the mine and upon giving advance notice, 

will not be denied access. Smith and Hofrichter signed this 

Statement of Settlement on November 16 1 1990. 

5. On November 17 1 1990 Sm confronted Superintendent 

Hofrichter concerning mine management's ability to require Smith 

and other UMWA to perform mine examiner work on an asneeded bas told Hofrichter that the Pennsylvania 

Department of Environmental Resources (DER) had advised him that 

his fireboss certification was his to use as he wished and that 

he would not to perform fireboss duties if he did not want 

to. Smith all challenged Hofrichter to issue a direct 

order to him to f ireboss so that he could refuse and then 

Hofrichter could discharge him for insubordination. Hofrichter 

states that l Smith 1 s invitation to discharge him 

inasmuch as Smith's services as a fireboss were not required on 

that particular shift. Hofrichter memorialized his discussion 

with Smith in handwritten notes that were made a part of Smith's 

personnel file. (Respondent's Exhibit No. 8). 

1627 
6. Although firebossing is generally performed by 

managerial employees such as foremen, there is an established 

practice at the Homer City Mine which permits hourly rank and 

file employees, such as Smith, to perform firebossipg work on an 

as-needed basis. 

7. On De9ember 18, 1990, prior to the commencement of his 

shift, Smith engaged Superintendent Hofrichter in a discussion 

about two then-pending grievances otherwise unrelated to this 

case. During this discussion, Superintendent Hofrichter told 

Smith that he did not intend to pay the grievances. According to 

Hofrichter, Smith then threatened to shut down the longwall on 

his shift in reprisal. Smith cited Hofrichter to ongoing problems with shearer water pressure and pull key malfunctions on the 

longwall as his intended reasons for shutting down the longwall 

that evening. Smith, on the other hand, characterizes their 

conversation as making safety complaints to mine management 

regarding defective emergency pull keys and inadequate water 

pressure on the longwall shearer. Proving, I suppose, that one 

man's safety complaints are another man's threat to disrupt 

production. 

8. Pull keys are a series of emergency stop switches which 

are located along the longwall face. During the 2 weeks prior to 

December 18, 1990, two of these emergency stop switches were 

taken out of service, sent away for repair, and then subsequently 

reinstalled, Despite the repair of the pull keys, they continued 

to malfunction intermittently. It is also uncontroverted that 

problems in maintaining adequate water pressure on the longwall 

shearer persisted. These are legitimate reasons to stop operation of the longwall; at least that is the official position of 

all concerned. As a matter of practice, however, unless someone 

complains, the longwall shearer will operate. 

9. Following Smith 1 s aforementioned discussion with 

Superintendent Hofrichter, prior to his shift on December 18, 

1990, Smith entered the mine and immediately complained to his 

foreman regarding the damaged pull keys and, somewhat later, 

about low water pressure on the shearer, which complaints 

together resulted in the idling of his longwall shearer that 

evening for the entire shift. 

10. Respondent characterizes Smith 1 s complaints regarding 

the defective pull keys and inadequate water pressure as being 

selfishly motivated by personal gain, but nevertheless has to 

agree that they were legitimate complaints. I concur that 

Smith 1 s motives may not have been entirely pure, but I nonetheless find these complaints to be legitimate safety complaints and 

protected activity within the meaning of the Mine Act. 

1628 
11. On December 19, 1990, Superintendent Hofrichter had a 

discussion with David Hallow, the UMWA Grievance Committee 

Chairman and coincidentally, Smith's friend. Hallow asked 

Hofrichter if management intended to produce coal dpring the 

coming weekend. Hofrichter replied in an angry ton~ that they 

would not load coal on the weekend because they could not even 

load coal during the week. Hofrichter also told Hallow that he 

was very upset with Smith for following through on his threat to 

stop longwall production during the preceding evening's shift 

ostensibly because management refused to pay him for his outstanding grievances. Hofrichter also threatened to fire Smith at 

this meeting - "your buddy won't be around much longer." 

12. On December 19, 1990, Assistant Shift Foreman Stanley 

DeWitt met with Smith at approximately 3:50 p.m. and instructed 

him to perform firebossing duties that evening on the 4:01 p.m. 

shift. Smith told DeWitt that he did not want the responsibility 

of performing that work on that particular evening. DeWitt in 

turn advised Shift Foreman "Butch" Earnest that Smith did not 

want the responsibility of performing fireboss duties that 

evening. Earnest told DeWi tt~.to instruct Smith that f irebossing 

was the only work available for him on that shift. DeWitt passed 

this information along to Smith, who inquired as to whether 

DeWitt•s instruction was a direct work order. DeWitt indicated 

that it was, and Smith replied, "no problem" and complied with 

the ordero 

13. After receiving his firebossing assignment, Smith confronted Superintendent Hofrichter in the hallway outside his 

office. Smith complained to Hofrichter that by virtue of having 

been forced to perform mine examiner's work that evening, he 

would lose the opportunity to receive 2 hours of overtime pay 

that he would have otherwise earned on the longwall as a shearer 

operatoro Hofrichter assured him that upon completion of his 

fireboss work 1 he could rejoin his crew on the longwall and 

complete anticipated 10-hour shift, Superint~ndent 

Hofrichter then turned and walked away from Smith, at which point 

Smith followed Hofrichter into his office. Smith told Hofrichter 

that he would be sorry for making him fireboss that evening. 

When Hofrichter replied that firebossing was the only work available for Smith on that shift 1 Smith reiterated that Hofrichter 

would be sorry since he, Smith, would be looking for imminent 

dangers the mine during his firebossing run. To which I would 

only say, so what; that 1 s what he's supposed to be looking for, 

amongst other things. 

14. After Smith departed, Hofrichter spoke with Shift 

Foreman Earnest. Hofrichter warned Earnest that Smith was very 

displeased about having to perform the on-shift f ireboss run that 

e~ening, and that Earnest should be sure to keep employees available to correct any problems which Smith might report during the 

shift. 

1629 
15. Sometime after beginning his mine examination, he called 

Shift Foreman Earnest from the Number 6 Belt Drive and told him 

that the Number 6 Belt / where it meets the tailpie,ce of the 

Number 5 Belt, was gobbed out and that 1 as a result an automatic 

switch had deactivated the Number 6 Belt. Smith al~o reported 

that the coal build-up on.the Number 6 Belt had covered the tailpiece of the adjacent Number 5 Belt and caused it to surge and 

lurch. Earnest told Smith to shut down the Number 5 Belt and to 

attempt to quickly determine what had caused the malfunction of 

the Number 6 Belt. Smith reported to Earnest that in his judgment the equipment malfunction was triggered by a stray piece of 

discarded belt that had clogged.the dump chute at the juncture of 

the Number 5 and Number 6 Belts, although the Belt Foreman later 

reported that he didn't find anything in the chute. Respondent 

speculates that Smith sabotaged the belt, but there is no 

evidence of that in this record. 

16. After shutting down the Number 5 Belt, Smith, following 

instructions from Earnest, continued with his fireboss run. At 

approximately 7:42 p.m., Smith called Earnest from the mine 

telephone at the Number 1 Mai-n Belt, which is located at the 

outby terminus of the Northwest Passage. Smith told Earnest that 

due to the presence of a large amount of coal float dust at the 

air lock in that location, he would have to shut down the 

Number 1 Main Belt. 

17. This is a drastic remedy because all of the belts in 

this coal mine operate in sequence, If the Number 1 Main Belt is 

deactivated, all of the other belts in the coal mine automatically disengage in sequence, including those which service the 

longwall. Ultimately, deactivation of the Number 1 Main Belt 

halts coal production in the entire coal mine since the belt 

system, the sole means of removing coal from the mine, is 

rendered inoperative, 

18, Earnest was leery of doing this. He was mindful of 

Hofrichter 1 s earlier warning to him that Smith's firebossing 

activity that evening would bear watching. Earnest disagreed 

that Smith should shut down the Number 1 Main Belt and told him 

not to. He told him to leave the belt running and go ahead with 

his examination. But smith felt that the condition was too 

dangerous to leave the area unattended with the belt running. It 

is generally acknowledged that float coal dust is combustible 

when it is suspended in air and can contribute to an explosion if 

combined with an ignition source. Right after Smith hung up the 

phone with Earnest, he shut down the belt in order to remove the 

ignition source posed by the electrical components and also 

because he would be underneath and on the tight side of the belt 

shoveling the float dust. He then began shoveling and rock 

dusting to correct the situation which he believed to be a 

hazardous accumulation of coal float dust. 

1630 
19. Assuming for the moment that Smith was truly concerned 

about these accumulations, respondent has raised several very 

good issues concerning Smith's lack of safe and/or effective 

technique in pursuing a cleanup of the float dust. 

Although the Number 1 Main Belt had been turned off, the 

circuit breaker, which furnishes power to all electrical 

components servicing the Number 1 Main Belt, including nonpermissible Jabco systems, belt take-ups, and sequence timers, had not 

been tripped. Rather, the belt had been stopped merely by use of 

the "stop" button which controls only the belt itself. Therefore, although the Number 1 Main Belt had been turned off, all of 

the other electrical components servicing the Number 1 Main Belt, 

both permissible and nonpermissible, remained energized and 

constituted potential ignition sources for an explosion. 

A rock dusting machine was located near the starter box, 

together with 25 to 30 bags of rock dust. Smith, an experienced 

miner who has held virtually every classified position in the 

coal industry, was certainly capable of operating this rock 

dusting equipment. A rock dusting machine emits crushed limestone with air pressurized to 40 or 50 psi. A rock duster's 

effective range is at least 30 feet and, therefore, Smith could 

have rock dusted the tight side of the Number 1 Main Belt from 

the walkway on the wide side of the belt had he used the rock 

duster located at the starter box near the slope bottom. 

Furthermore, the primary remedy selected by Smith, i.e., 

shoveling the coal float dust onto the belt and alternately 

turning the power off and on to move the belt so as to allow for 

more room on the belt for additional float dust, in the opinion 

of many would only serve to exacerbate the coal float dust 

problem, if it existed, inasmuch as the air veloc in the air 

lock area is such that the coal float dust, even if it could be 

shoveled onto the belt (which some witnesses doubt), would be 

carried several hundred feet inby that location, and the renewed 

suspension of the coal float dust in the high velocity air, 

coupled with the sparks potentially created by alternately 

turning the belt on and off, could recreate and even worsen the 

hazard which Smith alleges he encountered in the first instance, 

These all appear to be valid criticisms that make Smithus 

reaction to the assumed crisis appear amateurish. But, whether 

or not Smith took the most effective action to correct what he 

perceived to be a hazardous condition will not be determinative 

of whether he engaged in protected activity in th instance. 

20. Respondent also raises an issue regarding the very 

existence of a hazardous accumulation of coal float dust in the 

first instance. There is certainly a factual conflict in the 

evidence on this threshold issue. Smith, of course, maintains 

that there was a hazardous accumulation of deep coal float dust 

1631 
in the entire area of the air lock. Patrick Shirley, a general 

inside laborer at the time, who has since been laid off, testified that DeWitt took him to the air lock area to address the 

problem. When he got there, an hour or so after thp belt had 

been shut off, he observed black float dust and coal spillage 

accumulated more or less all over the whole air lock area to a 

depth of 6 or 7 inches. He also observed Smith shoveling on the 

tight side of the belt at that time. On the other hand, DeWitt, 

the Assistant Shift Foreman, who arrived at the same time as 

Shirley, testified that he saw no coal float dust anywhere. He 

did see coal spillage, however, which measured approximately 

3 1/2 inches deep, 2 1/2 to 3 feet wide and about 40 feet long in 

that area. He also estimated that Smith had already cleaned up 

about that same amount. He opined that Smith had about half of 

it cleaned up when he got there with Shirley. Shift Foreman 

Earnest was also of the opinion that there was no coal float dust 

found based on his understanding of Dewitt's report to him ---"he 

[DeWitt] said the area was gray." Yet his own handwritten notes 

admitted into the record as Respondent's Exhibit No. 1 reflect 

that DeWitt reported to him that there was float dust in the air 

lock area when he arrived to·~elieve Smith. In fact, on crossexamination that point was driven home [Tr. 107 (3/26/92]: 

Q. All right. And so your notes, in fact, say that 

you talked to Stanley DeWitt and he told you there was 

float dust; isn't that correct? 

A. Yes, ma'am. 

An investigative Commission appointed by the State of 

Pennsylvania Department of Environmental Resources, Bureau of 

Deep Mine Safety, the certification authority for mine examiners 

in that state, conducted a special investigation into this 

incident as well" State Coal Mine Inspector Ellsworth Pauley, a 

member of the investigative Commission, testified that the 

Commission specifically addressed the allegation that Smith had 

lied about the amount of float dust that was present and they 

found that Smith's report was accurate, as indicated by witness 

statements they took, including Foreman Dewitt's telephone report 

confirming float dust in the area, plus the amount of clean-up 

subsequently required to abate the condition. 

Ultimately, the investigative Commission and the Director of 

the Bureau of Deep Mine Safety concluded that Smith's action in 

stopping the belt was proper, based on the amount of float dust 

which he encountered and that he was required by law to take 

corrective action under those conditions. 

In deciding this issue, I find that the preponderance of the 

admissible evidence is to the effect that Smith did find a 

substantial and dangerous accumulation of float coal dust as he 

1632 
reported to his superiors that he had. Respondent's allegation 

that Smith exaggerated the extent of the float dust accumulation 

is accordingly rejected. 

21. The preponderance of the evidence also estl:tblishes that 

it was a common practice for mine examiners to stop· belts and 

that no other mine examiner has been disciplined for such 

conduct. Smith testified that he regularly stopped belts during 

mine examinations over the past 15 years, when he felt it was 

necessary to correct a hazardous condition, and had never before 

been disciplined for stopping a belt. Another certified mine 

examiner, Edward Williams, testified that he regularly stopped 

belts during mine examinations if he believed corrective action 

was required. Williams also testified that there was no policy 

requiring permission to stop a belt, and he knew of no other mine 

examiner who had been disciplined for stopping a belt. state 

Inspector Pauley also concurred that a mine examiner may stop a 

belt line, without permission and even has a responsibility to do 

so if a hazardous situation exists. 

22. The Pennsylvania DER-Bureau of Deep Mine Safety Report 

(Complainant's Exhibit No. 4) stated that the mine examiner has 

an obligation to report dangerous conditions and take appropriate 

action to correct them. They found that Smith had acted appropriately in shutting down the belt in order to begin correcting a 

dangerous accumulation of float coal dust. Furthermore, the 

state investigative Commission found that Shift Foreman Earnest 

had interfered with Smith's performance of his mine examiner 

duties in violation of state law, by attempting to overrule 

Smith's decision to shut down the belt without first verifying 

the mine conditions reported to him. The investigative 

commission opined that since Earnest had not seen the conditions, 

he could not have made a sound judgment as to severity. The 

Bureau further expressed concern about Earnest making such a 

decision without having first verified the presence or absence of 

the reported conditions. 

