JUNE 1984 

Commission Decisions 

6-01-84 Belcher Mine, Inc. 

6-05-84 Roger Sammons v. Mine Services Co. 

6-14-84 MSHA/James Clarke v. T P Mining, Inc. 

6-14-84 United States Steel Corporation 

6-15-84 Richard Bjes v. Consolidation Coal Co. 

6-26-84 United States Steel Corporation 

6-27-84 UMWA/Billy D. Wise v. Consolidatiop Coal 

Administrative Law Judge Decisions 

6-01-84 

6-04-84 

6-04-84 

6-05-84 

6-06-84 

6-06-84 

6-08-84 

6-08-84 

6-13-84 

6-14-84 

6-14-84 

6-14-84 

6-18-84 

6-19-84 

6-20-84 

6-21-84 

Robert Simpson v. Kenta Energy, Inc. 

Turner Brothers, Inc. 

Peabody Coal Company 

Roger L. 'Welch v. Chestnut Ridge Coal Co. 

Shamrock Coal Company, Inc. 

U.S. Steel Mining Company, Inc. 

Mettiki Coal Corporation 

United States Steel Mining Co., Inc. 

Joseph Ceremuga v. Cotter Corporation 

Magma Copper Company 

Medicine Bow Coal Company 

Medicine Bow Coal Company 

Amherst Coal Company 

Vesta Mining Company 

MSHA/Teddy Bentley v. Beth-Elkhorn Corp. 

MSHA/Loren Nielsen v. Stewart Stone, Inc. 

SE 84-4-M 

SE 82-15-D 

LAKE 83-97-D 

WEST 80-386-RM 

PENN 82:-·26-D 

LAKE 81-102-RM 

WEVA 82-38-D 

KENT 83-155-D 

CENT 84-8 

WEST 84-66 

WEVA 84-5-D 

KENT 83-131 

PENN 83-103 

YORK 84-8 

PENN 83-143 

WEST 83-114-DM 

WE:;T 83-17-M 

WEST 81-163 

WEST 81-163 

WEVA 83-271 

PENN 83-122-R 

KENT 84-157-D 

CENT 84-11-DM 

Pg. 1390 

Pg. 1391 

Pg. 1401 

Pg. 1404 

Pg. 1411 

Pg. 1423 

Pg. 1447 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1454 

1482 

1489 

1490 

1492 

1502 

1507 

1510 

1521 

1522 

1529 

1537 

1539 

1547 

1558 

1560 

JUNE 

The following cases were directed for review during the month of June: 

Dilip Paul v. P.B.-K.B.B., Inc., Docket No. CENT 83-42-DM. (Judge Kennedy, 

Interlocutory Review of April 24, 1984 order.) 

Secretary of Labor, MSHA v. U.S. Steel Mining Company, Docket No. WEVA 82-390-R, 

etc. (.Judge Steffey, April 30, 1984} 

United Mine Workers of America v. Peabody Coal Company, Docket No. LAKE 83-69-D, 

KENT 82-103-D, etc. (Judge Kennedy, Interlocutory Review of April 24, 1984 order.) 

Secretary of Labor, MSHA v. Pittsburg & Midway Coal Mining Company, Docket No. 

CENT 83-65. (.Judge Broderick, May 17, 1984.) 

Secretary of Labor, MSHA v. Duval Corporation, Docket No. CENT 80-312-M. (Judge 

Morris, May 22, 1984). 

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

George Jack v. Mid-Continent Resources, Inc., Docket No. WEST 83-72-D. (Judge 

Carlson, April 26, 1984}. 

Secretary of Labor, MSHA v. Metric Constructors, Inc., Docket No. SE 80-31-DM. 

(Judge Koutras, April 26, 1984) 

Lawrence Everett v. Industrial Garnet Extractives, Docket No. YORK 83-6-DM. 

(Judge Broderick, May 14, 1984). 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

~ 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BELCHER MINE, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 1, 1984 

Docket No. SE 84-4-M 

ORDER 

The administrative law judge's letter of May 25, 1984, purporting 

to explicate his April 26, 1984, decision in this matter is rejected as 

an improper circumvention of the Commission's Rules of Procedure, and is 

hereby returned to him • .£t• Pontiki Coal Corp., Docket No. KENT 83-181-R, 

etc. (Order, May 23, 1984); canterbury Coal Co., 1 FMSHRC 335 (1979); 

Peabody Coal Co., 2 FMSHRC 1035 (1980); Penn Allegh Coal Co., Docket No. 

PITT 79-97-P (Order, January 3, 1979). 

1390 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ROGER E. SAMMONS 

v. 

MINE SERVICES CO., a 

wholly-owned subsidiary 

of Druinmond Coal Co. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 5, 1984 

Docket No. SE 82-15-D 

DECISION 

This discrimination case arises under section 105(c) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~· (1982), and 

involves an operator's alleged discriminatory discharge of a miner. A 

Commission administrative law judge concluded that the operator did not 

violate the Mine Act by discharging the miner, and dismissed the miner's 

discrimination complaint. 4 FMSHRC 1713 (September 1983)(ALJ). We 

affirm the judge's decision. 

Mine Services Company, a wholly-owned subsidiary of Drummond Coal 

Company, performs construction work at surface coal mines and coal 

preparation facilities. The complaining miner, Roger Sammons, was 

employed as an ironworker by Mine Services.at its Short Creek, Alabama, 

surface coal mine construction project from August 27 through September 21, 

1981. Mine Services, a signatory to the National Coal Mine Construction 

Agreement ("the Construction Agreement") between the United Mine Workers 

of America ("UMWA") and the Association of Bituminous Contractors, hired 

Sammons and six other ironworkers from a UMWA District Panel. Under 

Art. XVI(h) of the Construction Agreement, an employer could refer a new 

employee back to the panel during the first 30 days of employment "if 

the [e]mployer decides that the employee is not able to step into and 

perform the work of the job •••• " 

139-1 
Mine Services first utilized Sammons to load and unload steel 

beams. Sammons then was assigned to work as an ironworker connector 1../ 

for about two weeks at a partially completed "sample house," a structure 

where mined ore was to be sorted and sampled. He worked with Billy 

Canada and Donald Gravlee, also connectors. 

In early September, Sammons, acting as Union Grievance Committeeman, asked Project Superintendent Edward Bates to post certain boom 

truck operator jobs for bidding, rather than unilaterally assigning such 

operators. Sammons stated that qualified operators were needed for 

safety reasons. Boom trucks were used to load steel onto flatbed 

trucks for transportation to work areas. Bates, who considered Sammon's 

request governed by the Construction Agreement, informed Sammons that 

the agreement allowed Mine Services a grace period of 60 days before the 

jobs had to be posted for bidding, and that the two operators Bates had 

initially assigned to the jobs were qualified. Sammons also complained 

that the safety belt provided to him by Mine Services was too large and 

did not fit properly. Sammons was permitted to use his own safety belt 

after this complaint. 

About September 14, 1981, after construction on the sample house 

was almost completed, Superintendent Bates assigned Sammons, Canada, 

Gravlee, and other connectors to do connecting work on a large refuse 

bin. The structure was to consist of a rectangular paneled bin tapering 

on its underside to a dump chute. The bin was to be supported above 

ground level by four vertical steel beams located at the four corners of 

the bin and reinforced on each side by two sets of diagonal steel braces. 

The connecting work involved on the refuse bin was more complicated than 

that done on the sample house. 

As the braces for the refuse bin were hoisted by crane, the connectors 

were expected to guide the braces into place and to bolt the ends of the 

braces to the vertical beams, using bolt holes pre-cut in the steel. 

This work sometimes required the connectors to climb and to straddle or 

stand on the steel about 30-32 feet above the ground. Ordinarily, 

connectors were expected to make such connections by climbing the steel. 

On occasion, the pre-cut holes in the diagonal braces were "out of.plumb" 

and did not match up with the holes in the vertical steel beams. In such 

1./ An ironworker connector steadies and guides structural steel members 

or beams as they are hoisted into position by crane or other means for 

the framework of a building or other structure. See Webster's Third 

New International Dictionary (Unabridged) 481 (1971). Typically, the 

connector installs at least one bolt into each end of the .steel member 

to connect it in place. A "bolt-up man," a lower-paid ironworker, 

finishes the bolting work after the initial connection. 

1392 
cases, it would be necessary for the connectors to pull or pry the steel 

members into alignment by inserting a spud wrench through the holes (a 

procedure called "spudding the beams") or to burn new holes in the steel 

in order to .make a proper connection. New holes could be burned by a 

connector while working on the steel or from a basket (a structure with 

posts and handrails) hoisted by a second crane. However, burning new 

holes was a last resort. If too many extra holes were burned, the 

building would be out of plumb when complete. 

After observing the connectors' work on the refuse bin for the 

first few days following their assignment to that project, Bates became 

dissatisfied with their slow progress. The foreman on the refuse bin 

project complained to Bates that "he couldn't get [the refuse bin] 

together with the people that he had." Tr. 91. Acco.rdingly, on the 

afternoon of September 16, 1981, Bates met with Sammons, Canada, and 

Gravlee, the three connectors whose lack of progress was the focus of 

Bates' concern, and expressed disappointment over the slowness of their 

work. According to management's contemporaneous notes of the meeting, 

Sammons responded that the connectors needed another crane and a basket 

from which to make the connections in order "to speed it up." Sammons 

then stated, "The going was slow mainly because of a safety situation." 

Bates replied, "The safety part of the job I agree with but not with 

extra equipment." (Bates testified at the hearing that connecting work 

was not to be performed out of a basket except under abnormal conditions.) 

Gravlee conceded that he could not do the connecting work. Bates thanked 

Gravlee for his "honest" answer and stated, "I want honest answers as to 

the progress of the erection. There were only four pieces of iron hung 

today." Canada offered. as an explanation the fact that the steel had 

been wet until approximately 9:45 a.m. Bates replied, "I understand 

about steel being wet. [Y]ou don't work on wet steel ever. The problem 

is I need connectors that can do the job." Sammons testified that he 

repeated his complaint that the safety belt supplied by Mine Services 

did not fit properly, and the notes of the meeting reflect that he also 

stated, "I won't do anything unsafe, if that means working slow, then 

that's the way I'll do it." Bates responded, "All I ask is that you 

give me your best shot." The record on the meeting contains no more 

specific testimony regarding safety. !:../ 

Bates tested all seven connectors two days later by observing and 

evaluating them as they performed connecting work on the refuse bin. 

Bates had Sammons and Canada erect one diagonal brace. Bates concluded 

that they did not appear to be comfortable on the steel and did not 

!:..I Sammons' contention on review that he also complained to Bates at 

this meeting that there were no taglines (a rope tied around the steel 

beams.to pull them into place) is not supported by the record. It was 

Canada who complained, and he complained to a foreman, not to Bates. 

1393 
handle their tools properly. In a subsequent report to his superior, 

Bates stated, "They had difficulty with [the lower] connection, and 

wanted to burn holes. The connection was made but it was apparent they 

did not know exactly how to utilize their tools to the best advantage." 

Sammons, assisted by Canada, then moved to the middle section of the 

diagonal and made the connection at the "X" point of intersection between 

the two diagonal braces. However, contrary to what Bates believed 

should have been done next, Sammons did not proceed to climb to the top 

of the diagonal, where the brace was resting in place over a gusset 

plate, to make the needed upper connection, nor did he climb the diagonal 

to remove a loose. "choker" (a wire rope connected to a crane that holds 

a steel member). Instead, Sammons and Canada started to hook a basket 

to the crane. ]_/ Bates ordered them down. He did not ask why they needed 

the basket and they did not offer an explanation. Ba.tes then directed 

Ralph Smith, another connector, to climb the diagonal to make the connection. 

Smith climbed the steel and discovered that the holes were out of plumb. 

The connection was eventually made by another connector working from a 

basket. 

After the test, Bates concluded that of the seven connectors tested, 

two were good and two were acceptable, but that Sammons and Canada 

lacked the ability to perform as connectors. The remaining connector, 

Gravlee, admitted that he was afraid to climb the steel and later was 

allowed to bid on another, lower-paying job. Bates terminated Sammons' 

and Canada's employment on September 21, 1981, before their 30-day 

probationary period ended, by referring them back to the UMWA District 

Panel pursuant to the referral-back provisions of the Construction 

Agreement. Bates' personnel memorandum on the subject stated, "They do 

not perform as connectors."!!._/ 

Sammons filed a discrimination complaint under the Mine Act with 

the Secretary of Labor on September 24, 1981. After the Secretary 

declined to prosecute the complaint on his behalf, Sammons filed his own 

discrimination complaint with this independent Commission pursuant to 

section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). The complaint 

stated: 

)_/ Sammons testified that he needed the basket because it was apparent 

that the holes were out of plumb and new holes would have to be burned 

in order to make the connection, and also because the diagonal was not 

secure enough to climb. Canada's testimony corroborates Sammons'. 

!!._/ Sammons and Canada filed grievances under the Construction Agreement after Bates referred them back. On October 19, 1981, after Sammons 

had filed his Mine Act discrimination complaint with the Secretary of 

Labor, Mine Services and the UMWA local union settled the two grievances 

by agreeing that Mine Services would reinstate Canada with full pay and 

that Sammons' grievance would be withdrawn. Sammons' grievance was 

withdrawn by the local union and Canada was reinstated. Sammons filed 

a charge with the National Labor Relations Board regarding the union's 

withdrawal of his grievance. The record does not disclose the outcome 

of that complaint. 

1394 
While employed with [Mine Services, Inc., at] the 

Short Creek project, there were no complaints made 

to me about my work. I feel therefore that the only 

reason for me being relieved of my duties was the 

complaints which I made about getting safe operators, 

safety belts, building cages and getting taglines to 

be used on the larger pieces of steel. 

At the hearing before the Commission administrative law judge, 

Sammons contended that he was discharged in retaliation for making 

safety complaints. In his post-hearing brief to the judge, Sammons' 

counsel suggested for the first time, with reservations discussed below, 

that Sammons also was discharged because he engaged in a protected work 

refusal during the September 18 test when he did not ~limb the upper end 

of the diagonal brace. In his decision, the judge characterized the 

major issue as whether Mine Services referred Sammons back because Bates 

believed him to be an incompetent connector, or in retaliation for 

Sammons' safety complaints. The judge concluded that none of Sammons' 

complaints was related to safety. He credited Bates' testimony that the 

boom truck operator complaint in early September was a labor-management 

dispute over the posting of jobs. He determined that Sammons' safety 

belt complaints were not safety complaints because Mine Services had not 

refused to provide safety belts. 4 FMSHRC at 1729-30. The judge further 

determined that Sammons' request for a basket at the September 16 meeting 

with Bates was not a safety complaint, but reflected a difference of 

opinion as to how connecting work should be done. 4 FMSHRC at 1730-31. 

The judge also rej~cted Sammons' alternative argument that Bates 

terminated him because he engaged in a protected work refusal during the 

September 18 test. The judge stated.that the evidence did not establish 

that Sammons was required to work in an unsafe manner or that he refused 

to work for reasons of safety. 4 FMSHRC at 1732-33. In short, the 

judge credited Bates' testimony as to his reason for referring Sammons 

back, over Sammons' contrary testimony. Finding nothing suspect in the 

referral back, the judge concluded that it was based solely on Bates' 

bona fide belief in Sammons' incompetence as a connector. 4 FMSHRC at 

1733-34. Accordingly, the judge dismissed Sannnons' discrimination 

complaint. 

We note at the outset that the judge's decision fails to mention 

and does not apply this Commission's precedent in the area of discrimination law.. This omission has ne~dlessly complicated the task of review. 

We have carefully examined the judge's findings and the record and are 

satisfied that his decision is consistent with our precedent in principle 

a~d in result. However, for the sake of clarity, we reiterate the basic 

analytical guidelines in this field. 

In order to establish a prima facie case of discrimination under 

section 105(c) of the Mine Act, a complaining miner bears the burden of 

production and proof to establish (1) that he engaged in protected 

1395 
activity and (2) that the adverse action complained of was motivated in 

any part by th~t activity. Secretary on behalf of Fasula v. Consolidation 

Coal Co. v. Marshall, 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

(3d Cir. 1981); and Secretary on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity occurred 

or that the adverse action was in no way motivated by protected activity. 

If an operator cannot rebut the prima facie case in this manner it may 

nevertheless affirmatively defend by proving that (1) it was also motivated 

by the miner's unprotected activities, and (2) it would have taken the 

adverse action in any event for the unprotected activities alone. The 

operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Co., 4 fMSHRC 1935, 1937 (November 1982). 

The ultimate burden of persuasion does not shift from the complainant. 

Robinette, 3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC, 719 F.2d 

194 (6th Cir. 1983); and Donovan v."""StaffOrd Constr. Co., No. 83-1566, 

D.C. Cir. (April 20, 1984)(specifically approving the Commission's 

Fasula-Robinette test). The Supreme Court has approved the National 

Labor Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. Transportation 

Management Conp., ~-U.S.~-' 76 L.Ed. 2d 667 (1983). 

The judge found that Sammons had not engaged in any protected 

activity, either in the form of safety complaints or a work refusal, and 

that he was referred back to the District Panel during his probationary 

period of employment solely because Bates believed him to be an incompetent connector. T~us, in effect, the judge concluded that Sammons 

had failed to prove either element of the prima facie case. Sammons has 

challenged both of these findings. 

Sammons contends that the judge erred in holding that his complaint 

in early September regarding the posting of the boom truck operators' 

jobs, his complaints that Mine Services had provided him with an illfitting safety belt, and his generalized complaint at the September 16 

meeting with Bates that the connectors needed a basket from which to 

make the connections on the refuse bin were not protected. We agree 

that the judge erred in certain aspects of his analysis of these complaints. In part, the judge concluded that Sammons' boom truck and 

safety belt complaints were not protected because there was no showing 

that there was, in fact, a safety problem and because Mine Services 

adequately addressed whatever problem was in issue. That there may 

have been no objective underlying safety problem does not invalidate a 

miner's good faith reasonable complaint. Robinette, supra, 4 FMSHRC at 

811-12. Similarly, the fact that an o'Perator addressed a safety problem 

does not remove the Act's protection from a preceding complaint. The 

judge also appears 'to have given weight to the fact that Sammons had 

filed no grievances or written complaints with governmental agencies. 

1396 
The filing of such formal complaints is not a prerequisite to making a 

protected safety complaint to an operator. Nevertheless, because of our 

ultimate conclusion that these complaints were not related to Sammons' 

dismissal, we do not believe it is necessary to determine which of them 

were protected, but assume, for purposes of this decision, that they 

all were. 

As to the other protected activity alleged by Sannnons, we affirm 

the judge's conclusion that Sammons did not engage in a protected work 

refusal. In our Pasula and Robinette decisions, we held that under the 

Mine Act a miner may refuse to engage in work where he has a reasonable, 

good faith belief in a hazardous condition, and we have applied this 

doctrine in various factual contexts to extend the Act's protection to 

miners' work refusals. See, for example, Secretary of Labor (MSHA) v. 

Metric Constructors, Inc., 6 FMSHRC 226 (February 1984). Our cases 

contemplate, however, that the miner has engaged in some form of conduct 

or connnunication manifesting an actual refusal to work. As noted above, 

Sammons did not raise a work refusal theory in this case until after the 

hearing, and even then his counsel candidly conceded the difficulty of 

applying that theory to the facts: 

Our position is that this is a retaliation [for 

safety complaints]·case rather than a work refusal 

case. This is not a work refusal case simply 

because Sammons never declined an assignment 

and thereby disrupted production; he performed 

every task given to him. On the other hand, because 

at least from management 1·s perspective production 

was adversely affected, it may be possible to 

analyze certain incidents as a form of protected 

work refusal, such as the so-called "refusal to 

climb" • . • on the refuse bin •••• 

Post-hearing brief for the complainant 9-10. 

Only Sammons' attempt during the September 18 test to use the 

basket for the upper connection on the diagonal brace could be 

characterized as a possible work refusal. However, Sannnons was performing 

his assigned task at the time and never suggested that he was refusing 

to carry out that task. Bates merely believed that Sammons should have 

climbed the steel to remove a loose choker and to move to the upper end 

of the brace preparatory to making the connection. 

Even were we to treat Sammons' conduct during the erection of the 

brace as an implied refusal to perform the work in the manner contemplated by management, we could not conclude that it amounted to 

protected activity under the Mine Act given the lack of any expression 

of a safety concern by Sammons at the time. We have held that a miner 

refusing to work on the basis of a good faith, reasonable belief in a 

hazard "should ordinarily connnunicate, or at least attempt to communicate, 

1397 
to some representative of the operator his belief in the ••• hazard at 

issue." Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 

4 FMSHRC 126, 133 (February 1982). See also Miller v. FMSHRC, 687 F.2d 

194, 195-96 (7th Cir. 1982)(approving generally the Dunmire and Estle 

rule requiring communication of a safety concern in connection with a 

work refusal). On September 18, Sammons neither expressed a safety 

concern, complained about the conditions for making the connection, nor 

told Bates after the fact why he had not climbed the diagonal. His 

failure to communicate any safety concern to Bates leads us to agree 

with the judge that Sammons' attempt to use a basket instead of climbing 

the diagonal on September 18 merely reflected a difference of opinion--

not pertaining to safety considerations--over the proper way to perform 

the task at hand. Accordingly, we cannot conclude that Sammons engaged 

in a protected work refusal during the September 18 test. 

Because we have assumed arguendo that Sannnons made protected safety 

complaints, we must decide whether he established the necessary causal 

connection between the complaints and Mine Services' referral back of 

Sammons to the panel. We conclude that substantial ev~dence supports 

the judge's conclusion that Bates discharged Sannnons solely for his 

perceived incompetence. 

Bates' belief in Sammons' incompetence as a connector was based on 

reasons that the judge found credible and convincing. Bates was 

seriously concerned over the slow erection of the refuse bin and was 

determined to improve the situation. There is no evidence in this 

record to contradict Mine Services' view that progress was unacceptably 

slow. As the construct~on supervisor, Bates was authorized and qualified 

to evaluate his employees. After observing and testing all the connectors, 

he concluded that Sammons and Canada did not perform competently. 

Specifically, Bates believed that they were not comfortable on the 

steel, were afraid to climb, and did not handle their tools to best 

advantage. 

The judge relied, in part, on Bates' testimony concerning his 

evaluation of Sammons' competence and his right under the Construction 

Agreement to ref er back an unsatisfactory employee during the 30-day 

probationary period. 4 FMSHRC at 1719-20, 1733-34. The judge credited 

the testimony of Bates over that of Sammons. On review, Sammons has not 

persuaded us that anything in the record would justify our taking the 

extraordinary step of overturning this credibility resolution. 11 

11 In cases involving an alleged discriminatory discharge, the task of 

the Commission and its judges is to determine, based on the record, 

whether the motivation for a discharge was discriminatory, not whether 

it was fair o+ based on a correct interpretation of events leading up to 

the discharge. In fact, after Sammons and Canada were ordered down on 

September 18, the connection had to be made by use of a basket. We do 

not by this decision conclude that Sammons was incompetent, merely that 

Bates' belief that he was not competent motivated the referral back to 

the panel. 

1898 
Finally, even if a reasonable inference could be drawn that the 

referral back were motivated in any part by protected activity, our 

conclusion would be no different •. The judge analyzed certain aspects of 

the evidence from the standpoint of a "mixed motive" case (see Haro v. 

Magma Copper Company, supra), and rejected Sanunons' contention that, 

absent his alleged protected activity, he would not have been referred 

back. The judge found, in effect, that Mine Services' evidence was so 

strong that it had affirmatively def ended by proving that Sammons would 

have been referred back because he was perceived to be an incompetent 

connector. E_/ 

For the foregoing reasons, we affirm the judge's dismissal of 

Sammons' discrimination complaint. 

6clrlyeqt;:n 

6/ We agree with the judge's rejection Sammons' argument that Mine 

Services' reassignment of Gravlee and reinstatement of Canada (n. 4 

supra) reflected discriminatory treatment of Sammons. 4 FMSHRC at 1731-

32. Gravlee was allowed to bid on another, lower-paying job because he 

admitted that he could not perform as a connector and was slowing down 

the work on the refuse bin. This evidence does not add to Sammons' 

case. Mine Services' personnel director testified that during the 

course of processing the Sammons and Canada grievances, management 

determined that Canada was more qualified on paper than Sammons and had 

a stronger case for reinstatement. Mine Services therefore agreed to 

settle Canada's case by reinstating him. Sammons has not demonstrated 

in this proceeding that the reinstatement of Canada is proof of discriminatory treatment within the protection of the Mine Act. 

1399 
Distribution 

Peyton Lacy, Jr., Esq., for Mine Services Co. 

Lange, Simpson, Robinson & Somerville 

1700 First Alabama Bank Building 

Birmingham, Alabama 35203 

George C. Longshore, Esq., for Roger Sammons 

2000 First Avenue North 

708 Brown-Marx Building 

Birmingham, Alabama 35203 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1400 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 14, 1984 

on behalf of JAMES M. CLARKE 

v. Docket No. LAKE 83-97-D 

T. P. MINING, INC. 

ORDER 

Administrative Law Judge Joseph B. Kennedy's letter of May 31, 1984, 

"responding" to the Secretary of Labor's petition for discretionary review 

in this matter is an improper circumvention of the Commission's Rules of 

Procedure. Accord, Belcher Mine, Inc., Docket No. SE 84-4-M (Order, June 1, 

1984). Therefore, it will not be placed in the official record in this 

case nor will it be considered by the Commission in ruling on the issues 

presented by the Secretary's petition for discretionary review. 

Unlike the action we took in Belcher, however, we do not at this 

time return the letter to the judge. Rather, because the letter, on its 

face, indicates that the judge engaged in a prohibited ex parte telephone 

conversation with counsel for the operator, 1/ we will retain the letter 

in a separate file pending appropriate inquiry pursuant to Commission 

Rule 82. ~also Inverness Mining Co., 5 FMSHRC 1384, 1388 n. 3 

(August 1983); Knox County Stone Co., 3 FMSHRC 2478 (November 1981). 

ll At page 3 of his letter the judge states: 

It is worth noting that at no time did counsel 

for the operator join the Solicitor in asserting 

that an "important ingredient" of the money 

settlement to Mr. Clarke was "the Secretary's 

determination to forsake the civil penalty." 

This was because the basis for the settlement 

was fully disclosed in a discussion between 

counsel for the operator and the trial judge 

to which [counsel for the Secretary] was not 

a party. [Emphasis added]. 

14'01 -
Accordingly, the administrative law judge and counsel for the operator 

are hereby ordered to submit sworn statements providing full disclosure of 

the details and substance of their telephone conversation of March 28, 1984. 

It is further ordered that these statements be received by the Commission, 

and served on counsel for the Secretary, no later than Friday, June 22, 1984. 

J£S~ L. Clair Nelson, Commissioner 

1402 
Distribution 

Michael A. McCord, Esq. 

Frederick W. Moncrief, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

John J. Malik, Jr., Esq. 

Malik, Knapp, Kiger! & Frizzi 

3381 Belmont Street 

Bellaire, Ohio 43906 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety & Health-Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1403 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 14, 1984 

Docket Nos. WEST 80-386-RM 

WEST 81-58-M 

WEST 80-160-M 

UNITED STATES STEEL CORPORATION 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

UNITED STATES STEEL CORPORATION 

ORDER 

Docket Nos. LAKE 81-116-M 

LAKE 81-77-RM 

In these cases arising under the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et seq. (1982), United States Steel Corporation 

("U.S. Steel") has filed a motion requesting the Commission's recusal 

from these proceedings. The motion is based on U.S. Steel's concern 

regarding the effect on our decisional process of certain ex parte 

communications engaged in by an employee of this independent Commission 

with employees of the Department of Labor's Mine Safety and Health · 

Administration ("MSHA") while these cases were pending on review before 

us. we· have filed in the formal records of the cases a memorandum and 

an affidavit from the participants regarding the communications. These 

documents satisfy us that the ex parte communications proceeded from 

innocent motives. While we believe the communications would not prevent 

us from deciding the cases objectively and fairly solely on the basis of 

the records developed before the administrative law judges below, we 

seek to insure that not even an appearance of impropriety or unfairness 

taints proceedings before this Commission. Accordingly, for the reasons 

discussed below, we grant the recusal motion and vacate our directions 

for review. 