23. On or about December 20, 1990, Helen Mining Company 

management discharged smith for insubordination, to wit; 

disobeying or refusing a direct order from Foreman Earnest to 

leave the No. 1 Belt running. But this is problematical for the 

company because Foreman Earnest admits that he never gave Smith a 

direct order. He merely "told" him to leave the belt running and 

begin abating the condition. And there is a plethora of evidence 

in this record that in the union-management environment that 

exists in this mine, there is a very real distinction between a 

discussion over the proper course of action to take to abate a 

hazardous condition which results in an instruction to "leave the 

belt running and begin abating the condition" and a direct work 

order which utilizes those magic words. When the terminology 

1633 
"this is a direct order'' is used, an antenna goes. up, the 

listener becomes focused and presumably obeys or not at his 

perilo 

In any event, Smith filed a grievance concernihg this discharge. The arbitrator on February 28, 1991, decided that the 

company had shown just cause for disciplining Smith, but believed 

discharge to be too harsh a penalty and ordered Helen Mining 

Company to reduce the penalty to a 60 working day suspension. 

Therefore, Smith returned to work on March 11, 1991, having 

served out the time. 

Not wanting to put all his eggs in one basket, Smith also 

filed a parallel action, a section 105(c) complaint with MSHA, 

now docketed at PENN 92-57-D. He seeks an order directing back 

pay, interest and expungement of this adverse action from his 

personnel records. The Secretary asks for the imposition of a 

civil penalty. 

24. Subsequent to his return to work in March of 1991, Smith 

had occasion to file another ,section 105(c) complaint with MSHA 

on May 7 1 1991. This one was based on an incident in which Smith 

was reassigned from his job as a shearer operator on the longwall, allegedly for making safety complaints about defective 

equipment on the longwall. Smith alleged that he was assigned to 

work as a mechanic for several weeks and placed at the bottom of 

the shaft to wait for assignments. Smith testified that he sat 

there idle, with no mechanic work assigned, for several weeks. 

MSHA declined to pursue this case because he suffered no loss in 

pay, and that is all that was ever done with it. No findings 

were ever made regarding this situation and I don't intend to 

make any herein. As far as ·I am concerned, the only relevance 

this complaint has to the case at bar is by the very fact that a 

section 105(c) complaint was filed, Smith ipso facto engaged in 

'Grotected acti v 

250 In late June 1991, Smith filed three section 103(g) 

requests with MSHA for hazardous condition inspections. 

On June 18f 1991, David Hallow, Chairman of the UMWA Mine 

Committee and Smith filed the first of the aforementioned three 

section 103(g) complaints or requests for inspection with MSHA at 

the local MSHA field office. It stated as follows: 

A 103(g) special investigation is requested this 

day 6-18-91, Circumstances surrounding this issue are 

that one J. c. Miller was instructed by maintenance 

foreman and belt foreman to hold line starters in with 

a cap piece and/or screwdriver (to keep belt operable). 

He followed instructions, burst belt in half thus 

1634 
filling longwall section with smoke. Men evacuated 

with SCSRs. J. c. Miller was then off job 6-17-91. 

His training on keeping belt running is a dangerous 

situation. 

MSHA Coal Mine Inspector William Sparvieri conducted an inspection in response to this request on June 19, 1991, and as a 

result issued the company six section 104(a) citations. Interestingly, Inspector Sparvieri testified that when he presented 

this complaint to mine management, Safety Director Lynn Harding 

stated to him that he (Harding) knew that Smith had filed the 

complaint, apparently from Smith himself. 

On June 25, 1991, Smith filed the second of the three 103(g) 

requests. 

On or before June 24, 1991, Smith had received complaints 

from miners that the longwall track entry which is an escapeway 

and a walkway, was unsafe due to obstructions blocking the 

shelter holes and water accumulations in the entry. Smith 

informed Assistant Safety Director David Turner of the hazardous 

condition while traveling in the area with Turner. The following 

day, June 25, 1991, Smith inquired of mine management whether 

action had been taken to correct the condition. When he learned 

that no action had been taken, Smith wrote a 103(g) complaint and 

served it to Inspector Sparvieri, who was present at the mine. A 

preinspection meeting was held in which mine management asked 

Smith why he filed the 103(g) complaint without first notifying 

them of the condition, and Smith responded that he had informed 

Turner the previous day. This inspection resulted in two 

section 104(a) citations being issued to the company. 

The circumstances surrounding Smith's filing of the second 

103(g) complaint on June 25, 1991, and mine management's 

statements during the preinspection meeting demonstrate that 

management was aware that Smith filed the complaint. Once Smith 

reported the condition to Assistant Safety Director David Turner, 

and then inquired about the condition just prior to filing the 

103(g) complaint, it was obvious that Smith was the author of the 

complaint. In addition, Inspector Sparvieri testified that prior 

to going underground to inspect the area, he met with Smith and 

mine management. In the meeting, mine management asked Smith why 

he filed the complaint and there was discussion regarding Smith's 

having reported the condition to Turner the previous day. 

Accordingly, I find that the evidence clearly shows that mine 

management was aware that Smith filed the second 103(g) 

complaint. 

On June 27, 1991, Smith and Hallow received safety complaints from miners who had worked the previous shift in an 

abandoned longwall section removing old longwall equipment. The 

miners indicated that they were working under unsupported roof 

1635 
and were afraid of being seriously injured. The miners also 

indicated that they were reluctant to address their complaints 

directly to management for fear of retaliation. Smith and Hallow 

proceeded to discuss the miners' complaints with Satety Director 

Lynn Harding and Superintendent Thomas Hofrichter ip the hallway 

outside the mine offices. Smith and Hallow informed Harding and 

Hofrichter of the serious nature of the complaints and requested 

permission to inspect the old iongwall section to verify the 

conditions. Hofrichter denied the request. After Hofrichter 

denied the request, Smith stated that he would write a 

section 103(g) complaint to get the area inspected by MSHA if 

necessary, due to the serious nature of the complaints. Smith 

proceeded to write the 103(g) complaint while sitting on the 

stairs in the hallway in front of Harding and Hofrichter, and 

served it to MSHA inspectors who were at the mine to conduct a 

regular inspection. 

The contents of that request, signed by Joseph A. Smith, 

were as follows: 

103(g) request for 'Special investigation on the 

old longwall set up. Men going under chocks that are 

not pressurized for 2 or 3 weeks, chocks not against 

roof, one shield pulled out at headgate without pressure, bad roof at headgate and down line, men working 

on face side of panline without additional roof 

support. And the approved roof control plan is not 

being complied with. 

MSHA inspector Sparvieri closed the area based just on the 

contents of the 103(g) complaint, subsequently investigated the 

103(g) complaint, and issued a section 107(a) Imminent Danger 

Withdrawal Order and several more citations due to unsupported 

roof in the old longwall section, including a section 104(d) (1) 

citation. The section 107(a) Withdrawal Order had the effect of 

stopping recovery operations in the old longwall area. To say 

the least, management strongly disagreed with MSHA's conclusions 

about the alleged danger posed by the recovery operation, and was 

particularly angry with the wording contained in the body of the 

withdrawal order. 

26. I find that mine management was aware that Smith filed 

the three section 103(g) complaints, based on the surrounding 

circumstances and statements made to smith and to MSHA Inspector 

William Sparvieri. Smith reported the hazardous conditions to 

mine management just prior to filing two of the three complaints, 

and he also told mine management that he had filed the three 

103(g) complaints. 

With regard to the 103(g) complaint filed by Smith on 

June 25, 1991, MSHA Inspector Sparvieri testified that during the 

preinspection meeting regarding obstructions in the longwall 

1636 
track entry, someone in mine management, Joe Dunn, asked Smith 

why he wanted the longwall shut down. Inspector Sparvieri 

testified that Smith responded that he didn't, he just wanted the 

mine to be safe. 

Superintendent Hofrichter and President Jack Woody both made 

statements during and after the 103(g) inspection on June 27, 

1991, indicating that they were angry with Smith for filing the 

103(g) complaints. 

Smith and Hallow both testified that during this last 103(g) 

inspection Hofrichter stated in an angry tone that he was "sick 

and tired" of Smith filing 103(g) requests. At this time he was 

described as being red in the face and yelling. On June 28, 

1991, the day after the third 103(g) inspection, President Jack 

Woody made a statement to Hallow threatening to discharge Smith. 

Hallow testified that Woody stated in a hostile manner that Smith 

was "wrapped up, packaged, and ready for delivery, and I am just 

the guy to push the button," after previously indicating during 

the meeting that he was furious with Smith for filing the last 

103(g) complaint. 

The testimony of both Hofrichter and Woody to the effect 

that they denied prior knowledge that Smith was responsible for 

filing the three section 103(g) complaints, that is, prior to his 

July 1991 discharge, is rejected as patently incredible. Rather, 

I find as a fact that mine management in the persons of 

Hofrichter and Woody, among others, were most definitely aware 

that Smith filed all three of these 103(g) requests, prior to his 

discharge. 

270 Smith called off sick for the 12:01 a.m. shift on 

July 1, 1991, with the "flu." He was next scheduled to work the 

12~01 a.m. shift on July 2, 1991, That day he claims to have 

been still feeling puny but decided to go to work anyway, 

believing that he could handle his regular job as a shearer 

operator. But, meanwhile back at the mine, Shift Foreman John 

Burda and Assistant Foreman David Hildebrand were engaged in 

scheduling work assignments for various UMWA employees for the 

shift that was scheduled to begin at 12~01 a.m., on July 2, 1991. 

Burdaus shift was to be short three regularly scheduled foremen 

that evening due to vacations and illnesses. One of the foremen 

who was going to be off that evening was Gary Fertal, who 

regularly performs on-shift firebossing on Burda 1 s shift. 

So Burda, knowing that Smith was an experienced fireboss, 

told Assistant Foreman Hildebrand to instruct Smith to assume 

Fertal's firebossing duties that evening. At approximately 

11:20 p.m., Hildebrand spoke with Smith, who was in the bathhouse 

dressing for work. Hildebrand told Smith that he was to f ireboss 

that evening. Smith stated that he would rather not and was told 

to speak to Shift Foreman John Burda regarding his assignment. 

1637 
Smith went to the foremen's office and spoke with ·Burda. He told 

Burda he didn't want to fireboss and asked if there was any other 

work available for him. Burda advised him that the only work 

available for him that night was to f ireboss and thpt if Smith 

did not want the assignment to go home. Burda als~told Smith 

that if he was still at the mine at 12:01 a.m., when the shift 

started, that the f irebossing assignment would become a direct 

work order. Smith then in rapid succession stated to Burda that: 

(1) he was going home sick or taking a sick day; (2) he would 

fireboss if Burda would write out the assignment and finally (3) 

he would take an 11 illegal day, 11 intending to get a medical excuse 

the next day, thus converting the unexcused absence to an unpaid 

sick day. 

It should be noted that in requesting the sick day, Smith 

never did tell Burda that he was, in fact, sick. 

A sick day is common mine parlance for a 11 sick/personal day" 

which is provided for by the National Bituminous Coal Wage 

Agreement. A sick/personal day is a contractual day off that can 

be taken for any reason which.may, but does not necessarily, 

include sickness. Well-established practice at the Homer City 

Mine requires that management be informed that an employee wishes 

to take a sick day before the scheduled commencement of a shift. 

Requests for sick days are not granted to employees after the 

shift begins. Shift Foreman Burda, after Smith asked for a "sick 

Day, 81 looked at the clock on the wall in his office, noted that 

the time was 11:49 p.m. (which was prior to the scheduled commencement of the midnight shift) , and indicated that since the 

shift had not yet begun, he could and would grant Smith's request 

for a sick day and thus, if. he did not wish to fireboss, he could 

go home. But, other than agreeing to grant Smith's request for a 

sick day, Burda never gave Smith permission to leave the mine. 

The next question is was it 

permission to leave the mine 

think so, 

necess for Smith to have 

the shift starts. I don't 

The National Bituminous Coal Wage Agreement requires that 

employees regularly attend worl< and that all of their absences be 

accounted foro i'Illegal days 11 off, as the t.errn itself suggests, 

are absences that occur without management 1 s permission or authorization and do not stand on the same footing as contractuallyauthorized holidays, such as graduated and floating vacation days 

and sick days. Because illegal absences are not authorized or 

sanctioned by the collective bargaining agreement, employees can, 

and are, disciplined by Helen for being away from work for a 

period of two or more (2+) consecutive days without authorization, unless the absences are subsequently proven to be related 

to illness. This is exactly what Smith had in mind, and what he 

in fact did the following day. 

1638 
The next day, Smith did in fact go to the hospital emergency 

room and was diagnosed as having "gastroenteritis" and advised to 

take a couple of days off by the treating physician. However, 

Smith was overtaken by events in this regard in that 

Superintendent Hofrichter called him at home on Jul~ 2, 1991, to 

advise that he was suspended with intent to discharge for 

insubordination because he refused the firebossing assignment. 

Smith then filed yet another Complaint of Discrimination 

under section 105(c) of the Act which is now docketed at 

PENN 92-58-D as well as a grievance under the contract. 

28. That grievance concerning Helen Mining Company's suspension of Smith subject to discharge resulted in an arbitration 

hearing conducted by Arbitrator Jack I. Lenavitt on July 11, 

1991. Arbitrator Lenavitt, in a July 16, 1991 decision sustained 

Helen's discharge of Smith for insubordination and interference 

with the operation and management of the Homer City Mine, premised upon his refusal upon direction by his foreman to fireboss. 

29. There is an establishe.d practice that miners at the 

Homer City Mine can and do decline assignments and go home so 

long as they leave the mine prior to the start of the shift. 

Several miner witnesses testified to that effect and that seems 

to be the consensus of the evidence. Foreman Burda likewise 

stated that if Smith had asked for a sick or personal day and 

left the premises prior to the start of the shift there would 

have been no "insubordination" and therefore no problem. No 

other miner, besides Smith, has been disciplined as a result of 

this practice. 

FURTHER FINDINGS WITH CONCLUSIONS 

The general principles governing analysis of discrimination 

cases under the Mine Act are well settled. In order to establish 

a prima facie case of discrimination under section 105(c) of the 

Act, a complaining miner bears the burden of production and proof 

in establishing that (1) he engaged in protected activity and (2) 

the adverse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev 1 d on other grounds sub nom. Consolidation Coal Co. v. 

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

Robinette v. United Castle Coal co. 1 3 FMSHRC 817-18 (April 

1981). The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. If an 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity alone. Pasula, supra; Robinette, supra. See also 

1639 
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 

1987): Donovan v. Stafford Construction co., 732 F.2d 954, 958-59 

(D.C. Cir. 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 

1983) (specifically approving the Commission's Pasllfa-Robinette 

test). Cf. NLRB v. Transportation Management Corp.~ 462 U.S. 

393, 397-413 (1983) (approving nearly identical test under 

National Labor Relations Act) . 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eighth Circuit analogously stated with regard to 

discrimination cases arising under the National Labor Relations 

Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th 

Cir. 1965): 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. Chacon, supra at 2510" 

There can be no doubt that Smith engaged in a plethora of 

protected activity just prior to both discharges at issue in 

these cases. See Findings of Fact Nos. 4, 7, 9, 10, 16, 18, 24, 

and 25. 