1404 
We first briefly sunnnarize the factual background of the cases and 

the facts surrounding the ex parte connnunications. The cases involve 

citations issued to U.S. Steel by MSHA alleging violations of 30 C.F.R. 

§ 55.12-14 at two different U.,S. Steel mines. This mandatory safety 

standard, which guards against shock and electrocution hazards, in 

relevant part requires that when power cables energized to potentials in 

excess of 150 volts "are moved manually, insulated hooks, tongs, ropes, 

or slings shall be used unless suitable protection for persons is 

provided by other means." The essential question in dispute between the 

parties is whether a ground fault protection system used by U.S. Steel 

constituted "suitable protection" within the meaning of the standard. 

After U.S. Steel' contested the citations issued by MSHA, the cases 

separately proceeded to hearings before two administrative law judges of 

this independent Connnission. 

Each administrative law judge issued a decision finding that U.S. 

Steel's ground fault protection system was not "suitable protection" 

within the meaning of the cited standard. Both judges concluded that 

U.S. Steel had violated the standard and assessed civil penalties. 

4 FMSHRC 954 (May 1982) (Docket Nos. LAKE 81-116-M, et al.)(ALJ); 4 FMSHRC 

814 (April 1982)(Docket Nos. WEST 80-386-R, et al.)(ALJ). We granted 

U.S. Steel's petitions for discretionary review of the judges' decisions. 

After an administrative law judge's decision has been directed for 

review by the Commission, the Commission's Office of General Counsel 

normally prepares a "decisional memorandum" to assist the Commission in 

its deliberations. Decisional memoranda are drafted by attorneys working 

under the supervision of the Commission's General Counsel. A decisional 

memorandum describes the record evidence, the decision below, the issues 

on review, and the parties' contentions concerning the issues. The 

memorandum also presents analysis and normally a recommended resolution 

of the issues. Thus, the memo,randa play a role in our decisional process, 

but are purely advisory and do not purport to, nor do they, control in 

any way the resolution of cases before the Commission. 

On June 1, 1983, while preparing a decisional memorandum in Docket 

No. WEST 80-386-R, et al., an attorney in the General Counsel's office 

initiated three telephone calis to two MSHA offices, and engaged in conversations with two MSHA electrical engineering specialists. The specific 

contents of these conversations are related in the memorandum and affidavit 

that have been filed in the records of these cases. Briefly, the 

Commission staff attorney posed questions seeking information of a 

general nature pertaining to electrical principles and technology relevant 

to ground fault protection systems. The information obtained from the 

MSHA engineers was of a general nature and duplicative of information 

already contained in the official records in these cases. The staff 

attorney states in her memorandum regarding the conversations that she 

personally believed that the conversations were general discussions not 

pertaining to the merits of the cases under review. No other employee 

of the Commission was aware that the conversations had occurred. 

1405 
The Commission's Office of the General Counsel subsequently circulated to the Commissioners a decisional memorandum in Docket No. WEST 

80-386-R, et al., prepared by the staff attorney in question. This case 

was scheduled to be considered at a public Conunission meeting on June 15, 

1983. On June 13, 1983, counsel for the Secretary of Labor ~ent to the 

Commission, and served on the operator, a letter and affidavit concerning two of the telephone conversations. The affidavit was given by 

one of the MSHA electrical engineers with whom the staff attorney had 

spoken. Counsel for the Secretary stated that the conversations were ex 

parte communications prohibited by Connnission Procedural Rule 82, 29 

C.F.R. § 2700.82. 1/ Counsel did not seek disqualification or recusal 

of the Commission~ but requested that the Connnission make the letter and 

affidavit part of the public record. The scheduled meeting was postponed 

by the Commission. 

On June 15, 1983, the staff attorney involved prepared a memorandum 

setting forth her recollection of the details of the conversations. 

Copies of this memorandum were served on the parties and placed in the 

records of the cases. On July 12, 1983, counsel for U.S. Steel filed a 

motion requesting that the Commission recuse itself from decision in 

these cases because of the conununications. Counsel for the Secretary of 

Labor filed a response stating that the Connnission would be required to 

determine whether the communications had tainted irrevocably the Conunission' s decisional process. 

1/ Commission Procedural Rule 82 states: 

(a) Generally. There shall be no ex parte communication 

with respect to the merits of any case not concluded, between the 

Commission, including any member, Judge, officer, or agent of the 

Connnission who is employed in the decisional process, and any of 

the parties or intervenors, representatives, or other interested 

persons. 

(b) Procedure in case of violation. 

(1) In the event an ex parte communication in violation of this 

section occurs, the Commission or the Judge may make such orders or 

take such action as fairness requires. Upon notice and hearing, 

the Commission may take disciplinary action against any person who 

knowingly and willfully makes or causes to be made a prohibited ex 

parte communication. 

(2) All ex parte communications in violation of this section shall 

be placed on the public record of the proceeding. 

(c) Inquiries. Any inquiries concerning filing requirements, 

the status of cases before the Commissioners, or docket information 

shall be directed to the Office of the Executive Director of the 

Commission. 

1406 
We have previously addressed the subject of ex parte communications. 

Knox County Stone Co., Inc., 3 FMSHRC 2478, 2482-86 (November 1981). 

The principles that we enunciated in that decision guide our course in 

this matter. In Knox County, in addressing ex parte communications at 

the hearing level before our judges, we held that Commission Rule 82 and 

section 557(d) of the Administrative Procedure Act, 5 U.S.C. § 557(d) 

("the APA"), prohibit ex parte communications between members of the 

Commission, its judges, other employees and interested persons outside 

the Commission regarding the merits of pending cases, and also require 

that any such communications be placed on the public record. 3 FMSHRC 

at 2483-85. 2:._/ We stated: 

The rules against ex parte communications serve 

important goals essential to the integrity and fairness of Commission proceedings. As Congress explained 

in enacting section 557(d): 

The purpose of the provisions in the bill 

prohibiting ex parte communications is to insure that agency decisions required to be made 

on a public record are not influenced by private, off-the-record communications from those 

personally interested in the outcome. 

* * * 

In order to ensure both fairness and 

soundness to adjudication .•• , the ••• 

[APA] require[s] a hearing and decision on 

the record. Such hearings give all parties 

an opportunity to participate and to rebut 

each other's presentations. Such proceedings cannot be fair or soundly decided, 

however, when persons outside the agency 

are allowed to communicate with the decisionmaker in private and others are denied the 

opportunity to respond. 

'!:._/ As we noted, although our procedural rules do not expressly define 

ex parte communications, section 551(14) of the APA defines the term as 

follows: 

"[E]x parte communication" means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall 

not include requests for status reports on any matter or 

proceeding •••. 

As we further stated, Congress intended the phrase, "merits of the proceeding," in section 551(14) and 557(d) to be broadly construed. See 

R.R. Rep. No. 880, Parts I & II, 94th Cong., 2d Sess. 20 (Part I), 

20 (Part II)(l976), reprinted in 1976 [3] U.S. Code Cong. & Ad. News 

2202, 2229 ["1976 U.S. Code Legis. Hist."]. 

1407 
1976 U.S. Code Legis. Hist. 2184, 2227. See also Raz 

Inland Navigation Co., Inc. v. ICC, 625 F.2d 258, 260 

(9th Cir. 1980). The implications of the purposes 

mentioned by Congress are obvious: improper ex parte 

contacts may deny a party "his due process right to 

a disinterested and impartial tribunal." Rinehart 

v. Brewer, 561 F.2d 126, 132 (8th Cir. 1977). 

Diminishing public confidence in the affected 

tribunal is the likely and unacceptable result. 

* * * 

We recognize that innocent or de minimis 

ex parte communications can, and do, occur. When 

ex parte communications occur, however, they shall 

be placed on the public record in accordance with 

appropriate procedure. 

In short, ••• we expect that the rules on 

ex parte communications will be respected in both 

letter and spirit and that judges and lawyers will 

avQid even the appearance of impropriety in these 

matters. 

3 FMSHRC at 2485-86 (footnote omitted). 

F.2d 547, 561-65 (D.C. Cir. 1982). 

See also PATCO v. FLRA, 685 

In the present cases, communications of a Commission staff attorney 

with one of the parties in the cases were conducted. The communications 

were off the public record without notice to the opposing party. The 

conversations involved substantive matters at issue in these cases. The 

conversations were prohibited ex parte communications under Commission 

Rule 82 and section 557(d) of the APA. 

As ' required, the ex parte communications have been placed on the 

public record. In the exercise of our discretion, we may make such 

orders or take such further action as fairness requires, including disciplinary action against persons who "knowingly and willfully" engage in 

such communications. 29 C.F.R. § 2700.82(b)(l). The record indicates 

to our satisfaction that the staff attorney engaged in a good faith, but 

misguided, attempt to obtain a better general understanding of technical 

data as background to these cases. In our view, this attorney did not 

"knowingly and willfully" cause the communication to be made within the 

meaning of Rule 82. The communication was a first time occurrence for 

the attorney involved. Therefore, w~ conclude that disciplinary measures 

are not warranted. Nevertheless, we also conclude that the Commission's 

recusal from further consideration of these cases is an appropriate 

resolution. 

1408 
The stringent policies we announced in Kn.ox County with reference 

to proceedings before our judges apply equally, of course, to ourselves 

and Commission staff at the review stage of litigation before this 

Commission. Public trust in the integrity and fairness of this independent adjudicatory agency is a vital resource that we are deeply 

committed to protect. Therefore, although we are convinced that we 

could, in fact, proceed to resolve the cases before us without having 

the substance of our staff attorney's conversations affect our independent deliberations, we wish to avoid even the appearance of impropriety 

in these proceedings. For this reason, and because by filing a petition 

for review in an appropriate court of appeals, the parties may, if they 

so desire, obtain further review of the decisions of our administrative 

law judges (30 U.S.C. §§ 816(a) and 823(d)), we conclude that vacation 

of our orders granting review and reinstatement of the judges' decisions 

as the Commission's final orders in these proceedings are appropriate. 

For the foregoing reasons, we recuse ourselves from further consideration and decision in these cases. Accordingly, our directions for 

review in these dockets are vacated. The administrative law judges' 

decisions are reinstated as the final orders of this Commission. 

L. Clair Nelson, Commissioner 

1409 
Distrihution 

Louis.e Q.. S~ons, Esq. 

United States Steel Corporation 

600 Grant Street, Room 1580 

Pittsburgh, PA 15230 

Anna .L. Wolg~st, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Jon Boltz 

Administrative Law Judge Virgil Vail 

Federal Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

1410 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

RICHARD E. BJES 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 15, 1984 

Docket No. PENN 82-26-D 

CONSOLIDATION COAL COMPANY 

DECISION 

This case arises under section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq. (1982), and involves the discharge, subsequently converted to a 30-day suspension, of Richard Bjes for 

refusing to operate a low profile shuttle car. The Commission's administrative law judge sustained Bjes' discrimination complaint against Consolidation 

Coal Company ("Consol"), concluding that Bjes' work refusal constituted 

protected activity under the Mine Act. 4 FMSHRC 2043 (November 1982)(ALJ). 

The judge ordered that Consol compensate Bjes "for the period of his thirtyday suspension by paying him in full the salary which he would have received 

had he not been disciplined." 4 FMSHRC at 2068. The judge did not award 

Bjes interest on the back pay, hearing expenses, or attorney's fees. For 

the reasons that follow, we affirm the judge's finding that Consol's 

discipline of Bjes violated the Mine Act. However, as discussed below, we 

remand to_ afford the parties the opportunity to present further evidence 

and argument, consistent with our decision, with respect to a complete and 

appropriate remedy. 

Consol operates the Laurel Mine, an underground coal mine located near 

Central City, Pennsylvania. Bjes had worked at this mine for six and a half 

years prior to the incidents at issue in this proceeding. For most of the 

first six months of 1981, Bjes operated a scoop during retreat mining 

operations in the mine. During this period Bjes was classified as a scoop 

operator, but also occasionally operated, on a fill-in basis, the high 

profile No. 4 high shuttle car. High profile cars were higher and had 

more comfortable cabs (or "kitchens") for the operator than low profile 

cars. Bjes, who is 6 1 l" tall and weighs 195 lbs., experienced no 

difficulty in operating the No. 4 shuttle. 

In July 1981, the regular continuous miner operator in Bjes' work crew, 

Cecil Wall, was recovering from an injury and his vacancy resulted in each 

crew member being "bumped" into a more senior temporary position. When 

this realignment occurred, Bjes was permitted upon his request to operate 

the high profile No. 4 shuttle car. Bjes earned the same income as a 

shuttle operator as he had as a scoop operator. 

1411 
On Monday, July 27, 1981, Wall, the regular continuous miner operator, 

returned to Bjes' crew. When Wall resumed his duties, the other crew members 

were bumped back into less senior positions. Bjes was directed to operate 

the No. 9 shutt1e car, a standard low profile shuttle. Like all other 

shuttle cars used in the mine, the No. 9 shuttle contained two operator's 

seats in its cab, one facing the inby end of the car used when driving 

the shuttle inby ("the outby seat"), and one facing the outby end of the 

car used when driving the shuttle outby ("the inby seat"). In the standard 

configuration of the No. 9 shuttle, the outby seat (used when driving 

inby) was on the right side of the cab, the cab's single steering wheel 

was to the driver's left, and the brake pedal was also to the driver's 

left--in line with, and beyond and below, the steering wheel. The 

distance from the outby seat to the brake pedal was three feet. (When 

seated in the inby seat driving outby, the cab's steering wheel was to 

the driver's right and the other brake pedal used when driving outby 

was to his left.) 