In addition to these specific instances wherein Smith 

engaged in protected activity under the Act, Smith also served as 

the UMWA Safety Committee Chairman in this mine throughout the 

period we are looking at. In this position, Smith was the 

primary safety advocate for the miners at the Homer City Mine. 

Smith persistently addressed safety complaints to management on 

behalf of the miners regarding conditions and equipment in the 

mine, and he served as the miners' representative during state 

and federal mine inspections, traveling with inspectors on a 

regular basis. Smith also regularly attended safety meetings 

1640 
with mine management to address ongoing safety issues at the 

mine. Within just days prior to both discharges, Smith made 

safety complaints to management and MSHA regarding equipment and 

conditions at the mine based on complaints he received from other 

miners. 

In a case under the 1969 Coal Act, the Commission recognized 

the special status of a union safety committee member in bringing 

safety complaints to the Secretary. Local 1110 UMWA and 

Carney v. Consolidation Coal Company, 1 FMSHRC 338 (1979). 

If anything, the 1977 Mine Act was intended to broaden and 

strengthen the protection against discrimination afforded miners 

and their representatives. Sees. Rep. No. 95-181, 95th Cong., 

1st Sess. 35-36 (1977), reprinted in Senate Subcommittee on 

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

Legislative History of the Federal Mine Safety and Health Act of 

1977, at 623-624 (1978). 

The members of the mine safety committee are given a special 

status and added responsibilities under the Union Contract 

(Article III(d)) and under the Act. They are the spokesmen for 

the miners in safety matters and are responsible for bringing 

safety concerns to management and to MSHA. Subject to the 

requirements that their actions be taken in good faith and be 

reasonable, I conclude that the actions of safety committeemen 

such as Smith in bringing safety complaints to MSHA or to the 

mine operator, are protected activity as well. 

There also can be no doubt that mine management was well 

aware of Smith's safety activity in the mine generally and the 

aforementioned particular instances of protected activity 

specifically. See Findings of Fact Nos. 1, 4, 7 1 9, 16, 18, 24, 

25 and 26. 

In addition to evidence of knowledge, the Commission's 

analysis in Chacon provides that evidence of management hostility 

toward the protected safety activity is further proof of discriminatory intent. With regard to both discharges, mine 

management made statements demonstrating open hostility toward 

Smithns safety complaints and threatened to fire him. See 

Findings of Fact Nos. 11 and 26. 

The Chacon analysis also provides that a coincidence in time 

between the protected activity and the adverse action is further 

circumstantial evidence of discriminatory intent. There is a 

close coincidence in time with regard to both discharges of 

Smith. With regard to the December 1990 discharge, Smith made 

safety complaints about the longwall equipment on December 18, 

2 days prior to his discharge on December 20. Additionally, 

Smith reported the hazardous accumulation of float dust and shut 

down the beltline on December 19, one day prior to his discharge. 

1641 
With regard to the July 1991 discharge, Smith made the last of 

three 103(g) complaints on June 27, just 6 days prior to his 

discharge on July 2. Accordingly, the clear coincidence in time 

between Smith's safety complaints and his discharg~ on both 

occasions strongly suggests that the discharges we~ motivated by 

his protected activity. 

Finally, the Chacon analysis also provides that evidence of 

disparate treatment is indicative of discriminatory intent. The 

evidence persuades me that Smith was subjected to disparate 

treatment for conduct which was otherwise somewhat routine at the 

Homer City Mine. See Findings of Fact Nos. 21, 22, and 29. 

I therefore find that the respondent was motivated by 

Smith's protected activity in discharging him on both occasions 

at bar. Accordingly, it follows that I also find that the 

respondent has failed to rebut the government's prima facie case. 

Respondent has also failed to prove as an affirmative 

defense that Smith would have been discharged in any event for 

unprotected conduct alone. I-nboth. of these cases, respondent 

has alleged that Smith was insubordinate and would have been 

discharged for that unprotected activity alone. 

But with regard to the December 1990 discharge, the evidence 

does not support the allegation that Smith was insubordinate by 

disobeying a direct order to leave the belt running, because the 

person who allegedly~gave that order admitted that no such order 

was issued. Rather, the evidence more reasonably establishes 

that Smith was discharged after he took what appears to me to be 

appropriate corrective action to abate a hazardous condition, 

consistent with the common practice of mine examiners at this 

mine. 

Moreover 1 even if Earnest had issued a direct order to leave 

the No. 1 belt running, in spite of Smith's report of a dangerous 

accumulation of float coal dust, the State investigative 

Commission found that that would constitute illegal interference 

with the duties of a mine examiner, and refusal to obey such an 

order which potentially jeopardized the safety of himself and 

miners working inby the No. 1 airlock area would not justify 

Smith 0 s discharge on the basis of insubordination. In fact, 

according to the investigators, Smith was required by law to take 

immediate corrective action, in light of the serious hazard of an 

explosion posed by the float coal dust, which included 

deenergizing the belt to remove the ignition source. 

Furthermore, if respondent truly believed that Smith had 

made a false report of float coal dust conditions during the mine 

examination, Superintendent Hofrichter could and should have 

discharged Smith for that reason, rather than fabricating this 

insubordination offense out of whole cloth. Of course, there was 

1642 
a small problem with that; Earnest's own notes reflected that a 

float dust accumulation in fact existed in the No. 1 airlock area 

as Foreman DeWitt reported, and the State investigative 

Commission found that Smith's report accurately despribed the 

conditions. 

Respondent also failed to prove that Smith would have been 

disciplined for unprotected conduct alone with regard to the July 

1991 discharge. Respondent alleged that Smith was discharged for 

refusing a direct order to serve as a substitute mine examiner 

for that shift. But, the evidence does not support respondent's 

claim that Smith disobeyed a direct work order to serve as a 

fireboss. To the contrary, Shift Foreman Burda admitted during 

cross-examination that he never stated to Smith that he was 

issuing a direct order, and his own notes reflect that he told 

Smith to leave prior to the start of the shift or his instructions to fireboss would become a direct work order. 

The evidence shows that Smith was given an assignment that 

he felt he couldn't perform due to illness, or perhaps just an 

assignment he didn't want thatnight as respondent would have it. 

He then discussed the assignment with Burda, his foreman, 

declined it, and subsequently took the night off as an unexcused 

absence. He thereupon left the mine site prior to the start of 

the shift. 

Article XXII of the National Bituminous Coal Wage Agreement 

of 1988, in effect at respondent's mine during the time relevant 

to this case, provides in part that if an employee accumulates 

6 single days of unexcused absence in a 180-day period or 

3 single days of absence in a 30-day period, he shall be designated an "irregular worker" and will be subject to discipline; or 

when an employee absents himself from work for 2 consecutive days 

without the consent of the employer, other than because of proven 

sickness, he may be discharged. Smith fits neither of these 

categories by ing a single unexcused day off. In fact, Smith 

and several other witnesses all testified that miners regularly 

arrived at the mine, declined an assignment for whatever reason, 

and left the mine prior to the start of the shift. These miners 

each testified that this is common practice at the mine, that 

they had declined assignments and left the mine prior to the 

start of the shift, and that they knew of no other miner, besides 

Smith, who had been disciplined as a result of doing so. It 

certainly seems clear that the union contract permits this rather 

strange practice, so long as a miner does not utilize two 

consecutive days of unauthorized absences. 

Smith also testified that he believed that he could properly 

utilize an unexcused absence which management would later designate as excused, if and when he presented medical documentation 

upon his return to work. A memorandum (Complainant's Exhibit 

No. 11) issued by respondent to all employees regarding proper 

1643 
documentation of medical absences also clearly states that 

absences due to illness can be later excused by bringing in a 

medical release. I find that Smith's decision to take an 

unexcused absence and return when he was no longer pick with a 

medical release was reasonably consistent with this company 

policy. 

In summary, respondent has failed to prove that Smith would 

have been discharged in any event for his unprotected activity 

alone. Accordingly, the evidence supports a finding with regard 

to both discharges that respondent, Helen Mining Company, discharged Smith in retaliation for engaging in protected safetyrelated activity in violation of section 105(c) of the Mine Act. 

Respondent attempts to characterize Smith as a selfish, 

greedy, vindictive and manipulative employee. I have no doubt 

that Smith regularly and often antagonizes the company with what 

might be characterized as "sharp practice," by which I mean using 

the union contract to his personal advantage whenever and 

wherever he gets a chance. But that is not sufficient grounds 

for the company to discriminate against Smith in violation of 

federal law. 

Lastly, I am mindful that I have not discussed every 

episodic development that is contained in the lengthy record of 

trial of these cases, but I have considered everything that is in 

the record and discussed those portions which I felt were 

necessary to my determination. To a large extent, these cases 

turned on credibility choices. The major credibility choice was 

of course between Smith and Hofrichter. As between the two, 

Smith's version of events was clearly the better corroborated and 

also better fit the physical facts contained in the record. 

Before I close this decision, a word on the weight or lack 

thereof I gave to the two arbitration decisions which were both 

very favorable to the respondento 

Congress created a unique statutory scheme under 

section 105{c) of the Mine Act to preserve a miner's right not to 

be discriminated against for engaging in protected activity. The 

issues and standards of proofs presented in arbitration proceedings pursuant to collective bargaining agreements are not the 

same as those presented in discrimination cases adjudicated 

pursuant to the Mine Act. An employee's rights pursuant to a 

collective bargaining agreement are different from the statutorily protected safety rights of miners. Accordingly, the 

weight to be accorded arbitrator's decisions is within the sound 

discretion of the Commission's trial judge, on a case-by-case 

basis. In these cases, I obviously made vastly different 

credibility findings than either of the two arbitrators who ruled 

1644 
on Smith's grievances previously. Under these circumstances, 

therefore, I have given no weight to the arbitration decisions at 

issue herein. 

CIVIL PENALTY 

Because of the egregious discriminatory conduct committed in 

these cases, I find that Superintendent Hofrichter knew or should 

have known that he was violating section 105(c) of the Act when 

he discharged Smith on both occasions complained of herein. 

Since superintendent Hofrichter was an agent of the 

respondent, the violation was the result of operator negligence. 

I find that the violation was also serious in that it could 

be expected to have had a chilling effect upon persons willing to 

act as union safety committeemen and mine examiners, thereby 

seriously diminishing the effectiveness of those personnel and 

regulatory enforcement under the Act in general. In assessing a 

penalty herein I have also considered that the mine operator is 

large in size and has a moderate history of violations. No 

evidence has been presented to indicate that Helen Mining Company 

has violated section 105(c) within the previous 2 year period 

under facts similar to those herein. The violative condition has 

not yet been abated since Mr. Smith has obviously not yet been 

paid for his lost wages. Under all the circumstances herein I 

find a penalty of $10,000 to be appropriate for the two violations found herein, $5,000 to be allocated to each. 

ORDER 

Respondent is ORDERED: 

1. To pay Joseph A. Smith back pay which was stipulated to 

in the amount of $45,450,37, within 30 days of the date of this 

order. 

2. To pay Joseph A. Smith interest on that amount from the 

date he would have been entitled to those monies until the date 

payment, at the short-term federal rate used by the Internal 

Revenue Service for the underpayment and overpayment of taxes, 

plus 3 percentage points, as announced by the Commission in 

Loe. U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 

(1988), aff 1 d, 895 F.2d 773 (D.C. Cir. 1990). 

3. To reinstate complainant to the same position, pay, 

assignment, and with all other conditions and benefits of 

employment that he would have had if he had not been discharged 

from his previous position on July 2, 1991, with no break in 

service concerning any employment benefit or purpose. 

1645 
4. To completely expunge the personnel records maintained 

on Joseph A. Smith of all information relating to the December 

1990 and July 1991 discharges. 

5. To pay to the Department of Labor a civil J:>enalty of 

$10,000 within 30 days of the date of this decision. 

This Decision constitutes my final disposition of this 

proceeding. 

~,· 

aurer 

trative Law Judge 

Distribution: 

Gretchen Lucken, Esq., Tana M. Adde, Esq., Office of the 

Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, Room 

400, Arlington, VA 22203 (Certified Mail) 

J. Michael Klutch, Esq., Polito & Smock, P.C., Four Gateway 

Center, Suite 480, Pittsburgh, PA 15222 {Certified Mail) 

dcp 

1616 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 17 i992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RONALD WEAVER, employed by 

CONSOLIDATION COAL COMPANY, 

Respondent 

: Docket No. WEVA 92-814 

A.C. No. 46-01453-03986-A 

Humphrey No. 7 Mine 

DECISION 

Appearances: 

Before: 

Robert A. Cohen, Esq., Office of the Solicitor, 

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

for the Petitioner; 

Clark Frame, Esq., Wilson, Frame and Metheney, 

Morgantown, West Virginia, for the Respondent. 

Judge Melick 

This case is before me upon the petition for civil 

penalties filed by the Secretary of Labor pursuant to section 

llO(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq.u the "Act," charging Ronald Weaver as 

an agent of a corporate mine operator, Consolidation Coal 

Company (Consol)v with knowiugly authorizing, ordering, or 

carrying out a violation by the named mine1operator of the 

mandatory standard at 30 C.F.R. § 75.1001. 

1 Section llO(c) provides as follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or 

fails or refuses to comply with any order issued 

under this Act or any order incorporated in a final 

decision issued under this Act, except an order 

incorporated in a decision issued under subsection (a) 

or section 105(c), any director, officer or agent of 

such corporation who knowingly authorized, ordered or 

carried out such violation, failure, or refusal shall 

be subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under 

subsections (a) and (b). 

1647 
Order No. 270847 charges as follows: 

Based on information gathered from workers and 

mgt. it has been determined that on the afternoon 

shift of May 18, 1990 and midnight shift on May 19, 

1990 proper trolley overcurrent protection was not 

provided for the main haulage between the No. 7 set 

and the No. 10 set. Approximately block 332+00 to 

block 420+00. A distance of 88 blocks or 8,800 feet. 

The No. 8 set was out of service due to a shorted 

power cable. In order to continue hauling coal the 

ITE breaker at 365 block and the bacon dead block 

at 405+00 were jumpered by inserting a knife blade 

switch handle across the dead blocks. Voltage drop 

tests indicate a maximum short circuit current value 

of 1902, 2 amps, 75% setting = 1,427 maximum allowable setting. The No. 7 set borehole breaker was 

found to be set at 5,000 amps. The No. 10 set breaker 

was found to be set at 4,000 amps. Therefore short 

circuit protection was not provided while this 

condition existed from about 5:00 p.m. May 18 

to 1:30 a.m. May 19, 1990. Coal trips were hauled 

during this time. Orders were given by mine management to set the power up so coal could be hauled. 

Order No. 2896774 was issued on 5-2-90 for a similar 

occurrence. A meeting was held on 5-9-90 with mine 

management to discuss the practice of jumpering dead 

blocks. 

Order to be terminated after all persons who work 

or travel the main haulage are instructed as to 

the hazards involved when dead blocks are jumpered. 

The cited standard provides that "[t]rolley wires and 

·trolley feeder wires shall be provided with overcurrent 

protection." 