On Tuesday, July 28, during the afternoon shift, Bjes told his section 

foreman, Wayne Ross, that he was having trouble with the No. 9 shuttle and 

was running it in low gear. Bjes testified that when he sat in the outby 

seat, the position of the steering wheel on the left side of the car in 

front of the brake made it difficult for him to reach the brake pedal with 

his left leg and that his leg was in the way of his reaching the steering 

wheel. Bjes also experienced difficulty getting into and out of the shuttle 

cab and in changing seat positions. Primarily because of his problems in 

reaching the brake and in steering, Bjes believed that it would be safer for 

him to operate the No. 9 shuttle at a slow speed in low gear. Later during 

that same shift, shift foreman Bill Ross (the brother of Wayne Ross) visited 

the section where Bjes was working and was informed by Wayne Ross that Bjes 

was operating the shuttle in low gear. Bill Ross flagged Bjes down and asked 

him what the problem was. Bjes responded that he could not run the shuttle 

in second gear. By moving his feet, ,Bjes attempted to demonstrate to the 

section foreman his problem in reaching the brake. Later in the shift, the 

No. 9 shuttle was taken out of service for repairs because its hydraulic 

hoses had been severed. The cause of the severance is in dispute. Bjes 

testified that because he "could not get the wheel turned correctly," he 

drove the shuttle car too close to the rib and the hoses were cut when 

they caught on the corner of the rib. 

On Wednesday, July 29, prior to the afternoon shift, Wayne Ross met 

with the acting mine superintendent, Tom Hofrichter, and informed him of 

the incidents involving Bjes on the previous day. Shortly thereafter, 

Bjes met with Hofrichter in the latter's office. Bjes explained that he 

was having difficulty reaching the brake on the No. 9 shuttle and asked 

if there were anything Hofrichter could do to alleviate the problem. 

John Adams, a safety committeeman of Local Union 1979, District 2, United 

Mine Workers of America ("UMWA"), which represented the Laurel Mine miners 

for collective bargaining and Mine Act safety and health purposes, was 

present at the meeting. Hofrichter also called in Bill Young, the rnine's 

master mechanic, to join the meeting. The four discussed possible modifications to the No. 9 shuttle. Hofrichter testified that he told Bjes 

that he would look into possible solutions to the situation. Bjes testified that at this meeting Hofrichter authorized him to operate the high 

profile No. 4 shuttle car. Hofrichter testified that he did not authorize 

such a change. 

1412 
Later that day, at the beginning of the afternoon shift, section 

foreman Wayne Ross noticed that the No. 4 and No. 9 shuttles were not in 

operation. Ross asked Bjes and Tim Peterman, the operator of the No. 4 

shuttle, what had happened. Bjes responded that he would not operate the 

No. 9 shuttle.because his inability to work the brake pedal made his 

operation of the shuttle unsafe. Bjes stated that he was invoking his 

safety rights under the collective bargaining agreement between the UMWA 

and Consol. 1/ For the rest of the shift, Bjes was permitted to operate 

the No. 4 high profile shuttle car. 

Prior to the afternoon shift on Thursday, July 30, Wayne Ross advised 

mine superintendent Hofrichter that Bjes had refused to operate the No. 9 

shuttle on the previous day. Hofrichter called a meeting with Bjes. Bill 

Ross, Wayne Ross, and Carson Bruening, a union representative, attended. 

Hofrichter stated to those present that he had not authorized a switch 

in assignments during his July 29 meeting with Bjes, but had said only that 

he would look into possibilities for resolving the situation. Bjes again 

announced that he would not operate the No. 9 shuttle because it was 

unsafe, and that he was invoking his safe·ty rights under the collective 

bargaining agreement. Bruening stated that an inspector from the Department of Labor's Mine Safety and Health Administration ("MSHA") would be 

contacted in an effort to solve the problem. Bjes was temporarily assigned 

laborer's work. 

Around 6:00 p.m. that day, Hofrichter, accompanied by safety committeeman Adams and the maintenance foreman, met with Bjes in his working section. 

Hofrichter instructed Bjes to sit in the shuttle and demonstrate the problems 

he had operating the shuttle. Bjes got into the shuttle car and, sitting 

in the outby seat, simulated the operational problems he had when driving 

it in the inby direction. Bjes also sat in the inby seat and stated that 

he did not have an operational problem driving the car outby, because 

when seated in that position the other brake pedal was not under the 

steering wheel and he had more leg room. Hofrichter testified that neither 

he nor safety committeeman Adams believed that Bjes' operation of the 

shuttle presented an "imminent danger" within the meaning of the collective 

bargaining agreement (n. 1 supra). 

At about this time, MSHA inspector Charles Burke arrived. Another 

meeting occurred, involving Bjes, Hofrichter, Burke, Bill Ross, Wayne Ross, 

Consol safety supervisor Jeff Kazura, Adams, and another safety committeeman, Rick Borella. Inspector Burke sat in the shuttle and then had Bjes sit 

in it to demonstrate the problem he had operating the controls. While neither 

Inspector Burke nor safety committeeman Borella thought that Bjes' operation 

of the shuttle car constituted an "imminent danger," they both told Hofrichter 

that they perceived some hazards in Bjes' operation of the No. 9 shuttle. 

1/ Consol and the UMWA were signatories to the National Bituminous Coal 

Wage Agreement of 1981 ("the collective bargaining agreement" or "the 

agreement"). Complainant's Exh. No. 2. The agreement permitted a miner to 

refuse work "under conditions he has reasonable grounds to believe to be 

abnormally and immediately dangerous to himself beyond the normal hazards 

inherent in the operation which could reasonably be expected to cause 

death or serious physical harm before such condition or practice can be 

abated." Id., Art. III(i)(l)(p. 15). 

1413 
Those present then discussed possible shuttle modifications, including 

raising the canopy and moving the seats and/or the brake pedal. Hofrichter 

decided that because Bjes previously had operated the No. 9 shuttle and 

Hofrichter had· not observed "anything that was abnormally hazardous to 

him in operating that car," Bjes could continue to operate it "until such 

a time that we could look at the possibility of making it more comfortable 

for him by making these changes." Tr. 181. Concluding that it was "safe 

for ••• Bjes to run that car," Hofrichter instructed Bjes to run the shuttle. 

Id. Bjes replied that operating the shuttle would be unsafe and that he 

was not going to run it. Adams and Borella asked Hofrichter if he 

intended to suspend Bjes with intent to discharge him, and Hofrichter 

replied in the affirmative. Borella, acting in his capacity as a safety 

committeeman, recommended that Bjes not operate the No. 9 shuttle. 

At a subsequent meeting held outside the mine that day, Hofrichter 

told Bjes that if he did not operate the shuttle, he would be suspended 

with intent to discharge. Bjes refused and the meeting broke up. In a 

July 31, 1981 letter to Bjes, Hofrichter stated that Bjes was suspended 

with intent to discharge for breach of Consol's Employee Conduct 

Rule 4--"Refusal to perform work assigned or to comply with a supervisor's 

directive." 

Bjes filed a grievance over Consol's action and his case went to 

arbitration p~rsuant to the collective bargaining agreement. (The 

transcript of testimony presented at the arbitration hearing was not 

entered into evidence in the present proceeding.) On August 25, 1981, 

the arbitrator issued a written award which directed that the discharge 

be converted to a 30-day suspension. In mid-August, shortly before 

issuance of the arbitrator's decision, Bjes filed a discrimination 

complaint with MSHA, pursuant to section lOS(c) of the Mine Act. 

30 u.s.c. § 815(c). Bjes' complaint stated: 

I was removed from the mine ••• on July 30, 1981, and 

informed that I was being suspended with intent to 

discharge effective immediately for refusing to run a 

shuttle car, that in the opinions of the mine safety 

committee, Federal Inspector Charles Burke and myself 

was a hazard to myself and members of my crew. The 

problem was caused by my size and the lack of room 

in the car •••• I feel that my individual safety 

rights were violated and that I was disciplined 

illegally under Federal law protecting my right 

to a safe working place. 

On September 14, 1981, while MSHA's investigation of Bjes' complaint 

was proceeding, Bjes returned to work,after his 30-day suspension and was 

directed to operate the No. 9 shuttle again. Section foreman Wayne Ross 

testified that after two to three hours of work on the shift, Wall, the 

continuous miner operator, complained to him that Bjes was not operating 

the shuttle safely. (Bjes denied at the hearing that Wall had complained 

about the safety of his operation of the shuttle; Wall did not testify at 

the hearing.) Ross removed Bjes from the No. 9 shuttle and assigned him 

1414 
to shoveling coal. Bjes testified that before he was removed from the 

shuttle he had injured his left knee by striking it against the shuttle 

steering wheel while trying to reach the brake pedal. Bjes testified 

that he noticed a swelling in his knee about five minutes after he began 

shoveling coal, and that the pain eventually forced him to sit down. 

Bjes was subsequently carried out of the mine on a stretcher and taken 

to a hospital emergency room. Bjes' workman's compensation form states 

that the nature of the injury was "soft tissue injury with possible 

ligament damage--left knee." Complainant's Exh. No. C-3. Consol does 

not dispute the fact that Bjes sustained an injury of some degree to 

his knee, but contests the credibility of Bjes' explanation of the manner 

of his injury. 

In October 1981, following his injury, Bjes received a letter from MSHA 

informing him that MSHA's investigation of his discrimination complaint had 

not uncovered a violation of section lOS(c) of the Mine Act. On November 23, 

1981, Bjes filed his own discrimination complaint with this independent 

Commission pursuant to section 105(c)(3) of the Mine Act. 30 u.s.c. 

§ 81S(c)(3). 2/ Bjes underwent an operation for his injury and was 

absent from work for five months recuperating. When he returned to work, 

Bjes found that his work crew had again undergone another realignment. 

This resulted in his attaining higher seniority and being permitted to 

operate a different shuttle ~ar. 

In his decision, the administrative law judge found that Bjes had a 

good faith, reasonable belief that his operation of the low profile No. 9 

shuttle car was hazardous to himself and others, and that he had communicated his safety concerns in this respect to management. 4 FMSHRC at 

2063-66. The judge "accept[ed] ••• Bjes' testimony that the configuration 

of the machine, coupled with its operational limitations, restricted his 

movements while seated at the controls, thereby contributing significantly 

to his inability to reach the brake pedals." 4 FMSHRC at 2066. The judge 

rejected Consol's defense that Bjes' work refusal stemmed not from safety 

concerns, but from "his dislike for a machine which he found to be 

uncomfortable." 4 FMSHRC at 2067-68. The judge resolved a number of 

credibility disputes in Bjes' favor and stated, "Having viewed ••• Bjes 

on the stand during the course of the hearing ••• I ~ind him to be a 

straightforward and credible witness." 4 FMSHRC at 2064. Pursuant to 

his findings, the judge concluded that Bjes' refusal to operate the 

No. 9 shuttle was a protected work refusal under the Mine Act and, 

accordingly, Consol's discipline of Bjes for the refusal was in 

violation of section lOS(c) of the Act. 4 FMSHRC at 2067. 

2/ At the subsequent hearing before the Commission's administrative 

law judge, Bjes was represented by UMWA representative Carson Bruening, 

who is not a lawyer. 

1415 
In his post-hearing arguments, Bjes' lay representative, Bruening, 

requested the following remedies: (1) reimbursement of all wages lost 

as a result of Bjes' suspension; (2) deletion from Bjes' personnel file 

of all record of discipline for the work refusal; and (3) an order that 

Bjes not be required to operate the No. 9 shuttle in the future. 

4 FMSHRC at 2068. The judge ordered Consol to compensate Bjes for the 

period of his suspension "by paying him in full the salary which he 

would have received had he not been disciplined." 4 FMSHRC at 2068. 

The judge stated, "The rate of pay should be at the rate of pay Bjes was 

earning when he was suspended, and [the parties] are directed to confer 

••• 'for the purpose of calculating the amount due ••• Bjes •••• " Id. 

The judge also ordered Consol to purge Bjes' personnel file of any~ 

record of this event, but denied Bjes' request to direct Consol not 

to require Bjes to operate the No. 9 shuttle in the future. Id. 

The judge did not award interest on the back pay, hearing expenses, 

or attorney's fees. 

On review Consol contends that, as a general proposition, a miner's 

work refusal may not be based upon an alleged hazard attributable to the 

miner's own physical condition or limitations. Consol also argues that 

substantial evidence does not support the judge's findings and credibility 

resolutions that Bjes' work refusal was made in good faith and based on 

a reasonable belief that it was hazardous for him to operate the No. 9 

shuttle. 3/ The UMWA, which has filed a brief on Bjes' behalf, contests 

Consol's arguments and also maintains that the judge erred in not awarding 

interest on back pay, hearing costs, or attorney's fees. The issues before 

us are whether substantial evidence supports the judge's findings that 

Consol violated section 105(c) of the Mine Act by disciplining Bjes for 

engaging in a protected work refusal and, if so, whether the judge awarded 

remedies consistent with the Mine Act's remedial provisions and goals. 

We first address the substantive issues pertaining to the violation. 

The crucial question is whether Bjes engaged in a protected work refusal. 

At the outset, we are met with Consol's contention that even if Bjes had 

a good faith, reasonable belief in a hazard, his work refusal was outside 

the protection of the Mine Act because the perceived hazard, if any, 

resulted from his own physical idiosyncracies and not from any safety defect 

in Consol's equipment or in the physical environment of the mine. The UMWA 

objects to our consideration of this issue on the ground that Consol 

failed to present this argument to the judge and is therefore barred 

by section 113(d) of the Mine Act from raising it for the first time on 

review. See 30 U.S.C. § 823(d)(2)(A)(iii}. 

]_/ On review, Consol does not contest the judge's finding that Bjes 

communicated his safety concerns to management. 

141S 
Determinations as to whether the judge was "afforded an opportunity 

to pass" on questions of law or fact (30 u.s.c. § 113(d)(2)(A)(ii)) must 

be decided on a case-by-case basis. We agree with the UMWA that the legal 

challenge in question was not expressly developed below by Consol. 

Nevertheless, this case poses the question of whether Bjes' work refusal, 

which was premised in part on his own physical limitations, enjoyed the 

Act's protection. Nearly every work refusal consideration addressed 

by the judge touches on or implicates this larger question. Therefore, 

we are satisfied that the issue was before the judge, notwithstanding 

Consol's failure to articulate this defense more clearly. Further, the 

issue, as addressed by Consol on review, is a legal one, and the UMWA 

has responded fully to it. 

We conclude that, under appropriate circumstances, such as here 

presented, a miner may refuse to work on the basis of a perceived hazard 

arising from his own physical condition or limitations. In our previous 

decisions we have recognized the right to refuse work but have not had 

occasion to decide this specific issue. Our determination today is founded 

both on the broad protective purpose of section 105(c) and on the underlying mandate of the Mine Act that operators, with the assistance of miners, 

strive to create safe working conditions in the mine. Safety in particular 

mining contexts may be affected by a miner's physical condition or limitations. 

The mine is an interactive environment involving human beings, equipment, and 

the mine's physical setting itself. The human factor cannot be ignored in 

the evaluation of hazards. A significant physical limitation or condition may 

affect a miner's ability to perform his normal work tasks and create a hazard 

justifying a refusal to work. 

In this case, the judge determined that the Bjes' physical attributes (6' l" tall, 195 pounds in weight) in association with the "cramped 

shuttle car kitchen" (4 FMSHRC at 2064) and the configuration of the 

controls prevented Bjes from safely applying the shuttle's brake when 

driving inby. The record supports the judge's finding that a ha?ard was 

created by Bjes' operation of the shuttle. We note that the hazard in 

this case was not solely attributable to Bjes' body build, but arose also 

from t.he configuration of the equipment that he was required to operate. 

The hazardous situation resulting from this interaction of human and 

technical factors was not the result of any questionable conduct on Bjes' 

part. We conclude that, in the circumstances of this case, Bjes' work 

refusal did not lose its claim to protection under the Act merely because 

the hazard resulted in part from factors intrinsic to Bjes himself. 

1417 
A miner's work refusal is protected under section 105(c) of the Mine 

Act if the miner has a good faith, reasonable belief in a hazardous condition. 

See Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 

807-12 (April 1981). Good faith in this context simply means an honest belief 

that the hazard exists. Accompanying the good faith requirement is the 

additional requirement that the belief in a hazard be a reasonable one under 

the circumstances. 

The judge found that Bjes had "an honest belief" that a hazard existed. 

The judge's finding is premised on his credibility resolution, noted above, 

that Bjes was a "straightforward and credible witness." 4 FMSHRC at 2064. 

The judge stated that Bjes was "sincere when he initially complained about 

the cramped shuttle car kitchen and the fact that he had problems reaching 

some of the controls." Id. When reviewing a judge's credibility resolutions our role is necessarily limited. We have carefully reviewed Consol's 

"bad faith" allegations, and conclude that Consol has not offered evidence 

so compelling that we should take the exceptional step of overturning 

findings resting on credibility resolutions. 

In evaluating the judge's findings concerning good faith, we are 

mindful of the testimony of mine superintendent Hofrichter that during 

the July 30 meeting in the mine, when Bjes demonstrated his problems 

with the shuttle and also announced his work refusal, both Inspector 

Burke and safety committeeman Borella stated that they perceived hazards 

in Bjes' operation of the shuttle. Indeed, Hofrichter's own willingness 

at the time to consider modifications to the No. 9 shuttle bespeaks some 

recognition of an operational problem. 

The evidence on which Consol relies to demonstrate bad faith is not 

persuasive. Consol argues that other miners, as large or nearly as large 

as Bjes, had operated the No. 9 shutrle without complaint. As the judge 

noted, these other miners did not testify. Therefore, like the judge, we 

cannot attribute weight to Consol's bare allegation concerning others' 

experiences or beliefs. Further, other miners' experience with the 

shuttle may not have been identical to Bjes' and their failure to 

vocalize a complaint to management, without further explanation, does 

not prove that Bjes acted in bad faith. 

Consol also notes that at the hearing Bjes offered to drive another 

low profile shuttle car, the No. 10 shuttle. Consol argues that there 

were no significant differences between the two low profile cars, and that 

this consideration demonstrates the insincerity of Bjes' refusal to drive 

the No. 9 shuttle. The judge analyzed this contention and concluded that 

there were operational differences between the two cars. 4 FMSHRC at 2067. 

There is substantial record support for this finding. Unlike the standard 

No. 9 car, the No. 10 shuttle was off-standard in design. When driven inby, 

the No. 10 car's steering wheel and brake were on opposite sides of the cab. 

While the record lacks some detail on this point, both Borella and Bjes 

1418 
testified that Bjes could have operated the No. 10 car safely. Therefore, 

we find no reason to disturb the judge's finding that Bjes acted in good 

faith. 

With regard to the reasonableness of Bjes' belief in the hazard, the 

evidentiary considerations discussed above also establish the required 

reasonableness. The judge found, and we agree, that the evidence showed 

that there was a hazard presented by Bjes' operation of the shuttle. While 

there is no requirement under our precedent that a miner's belief be 

objectively verified, when such verification is demonstrated it constitutes 

additional persuasive evidence. See Robinette, 3 FMSHRC at 811-12. We again 

note that two participants in the July 30 meeting in the mine believed that 

hazards were associated with Bjes' operation of the shuttle. The judge also 

credited Bjes' testimony that upon his return to work in September 1981, he 

seriously injured his left knee when he struck it against the shuttle's 

steering wheel while experiencing difficulty in reaching the brake. The 

judge found that this accident "bolster[ed] [Bjes'] argument that requiring 

him to operate the shuttle car while he was cramped into the operator's 

kitchen ••• presented a real safety hazard." 4 FMSHRC at 2066. Consol 

attacks the judge's credibility resolution, but has presented no controverting evidence that would warrant our reversal on this point. Cf. Robinette, 

3 FMSHRC at 813-14. !!:_/ 

We thus affirm the judge's findings that Bjes had a good faith, reasonable belief in the existence of a hazard and that his refusal to work, based 

on that belief, was protected by the Mine Act. There is no dispute that 

Consol disciplined Bjes solely for engaging in the work refusal. Because 

the refusal was protected, the discipline was done in violation of section 

105(c) of the Mine Act. See, for example, Secretary of Labor, Mine Safety 

and Health Administration (MSHA) v. Metric Constructors, Inc., 6 FMSHRC 226, 

230-31 (February 1984). To the extent that Consol has argued that the 

discipline was legitimate because Bjes' concern rested on his comfort rather 

than safety, that contention is rejected. 

We turn to the question of remedy. Section 105(c)(3) of the Mine 

Act expressly requires that if the Commission sustains the discrimination 

complaint of a miner proceeding on his own behalf, the Commission: 

shall issue an order ••• granting such relief as it 

deems appropriate, including, but not limited to, an 

order requiring the rehiring or reinstatement of the 

miner to his former position with back pay and interest 

or such remedy as may be appropriate •••• Whenever an 

order is issued sustaining the complainant's charges 

under [section 105(c)(3)] a sum equal to the aggregate 

amount of all costs and expenses (including attorney's 

4/ Consol also contends that on July 28 Bjes did not accidentally sever 

the shuttle's hydraulic hoses as a result of a steering problem, but 

rather severed them as a result of running over a large rock. The judge 

did not resolve the conflict in testimony on this point. Regardless of 

the reason for this accident, it would not affect our conclusions in this 

case. 

1419 
fees) as determined by the Commission to have been 

reasonably incurred by the miner ••• for, or in 

connection with, the institution and prosecution of 

such proceedings shall be assessed against the person 

committing such violation •••• 

30 U.S.C. § 815(c)(3). As our cases have emphasized, our statutory mandate 

requires us to restore victims of discrimination to the status they would 

have occupied but for the discrimination. However, we may not unjustly 

enrich a discriminatee. See Secretary of Labor on behalf of Cooley v. 

Ottawa Silica Company, 6 FMSHRC 516, 523-25 (March 1984); Secretary of 

Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 231-34 (February 1984); 

Secretary of Labor o~ behalf of Bailey v. Arkansas-Carbona Company, 

5 FMSHRC 2042, 2049-56 (December 1983); Secretary on behalf of Dunmire 

and Estle v. Northern Coal Company, 4 FMSHRC 126, 142-44 (February 1982). 

These principles dictate remand. 

In holding that Bjes was entitled to back pay during the period of his 

30-day suspension, the judge did not specify what job classification or pay 

rate applied for calculation of the award. Any remedial relief due to Bjes 

must be determined, however, on the basis of whatever non-discriminatory 

status he would have occupied, during the 30-day period of time following 

his work refusal, had he not been disciplined. See Secretary on behalf of 

Cooley v. Ottawa Silica Co., 5 FMSHRC at 522-23. The record in this case 

suggests that Consol, in accord with the collective bargaining agreement, 

its past practice in analogous situations, and its normal business policies, 

had available and might have adopted any of a variety of options, e.g., 

assigning Bjes to operate a different shuttle car; reassigning him to scoop 

work; or assigning him totally different work. Other legitimate options may 

have been available, as indicated by Hofrichter's initial willingness to 

consider modifications to the shuttle. 5/ We remand so that the parties 

may stipulate or offer additional evidence and argument, and so that the judge 

may make appropriate findings, as to what Bjes' status would have been 

following his refusal to work had he not been discriminatorily disciplined. 

As noted, the judge did not award Bjes interest on his back pay award, 

hearing expenses, or attorney's fees. Unless compelling reasons point to 

the contrary, all should be recovered by a discriminatee. The failure of 

Bjes' lay representative to request such relief cannot serve as a bar to 

its recovery. See for example, Secretary on behalf of Dunmire and Estle v. 

Northern Coal Co., 4 FMSHRC at 144. Accordingly, on remand, the judge shall 

award interest on any back pay award pursuant to the principles enunciated 

in our decision in Secretary on behalf of Bailey v. Arkansas-Carbona Co., 

supra. See Secretary on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 

at 523. The judge shall also permit the parties to offer stipulation, 

evidence, and/or argument as to the amount, if any, of the hearing 

expenses, including expenses in the nature of attorney's fees, incurred 

by Bjes. See Secretary of Labor~. Metric Constructors, Inc., 6 FMSHRC 

at 233-34. 

ii Because of this initial willingness to consider modification, and 

because there may have been a number. of alternatives available to this 

operator, we need not and do not decide whether the operator would be 

required under the Mine Act to modify the equipment, which was otherwise 

in full compliance with applicable regulations, as a matter of last resort. 

1420 
Accordingly, for the foregoing reasons, we affirm the judge's conclusion that Consol violated the Mine Act. We remand the case to the 

judge for expeditious proceedings to determine appropriate relief due 

Bjes in accordance with the principles enunciated in this decision. 

~ iliyer~::an 

Commissioner 

1421 
Distribution 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Jerry F. Palmer, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1422 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 26, 1984 

UNITED STATES STEEL CORPORATION Docket Nos. LAKE 81-102-RM 

LAKE 81-103-RM 

LAKE 81-114-RM 

LAKE 81-115-RM 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION. (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

Docket Nos. LAKE 81-152-M 

LAKE 81-167-M 

LAKE 81-168-M 

UNITED STATES STEEL CORPORATION 

DECISION 

This consolidated proceeding arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 ~~· (1982), presents three major 

issues: whether United States Steel Corporation ("U.S. Steel") violated 

section 103(a) of the Mine Act, 30 U.S.C. § 813(a), by restricting 

access by the Department of Labor's Mine Safety and Health Administration 

("MSHA") to the scene of a truck rollover; whether U.S. Steel violated the 

same section of the Act by insisting on the presence of a corporate attorney 

during an investigative interview of one of its foremen; and whether it unwarrantably violated 30 C.F.R. §§ 55.9-1 and 55.9-2 by failing to·record a 

defect affecting safety in the truck involved in the accident and by continuing to operate the' truck after its foreman was aware that the truck had 

a defective rear end. The Commission's administrative law judge determined 

that U.S. Steel violated section 103(a) of the Act and the mandatory safety 

standard as alleged, and imposed civil penalties. 4 FMSHRC 616 (April 

1982)(ALJ). For the reasons that follow, we affirm in part and reverse 

in part. 

I. 

U.S. Steel operates an open pit taconite mining operation in 

Iron Mountain, Minnesota, known as the Minntac Mine. During the day 

shift on January 21, 1981, Martin Kaivola, a field millwright, noticed 

that the dual rear wheels of the 2~-ton pickup truck he was driving had 

shifted in the wheel well. He informed his foreman, Cedric Roivanen, of 

the vehicle's condition. Roivanen acknowledged the report, but due to 

the press of other business he failed to record the defect and have it 

repaired. The truck was subsequently used on at least the next shift, 

where it was observed to be "doglegging," or steering from the rear. 

1423 
On the morning of the next day, January 22, 1981, Kaivola visually 

inspected the truck on the ready line. Believing that the truck had been 

repaired, he proceeded to use it in the course of his work on a shovel 

repair crew. The crew used the truck on two jobs that morning. On their 

way back to the central shop, they drove over a rail crossing and proceeded 

along a straightaway. Kaivola happened to glance at the rear view mirror 

and noticed that the rear tires were smoking in the wheel wells. Within 

seconds the rear end started to steer itself around the cab. Kaivola let 

up on the gas pedal, the truck's drive shaft dropped loose, and the truck 

overturned. 

Shortly thereafter, James Barmore, a U.S. Steel safety engineer, 

Larry Claude, a miners' representative, and James Bagley, an MSHA inspector, 

arrived at the mine office to take a lunch break from a regular mine 

inspection which MSHA was then conducting. Barmore, in the company of 

the other two men, was informed that a truck carrying three employees had 

rolled over in the pit. Barmore prepared to investigate the accident 

and requested that Claude accompany him. As Barmore and Claude proceeded 

toward the door with the inspector close behind, Barmore turned and asked 

the inspector where he thought he was going. Inspector Bagley said that 

he intended to go into the pit and examine the scene of the rollover. At 

this point, Barmore and Bagley entered into a verbal exchange as to 

whether the inspector would accompany Barmore and Claude. 