Ronald Weaver, Mine Superintendent of the Bowers Portal 

at the Humphrey No. 7 Minep does not dispute that he was an 

agent of the cited corporate mine operator or that a violation 

of the cited standard did in fact occur as alleged in Order 

Noo 270847. Indeed? at no point in his responsive pleadings 

has Mr. Weaver denied the Secretary's charges that he "knowingly 

authorized, ordered, or carried out" the cited violation of the 

mine operatoro In the absence of such a denial the Secretary's 

allegations may be accepted as true. In any event, the Secretary 

at hearing produced ample credible evidence to sustain her burden 

of proving that Mr. Weaver "knowingly authorized" and, in fact, 

"ordered" the commission of the cited violation. 

1648 
The Corrunission defined the term 11 knowingly, 11 as used 

in the statutory predecessor to Section llO(c), in 

Kenny Richardson v. Secretary of Labor, 3 FMSHRC 8 (1981), 

aff'd 669 F.2d 632 (6th Cir. 1982), cert denied, 461 U.S. 928 

(1983) as follows: ~~ 

'Knowingly,' as used in the Act, does not have 

any meaning of bad faith or evil purpose or 

criminal intent. Its meaning is rather that 

used in contract law, where it means knowing or 

having reason to know. A person has reason to 

know when he has such information as would lead 

a person exercising reasonable care to acquire 

knowledge of the fact in question or to infer 

its existence .... We believe this interpretation 

is consistent with both the statutory language and 

the remedial intent of the Coal Act. If a person 

in a position to protect employee safety and health 

fails to act on the basis of information that gives 

him knowledge or reason to know of the existence of a 

violative condition, he'·ha.s acted knowingly and in a 

manner contrary to the remedial nature of the statute. 

3 FMSHRC 16. 

More recently, the Corrunission stated that in determining 

whether the corporate agent knowingly authorized or ordered the 

violation the Secretary need prove only that he knowingly acted, 

not that he knowingly violated the law. See Secretary of Labor 

v. Warren Steen, 14 FMSHRC 1125 (1992). 

At hearing, Michael Kalich, an experienced coal mine 

electrical inspector for the Mine Safety and Health Administration, a graduate mining engineer, and a certified electrician, 

mine foreman and assistant mine foreman, explained the nature 

of the underlying violation. This highly qualified expert 

based his testimony upon facts established in the record and 

upon tests he conducted. He appeared at the Humphrey No. 7 Mine 

on May 29, 1990, as a result of an anonymous complaint that 

the trolley wires had been 11 jumpered11 without short circuit 

protection. It appears that on May 18, 1990, the number eight 

set power cable had burned through thereby rendering a section 

of trolley without powero To return power to the trolley to 

allow continued coal haulage a switch was installed and the 

Nos" 365 and 405 block breakers were jumpered out thereby tying 

in other sets" When this occurred short circuit protection 

could not be provided in this section of trolley wire. According 

to Kalich, if there was an accident in that area and the trolley 

wire was broken, it could constitute a serious fire and electric 

shock hazard. 

1649 
Kalich testified that he reenacted these conditions in 

the No. 10 set by placing a jumper in at the 365 and 405 blocks 

and performed a voltage drop test. He found only 1700.amps and 

since the breaker was set at 5,000 amps the breaker could not 

be triggered. He noted that by jumpering-out, the mine operator 

could continue to haul coal through the area. The evidence 

shows that 20 trips of coal were actually hauled during the 

time the breakers were jumpered-out. 

Kalich noted that only eight days before this incident, 

on May 9, 1990, he conducted a meeting for Humphrey No. 7 mine 

officials at which the Respondent, Ronald Weaver, was present. 

A withdrawal order issued on May 2 for a jumpering violation 

was discussed at this meeting, along with the specific hazards 

of jumpering out. Kalich testified that in this regard he 

told the mine officials, including Weaver, that the fingers 

would have to be removed from the dead blocks throughout the 

mine to prevent the illegal practice of jumpering. The primary 

purpose of the meeting, according to Kalich, was to remind 

mine officials of the dangers,,of the impermissible practice of 

jumpering dead blocks and not providing short circuit protection. 

Dwight Jeffrey, a maintenance mechanic for Consol since 

April 1977, generally performed electrical work on the main 

line during relevant times. He has an "electrical card" from 

the State of West Virginia and is a member of the United Mine 

Workers of America. On May 19, 1990, Jeffrey was the main line 

mechanic on the afternoon (4:00 p.m.- 12 midnight) shift. His 

foreman at the time was Carroll Tingler. At the beginning of 

the shift Tingler told Jeffrey that the power was off the 

number eight set. Jeffrey was able to restart the power but 

later, about 6:00 or 6:30 p.m., it tripped again. Jeffrey was 

then unable to reset the power and observed a cable lying at 

the bottom of the borehole. Apparently the cable had burned 

through preventing power from reaching the set. Jeffrey testified that he notified management of this problem by way of the 

dispatcher. At this time he was underground at the number eight 

set calling on the mine phone to the dispatcher outside. 

Foreman Tinglerp along with Maintenance Foreman Curtis MayoF 

then met underground with Jeffrey. They also talked on a phone 

line set up through the borehole at the number eight set to the 

surface with Doug Strausser and Ron Weaver. Strausser was in 

the management hierarchy superior to Maintenance Foremen Mayo. 

According to Jeffrey, at one point Ron Weaver was on the phone 

and ordered Jeffrey to "put a blade in at 365 and have Curt Mayo 

put one in at the bacon ground." Jeffrey testified that he then 

inserted the copper blade and jumpered the points. Jeffrey also 

conveyed Weaver's orders to Mayo to "jumper" at the 450 block and 

those orders were also carried out. By inserting the blades and 

jumpering the points the power was returned and coal could be 

hauled. 

1650 
Respondent, Ronald Weaver, testified in his· own defense. 

He is a graduate mining engineer with a masters degree in 

business administration. During relevant times he was mine 

superintendent in charge of the Bowers Portal of the Humphrey 

No. 7 Mine. He recalled the problems regarding borehole 

number eight on May 18. He told Doug Strausser, the maintenance superintendent, to meet him at the borehole. According 

to Weaver he relied on Strausser to provide advice on the 

electrical system and was present with Strausser when he was 

talking on the mine phone to the men underground. At around 

6:30 p.m., according to Weaver, he explained over the phone 

to Jeffrey to set the power up and at the same time told the 

dispatcher to reduce the load as necessary. He maintains that 

he also told Jeffrey that Strausser found the problem and that 

he (Jeffrey) could go ahead and set up the power the way 

Strausser told him to do it. According to Weaver he would not 

know the setup of the breakers and maintains that he did not 

in fact order Jeffrey to close the switch. He maintains that 

he did not know what Jeffrey would do and did not know what 

the settings were that would be appropriate. 

On cross-examination Weaver admitted that the dispatcher 

advised him that 20 trips were taken while the problem existed. 

Weaver maintains that he relied upon his maintenance people, 

Mayo and Strausser, regarding electrical matters. According 

to Weaver, however, Jeffrey made the ultimate decision and 

Strausser was the one who gave the instructions. He denied 

knowledge of the mine electrical system claiming that since he 

was not a certified electrician he only followed the advice of 

his electricians. 

I find the testimony of Michael Kalich and Dwight Jeffrey 

to be entirely credible and that, accordingly, the Secretary 

has sustained her burden of proving that Weaver knowingly acted 

within the meaning of section llO(c). With respect to Jeffrey, 

no motive has been shown for him to testify other than truthfully. He was a reluctant witness, did not initiate contacts 

with the Mine Safety and Health Administration and appeared at 

trial under subpoena. It is highly unlikely, moreover, for a 

rank and file employee to accuse the highest official of the 

Bowers Portal, the person having the ultimate authority to hire, 

fire and discipliner of, in essence, lying. Nor would such a 

rank and file employee be expected to lightly accuse anyone in 

such a high position of giving the orders alleged, absent 

certainty that it was indeed the mine superintendent who directed 

him on the phone to perform these acts. 

I also have difficulty accepting Weaver's testimony. 

According to the undisputed testimony of Inspector Kalich he 

warned Humphrey No. 7 Mine officials, including Weaver, only 

eight days before the instant violation, of the specific dangers 

1651 
of jumpering out and of using the knife blades to do so. 

Indeed, because of this illegal practice in the past, Kalich 

warned mine officials, including Weaver, to have all of the 

blades in the mine removed or the mine would be cited. Under 

these circumstances, where Weaver was himself told of the 

illegality of the specific practice of jumpering out with 

the knife blades only a few days before the instant violation, 

his claims of ignorance regarding mine electrical systems are 

essentially irrelevant. In any event, while Weaver attempted 

to deny virtually any knowledge of the mine electrical systems, 

it is noted that he has had at least one related college level 

course in obtaining his degree in mining engineering and showed, 

through detailed testimony, that he indeed does have sufficient 

knowledge of the mine electrical system to have given the alleged 

orders to Jeffrey in the May 18 phone call and to have known that 

those orders could result in violative conditions. (See, e.g., 

Tr. 129 and 132). 

Finally, I note the failure of Respondent to have called a 

material witness, Doug Strausser, in his defense. Strausser 

was present with Respondent while the latter was purportedly 

giving the critical orders over the mine telephone to Jeffrey, 

and would be expected to corroborate Weaver's testimony if 

truthful. It is well-established that an adverse inference may 

be drawn against a party toward whom the missing witness would 

be favorably disposed or against the party who fails to produce 

a material witness who is peculiarly available to that party. 

See U.S. v. Ariz-Ibarra, 651 F.2d 2 (1st Cir.) cert denied, 454, 

U.S. 895 (1981); U.S. v. Nahoom, 791 F.2d 841 (11th Cir. 1986); 

2 Wigmore Evidenc~851 (Chadbourn rev. 1979). According to 

Weaver himself Strausser still worked for him at the subject 

mine and there is no evidence that he could not have been 

available to testify. While the adverse inference to be drawn 

from Respondent's failure to have called Strausser is clearly 

significantv I find? in any event, that there is ample credible 

evidence to sustain the Secretary's case, even without this 

evidence. 

Under the circumstances the Secretary has sustained her 

burden of proving that Respondent Ronald Weaver knowingly 

authorized and ordered the cited violation. Considering the 

relevant criteria under Section llO(i) of the Act, I find that 

the Secretary's proposed penalty of $1,500 is appropriate. 

1652 
ORDER 

Respondent Ronald Weaver is hereby direc 

penalty of $1,500 within 30 days of the date 

!: I t/ l,'-\ 

' 

lick l' , trativ raw Judge 

56-6261 I 

Distribution: 

a civil 

ision. 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

Clark Frame, Esq., Wilson, Frame and Metheney, 151 Walnut Street, 

Morgantown, WV 26505 (Certified Mail) 

/lh 

1653 
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 PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 92-743 

A.C. No. 46-07522-03544 

v. 

Mine No. 1 

MEADOR ENERGY, INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Javier I. Romanach, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; 

H. Gerard Kelley, Esq., Shuman, Annand and 

Poe, Charleston, West Virginia, for the 

Respondent 

Judge Melick 

This case is before me upon a petition for assessment 

of civil penalty under Section 105(d) of the Federal Mine 

Safety and Health Act of 1977 (the Act). At hearings, 

Petitioner filed a motion to approve a settlement agreement 

and to dismiss the caseo A reduction in penalty from $2g208 

to ~1 908 was proposed" I have considered the representations 

and documentation submitted in this case 0 including the testimony of MSHA Inspector Douglas Smith 9 and I conclude that the 

proffered settlement is appropriate under the criteria 

set forth in Section llO(i) of the Act. 

WBEREFOREv the motion for approval of ~ettlement is 

GRANTEDQ and it is ORDERED that Respondent ' ay a penalty of 

$1 9 908 within 30 days of this ~rdero ' 

I /1 l 

·Gary 

Admirt 

elick 

strat·ve 

Jl~.J~ Law Judge 

1654 
Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, 

Room 516, Arlington, VA 22203 (Certified Mail) 

H. Gerard Kelley, Esq., Shuman, Annand and Poe, Suite 1007, 

405 Capitol Street, P.O. Box 3953, Charleston, WV 25339 

(Certified Mail) 

/lh 

1655 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~. ~p 7 ·' 100? 1.) [, f,J ,) .J ~;.., 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

Docket No. LAKE 92-131-D 

BILLY B. TAYLOR 

complainant 

Mine No. 24 

v. 

OLD BEN COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Miquel J. Carmona, Esq., Office of the Solicitor, 

u. s. Department of Labor, Chicago, Illinois, for 

Petitioner; 

Gregory s. Keltner, Esq., Old Ben Coal Company, 

Fairview Heights, Illinois, for Respondent. 

Judge Barbour 

STATEMENT OF THE CASE 

This case involves a discrimination complaint filed by the 

Secretary of Labor ( 0'Secretaryw') on behalf of Billy B. Taylor 

under Section 105(c) (2 of the Federal Mine Safety and Health Act 

of 1977, 30 U.s.c. § 815(c) (2) ("Act" or "Mine Act"). The 

complaint alleges that Old Ben Coal Co. ("Old Ben") violated 

Section 105{c) (1) of the Act when it suspended Taylor from 

employment for four days retaliation for Taylor~s protected 

safety complaints. 1 The Secretary seeks by way of restitution a 

1 Section lOS(c)(l) of the Act provides as follows: 

~No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise interfere 

with the exercise 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 the [Act], 

including a c'omplaint notifying the operator or the operator's agent, or the 

representative of the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine or because such miner, 

representative of miners or applicant for employment is the subject of medical 

evaluations and potential transfer under a standard published pursuant to 

(continued ••• ) 

1656 
finding that Old Ben's suspension of Taylor was th~ result of 

unlawful discrimination, back pay plus interest, benefits lost 

due to the suspension, and the expunging of all disciplinary 

letters located in Taylor's employment records that relate to the 

suspension. Finally, the Secretary proposes a civil penalty of 

$1,250 for the alleged violation of Section l05(c) (1). Old Ben ~dmits that it suspended Taylor but denies the disciplinary 

action was motivated by Taylor's protected activity. 

A hearing on the merits of the Secretary's complaint was 

held in Evansville, Indiana. Post-hearing briefs were filed by 

counsel for both parties. 

STIPULATIONS 

At the commencement of the hearing counsel for Old Ben read 

the following stipulations into the record. 

1. The Administrative Law Judge has jurisdiction 

over the proceeding. 

2. Mine 24 is an underground bituminous coal 

mine. 

3. During the calendar year preceding the alleged 

violation of Section 105(c) of the Mine Safety and 

Health Act, Mine Number 24 had a production of 

1,250,636 tons of coal and the controlling entity had a 

production of 14,918,109 tons of coal. 

4. Payment of a penalty as provided by the Mine 

Safety and Health Act, if a violation were found in 

this case, would not affect the operator's abilities to 

remain in businesso 

5. During the twenty-four month period preceding 

the alleged violation, Respondent had the following 

history of violations: (a) number of violations 

assessed, one hundred ninety-five; (b) number of 

inspection days two hundred and three; (c) violations 

per inspection day point nine-six .. o; number of 

previous Section 105(c) violations, zero. 

1 ( ••• continued) 

Section [101) of this [Act] or because such miner, representative of miners or 

applicant for employment has instituted or caused to be instituted any 

proceedings under or related to this [Act] or has testified or is about to 

testify in any such proceeding, or because of the exercise of such miner, 

representative of miners or applicant for employment on behalf of himself or 

others of any statutory right afforded by this [Act).tt 

30 u.s.c. S 815(c)(l). 

1657 
6. On June 20, 1991, Respondent issued a Notice 

of suspension suspending Billy B. Taylor from his 

employment without pay on June 18 through June 21, 

1991. 

7. On June 21, 1991, Billy B. Taylor fil~d a 

discrimination complaint with the Mine Safety and 

Health Administration subdistrict in Benton, Illinois. 

Tr. 10-11. 

COMPLAINANT'S CASE 

Billy B. Taylor and Terry Koonce were called to testify. 2 

BILLY B. TAYLOR 

Taylor testified that he began working for Old Ben in 1975 

and since has continued in Old Ben's employ. 3 At all times 

pertinent to this case, Taylor stated that he worked at Mine 

No. 24 as a longwall prop man. Tr. 56-57. On June 18, 1991, 

Taylor was working on the 4:00 p.m~ to 12:00 a.m. shift (the 

"afternoon shift"). At the start of the shift, Taylor was sent 

to an area of the mine where the work of setting up a longwall 

was in progress. Taylor's immediate responsibility was to assist 

in assembling a longwall stage loader. However, when it was 

discovered that all of the tools necessary for the job were not 

on the unit, Taylor was instructed by his immediate supervisor to 

drive in the manbus to another unit and there to get the needed 

tools. Sheer operator Dennis Parkhill was told to accompany 

Taylor. The unit where the men were instructed to go was one 

where a longwall was being disassembled and moved (a "recovery 

unit"). Tr. 58. 

Upon reaching the mouth of the recovery unit, Taylor and 

.i encountered what Taylor described as a 01massive 

blockage 10 of the entry. Tr. 59. According to Taylor, 11 [ T] here 

was ... trucks, scoops and diesel scoops and everything. We 

couldn't go any further. We were stuck there." Id. At this 

point, Parkhill got out of the manbus and walked the main 

travelway. When he returned to the manbus he told Taylor that 

the entry was blockedv that up ahead men were trying to transfer 

Koonce, the superintendent of Mine No. 24 at the time of the alleged 

discrimination, was subpoenaed to testify by the Complainant. 

3 Old Ben became a subsidiary of Zeigler Holding co. on July 20, 1990, 

when Zeigler purchased all of Old Ben's properties. Tr. 142. The acquisition 

resulted in some changes in management personnel at Old Ben's mines, including 

the transfer to Mine No. 24 of section foreman Ronald Smart, the foreman 

involved in this case. smart previously had worked for Ziegler. 

1658 
a longwall shield from a dolly onto a scoop and that he and 

Taylor could not proceed further. Tr. 60. 

Taylor stated that he and Parkhill sat in the manbus 

approximately 20 minutes, at the end of which time tpey were 

approached by Ronald Smart, the section boss of the recovery 

~nit. Taylor asked Parkhill if he had observed any vehicles that 

could be used for transportation outby in case of an emergency, 

and Parkhill indicated he had not. Taylor then asked Smart, "Hey 

Ron, did [sic] you have any kind of transportation outby this 

mess[?]" Tr. 61. Taylor testified that Smart did not answer and 

that he again asked Smart the same question. Taylor stated that 

once again Smart did not respond but rather walked around the 

corner of a rib where Taylor could not see him. According to 

Taylor, he got out of the manbus and walked to where he could see 

Smart, and he asked Smart, this time in a louder voice, "Have you 

got any transportation outby?" Id. Smart turned and came toward 

Taylor, and Taylor said again, "[H]ave you any transportation 

outby?" Id. According to Taylor, Smart pulled out a notebook 

and said, "I'm telling you to work, are you refusing to work, if 

you are I'm going to stop your timeand send you out of the 

mine." Tr. 62. Taylor replied that he was not refusing to work, 

that everything was blocked and he could not do anything. Taylor 

also stated that he may have again asked about transportation 

outby, and that Smart replied in a louder tone for Taylor to get 

in the manbus and to leave the area. Tr. 62. 4 

Shortly thereafter the travelway was opened and Taylor 

testified that he stepped into the manbus and told Smart, "This 

is not over ... We'll settle it on top if I have to get the 

Union, Federal, and State involved." Tr. 63, See also Tr. 76. 5 

Smart then came toward Taylor and told him to get off the manbus, 

that Smart was stopping Taylor 1 s time and was sending Taylor out 

of the mineo Ido 

Taylor testified that he then asked Parkhill to take him 

back to the unit from whence they had come so that Taylor could 

retrieve his dinner bucket. Smart told Taylor to stay put, and 

Smart sent for the acting mine manager, Joe Ronchetto. 

When Ronchetto arrived, Taylor stated that Smart explained 

that he had stopped Taylor 1 s time and that Taylor had threatened 

4 Taylor believed that he could have asked Smart about outby 

transportation up to five times. Tr. 97. In any event, however many times he 

asked, he maintained that Smart never answered his questions. 

5 On cross examination Taylor admitted that subsequent to his 

conversation with Smart, he never spoke with the union safety committeeman 

about the situation, nor to a state mine inspector and that he contacted MSHA 

only after he had been handed a notice of suspension. Tr. 86-87. 

1659 
him. Taylor claimed he responded, "I said, what [?]," and Smart 

repeated that Taylor had threatened him. Tr. 65. Ronchetto then 

took Taylor out the mine. 6 

Taylor maintained that during the June 18 inciqent he never 

refused a direct work order from Smart, that his work at that 

time involved being in the manbus and that he was right where he 

should have been. Tr. 66. Further, Taylor maintained that 

during the incident he did not direct abusive language at Smart, 

although, at some point during the exchange, he may have placed 

his hands in a prayer-like position and said, "Please, please 

send me out of the mine." He explained that if he had said it, 

to Smart it was "in a situation in the mine where . . Smart was 

very belligerent toward me and trying to make me feel that I 

didn't have the right to ask any of the questions, and it was 

just my way of saying ..• you don't have to badger me." 

Tr. 67. 

Taylor claimed that when he inquired of Smart whether there 

was transportation outby he did so out of concern for the safety 

of himself and his fellow miners. As a former union safety 

committeeman he was aware that past practice at the mine was to 

have such transportation available when heavy equipment -- such 

as longwall shields -- was being moved. The transportation was 

on the scene because of the possibility that the transporting 

equipment could break down. Tr. 68-69. He explained that outby 

transportation was needed because if someone was injured and the 

travelway was obstructed by broken down equipment, the injured 

person could be placed on the outby transportation and be quickly 

removed from the mine. Tr. 84-86. 

u On cross-examination, Taylor stated categorically tha~ during the 

incident of June 18, he never threatened Smart. Tr. 99" However, during his 

direct testimony, Taylor indicated that he and Smart had a prior run-in. 

According to Taylor, on June 17, in his regular working section and while in 

the process of setting up a longwall, he had observed Smart "screaming and 

hollering" at the section foreman about the way the work was proceeding. 

Taylor claimed that he said to his helper, "These people [meaning the former 

Zeigler bosses] never saw a longwall .•. until ... a few weeks ago, and now 

all of a sudden they are experts on how to set a longwall up." Tr.73. Smart, 

who overheard Taylor, responded that he did not have to take Taylor's "abusive 

language" and that he would "write up" Taylor for the incident. 

Tr. 73-74. Taylor claimed that Smart continued to holler at the section boss. 

Taylor, who was sitting in a scoop, with his back to the where Smart was 

standing, energized the scoop. Taylor claimed he did not know that Smart had 

moved between the rib and the scoop. The scoop lurched toward the rib and 

pinned Smart. Smart, who was not hurt, told Taylor's section foreman that 

Taylor had tried to run over him. Tr.74. Taylor denied he had tried to hit 

Smart or that he knew Smart was in a position where he could have been 

endangered by the scoop. Taylor stated that he was not reprimanded for the 

incident but that he found out later Smart had been reprimanded for the manner 

in which he had addressed the foreman. Id. This was confirmed by Smart. 

Tr. 168. 

1660 
In addition, Taylor stated that prior to and at the 

beginning of the afternoon shift on June 18, the underground 

telephone system had been working only intermittently. When he 

and Parkhill left their section, the phones were not working. 

When they arrived in the vicinity of the blockage, they saw a man 

repairing a telephone, and he told them he thought the phones now 

had been fixed. Tr. 66. Taylor stated that the unreliability of 

the telephone system on June 18 added to his safety concerns and 

made it even more important to have transportation outby, since 

if someone were hurt, a telephone call to the top for assistance 

could not be assured. Tr. 84, 101-102. 

Once Taylor was on the surface, he stated that he was told 

by the union safety committeeman at the mine to go home and that 

the committeeman would see if he could find out "what's going 

on." Tr. 78. When Taylor did not hear from the safety 

committeeman, Taylor returned to the mine on June 19 and the 

committeeman told Taylor that Taylor had to talk to Mine 

Superintendent Koonce before Taylor could return to work. Taylor 

stated that this lead to a brief discussion between himself and 

Koonce in which Koonce stated'·that there were serious charges 

against Taylor (Taylor thought Koonce said "You threatened your 

boss." Tr. 79.) and that Koonce would have to further 

investigate the charges. Tr. 79. 

The following day, according to Taylor, he met with Koonce 

and others at the mine. Taylor stated that he did not remember 

everything that was said because the meeting went "on and on" but 

as best he could recall, Koonce said that Taylor had been charged 

with abusive language, threats to Smart and his family and 

refusing a direct work order: Tr. 81-82. Koonce also told 

Taylor that the charges were "founded." Tr. 81. At the close of 

the meeting, Koonce handed Taylor a letter advising Taylor he was 

suspended from June 18 to June 2lc 7 

7 The letter states in part: 

An investigation reveals that on June 18, 1991, while working the 

4:00 P.M. to 12 midnight shift you were insubordinate and refused a direct 

order to return to your assigned work after having been instructed to do so by 

your supervisor on at least 2 occasions. 

The investigation also reveals that in violation of Company Rules and 

Regulations you used abusive and threatening language toward a supervisor and 

his family. 

Old Ben can not and will not condone such action, therefore, you are 

hereby suspended for a period of four (4) working days without pay (June 18, 

19, 20, 21, 1991). 

Exh. C-1 

1661 
DENNIS PARKHILL 

Parkhill essentially corroborated Taylor's testimony. He 

stated that subsequent to being assigned to assemble a 

stageloader for a longwall section, he and Taylor were asked to 

take the manbus and to go to the longwall recovery unit to get 

some missing tools. Tr. 111. Parkhill testified that he and 

Taylor proceed to the mouth of the recovery unit where Parkhill 

found miners in the process of taking a shield off the shield 

dolly and loading it onto a scoop and where the route they had to 

travel was blocked. Therefore, he and Taylor were forced to wait 

until the roadway cleared. Tr. 113-114. 

Parkhill stated that after he found that the roadway was 

blocked, Taylor several times asked Smart if transportation was 

available on the outby side, and that Smart ignored the 

questions. Parkhill also stated that Smart directed Taylor to 

get into the manbus and to leave, which Taylor and Parkhill could 

not do because the roadway was blocked, and that ultimately Smart 

told Taylor that his time was being stopped and that he was being 

sent out of the mine. Tr. 114. 

After the roadway opened, Smart directed Parkhill to get the 

tools, which Parkhill did. Tr. 123. 

TERRY N. KOONCE 

Mine Superintendent Koonce stated that he was not present at 

the June 18 incident but that he investigated it by discussing 

the matter with Taylor and Smart. Koonce said that he did not 

interview Parkhill because Parkhill stayed on the manbus and did 

not come into the area where the conversation between Taylor and 

Smart took place. Tr. 24, 28. According to Koonce, the 

conversation between Taylor and Smart concerned whether or not 

the telephones were operational and Taylor 0 s concern that the 

travelway may have been blocked. Koonce believed that Smart told 

Taylor that the travelway was not blocked and to go back to the 

manbus and to his work assignment. Koonce stated that this 

conversation was repeated several times. Tr. 18. 

Koonce maintained that by continuing questioning about the 

roadway after having been told it was not blocked, Taylor was 

insubordinate. Tr. 19. Koonce also maintained that Taylor told 

Smart he would go back to the manbus "whenever he got good and 

G~D ready. 01 Tr. 21. Koonce further stated that during the 

conversation Taylor held his hands in a praying fashion in front 

of Smart 1 s face and said, "[P]lease take me our of the mine, 

please take me our of mine." Tr. 19. Koonce termed this 

"threatening .or abusive" language and stated that the use of such 

language was a violation of Old Ben's work rules. Id. 

1662 
Finally, according to Koonce, after Taylor was told by Smart 

that his time had been stopped, Taylor made statements to Smart 

in which he threatened Smart's family and said he would damage 

Smart's personal vehicle. Koonce agreed however that Taylor 

denied making these statements. Tr. 26. 

_ In Koonce's view, the fact that Taylor got "in the section 

foreman's face with his hands in a praying motion during [the] 

heated conversation [and said], [']Please take me out of the 

mine, please take me out of the mine['], 11 was an action 

sufficiently abusive to warrant Taylor's suspension. Tr. 31. 

Koonce further explained that Taylor was disciplined for the way 

in which he spoke to Smart and for his motions, "I just don't 

think that it's right that an employee or an employer has to get 

up in someone's face, nose to nose, and act in that kind of 

manner. It's just not professional." Tr. 50. He further stated 

that he believed that Taylor had no reason to start the 

conversation because Taylor was not even in his own work area at 

the time. Id. Taylor was not discharged because "he hadn't had 

that much [prior] discipline." Tr. 36. 

Koonce stated that, in general, if there is one way in and 

out of an area and the way is blocked, then transportation must 

be provided on the outby side, regardless of whether or not 

telephones are working. Koonce further acknowledged that at Mine 

No. 24, once or twice a month, a rockfall would block a travelway 

and that two or three times a week a piece of equipment would 

break down and block the travelway. Tr. 51. However, Koonce 

maintained that in this particular instance, outby transportation 

was not required because the equipment in the travelway was 

operational and energized, and it would have taken but 11 a matter 

of minutes" to move it out of the way. Tr. 36, 39-40. 

With regard to TaylorDs safety concernsu Koonce agreed that 

Taylor was questioning whether the type of transportation 

required by Section (0) (4) of the Bituminous Wage Agreement 

1988 was available, Tr. 43. 8 

Finally, regarding the incident of June 17, Koonce stated 

that Taylor 1 s scoop could have inadvertently pinned Smart and 

that no separate internal investigation was taken by Old Ben in 

response to the incident. Tr. 49. 

8 Section (0)(4) states in part: 

"The Employer shall provide quick and efficient means of transporting 

injured or sick Employees from the mine to the surface." 

Joint Exh. 1 at 34-35. 