Bagley and Claude testified that Barmore used profanity when 

addressing the inspector. Barmore denied this allegation. Bagley 

asserted that he had a right to go into the pit to observe the site. 

Barmore and Claude testified that Barmore said that Bagley could not 

go along with them. Barmore testified that he did not want the arrival 

of an inspector on the scene to be misinterpreted as the initiation of 

an MSHA accident investigation. Barmore and Claude proceeded to the 

scene of the rollover together, hav~ng stated to Bagley that on their 

return they would show him photographs of the site and fill him in on 

the details. 

At the time, Bagley did not have a government vehicle at his disposal. 

He had arrived at the mine site that morning with MSHA Inspector Thomas Wasley, 

who used their vehicle for his separate purposes. It was customary practice 

for U.S. Steel to provide transportation to MSHA personnel in the form of a 

company car driven by a company safety engineer. MSHA personnel relied on 

this practice. Signs at the mine indicated that only authorized vehicles 

were allowed in the pit. 

By the time that Barmore and Claude reached the scene of the truck 

rollover, other U.S. Steel personnel had already arrived, had taken the 

shovel repair crew to the clinic for treatment, and were in the process 

of evaluating the rollover. Kaivola, the driver, and one of the passengers, 

Richard Boucher, a millwright apprentice, sustained back strain injuries. 

Another passenger, Richard Woullet, also a millwright apprentice, received 

a chipped elbow fracture. The truck had landed right side up on its wheels. 

The box of the truck had been torn off and was lying upside down. The drive 

shaft had separated and was lying on the ground. The rear axle had shifted, 

the spring package had broken, and spring leaves were scattered about the 

1424 
scene. Barmore took photographs of the wreckage and the surrounding area 

and returned-with Claude to the mine office after some 20-45 minutes. They 

discussed the rollover with Bagley and showed him the photographs taken at 

the scene. Bagley was told that the employees involved in the rollover had 

received restricted duty injuries. 

The next day, after consulting with his supervisor, Bagley returned to 

the mine and issued a citation to U.S. Steel under section 104(a) of the Mine 

Act, 30 u.s.c. § 814(a). The citation alleged that U.S. Steel violated 

section 103(a) of the Act because Barmore had denied Bagley "the opportunity 

to evaluate the cause of the accident or to determine if any mandatory safety 

or health standard had been violated." 1/ MSHA did not proceed with its 

]J Section 103(a) of the Act provides: 

Authorized representatives of· the Secretary or the Secretary 

of Health, Education, and Welfare shall make frequent inspections and investigations in coal or other mines each year for 

the purpose of (1) obtaining, utilizing, and disseminating 

information relating to health and safety conditions, the 

causes of accidents, and the causes of diseases and physical 

impairments originating in such mines, (2) gathering information with respect to mandatory health or safety standards, 

(3) determining whether an imminent danger exists, and (4) 

determining whether there is compliance with the mandatory 

health or safety standards or with any citation, order, or 

decision issued under this title or other requirements of 

this Act. In carrying out the requirements of this subsection, 

no advance notice of an inspection shall be provided to any 

person, except that in carrying out the requirements of 

clauses (1) and (2) of this subsection, the Secretary of 

Health, Education, and Welfare may give advance notice of 

inspections. In carrying out the requirements of clauses 

(3) and (4) of this subsection, the Secretary shall make 

inspections of each underground coal or other mine in its 

entirety at least four times a year, and of each surface 

coal or other mine in its entirety at least two times a 

year. The Secretary shall develop guidelines for additional inspections of mines based on criteria including, 

but not limited to, the hazards found in mines subject to 

this Act, and his experience under this Act and other 

health and safety laws. For the purpose of making any 

inspection or investigation under this Act, the Secretary, 

or the Secretary of Health, Education, and Welfare, with 

respect to fulfilling his responsibilities under this Act, 

or any authorized representative of the Secretary or the 

Secretary of Health, Education, and Welfare, shall have a 

right of entry to, upon,' or through any coal or other mine. 

30 u.s.c. § 813(a). 

1425 
own independent investigation of the rollover. However, on February 5, 

1981, MSHA received a miner's request, pursuant to section 103(g) of the 

Act, 30 U.S.C. § 813(g), that the rollover accident be investigated. 

In response to the section 103(g) request, Inspectors Bagley and James 

King returned to the mine on February 9, 1981. They gave a copy of the 

section 103(g) request to Steve Starkovich, safety supervisor for U.S. 

Steel's Minnesota ore operations. Starkovich provided the inspectors with 

a copy of the company's accident report. The inspectors informed Starkovich 

that they wanted to look at the truck, speak with members of the shovel 

repair crew, and speak with the crew foreman. Starkovich said that there 

would be no difficulty in viewing the truck and in interviewing the hourly 

employees, but that he could not let them interview Roivanen, the foreman, 

unless a U.S. Steel attorney were present. Bagley informed him that it 

would be necessary to interview Roivanen, and that arrangements should be 

made to provide an attorney as soon as possible. 

The inspectors examined the truck. When Kaivola, the driver, could 

not be located, Bagley asked Ron Rantala, a U.S. Steel safety engineer, 

if they could interview Roivanen. Rantala also advised them that they 

could not interview the foreman unless a U.S. Steel attorney were present. 

Kaivola was subsequently located and interviewed. 

On February 11, 1981, Inspectors Bagley and Wasley returned to the 

mine and again informed Starkovich that they wanted to interview Roivanen. 

Starkovich said that they could not interview him unless a U.S. Steel 

attorney were present and that he had not yet received word from U.S. 

Steel headquarters as to when an attorney would be available. 

The inspectors told Starkovich that they wished to interview Boucher 

and Woullet, the passengers in the truck. Starkovich testified that he 

informed them that Boucher and Woullet were in training at a vocational 

technical school and that they would return on February 17, 1981. Starkovich 

stated that he discussed with the inspectors the possibility of interviewing 

the two miners on their return to work and the possibility that a U.S. Steel 

attorney could be present that same day to allow MSHA to interview Roivanen. 

Bagley and Wasley testified that Starkovich made no mention of when Boucher 

and Woullet would return to work, nor when a U.S. Steel attorney would be 

available. Starkovich advised the inspectors that Roivanen would not talk 

to them about the accident. 

Bagley returned to the mine the next day, February 12, 1981, and 

issued a section 104(a) citation to U.S. Steel alleging another violation 

of section 103(a) of the Mine Act. The citation alleged that Starkovich's 

refusal on February 9 and February 11 to allow the MSHA inspectors the 

opportunity to confer with Roivanen "constitutes interference with and impedance of ••• an MSHA accident inv\8tigation." Upon receiving the citation, 

Starkovich telephoned company headquarters and informed the inspectors that 

a U.S. Steel attorney would be present the following day. Based upon this 

information, Bagley set the termination date on the citation for the next 

day. The inspectors then went to the vocational technical school and 

interviewed Boucher and Woullet. 

1426 
On February 13, 1981, Ronald Fischer, a U.S. Steel attorney who 

primarily handled worker's compensation matters, came to the mine and 

was present ·while the inspectors interviewed Roivanen. Roivanen informed 

them that he had been advised by his supervisor that the company preferred 

that he have the benefit of counsel concerning the truck rollover. Roivanen 

told the inspectors that the shifting condition of the rear wheels had 

been reported to him and that he failed to record the problem and failed 

to effect any repairs because he forgot. 

On March 9, 1981, as a result of MSHA's truck rollover accident 

investigation, Bagley issued two orders of withdrawal to U.S. Steel under 

section 104(d)(l) of the Mine Act, 30 u.s.c. § 814(d)(l). 2/ The orders 

alleged violations of 30 C.F.R. §§ 55.9-1 and 55.9-2, mandatory safety 

standards concerning the reporting and recording of safety defects in 

equipment and the correction of safety defects before the equipment is 

used. ]./ Additionally, the orders charged that the violations were both 

];;/ Section 104(d)(l) of the Act provides: 

If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, 

and if he also finds that, while the conditions created by 

such violation does not cause imminent danger, such violation 

is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine 

safety or health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to comply 

with such mandatory health or safety standards, he shall include 

such finding in any citation given to the operator under this 

Act. If, during the same inspection or any subsequent inspection 

of such mine within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds another 

violation of any mandatory health or safety standard and finds 

such violation to be also caused by an unwarrantable failure 

of such operator to so comply, he shall forthwith issue an order 

requiring the operator to cause all persons in the area affected 

by such violation, except those persons referred to in 

subsection (c) to be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of the 

Secretary determines that such violation has been abated. 

30 u.s.c. § 814(d)(l). 

]j 30 C.F.R. § 55.9-1 provides: 

Mandatory. Self-propelled equipment that is to be used during 

a shift shall be inspected by the equipment operator before 

(Footnote continued) 

1427 
"significant and substantial" and caused by the operator's "unwarrantable 

failure" to comply with the cited mandatory safety standards. In the 

withdrawal order alleging a violation of 30 C.F.R. § 55.9-1, the inspector 

found: 

[Roivanen] confirmed that the shifting rear end had in fact 

been reported to him on January 21, 1981, but that he had 

forgotten about it. The company could produce no records 

of the unsafe condition being reported, hence, did not 

demonstrate reasonable care in recording or maintaining 

a record of an equipment defect which was reported and 

which affected the safety of three employees. 

In the withdrawal order alleging a violation of 30 C.F.R. § 55.9-2, the 

inspector found: 

The truck was not removed from service to correct the 

reported defect, but continued to be used for the 

remainder of the shift on which it was reported. The 

truck was also used on the following afternoon shift 

and again during the shift on which the accident 

occurred. The failure of the operator to act on 

information that gave him knowledge, or reason to 

know, that an unsafe condition existed, which 

affected the safety of three employees, is 

unwarrantable. 

The Commission administrative law judge to whom these cases were 

originally assigned conducted two days of hearings. Post-hearing briefs 

were submitted by the parties. However, prior to issuing a decision, the 

presiding judge left the Commission. The cases were reassigned to a 

substitute Commission administrative law judge. After notice to the parties 

of the substitution and of his intention to decide the case, the judge 

issued an extensive 62-page decision based upon the existing record. !!_/ 

Fn. ]./ continued 

being placed in operation. Equipment defects affecting 

safety shall be reported to, and recorded by the mine 

operator. The records shall be maintained at the mine 

or nearest mine office for at least 6 months from the 

date the defects are recorded. Such records shall be 

made available for inspection by the Secretary of Labor 

or his duly authorized representative. 

30 C.F.R. § 55.9-2 provides: 

Mandatory. Equipment defects affecting safety shall be 

corrected before the equipment is used. 

4/ Prior to the issuance of the substitute judge's decision, the section 

104(d)(l) withdrawal order alleging a violation of section 55.9-1 was modified by the Secretary to a section 104(d)(l) citation, and the other withdrawal order was modified to reflect that it was based on that citation. 

1428 
In his decision, the judge held that U.S. Steel violated section 103(a) 

of the Mine Act when Barmore prevented Bagley from going to the scene of the 

rollover. 4 FMSHRC at 626-37. He also held that U.S. Steel violated section 

103(a) of the Act when Starkovich prevented Bagley from interviewing Roivanen 

until a U.S. Steel attorney could be present. 4 FMSHRC at 643-59. With 

regard to the remaining contests, the judge held that U.S. Steel violated 

30 C.F.R. § 55.9-1 when Roivanen failed to record the equipment defect 

reported to him by Kaivola, and that it violated 30 C.F.R. § 55.9-2 when 

the equipment defect in the truck was not corrected before the equipment 

was used. 4 F11SHRC at 663-72. The judge also held that these violations 

were unwarrantable. 

II. 

As a preliminary matter, U.S. Steel argues for the first time on review 

that the substitute judge erred in resolving conflicts in the testimony of 

Barmore, Bagley, and Claude concerning what Barmore told Bagley on the day 

he refused to allow him access to the scene of the truck rollover. U.S. 

Steel asserts that the judge should not have resolved this testimonial 

conflict because he did not preside at the hearing and, thus, did not have 

the opportunity to observe the witnesses' demeanor. The Secretary of Labor 

contends that U.S. Steel is precluded from raising this objection to the 

substitute judge's decision because it failed to raise it before the judge. 

Under the Administrative Procedure Act ("APA"), agencies are authorized 

to have a case decided by a substitute judge when, as in this case, the presiding judge becomes unavailable to the agency. 5 u.s~c. § _554(d). Cf. Fed. 

R. Civ. P. 63. If the case is one in which the resolution of material conflicting testimony requires a determination of the credibility of witnesses, 

a de novo hearing may be procedurally necessary, unless the parties consent 

to"<fispense with, or waive, a rehearing. See,~., New England Coalition 

on Nuclear Pollution v. NRC, 582 F.2d 87, 99-100 (1st Cir. 1978); GambleSkogmo, Inc. v. FTC, 211~2d 106, 113-15 (8th Cir. 1954); Van Teslaar v. 

Bender, 365 F. Supp. 1007, 1012 (D. Md. 1973). However, under the APA, a 

party must object to a substitute judge's proceeding at a time appropriate 

under that agency's practice. Braswell Motor Freight Lines, Inc. v. 

United State·s, 271 F. Supp. 906, 910-11 (W.D. Tx. 1967). Further, the Mine 

Act and the Commission's Rules of Procedure provide: 

••• 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 has not been 

afforded an opportunity to pass •••• 

30 U.S.C. § 823(d)(2)(A)(iii); Commission Procedural Rule 70(d), 29 C.F.R. 

§ 2700.70(d). 

U.S. Steel admits in its brief that it was notified on February 4, 1982, 

of the substitute judge's intention to render a decision. The judge's decision was issued on April 15, 1982, thus giving U.S. Steel approximately 65 days 

within which to object to the substitution of this judge. Having been put on 

notice and having· failed to raise any objection prior to the issuance of his 

decision, U.S. Steel can fairly be found to have consented to, or waived any 

objection to, this procedure. The judge was properly substituted, gave the 

1429 
parties notice of his intent~on to render a decision on the existing record, 

and afforded them ample time within which to object. 5/ We discern no "good 

cause" to give further consideration to this procedural challenge of U.S. 