1663 
RESPONDENT'S CASE 

Joe Ronchetto, David Stritzel, Mark Cavinder, and Ronald 

Smart were called to testify. 

JOE RONCHETTO 

Ronchetto stated that on June 18, 1991, he was the Acting 

Mine Manager in charge of production at Mine No. 24. He also 

stated that at approximately 9:00 p.m., while underground, he 

received a call from Smart requesting that he, Ronchetto, come to 

the mouth of the recovery area. When he reached the area, Smart 

told him that Taylor and Smart had gotten into a dispute and that 

Smart had stopped Taylor's time because Taylor had refused two or 

three direct orders to return to work. Ronchetto added that 

Taylor denied he had refused to return to work. Tr. 138. 

Ronchetto also stated that he asked Taylor if any equipment had 

broken down, that Taylor said he did not know, and that Ronchetto 

responded, "If we don't have anything broken down we're not 

required to have a ride outby." Tr. 138-139, see also Tr. 140. 

Ronchetto added that if shields were being moved, outby 

transportation was not required. Tr. 140. 

Ronchetto described Taylor as a good worker who usually 

followed orders "very well." Tr. 141. 

DAVID STRITZEL 

Stritzel, the Director of Health and Safety for Ziegler Coal 

Company, stated that he is involved in the majority of direct 

contacts between MSHA, the state inspection agency and the 

company. He testified that he was not contacted by anyone from 

MSHA or the state regarding the issue of whether transportation 

is required outby while shields are being loaded. Tr. 143. 

MARK CAVINDER 

Cavinder, the manager of three Old Ben mines, including Mine 

No. 24, stated that he has the "final say" on whether discipline 

will be implemented at the mines. In that capacity he reviewed 

Tayloris case and agreed that a four day suspension was 

appropriate. cavinder stated that Taylor was disciplined because 

of the manner in which he approached Smart, specifically for 

failing to comply with a direct work order to return to work and 

for intimidating-type remarks. Tr. 149-150. He further stated 

that although a supervisor typically is required to respond to a 

question concerning safety, in this instance he would not secondguess Smart, who, he believed, was trying to defuse a hostile 

situation. Tr. 157. He added that to comply with the work order 

all Taylor would have had to do was to return to the manbus. 

Tr. 160. 

1664 
Further, he stated that in the usual situation, 

transportation is not required outby when longwall shields are 

being moved, and that the momentary 5 to 10 minute interruptions 

in the use of a travelway when moving shields are not considered 

blockages requiring outby transportation. Tr. 151, ~60. 

RONALD SMART 

Smart first testified about the incident on June 17. Smart 

stated that on June 17 he had concerns about how shields were 

being unloaded, and he discussed his concerns with Taylor's 

foreman. Smart believed that the process was taking too long. 

According to Smart, Taylor, who was there and who was running a 

scoop, became belligerent and cursed the company and Smart. 

Smart remembers that Taylor insulted him three times before Smart 

approached Taylor's scoop and asked Taylor what he had said. 

Smart said to Taylor, "What did you say?" and Taylor responded, 

"You heard me Goddamnit. 11 Tr. 168. At that point, Taylor 

started the scoop and pinned Smart's legs. Smart stated that as 

a result he became irate and had words with Smart's foreman over 

the foreman's lack of control of his workers. Smart also stated 

that he was reprimanded later.for his conduct toward the foreman. 

Tr. 168. 

Smart also described the loading of the shields on June 18. 

Smart stated that two large diesel scoops were transporting the 

shields from the old panel, down the travelway, to the point 

where the shields were transferred to dollies. (The dollies were 

being pulled by two smaller scoops.) The distance from the old 

panel to the transfer point was approximately 1,000 to 1,500 

feet. Also, there was a battery powered scoop in the vicinity 

that would load the shields onto the dollies. If the dollies 

were not at the transfer point when the diesel scoops arrived, 

the scoops would drop the shields off in the roadway and leave. 

Tro 1690 The shields are steel and are approximately 5 to 6 feet 

wide and 20 feet longo Tro 17lo 

At the time of the incident with Taylor, the crew was 

loading shields in the travelway. One of the smaller scoops was 

loaded and ready to go, but the scoop operator was eating dinner. 

One of the diesel power powered scoops arrived, and the crew 

commenced to load the second dolly rather than put the shield on 

the groundo Smart told the small scoop operator to pull the 

dolly out of the travelwayo Smart stated that at this time the 

travelway had been blocked nmaybe fifteen minutes," Tr. 172, but 

that if the travelway had to have been cleared this could have 

been done in five minutes. Tr. 182. 9 Smart then observed Taylor 

9 Smart also stated that at the mouth of the longwall section there was a 

crosscut that, in conjunction with an adjacent entry, served as a "runaround" 

(continued ... ) 

1665 
coming toward him down the travelway. Tr. 172, 180. According to 

smart, when he first saw Taylor, Taylor was out of the manbus. 

smart claimed he did not know why Taylor and Parkhill had stopped 

the bus. Tr. 206. 

Taylor was no closer to 25 feet from Smart when he asked 

$mart in a very loud voice, "Do we have a bus or truck outby 

where we're loading these shields?" Tr. 180. Smart explained, 

"(W]ith what happened the night before and the travelway no 

longer blocked I said, ["]Now Bill, go on, I don't want to argue 

with you, go on back to your bus, got to work.["] Tr. 181-182. 

According to Smart, Taylor responded, "I want to know if there's 

a goddamn truck or a bus outby when you're loading shields? 11 , 

and Smart replied, "Bill, I'm telling you, go back to work. The 

travelway is no longer blocked, I want you to go back to the bus 

and go on about your job. 11 Tr. 182, See also Tr. 184. 10 Taylor 

responded that he would go when he got "a goddamned answer," and 

Smart stated that he again told Taylor to go back to the bus and 

to work. Id. It was at this point, according to Smart, that 

Taylor clasped his hands about a foot from Smart's face and 

stated 11 Please stop my time, l.'11 have your goddamn job." Tr. 

183. After this statement, Smart stopped Taylor's time. 

Smart testified that Taylor returned to the manbus and asked 

Parkhill to take him back to the setup section to get his dinner 

bucket. Smart told Taylor to remain in the area, and he told 

Parkhill to leave and get the needed parts. Taylor responded 

that since he was no longer on Old Ben's time, Smart could not 

tell him what to do. Smart then called Ronchetto. Tr. 185. 

After Parkhill left, and before Ronchetto arrived, a scoop 

passed through the travelway, Smart stated he said to Taylor, "Is 

that scoop broken down, isn't it going in the travelway, would 

you consider [the travelway] blocked[?]" ... "Couldn't [the 

scoop] out of the way if something come up on it(?]" 

88-189. Taylor replied, "Yeah, I guess," and Smart asked, 

do you think I have to have a scoop or transportation outby 

when I'm loading shields[?] 19 Smart testified that Taylor 

responded that "It could mean his goddamn life or something. 11 

Tr. 289. 

9 {. ••• continued) 

in t.he area where the shields were being loaded, and that the runaround 

allowed the loading area to be by-passed if the main travelway was blocked. 

See Tr. 177-178. 

10 Smart stated that he did not respond to Taylor's inquire about outby 

transportation because Taylor would not accept his answer that there was no 

transportation outby. Taylor, in Smart's opinion, was putting on a show for 

Parkhill and was looking for trouble. Tr. 200. 

1666 
Smart stated that at this point he decided he could not 

reason with Taylor, and he walked away from Taylor. Taylor 

followed him and Smart began taking notes about what was said, as 

Taylor orally confronted Smart saying, "Go ahead and write, you 

dumb son-of-a-bitch, I can say what I want, I'm no longer on your 

time and I ought to just knock your ass off right now." Tr. 189. 

Smart testified that because he wished to "defuse the situation," 

he tried to walk away, but Taylor followed and said, "Smart, 

you're in this mine like the rest of us, and things can happen 

down here to you ..• or •.. at home to your family." 

Tr. 190. 

smart testified that at this point Parkhill returned, and 

Taylor told Smart he was going to ride with Parkhill and retrieve 

his dinner bucket. Taylor got into the manbus. Smart replied 

that Taylor was to stay. Taylor again said, "You can't tell me 

what to do, goddamnit, I'm no longer on your time." Tr. 191. 

Smart told Taylor that he would "ask about that when Joe 

[Ronchetto] gets here." Id. When Ronchetto arrived, Smart 

explained to him that Taylor had threatened Smart and his family, 

had cursed Smart and that Smart had, stopped Taylor's time and 

wanted Taylor removed from the mine. Tr. 192. 

APPLICABLE CASE LAW 

In order to establish a prima facie case of discrimination 

under Section 105(c) of the Act, a complaining miner bears the 

burden of production and proof to establish, (1) that he engaged 

in protected activity, and (2) that the adverse action complained 

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

behalf of Pasula v. Consolidation Coal Company, 2 FMSHRC 2768 

(1980), rev'd on other grounds sub nom., Consolidation Coal 

Company Vo Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on 

behalf of Robinette Vo United Castle Coal Company, 3 FMSHRC 803 

(1981); Secretary on behalf of Jenkins v. Hecla-Day Mines 

Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon 

v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1982). The 

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

protected activity occurred or that the adverse action was in no 

way motivated by the protected activity. If an operator cannot 

rebut the prima facie case in this manner, it may nevertheless 

affirmatively defend by proving that it was also motivated by the 

miners~ unprotected activity alone. The operator bears the 

burden of proof with regard to the affirmative defense. Haro v. 

Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden 

of persuasion does not shift from the Complainant. Robinette, 

supra, See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1982); 

Donovan v. Stafford Construction Company, 732 F.2d 954 (D.C. 

1667 
cir. 1984) (specifically approving the Commission's PasulaRobinette test). See also NLRB v. Transportation Management 

corporation, 462 U.S. 393, 397-413 (1983}, (where the Court 

approved the NLRB's virtually identical analysis for 

discrimination cases arising under the National LaboT Relations 

Act). 

Under this legal framework Taylor's asserted protected 

activity must be analyzed in the context of the ongoing 

circumstances in the mine as they appeared to Taylor at the time, 

provided always that his perception of those circumstances was 

reasonable. 

PROTECTED ACTIVITY 

Taylor's safety complaint allegedly arose out of his belief 

that the travelway was blocked and thus that outby transportation 

was required to facilitate the removal from the mine of any miner 

who might have been injured. I fully credit Taylor's testimony 

that he and Parkhill stopped the manbus at the mouth of the 

recovery unit because of a reasonable belief that the entry was 

blocked. Taylor's testimony is corroborated by Parkhill's 

uncontested statement that Parkhill got out of the manbus, 

surveyed the situation, and returned to report to Taylor that the 

entry was blocked. Although Smart testified that he first saw 

Taylor approaching him, his statement is not necessarily 

inconsistent with Taylor and Parkhill's testimony that Parkhill 

left the manbus first to reconnoiter the entry. Smart himself 

testified that prior to seeing Taylor, the travelway had been 

blocked, possibly for 15 minutes, and although Smart also 

testified that he did not know why Parkhill and Taylor had 

stopped the manbus, Taylor's testimony that he believed he and 

Parkhill could not proceed further is credible in light of the 

work that was taking place in the entry. 

Furtherr not knowing the length of time the blockage had 

existed and would continue to exist, I conclude that Taylor's 

concern about the presence of outby transportation was 

reasonable. As a general rule, a miner's safety inquiry, like a 

miner 1 s work refusal, must adequately apprise the operator of the 

nature of the feared hazard and must be reasonable under the 

circumstances of the case. It must also be made in good faith. 

See e.g., Secretary on behalf of Pratt v. River Hurricane coal 

Company, Inc., 5 FMSHRC 1529, 1533-34 (September, 1983). 

Taylor's inquiry regarding outby transportation was direct 

and understandable, as witnessed by the fact that at no time did 

Smart maintain that he was confused about what Taylor was asking 

or uncertain as to what Taylor meant. Further, and as noted 

above, the fact that Taylor reasonably believed the entry was 

blocked leads me to credit Taylor's testimony that he was 

concerned that if a miner was injured, transportation would not 

1668 
be available to quickly remove an injured miner from the mine. 

Taylor's history as a former mine safety committeeman and his 

unrefuted testimony regarding the unreliability of the mine's 

underground telephones on June 18, in my view, makes it logical 

that Taylor would have been concerned about assuring as swift an 

exit from the mine as possible for an injured miner.' Thus, I 

conclude that Taylor, in good faith, inquired of Smart regarding 

the presence of outby transportation, and that when he did so, he 

engaged in protected activity. 11 

ADVERSE ACTION AND MOTIVATION 

Taylor was suspended for four days and was so advised 

formally by letter on June 20, 1991. Koonce and Smart maintained 

that Taylor was suspended both for refusing a direct order to 

return to work and for abusing and threatening Smart. Tr. 23, 

25, 28, 30, 32, 35, 49-50, 182-183, 192. These reasons were also 

given in the formal Notice of suspension. Exh. c-1. The 

testimony of Taylor and Smart is in agreement that this adverse 

action, although confirmed on June 20, was instituted on June 18, 

when Smart stopped Taylor's time. 

At issue is whether the suspension was motivated in any part 

by Taylor's protected behavior? To answer the question it is 

necessary to view in total the events surrounding the incident of 

June 18. On that date neither Taylor nor Smart met as strangers. 

They had come to know one another on June 17. I credit Koonce's 

opinion that Taylor was concerned about the Zeigler buy-out of 

Old Ben and about Smart's knowledge of mining operations at Mine 

No. 24. Tr. 19-20. I also believe it true that Taylor's low 

regard for the Ziegler management personnel lead directly to his 

comments on June 17 regarding Smart's direction of the longwall 

set up and to the subsequent oral exchange between the two of 

them. Whether Taylor purposefully pinned Smart between the rib 

and the scoop 1 or whether it was inadvertent -- Smart admitted he 

had put himself a bad position -- it seems certain that Taylor 

and Smart regarded one another with some degree of hostility when 

they next met on June 18. 

Thus 1 it may well be that on June 18v when Taylor inquired 

about outby transportation, in addition to being concerned about 

his safety and that of his fellow miners, he was also trying to 

aggravate Smart. However, and this is the essential point, even 

11 Counsel for the secretary argues that Taylor engaged in additional 

protected activity when he told Smart that the discussion regarding outby 

transportation was not over and that it would be settled "on top" even if he 

had to involve the union, the state inspectors and MSHA. Because the record 

lacks even a hint that Taylor's suspension was motivated in any part by his 

statement, its protected nature need not be assayed. 

1669 
if Taylor had an ulterior motive, he also had a good faith, 

reasonable belief that the situation in which he found himself 

presented a possible danger to his and to others' safety. Thus, 

his questions regarding outby transportation were, under the 

circumstances in which he found himself, perfectly proper, and it 

was Smart•s duty to meaningfully respond to the specific concerns 

~xpressed by Taylor. 

Communication of safety hazards and responses thereto are a 

means by which the Mine Act's purposes are attained, and once a 

reasonable, good faith concern is expressed by a miner, an 

operator, usually acting through its on-the-scene management 

personnel, has an obligation to address the perceived danger. 