Steel on review. Thus, we conclude that the judge was properly substituted and properly proceeded to decide the case. Nevertheless, we have 

specific reservations about certain findings of the judge and the civil 

penalty consequences which flow from those findings. We address these 

problems below. 

III. 

U.S. Steel contends that the judge erred in concluding that it violated 

section 103(a) of·· the Mine Act by preventing Inspector Bagley from inspecting 

or investigating the site of the truck rollover on January 22, 1981. U. s. 

Steel's argument centers around the Secretary's authority to investigate 

accidents. U.S. Steel argues that the Secretary, by his regulations at 

30 C.F.R. Part 50, restricted the Act's definition of the term "accident" 

to a manageable administrative threshold. 6/ According to U.S. Steei's 

theory, because the injuries sustained by the truck's occupants did not 

meet the "reasonable potential to cause death" standard found at 30 C.F.R. 

§ 50.2(h)(2), it was under no obligation to take the Secretary's 

representative to the site of the rollover. 

We find it unnecessary in reaching our decision to discuss whether or 

not Part 50 imposes any limits on the Secretary's accident investigation 

authority under section 103(a) of the Act. Under the facts of this case, 

sufficient grounds existed for Inspector Bagley, as the authorized 

representative of the Secretary, to inspect the site of the rollover 

pursuant to section 103(a) of the Act. Section 103(a) confers on the 

5/ A party cannot be permitted to ireserve its objection "if it should 

develop that the [findings] of the (judge] ••• were not to his liking." 

Braswell Motor Freight Lines, Inc. v. United States, 271 F. Supp. at 911, 

cited in Merchants Fast Motor Lines Inc. v. ICC, 528 F.2d 1042, 1044 

(5th Cir. 1976). However, the procedural concerns triggered by the 

substitution of the judge in this case suggest that it would be a desirable practice in future substitution situations, arising after the 

hearing has been conducted, for the substitute judge to include in his 

notice of intent to render a decision on an existing record, a specific 

time within which objections to the substitute judge rendering a 

decision may be filed. Any objection must be founded on a showing of 

a need for resolution of material conflicting testimony requiring 

demeanor-based credibility determinations. In addition, any rehearing 

should be limited, so far as practicable, to the testimonial areas in 

dispute. See generally New England Coalition on Nuclear Pollution v. 

NRC, 582 F.2d at 99-100. 

6/ Section 3(k) of the Act, 30 U.S.C. § 802(k), states that the term 

.,...accident" "includes a mine explosion, mine ignition, mine fire or mine 

inundation, or injury to, or death of, any person." 30 C.F.R. § S0.2(h)(2) 

defines an "accident" as: "An injury to an individual at a mine which has 

a reasonable potential to cause death." 

1430 
Secretary's representatives authority to make "frequent inspections and 

investigations" for the purpose of determining whether an imminent danger 

exists, or whether there is noncompliance with mandatory safety or health 

standards, citations, orders or decisions issued under the Act, or "other 

requirements" of the Act. 30 U.S.C. § 813(a). Bagley was present on the 

mine property to conduct a regular mine inspection required by the Act and 

had authority to inspect the mine .in its entirety. Section 103(a) places 

no boundary on the areas of a mine that an authorized representative may 

inspect or limitations on the sequence he may employ to complete his inspection. In light of the equipment rollover and, as even Barmore's 

testimony reflects, the attendant possiblity of a fuel tank explosion, 

Bagley also had au~hority to determine whether an imminent danger existed. 

He likewise had authority to determine whether there was compliance with 

mandatory safety or health standards, or other requirements of the Act. 

U.S. Steel also argues that the words and actions of Barmore, U.S. 

Steel's safety engineer, did not amount to a refusal to grant Bagley access 

to the scene of the rollover. While some of the events that transpired at 

the mine office prior to Barmore's departure to the rollover site are in 

dispute, the judge's finding that Barmore prevented Bagley from going to the 

scene of the accident is supported by substantial evidence. Uncontroverted 

evidence makes it clear that U.S. Steel had customarily provided MSHA personnel 

on mine property with a company vehicle driven by a company representative 

and that MSHA had come to rely on this practice. Barmore claimed that Bagley 

could have requested permission to use a company vehicle. However, Starkovich, 

Barmore's supervisor, testified that even if the inspector had requested a 

vehicle to go to the scene of the truck rollover, he would have refused pending 

an examination of the accident by a U.S. Steel safety engineer to determine 

the type of accident involved. Barmore's refusal to allow the inspector to 

accompany him in a company vehicle effectively left the inspector without any 

means of transportation to the site of the truck rollover. Barmore's denial 

of transportation, and Starkovich's testimony that he would have confirmed 

that decision, provide substantial evid.ence to support the judge's conclusion 

that U.S. Steel violated section 103(a) of the Act by preventing Bagley from 

inspecting the scene of the truck rollover. 

While the uncontroverted evidence of record supports the judge's conclusion that there was a violation, we conclude that certain findings the judge 

made in assessing the civil penalty for the violation are not supported by 

substantial evidence. Notwithstanding Barmore's denials, the judge found 

that Barmore employed a "sudden, hostile and arrogant manner" in precluding 

Bagley from visiting the scene of the rollover; that Barmore had "a certain 

amount of disdain" for Bagley; that Barmore was "indifferen[t]" about the way 

he treated inspectors; that Barmore used "rough language" in addressing Bagley; 

and that U.S. Steel's violation of section 103 was "done with considerable 

animosity and hostility." The judge also opined that U.S. Steel's actions 

had an adverse impact on MSHA's inspection program in general. These 

findings figured prominently in the judge's assessment of a civil penalty 

with regard to the gravity and negligence criteria of section llO(i) of 

the Mine Act. 30 U.S.C. § 820(i). He based $1,500 of his $1,510 assessed 

penalty on those two criteria. 

1431 
In assessing the penalty, the judge considered each of the six statutory 

penalty criteria. With the exception of the gravity and negligence elements, 

we find that substantial evidence in the record supports the judge's findings. 

On the issue of gravity, we agree with the judge that the violation was serious 

b.ecause it thwarted an authorized representative's attempts to insure compliance with the Act. However, it is apparent that he exaggerated "the demoralizing effect which Barmore's action had on MSHA's inspection responsibilities." 

Whether Bagley's hesitance in asserting his authority to inspect the scene of 

the truck rollover was due to Barmore's statements or to his own inhibitions 

is difficult to determine. Moreover, we find no evidence to suggest that 

Barmore's actions had any negative effect on MSHA's enforcement program in 

general. Thus, we conclude that the judge's penalty assessment overstated 

the gravity of the violation. 

Regarding the operator's negligence, we agree with the judge that the 

violation was deliberate, but note that U.S. Steel's refusal to allow MSHA 

access to the site of the rollover was based, at least in part, on its 

erroneous legal interpretation of the Secretary's authority to inspect. To 

support his conclusion that Barmore had "a certain amount of disdain" f,or 

Bagley, and thus demonstrated a high degree of negligence imputable to 

U.S. Steel, the judge relied on an extract from Barmore's own testimony. 

4 FMSHRC at 641-42. In this passage, Barmore confessed to an inability to 

evaluate Bagley's subjective mental reaction to Barmore's refusal to allow 

him to proceed to the site of the rollover. However, the cold words of 

the transcript are susceptible to various interpretations, at least as 

valid as the disdain attributed to them by the judge. The judge did not 

have the opportunity to observe Barmore's demeanor on the stand, and we 

do not find that the cold record provides a sufficient basis upon which 

to reach this conclusion. Similarly, Barmore also denied swearing at 

Bagley (Tr. 182-185), and yet the judge failed to explain why he disbelieved Barmore, whose testimony was not inconsistent or contradictory. 

Finally, the judge concluded that Barmore's treatment of the inspector would 

not have provided as strong a basis for adversely evaluating the operator's 

negligence had Starkovich, Barmore's supervisor, evinced disagreement with the 

manner in which Barmore proceeded. However, the record indicates that 

Starkovich agreed with Barmore's actions only as a matter of company policy. 

Although that policy proved to be in error, there is nothing in Starkovich's 

testimony to indicate hostility or disdain on his part, or condonation of 

any such behavior by Barmore. Given a lack of substantial support in the 

record, the judge's conclusion that the operator exhibited a high degree of 

negligence cannot stand. We, therefore, disavow his comments. 

While a judge's assessment of a penalty is an exercise of discretion, 

assessments lacking record support, infected by plain error, or otherwise 

constituting an abuse of discretion are not immune from reversal by this 

Commission. See Sellersburg Stone Co., 5 FMSHRC 287, 292-94 (March 1983), 

affirmed, No. 83-1630 (7th Cir. June 11, 1984); Southern Ohio Coal Co., 

4 FMSHRC 1459, 1465 (August 1982); !P-ox County Stone Co., Inc., 3 FMSHRC 

2478, 2480-81 (November 1981). Discounting the judge's findings analyzed 

above, we conclude that a penalty assessment of $400, the figure originally 

proposed by the Secretary for the violation, is appropriate and consistent 

with the statutory criteria. See Southern Ohio Coal Co., 4 FMSHRC 

1459, 1465 (August 1982). 

1432 
IV. 

The next·issue is whether the judge erred in holding that U.S. Steel 

violated section 103(a) of the Act by insisting on the presence of a U.S. 

Steel attorney when MSHA sought to interview foreman Roivanen. U.S. Steel 

argues on review that the APA provides for a right to counsel when a company 

supervisor is interviewed by a representative of the Secretary during the 

course of an investigation. The Secretary argues that the right to counsel 

is not an issue in this case because the right is a personal one and Roivanen 

himself never sought to be represented by counsel. Rather, the Secretary 

contends that U.S. Steel sought to have its counsel present when Roivanen 

was interviewed and impeded the investigation when it failed to notify MSHA 

within a reasonable time when the Secretary's representative could interview 

Roivanen. 

The issue of whether a non-party witness involved in an MSHA investigation has a right to benefit of counsel during a non-compulsory, investigative 

interview is not directly before us because Roivanen did not seek to be represented by counsel and never asserted a personal right to representation 

during an MSHA interview. Assuming, however, for the sake of discussion, that 

the APA provides such a right, and that the right is incorporated by reference 

under the Mine Act, the right would have to be exercised irt a reasonable manner. 

See United States ex rel. Baskerville v. Deegan, 428 F.2d 714, 716 (2nd Cir. 

1970), cert. denied, 400 u.s.· 928 (1970). Cognizant of that principle, we 

address the issue of whether the actions of Starkovich constituted an unreasonable impedance of the MSHA accident investigation. 

The evidence shows that on February 9, 1981, after receiving a miner's 

section 103(g) request for an investigation, Inspectors Bagley and King 

returned to the mine to investigate the rollover accident. Starkovich 

told them that they could not interview foreman Roivanen unless a U.S. 

Steel attorney were present. Bagley informed Starkovich that it would 

be necessary for MSHA to interview Roivanen and that arrangements should 

be made to provide an attorney as soon as possible. Starkovich indicated 

that he would let the inspectors know when an attorney would be available, 

but did not offer any date on which the inspectors could proceed with their 

investigation and interview Roivanen. These facts indicate that MSHA was 

willing to accommodate, at least temporarily, U.S. Steel's desire for the 

presence of a U.S. Steel attorney during the interview with its foreman. 

Two days later the inspectors returned to the mine and Starkovich informed 

them that he had not yet received word from U.S. Steel headquarters as to 

when an attorney would be available. Such an open-ended response to the 

inspector's instruction that an attorney be provided as soon as possible was 

unreasonable. This conclusion is bolstered by the fact that after receiving 

the citation, Starkovich made a single telephone call and was able to inform 

the inspectors that a U.S. Steel attorney would be present the next day. 

Even assuming that U.S. Steel was within its rights in insisting on 

the presence of a company attorney, Starkovich's failure to specify a date 

certain when an attorney would be present, combined with the failure to 

produce an attorney, had the effect of unreasonably delaying the accident 

investigation. We therefore conclude that substantial evidence supports 

the judge's conclusion that U.S. Steel impeded the MSHA investigation in 

violation of section 103(a) of the Act. 

1433 
U.S. Steel also argues that in assessing a penalty of $80 for this 

violation, the judge erred in considering arguments contained in its posthearing brief. The judge determined that U.S. Steel's complaints about 

having to send an attorney somewhat less experienced in the field of mine 

safety law in order to abate the violation largely offset any conclusion 

that the speed it had exhibited in abating the citation demonstrated 

"good faith" that should be used as a reason for reducing the penalty 

otherwise assessable. 

We agree with U.S. Steel that under the Mine Act "good faith" should be 

judged in terms of objective attempts to achieve rapid compliance after 

notification of a violation. We also note that the parties stipulated that 

U.S. Steel demonstrated good faith in abating the citation at issue within 

the time provided. Therefore, we reverse the judge on this point and reduce 

the assessed penalty from $80 to $70. 

v. 

With respect to the judge's findings that U.S. Steel violated 30 C.F.R. 

§§ 55.9-1 and 55.9-2 (n. 3, supra) in connection with the truck rollover, 

U.S. Steel argues that the judge misconstrued the phrase "defect affecting 

safety" contained in those standards by defining it in terms of injury or 

loss to the vehicle. The operator also contends that the alleged violations 

could not have been "significant and substantial" within the meaning of our 

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

because the judge characterized the probability of injury as remote. Finally 

U.S. Steel maintains that substantial evidence does not suppvrt the judge's 

conclusion that the alleged violations were the result of its unwarrantable 

failure to comply with the cited standards. 