Boswell v. National Cement Co., 14 FMSHRC 253, 258 (February 

1992); Secretary on behalf of Pratt v. River Hurricane Coal 

Company, Inc., 5 FMSHRC 1529, 1534 (September 1983); Secretary of 

Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 230 (February 

1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 

766 F.2d 469 (11th Cir. 1985). Moreover, the operator must 

address the miner's concern in such a way that the miner's fears 

reasonably should be quelled._ Gilbert v. FMSHRC, 866 F.2d 1433, 

1441 (D.C. Cir. 1989). If the operator does not address the 

perceived danger and disciplines the miner, "it does so at its 

own legal risk." Metric constructors, 6 FMSHRC at 230. 

Smart did not meet his obligation to meaningfully respond to 

Taylor's inquiry. Both Taylor and Parkhill creditably testified 

that Smart did not respond to Taylor's questions regarding outby 

transportation. Even under Smart•s version of the exchange --

that he ordered Taylor back to work and told Taylor that the 

travelway was no longer blocked -- Smart's response was patently 

inadequate. A statement that, "The travelway is no longer 

blocked." (Tr. 182) or that, "The road's clear now." (Tr. 183), 

cannot be equated to the kind of communicative response 

envisioned under the Act. Moreover, Smart 0 s statements appear to 

have been made after the travelway was opened and after the 

factual basis for Taylor 0 s concern had ceased to exist. 

While it is conceivable that there are circumstances that 

could mitigate an operator 1 s duty to meaningfully respond; 

for exampler instances in which adverse mine conditions preclude 

an immediate safety-related discussion or in which an operator 

may reasonably fear his response will trigger a overtly adverse 

reaction on the part of his questioner, the obligation to respond 

to reasonableu good faith safety concerns is -- at least in my 

view -- so important to the goals and purposes of the Mine Act 

that I can envision recognizing its mitigation only in the most 

extraordinary of circumstances -- circumstances that do not exist 

here. I conclude that Taylor has established that he was 

suspended because he engaged in protected activity. 

1670 
AFFIRMATIVE DEFENSE 

Old Ben argues that even if Taylor's inquiry about the 

availability of outby transportation constituted protected 

activity he was not disciplined for asking questions but for 

refusing an order to return to work, insubordination and using 

threatening language and that Old Ben established an affirmative 

defense by proving that it was motivated entirely by this 

unprotected conduct. I do not agree. 

As I have found, Smart's response to Taylor's inquiries was 

insufficient under the Act. Moreover, it colored all that 

followed, for subsequent to Smart's failure to meaningfully 

respond, the situation deteriorated. Koonce maintained that 

Taylor told Smart he would go to the manbus "whenever he felt 

good and G-D ready". Tr. 21, See also Tr. 28. Smart's version 

is that Taylor said he would go back to the manbus when he got "a 

goddamn answer." Tr. 183. Taylor asserted that he did not 

refuse a direct order to return to work because his work 

assignment required him to proceed inby on the manbus, and the 

entry being blocked, he coulctnot do so. 

Smart's testimony in this regard is more detailed than 

Taylor's and is, in my opinion, more believable. 12 Thus, I find 

that Taylor did, in fact, refuse to return to the manbus until he 

got na Goddamn answer" and even after being told that the entry 

had been cleared. I also credit Smart's testimony that Taylor 

held his hands up in Smart's face in a prayer-like fashion and 

asked, in effect, that he be suspended from work. I further find 

that after Parkhill left, the conversation became more heated, 

with Taylor telling smart the lack of transportation outby could 

"mean his [meaning Taylor's] goddamn life" and that Smart "had 

f ked with the wrong person," and Taylor ought to "knock 

(Smart' s] ass off. 61 Tr. 189. 13 I do not 1 however 1 credit 

Smart 9 s testimony that Taylor told him, "You're in this mine like 

the rest of us, and things can happen down here to you . or 

can happen at home to your family. 01 Tr,, 190. Taylor denied 

making such threats and Smart's version was not corroborated by 

Ronchetto, the first person from management with whom Smart spoke 

after the 11 threats. 11 In recounting his conversation with Smart, 

Ronchetto could recall being told only that Smart had stopped 

12 For example, Taylor, who had no trouble recalling the events 

immediately surrounding his safety complaint, could not recall clasping his 

hands in a prayer-like manner and as much as daring Smart to send him out of 

the mine. At most, Taylor would acknowledge the "possibility" that he might 

have done it. Tr. 67, See also Tr. 96. 

13 Although the language is rough, I do not find it unusual. To 

understate the matter considerably, mining is not an ice cream social, and 

blunt speech, laced with Anglo Saxon epithets, frequently is the norm. 

1671 
Taylor's time because the two had gotten into a dispute and 

Taylor had refused smart's orders to return to work. Tr. 138. 

It is reasonable to assume that had the acting mine manager been 

told that Taylor had in this manner threatened his foreman and 

the foreman's family, Ronchetto would have remember~d it and have 

recounted it. Further, while it is true that Koonce stated Smart 

:told him Taylor threatened Smart and his family, the "abusive and 

threatening language" (Exh. C-1) for which Taylor was disciplined 

was, according to Koonce, in the nature of Taylor holding his 

hands up to Smart in a praying fashion and pleaded with Smart to 

stop his time and send him out of the mine. Koonce also stated 

that the objectionable nature of the language lay not so much in 

what Smart said but in "the way in which it was said and the 

motions." Tr. 50.w 

The following colloquy between counsel for the Secretary and 

Koonce reveals Koonce's thoughts: 

Q. So what was the reason for the suspension? 

A. The reason for the suspension: Refusing a direct 

work order and using threatening and abusive language. 

Q. How do you know there was abusive language? 

A. Mr. Taylor admitted to doing exactly what he was 

accused of. 

Q. What is it exactly Mr. Taylor told you that he 

said to Mr. Smart? 

A. During the conversation he admitted the 

conversation was a heated conversation. He admitted to 

getting into Mr. Smart's face, with his hands in a 

praying motion, saying, ["]Please send me out, blease 

send me out. [ uv] 

Q. Is this the only thing he said to Mr. Smart? 

A. There were some other things that, that was said 

that Billy didn't admit to. Mr. Smart advised me that 

Mr. Taylor had threatened his kids, to do damage to his 

personal vehicle, and -- but Mr. Taylor didn't admit to 

that. 

Tr. 25-26 0 See also Tr. 19. 

14 Had Old .Ben• s management personnel really believed Taylor credibly 

threatened harm to Smart and to his family, it is hard for me to believe 

Taylor's discipline would have been restricted to a limited suspension. 

1672 
Thus, while I credit Smart's testimony that Taylor refused 

an order to return to the manbus and spoke to Smart in a heated 

and at times profane manner, I view Taylor's refusal and his 

comments as a direct result of Smart's failure to address in a 

meaningful way the danger Taylor perceived. As sue~, they could 

not form a valid basis for Taylor's suspension, and I conclude 

that in disciplining Taylor, Old Ben acted "at its own legal 

risk." Metric Constructors, 6 FMSHRC at 230. 

Nor does Taylor's oral response to Smart's failure to 

meaningfully respond strip protection from Taylors' safety 

inquiry. Taylor's "praying" to be suspended and his telling 

Smart that he (Taylor) should "knock (Smart's] ass off," were 

entwined with and the result of his protected activity. Just as 

in the collective bargaining context, where the courts have been 

reluctant to find language to be so opprobrious as to carry the 

speaker "beyond the pale" of statutory protection, I do not 

believe that the interest of the Act in promoting safety-related 

dialogue between miner and management is served by the external 

imposition of a rigid standard of proper and civilized behavior. 

See Lee Crown Central Petroleum Corp.· v. NLRB, 430 F.2d 724, 729-

730 (5th cir. 1970). Threatening harm to smart and his family 

might well be another matter, but, as noted, I do not credit 

smart's testimony in this regard. 

CONCLUSION 

ACCORDINGLY, I conclude and find that Taylor engaged in 

activity protected under the Act when he inquired of smart 

whether there was transportation outby and that Old Ben suspended 

Taylor for this activity. I further conclude and find that 

Taylor's subsequent refusal to return to the manbus and his 

"abusive and threatening language" toward Smart does not provide 

Old Ben with a valid basis for adverse action nor remove from 

Taylor the protection of the Act. Therefore, I hold that in 

suspending Taylor, Old Ben violated Section 105(c) (1) of the Act. 

ORDER 

1. Old Ben is ORDERED to pay Taylor within thirty (30) days 

of the date of this Decision all back wages and benefits from 

June 18 1 1991 through June 21 1 1991, with interest thereon in 

accordance with the Commission's Decision in Local Union 2274, 

UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (October 1988) 

calculated proximate to the time payment is actually made. 

2. Old Ben is ORDERED to expunge from Taylor's personnel 

records all reference to the incident of June 18, 1991, and 

Taylor's subsequent suspension. 

1673 
3. Old Ben is ORDERED to pay to the Secretary within 

thirt'5 (30) days of the date of this Decision a civil penalty of 

$500. 5 

Distribution: 

c.i)(A/; a f ~6~ David F. Barbour 

Administrative Law Judge 

Miquel J. Carmona, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

Gregory J. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail} 

/epy 

15 The Secretary proposed a civil penalty of $1250 for the violation of 

Section lOS(c) of the Act. I find the proposal excessive. I note 

particularly that Old Ben had no prior violations of Section lOS(c) in the 24 

months prior to this violation. I further conclude that Smart, although 

negligent in failing to respond to Taylor's inquiry, did not deliberately act 

in derogation of Taylor's Section lOS(c) rights. 

1674 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 8 1992 

IN RE: CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

Master Docket No. 91-1 

ORDER 

On August 24, 1992, the Secretary of Labor filed a motion 

for reconsideration and clarification of my order issued August 

13, 1992. She also seeks an extension of time for completion of 

expert discovery. On August 22, 1992, Contestant KTK Mining and 

Construction, Inc., filed a response to_ the Secretary's motion. 

On September 3, 1992, Contestants represented by Jackson & Kelly, 

Crowell & Moring, Buchanan Ingersoll, and Smith, Heenan & Althen, 

filed a response to the motion. 

I. MOTION FOR RECONSIDERATION 

The motion for reconsideration asks that I reconsider and 

reverse the conclusion in my order that an accidental, 

unintentional altering the weight of a filter cassette while the 

cassette is in the custody of the mine operator is not a 

violation of 30 C.F.R. 70.209(b), 71.209(b), or 90.209(b}. The 

Secretary asserts that the plain wording of the standard supports 

her position that she need not prove intent in order to establish 

a violation, and that in any event her interpretation of the 

standard is entitled to deference. She further argues that 

requiring the Secretary to prove intent is contrary to the strict 

liability provisions of the Mine Act. She suggests that "while 

the terms 'open' and 'tamper' [in the standard] arguably may seem 

to suggest an intentional act, the term alter, within its 

context u does not. eu 

A. Plain Wording 

The mandatory standard in Section 209(b) prohibits ("shall 

not") the mine operator from doing something, namely opening or 

tampering with the seal of a cassette, or altering its weight: 

an action rather than a condition is proscribed. The contested 

citations allege that the mine operator did something to the 

filter cassette, rather than that something happened to it. 

Unlike other uses of the negative terminology "shall not" in 

other mine safety and health standards which typically proscribe 

conditions, Section 209(b) proscribes action by the operator. 

The fact that the standard prohibits opening or tampering with 

the seal of a filter cassette as well as altering its weight does 

1675 
not in any way show that by the use of the word "alter", "the 

Secretary meant something other than an intentional act." The 

Secretary's position stated in her motion "that a violation of 

Sections 70.209(b), 71.209(b) and 90.209(b) occurs whenever there 

is a change, or alteration, of the weight of the dust filter" is 

plainly not supported or supportable by the words of the 

standard. On reconsideration, I repeat my holding that as a 

matter of law the accidental, unintentional altering (changing, 

reducing) the weight of a filter cassette while the cassette is 

in the custody of the mine operator is not a violation of 30 

C.F.R. 70.209(b), 71.209(b), or 90.209(b). 

B. Deference 

A reviewing court is obliged to defer to the reasonable 

interpretations of the Secretary of Labor when they conflict with 

the reasonable interpretations of the Occupational Safety and 

Health Review Commission (and therefore the Commission must defer 

to the Secretary). Martin v. OSHRC, U.S. I 113 L.Ed. 

2d 117 (1991). Whether the same rule applies to the Mine Safety 

Review Commission is not cleal:'. Compare Secretary of Labor v. 

Cannelton Industries, Inc., 867 F.2d 1432, 1433 (D.C. Cir. 1989) 

(the Secretary's interpretation of ambiguous provision of the 

Mine Act is entitled to deference) with Drummond Company, Inc., 

14 FMSHRC 661, 675 (1992) (the Commission may review questions of 

law and policy in cases brought by the Secretary) . 

In any event, the language of Section 209(b) is not 

ambiguous, but explicit and precise. It tells the mine operator: 

thou shalt not alter the weight of a filter cassette. In my 

judgement it is not reasonable to interpret this prohibition to 

include an accidental change of the filter cassette weight. 

Therefore, insofar as this is the Secretary's interpretation of 

the standard, it is not reasonable and therefore not entitled to 

deference. 

C. strict Liability 

There is no dispute that the Mine Act provides strict 

liability for violations of mandatory standards. If an operator 

is shown to have violated a standard, the operator is liable. 

Most of the Mine Act mandatory standards prescribe certain 

conduct. Part 70, for example, enjoins the operator to maintain 

respirable dust levels, to take certain dust samples with 

approved sampling devices maintained and calibrated by a 

certified person, to transmit the samples to MSHA, to make 

approved respiratory equipment available, to control dust from 

drilling rock, etc. If the operator fails to do any of these 

things, he is in violation of the standard, and his intent is 

irrelevant. Section 209(b) is different: it prohibits what only 

can be interpreted as deliberate acts, and no violation can be 

established if a deliberate act is not shown. Unless a violation 

1676 
is established, any discussion of strict liability for a 

violation begs the question. One cannot prove that a violation 

occurred by arguing that violations result in strict liability. 

II. MOTION FOR CLARIFICATION 

It has been the Secretary's position that a cited AWC can 

only have resulted from a deliberate act by which the weight of 

the filter cassette was altered. The purpose of the common 

issues trial is to receive evidence concerning this allegation 

that I may determine whether or not the AWCs on the cited filters 

can only have resulted from such deliberate acts. There is 

nothing in my order of August 13, 1992, which would require or 

even permit the Secretary to prove the state of mind of a 

particular mine operator. The intent of a particular mine 

operator or group of operators is not an issue in the common 

issues trial and the Secretary "need not identify the specific 

individuals who altered the weight, when such alteration 

occurred ... or the manner in which the weight alteration was 

accomplished." (Secretary's motion, p. 13). These are matters 

for case-specific trials. 

The issue is whether an AWC on a cited filter cassette 

establishes that the operator intentionally altered the weight of 

the filter. The ultimate paragraph of my August 13 order 

indicated some of the kinds of evidence that might be relevant to 

the resolution of that issue. Other evidence may include the 

criteria the Secretary followed to determine which AWC filters 

should be cited. 

III. MOTION .FOR EXTENSION OF TIME 

The Secretary seeks an extension of time for the completion 

of expert witness discovery from October 2 to October 30, 1992. 

The Secretary states that she will be unable to provide 

supplemental or additional expert reports before September 25, 

1992 1 and that the extension should not delay the trial date. 

Contestants oppose the request for extension of time on the 

ground that the Secretary's need for additional time resulted 

from her failure to direct her expert witness in a timely fashion 

to conduct additional testing. They state that to extend expert 

witness depositions to October 30 will interfere with other 

prehearing requirements, e.g., exchanges of witness and exhibit 

lists by October 30 and offering stipulations and trial procedure 

agreements by November 13. Contestants further state that the 

Secretary designated a new expert witness on September 2, which 00 raises additional issues which the Contestants ... intend to 

address in a separate motion to be filed on or about September 

9.~ Contestants request that I withhold ruling on the 

Secretary's request for an extension until that time. 

1677 
I have considered the motion and the response. I accept the 

secretary's representation that an October 2 date will create 

problems for her to complete her expert witness preparation. I 

agree with contestants that an extension to October 30 will 

compress the prehearing requirements and may result in attempts 

to postpone the trial date. I intend to hold to the December 1 

date for the commencement of the trial. 

Delaying a ruling on the Secretary's motion until 

Contestants file a motion concerning the addition of a new expert 

witness will further complicate and delay the completion of 

discovery. Therefore, without indicating how I may rule on that 

matter when and if a motion is filed, I hereby extend the time 

for completion of expert witness discovery to October 16, 1992. 

Distribution: 

JbMUs A/J.v~eL J"-~~~~s A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Laura E. Beverage, Esq., Jackson and Kelly, P. O. Box 553, 

Charleston, WV 25322 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell and Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004 (Certified Mail) 

William Io Althen, Esq.ff Smith 1 Heenan and Althen, 1110 Vermont 

Avenue 1 N. W., Washingtonv D.C. 20005 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th 

Floor 1 Pittsburgh, PA 15219 (Certified Mail) 

All Others by Regular Mail 

/fas 

1678 
IN RE: 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 16 1992 

CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

Master Docket No. 91-1 

ORDER GRANTING IN PART AND DENYING IN PART 

MOTION TO COMPEL DISCOVERY 

On August 19, 1992, in compliance with the Commission remand 

of June 29, 1992, I ordered the Secretary to submit for my in 

camera inspection documents 17, 119, 142, 160, the December notes 

of document 407, 476, and 481. The documents were submitted by 

the Secretary on September 11, 1992. For the reasons which 

follow, I grant in part and deny in part the Contestants• motion 

for disclosure. 

Document 17 is a memorandum to the file from an Assistant 

u. s. Attorney dated February 21, 1990, regarding a telephone 

conversation he had with an attorney for a coal mine operator. 

The Secretary claims the protection of the work produce doctrine. 

Clearly the document was prepared by an attorney in anticipation 

of possible future litigation. It comes within the work product 

rule. Since it records a conversation with an attorney for a 

Contestant 1 it can hardly be argued that Contestants have a 

substantial need for it and are unable to obtain its substantial 

equivalent by other means. I will deny its disclosure. 

Document 119 is an MSHA internal memorandum dated February 

4, 199lp concerning the coal dust sampling investigation. I have 

previously upheld the Secretary 1 s assertion of the deliberative 

process privilege. Nothing in the document indicates that it is 

necessary for Contestants' defense. I will deny disclosure. 

Document 142 is a memorandum to the Associate Solicitor and 

the MSHA Coal Mine Safety and Health Administrator from the 

Counsel for Trial Litigation and the Chief, Office of Technical 

Compliance and Investigation dated August 28, 1989. I previously 

upheld the Secretary's assertion that the document is protected 

by the work product doctrine. The memorandum concerns in large 

part the criminal investigation. It proposes alternative 

strategies for future investigations and legal action. It 

includes mental impressions, conclusions, and opinions of the 

Secretary's attorneys. I will deny disclosure. 

1679 
Document 160 is an undated memorandum from Assistant 

Secretary Tattersall to the Secretary concerning the AWC 

investigation. I upheld the Secretary's assertion of the 

deliberative process privilege. The document refers to the 

criminal investigation, and contains proposals for civil 

enforcement. There is nothing in the document which indicates 

that it is necessary for the Contestants' defense. I will deny 

disclosure. 

Document 407 (notes for the last week in November 1990 only. 

My order of August 19 refers to them as December notes) contains 

calendar entries of Robert Thaxton, a portion of which were 

excised. The excised notes include the record of a discussion 

with other MSHA officials concerning potential citations and what 

further information may be needed. I conclude that the excised 

portion of the notes is protected by the deliberative process 

privilege. There is no indication that the notes are necessary 

for Contestants' defense. I will deny disclosure. 

Document 476 includes the excised notes of Robert E. Nesbit 

dated October 30, 1989, November 7, 1989, November 30, 1989, 

January 11, 1990, and February 1, 1990. The notes of October 30 1 

1989 (called pages 5 and 6 by the Solicitor), are contained in 

two pages and record a meeting between Edward Clair of the 

Solicitor's Office and eight MSHA officials including Nesbit. 

Page 5 (called Section 1 by the Solicitor) records Edward Clair's 

report of a meeting with Department of Justice officials and 

contains directions for future proceedings. I conclude this page 

is protected by the attorney-client privilege. Page 6 (Section 

2) records what MSHA officials proposed to do regarding future 

investigations. I conclude that it is protected by the 

investigative privilege. The notes of November 7, 1989 (page 4), 

contain suggested investigative steps and procedures. It is 

protected by the investigative privilege. The notes of November 

30p 1989 (page 3}, contain names of potential targets of the 

investigation. It is protected by the investigative privilege. 

The notes of January 11, 1990 (page 2), contain directions for 

further investigation. It is protected by the investigative 

privilege. Nothing in the documents indicates that the excisions 

are necessary for Contestantsn defense" I will deny disclosure. 

Document 481 comprises the excised notes of Glenn Tinney 

introduced at Tinney~s deposition" They are contained in ten 

pages including the cover sheet entitled "AWC - Glenn Tinney 

Notes.~ Seventeen excisions were made by reason of claims of 

privilege and are described and numbered in the letter of 

November 26, 1991, from Carl Charneski to Henry Chajet. Excision 

1 is part of a note dated January 30, 1990. It refers to a plan 

for investigation of inspector samples following a meeting with 

MSHA and OIG officials. The Secretary asserts the attorneyclient and investigative privileges. I conclude that the 

excision is protected by the investigative privilege but not by 

1680 
the attorney-client privilege. Excision 2 records., a telephone 

call from Thaxton concerning a communication from the U.S. 

Attorney. The Secretary asserts the attorney-client privilege. 

I conclude that the excision is protected by the attorney-client 

privilege. It is a sharing by client representatives (MSHA is 

the client) of the advice of their attorney. Excision 3 records 

what a Secretary's attorney did. It does not include any 

proposals, conclusions, mental 'impressions, or legal theories. 

The Secretary asserts the deliberative process and work produce 

privileges. Neither privilege properly fits the excised 

sentence. I deny the claim of privilege and will order the 

excised portion of the document disclosed. Excision 4 concerns a 

request from the Inspector General about inspector samples, and 

direction from Tinney's superior. It is protected by the 

investigative and deliberative process privileges. Excision 5 

records a discussion among MSHA officials about the processing of 

AWC samples. It is protected by the deliberative process 

privilege. Excision 6 contains the names and social security 

numbers of MSHA inspectors being investigated. It is protected 

by the investigative privilege. Excision 7 records the advice of 

the Secretary's attorneys to,Tinney.concerning the investigation. 

It is protected by the attorney-client and work product 

privileges. Excision 8 concerns directions from the Solicitor's 

Off ice and Ed Hugler concerning the AWC investigation. It is 

protected by the attorney-client and work product privileges. 

Excision 9 records advice from the Solicitor's Office to Tinney. 

It is protected by the attorney-client privilege. Excision 10 

contains further advice from the Solicitor's Office to Tinney. 

It is protected by the attorney-client privilege. Excision 11 

records a communication from Tinney to an OIG official concerning 

inspector samples. It is pr_otected by the investigative 

privilege. Excision 12 records a discussion between Tinney and 

an attorney from the Solicitor's Office concerning the 

investigationo It protected by the attorney-client privilege. 

Excision 13 records a discussion between Tinney and Dr. Myers of 

West Virginia University concerning Dr. Myers 1 report. It is 

protected by the deliberative process and work product 

privileges. However, for the same reasons that I directed the 

production of documents 376, 365, 3, and 366 in my order of 

August 19 1992u I will direct the disclosure of the material in 

excision 13. It contains comments on the draft report of Dr. 

Myers. Excision 14 records advice from the Secretary 1 s attorney 

and an Assistant U.S. Attorney. It is protected by the attorneyclient privilege. Excision 15 records a discussion among MSHA 

officials concerning the processing of AWC samples. The excision 

is protected by the deliberative process privilege. Excision 16 

records advice from the Secretary's attorneys and discussion of 

future action. It is protected by the attorney-client privilege. 

Excision 17 contains a description of options for further AWC 

activity. It is protected by the deliberative process privilege. 

I have rejected the claim of privilege for excision 3, and 

conclude that the information in excision 13 is necessary for 

1681 
Contestants• defense. With respect to all the other excisions in 

document 481, disclosure will be denied. 

ORDER 

Accordingly, IT IS ORDERED that Contestants• motion for 

production of documents is GRANTED with respect to excision 3 and 

excision 13 in document 481. ~he motion is DENIED with respect 

to the remainder of document 481 and with respect to documents 

17, 119, 142, 160, 407 and 476. 

Distribution: 

1~ ~~det~'el- /"~~~;~~A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Bouleva,rd; Arlington, VA 22203 (Certified 

Mail) 

Laura E. Beverage, Esq., Jackson and Kelly, P. o. Box 553, 

Charleston, WV 25322 (Certified Mail) 

/fcca 

1682 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 181992 

IN RE: CONTESTS OF RESPIRABLE ) 

DUST SAMPLE ALTERATION ) 

CITATIONS } 

Master Docket No. 91-1 

ORDER DENYING MOTION TO COMPEL 

In response to a subpoena duces tecum issued at the request 

of Contestants represented by Jackson & Kelly (Contestants), the 

United States Department of Labor, Office of Inspector General 

(OIG) produced certain documents and withheld others based on 

claims of privilege. Contestants filed a motion to compel. on 

August 25, 1992, I issued an order granting in part and denying 

in part the motion to compel, and directing OIG to submit six 

documents for my in camera inspection. The documents were all 

found to come within the deliberative process privilege, and I 

directed that they be submitted so that I could determine whether 

Contestants' need for the documents in their defense outweighs 

OIG's interest in confidentiality. The documents were submitted 

on September 15, 1992, for my in camera review. For the reasons 

which follow, I deny the motion to compel with respect to the six 

documents. 

The deliberative process privilege is intended to protect 

the decision making process of Government agencies against 

disclosure in order not to discourage open discussion of 

prospective Governmental policies. Jordan v. U.S. Dept. of 

Justice, 591 F.2d 753 (D.C. Cir. 1978); Contests of Respirable 

Dust Sample Alteration Citations, 14 FMSHRC 987 (1992). It 

applies to materials which are truly deliberative and does not 

protect purely factual material. Id. at 993. Material protected 

by the deliberative process privilege may be ordered disclosed if 

the Contestants' need for the documents to fairly defend their 

position outweighs the Government's interest in confidentiality. 

I have been assigned to these cases for more than a year and am 

in a position to understand the issues and the evidentiary needs 

of the parties. I believe this provides a basis to make a 

determination after in camera review whether Contestants' need 

1683 
for disclosure of the documents outweighs OIG's interest in 

confidentiality, regardless of any showing of need in 

Contestants' motion. See Contests, 14 FMSHRC at 995. 

Document 1 is an undated draft memorandum from I. A. 

Bassett, Jr., Assistant Inspector General for Investigations to 

the Administrator for Coal Mine Safety and Health. It was 

apparently prepared by Raymond J. Carroll, Regional Inspector 

General for Investigations. It contains handwritten remarks 

apparently inserted by Bassett. The memorandum was not sent to 

MSHA. Document 2 is a fax memorandum from Carroll to Bassett 

attached to draft document l and commenting on the draft. 

Document 3 is a memorandum from Carroll to Bassett dated 

March 17, 1992, commenting on and criticizing the memorandum sent 

by OIG to MSHA. These documents were identified in my August 25 

Order as being included in paragraph 10 of the IG's Declaration. 

There is no indication in the documents that Contestants' need 

for disclosure outweighs OIG's interest in confidentiality. The 

motion to compel will be denied. 

Document 4 (referred to,inparagraph 14 of the IG's 

Declaration) is a portion of a letter from c. E. Elliott for 

Raymond J. Carroll, OIG, to an Assistant U.S. Attorney. I upheld 

the claim of the deliberative process privilege for the deleted 

portion of the letter. Nothing in the excision indicates that 

Contestants' need for the deleted portion of the document 

outweighs the OIG's interest in confidentiality. The motion to 

compel will be denied. 

Document 5 (referred to in paragraph 16 of the IG's 

Declaration) is the deleted portion of a memorandum of 

January 10, 1990, from Carroll to the Acting Assistant IG for 

Investigations and two other Regional IGs. Nothing in the 

excision indicates that the Contestants 1 need for the excised 

words outweighs the OIG 1 s interest in confidentiality. The 

motion to compel will be denied. 

Document 6 (referred to in paragraph 18 of the IG's 

Declaration) is a draft memorandum entitled "Interim Report" from 

I. A. Bassettu Jr.u of OIG to Jerry L. Spiceru Administrator~ 

Coal Mine Safety and Health. The memorandum was prepared by 

Carroll and forwarded to OIG headquarters, but was never sent to 

Spicer. The document refers to investigative action which has 

taken place and proposes further action. It contains the names 

of inspectors who have been interviewed. There is no indication 

in the document that it is necessary for Contestants' defense so 

as to outweigh OIG's interest in confidentiality. The motion to 

compel will be denied. 

1684 
ORDER 

Therefore, IT IS ORDERED that the Contestants' motion to 

compel disclosure of documents 1 through 6 (referred to in 

paragraphs 10, 14, 16, and 18 of the Inspector General's 

Declaration) is DENIED. 

~s Atd~~;el_. James A. Broderick · Administrative Law Judge 

Distribution: 

Sylvia Horowitz, Esq., Counsel to the Inspector General, 

Howard L. Shapiro, Esq., Assistant Counsel to the Inspector 

General, 200 Constitution Avenue, N.W., Room S-1305, Washington, 

DC 20210 (Certified Mail) 

Henry Chajet, Esq., Jackson &·Kelly, 1701 Pennsylvania Avenue, 

N.W., Suite 650, Washington, DC 20006 {Certified Mail) 

Douglas N. White, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

{Certified Mail) 

All other counsel by regular mail 

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