Relying on ordinary usage, the judge applied the dictionary definition 

of the term "defect" to the dictionary definition of the term "safety." He 

found that failed brakes and disconnected drive shafts were "shortcomings" 

or "imperfections" in a truck with a shifted rear end, and that these defects 

constituted conditions which would prevent persons riding in a vehicle from 

feeling "safe from undergoing" an "injury or loss." The judge intimated 

that because an accident occurred, it was certain that the truck's shifted 

rear end was a defect affecting safety. He nonetheless went on to state 

that inasmuch as a shifted rear end was a defect and because the potential 

consequences of its presence affected safety, the record supported a finding 

that the shifted rear end of the truck constituted a defect affecting safety. 

We find the judge's legal reasoning to be generally in accord with our 

decision in Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (April 1981), 

in which we construed 30 C.F.R. § 56.9-2, a regulation identical to section 

55.9-2 and applicable to sand, gravel, and crushed stone mining operations. 

There we held "that use of a piece of equipment containing a defective component 

that could be used and which, if used, could affect safety, constitutes a 

violation of 30 C.F.R. § 56.9-2." 3 FMSHRC at 844. Substantial evidence also 

supports the judge's conclusion that the shifted rear end of this truck was a 

defect affecting safety within the meaning of the two standards involved in 

this case. There is evidence in the record that a shifted rear end is a 

sign of mechanical defect, with a potential to cause an accident. Also, at 

some point, a shift in a vehicle's rear end will affect safety. John Primozich, 

1434 
the foreman of the auto repair shop at the Minntac Mine, testified that he 

would not operate a truck in which the rear end had shifted two and one 

half inches because he would not feel safe. In this particular instance, 

the shifted rear end caused the spring package to break, a punctured rear 

tire, the broken drive shaft to separate from the vehicle, and the truck 

to roll over. The truck rollover caused several back strain injuries and 

a chipped elbow fracture. There is no question that the rollover had the 

potential for more serious injury. All of these facts point to a defect 

affecting safety. 

It is also clear that, as the judge found, U.S. Steel violated the two 

standards by not recording information regarding the shift in the truck's 

rear end and by failing to correct the defects before the truck was used. 

Kaivola, the driver, orally reported the condition to his foreman, Roivanen. 

Roivanen acknowledged the report, but made no attempt to report or record 

the complaint because he was preoccupied with other affairs and simply 

forgot. Kaivola testified that the shovel repair shop had always had an 

oral system of reporting complaints to the supervisor. Roivanen 

testified that normally he would have informed the afternoon shift 

foreman of the complaint and he, in turn, would have sent the truck to 

the auto repair shop in order to have it repaired and back in service by 

the next day shift. 

In his decision, the judge referred to these and other facts. Thus, 

substantial evidence supports the judge's conclusion that U.S. Steel failed 

to record the defect affecting safety as required by 30~C.F.R. § 55.9-1. 

It is undisputed that U.S. Steel did not correct the shift in the rear 

end before the truck was used and, therefore, violated 30 C.F.R. § 55.9-2 

as well. 

U.S. Steel contends that the alleged violations of these standards could 

not have been "significant and substantial" within the meaning of National 

Gypsum because the judge characterized the probability of injury as remote. 

The judge found that a significant and substantial violation requi~ed "at least 

a remote possibility of injury and, additionally, that there should exist a 

reasonable likelihood of occurrence of an injury or illness of a reasonably 

serious nature." He concluded that the violations were significant and 

substantial because shifting rear ends "were associated with a remote 

possibility of an injury which would have a reasonable likelihood of 

occurrence and be of a reasonably serious nature." 

In National Gypsum, the Commission defined a significant and substantial 

violation as requiring the existence of "a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a reasonably 

serious nature." 3 FMSHRC at 825. As we stated recently: 

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 

1435 
by the violation; [7/] (3) a reasonable likelihood that the 

hazard contributed to will result in injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Consolidation Coal Co., 6 FMSHRC 189, 193 (February 1984). 

It is obvious that the judge's definition of what constitutes a significant and substantial violation differs from that employed by the Commission 

in National Gypsum. The judge obscured the necessary probability element 

by addressing it in terms of both a "remote possibility" and a "reasonable 

likelihood." Nevertheless, substantial evidence supports the judge's ultimate 

conclusion that the.violations were significant and substantial within the 

meaning of National Gypsum. There is evidence that a shifted rear end is 

a sign of mechanical defect, with a potential to cause an accident. There 

are statements that at some point, a shift in a vehicle's rear end will affect 

safety. There is also the testimony of Primozich, the auto repair shop foreman, 

that he would not operate a truck in which the rear end had shifted two and 

one half inches because he would not feel safe. Further, the presence of 

this kind of defect affecting safety in equipment that is subsequently used 

presents at least a reasonable likelihood that an injury will result. We, 

therefore, conclude that substantial evidence supports the judge's ultimate 

conclusion that the violations were significant and substantial within the 

meaning of National Gypsum. 

By contrast, the issue of whether the violations were the result of the 

operator's unwarrantable failure is more straightforward. U.S. Steel argues 

.that the Secretary failed to prove that Roivanen knew or should have known 

that the shift in the truck's rear end could affect safety. It maintains 

that this mechanical problem was not normally considered to be a defect 

affecting safety, but rather a maintenance item to be corrected in the 

normal course of operations. The judge repeatedly rejected that argument 

and found that Roivanen was aware of the fact that wheels could rub in the 

wheel wells, smoke, and even stall a vehicle's engine. He concluded that 

the evidence controverted U.S. Steel's claim that prior experience with 

shifted rear ends would not have enabled Roivanen to foresee the possibility 

that the vehicle's mechanical condition was more than a maintenance item 

and could affect safety. The judge also found that Roivanen, under the 

pressure of other duties, forgot about Kaivola's having reported the shifted 

rear end to him, and that he failed to report and record the defect and 

failed to remove the affected equipment from service. 

We note that the Interior Board of Mine Operations Appeals interpreted an 

identical reference to "unwarrantable failure" in the 1969 Coal Act, 30 U.S.C. 

§ 801 ~~.(1976)(amended 1977). Zeigler Coal Co., 7 IBMA 280 (March 1977). 

There the Board stated: 

II We note that this case involves the violation of mandatory safety 

standards. We have pending before us a case raising a challenge to the 

application of National Gypsum to a violation of a mandatory health 

standard. Consolidation Coal Co., FMSHRC Docket No. WEVA 82-209-R, etc. 

We intimate no views at this time as to the merits of that case. 

1436 
[A]n inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines 

that the operator involved has failed to abate the conditions or practices constituting such violation, conditions or practices the operator knew or should have 

known existed or which it failed to abate because of 

a lack of due diligence, or because of indifference 

or lack of reasonable care. 

7 IBMA at 295-96. 8/ The Senate Committee largely responsible for drafting 

the bill that became the Mine Act specifically approved the Zeigler interpretation of the term unwarrantable failure. S. Rep. No. 181, 95th Cong., 

1st Sess. 31-32 (1977) reprinted in Subcommittee on Labor, Senate Committee 

on Human Resources, 95th Cong., 2nd Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 619-20 (1978). This case 

does not require us to examine every aspect of the Zeigler construction, 

but we concur with the Board to the extent that an unwarrantable failure 

to comply may be proved by a showing that the violative condition or practice 

was not corrected or remedied, prior to issuance of a citation or order, 

because of indifference, willful intent, or a serious lack of reasonable care. 

Roivanen's testimony indicates that he was aware that a shifted rear 

end could cause a truck's wheels to rub in the wheel wells, smoke, and even 

stall a vehicle's engine. These facts, as previously discussed, are consistent with the judge's finding of a defect affecting safety, rather than 

a maintenance item. Roivanen also admitted that normally he would have 

taken the truck to the repair shop at the end of the shift or left 

instructions with the afternoon shift foreman to see to the repairs, but 

that he simply "forgot." Roivanen's lapse in memory can be regarded as 

demonstrative of a serious lack of reasonable care. His failure to take 

corrective action to remedy the violations ultimately contributed to the 

occurrence of the rollover. In sum, all these facts provide substantial 

support for the judge's conclusion that the violations were the result of 

the operator's unwarrantable failure to comply with the cited standards. 

Contrary to U.S. Steel's position, we agree with the judge and find 

substantial support for his conclusion that the shifted rear end of 

this truck was a defect affecting safety within the meaning of 30 C.F.R. 

§§ 55.9-1 and 55.9-2, and not an item of maintenance. Therefore, we 

affirm the judge's conclusion as to the violations of the standards, 

as well as his assessment of $255 for each of the violations. 

8/ The Board's use of the term "abate" refers to correction of the 

violative condition or practice prior to issuance of a citation or order. 

1437 
VI. 

Based on the foregoing reasons, the decision of the administrative law 

judge is affirmed in part and reversed in part. His penalty assessment is 

consequently reduced from $2100 to $980. 

~c4;er~::: 

Richard V. Backley, Commissioner 

dfe_~'"" k-&-.'-/ 

L. Clair Nelson, Commissioner 

Commissioner Jestrab, concurring in part: 

I concur in this 

penalties assessed by 

1438 

I would not reduce the civil 
Commissioner Lawson dissenting: 

The majority properly affirms the conclusion of the judge below that 

U. S. Steel violated section 103(a) of the Act and the cited mandatory 

safety standards, as indeed it must given the facts of this case. 1/ 

However, no credible rationale has been advanced for either the penalty 

reductions for this operator's deliberate flouting of the Act, or for the 

majority's disregard of the substantial evidence found by the judge below 

to support imposition of the penalties he assessed. Henceforth, an operator's 

deliberate defiance obviously generates reduced penalties. This error is 

compounded by uncritical acceptance of the Secretary's "proposed" penalty 

assessment of $400, without discussion or explanation of how that figure 

is "appropriate and consistent with the statutory criteria." Slip op. at 

10. ]:_/ 

Section llO(i) of the Act provides: 

The Commission shall have authority to assess all 

civil penalties provided in this Act. In assessing 

civil monetary penalties, the Commission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of 

the business of the operator charged, whether the 

operator was negligent, the effect on the operator's 

ability to continue in business, the gravity of the 

violation, and the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after notification of a violation. In 

proposing civil penalties under this Act, the 

Secretary may rely upon a summary review of the 

information available to him and shall not be 

required to make findings of fact concerning the 

above factors. 

It is clear from the statutory language that, although the Secretary 

is not required to make findings of fact concerning the statutorily 

enumerated penalty factors, the Commission is. In a penalty proceeding 

before the Commission, the Secretary's proposed penalties are merely 

suggestive, and the amount of the penalty to be assessed is a de novo 

determination based on the six statutory criteria. United States Steel 

Mining Co., Inc., Docket No. PENN 82-328 (May 31, 1984); Sellersburg 

Stone Co., 5 FMSHRC 287, affirmed, No. 83-1630 (7th Cir. June 11, 1984); 

see also Rushton Mining Company, Inc., 1 FMSHRC 794 (1979); Shamrock 

Coal Co., 1 FMSHRC 799 (1979); Pittsburgh Coal Co., 1 FMSHRC 1468 (1979); 

Co-op Mining Company, 2 FMSHRC (1980). 

1/ On the basis of the criteria set forth in my separate opinion in Cement 

Division, National Gypsum Co., 3 FMSHRC 822 (April 1981), the violations of 

the mandatory safety standards are, as found, significant and substantial. 

]:_/ The Act nowhere mandates nor even recommends acceptance of the Secretary's 

proposed penalties. To the contrary, the Act unambiguously provides that the 

sole authority to assess all civil penalties provided in the Act resides with 

the Connnission. Section llO(i). 

1439 
The majority has determined, for reasons unknown or at least unexplained, 

that a $1,510 penalty, assessed because U. S. Steel violated the Act by preventing Inspector Bagley from inspecting the accident site, is too high, but $400 

is "appropriate." It reaches this result by concluding--without record support--

that the judge improperly based $1500 of his penalty assessment on inappropriate 

negligence and gravity criteria findings. 

The obvious difficulty with this rationale is that the majority has 

failed to make any findings under the statutory criteria of negligence 

or gravity. From all that can be discerned from the majority opinion, 

$1,or nothing would be equally·"appropriate" under the "negligence" rubric, 

or $400 or nothing under that of "gravity." Indeed any arbitrarily selected 

figure between these extremes would be equally valid, or invalid. This hardly 

meets either the section llO(i) mandate or any other criteria founded upon a 

rational relationship between the statute and the penalty amounts required to 

be assessed thereunder. 

In contrast, the judge below made specific findings which are in 

conformity with the stipulation of the parties and substantial evidence 

of record. With respect to four of the six statutory criteria for penalty 

assessment; viz, U. S. Steel's ability to continue in business, the good 

faith demonstrated, the operator's history of previous violations, and the 

size of this operator, the findings are unchallenged by my colleagues. 

However, the majority asserts that certain other "findings" the judge made 

in these penalty assessments that "figured prominently" in the judge's penalty 

asses.sment were not supported by substantial evidence. Slip op. at 9. 

Finding support in Commission precedent that permits reversal of a 

judge's penalty assessment for lack of record support, ]_/ my colleagues 

conclude that the judge overstated the gravity of the violation and 

lacked substantial record support for his findings of a high degree of 

negligence. With respect to gravity, the judge found: 

The violation of section 103(a) was moderately serious 

because Barmore's refusal to permit Inspector Bagley 

to accompany him and Claude to the scene of the truck's 

rollover prevented an MSHA inspector from being able 

to carry out his functions as an inspector, those 

functions being, as hereinbefore explained, the checking 

of accident sites to determine whether an imminent danger 

exists and whether violations of the mandatory health and 

safety standards have occurred. 

* * * 

1/ My consistent, and statutorily supported, position has been that the 

Commission may not substitute its view of the statutory penalty factors 

for that of the judge below. See Southern Ohio Coal Co., 4 FMSHRC 1459 

August 3, 1982)(dissenting opinion). 

1440 
The citation was not terminated until February 9; 1981, 

when the inspector was permitted to examine the truck 

after it had been towed or hauled to USS's auto repair 

shop. The delay which resulted in the inspector's 

being able to examine the truck and interview witnesses 

not only prevented the inspector from being able to get 

first-hand information at the scene of the accident, but 

brought about a considerable duplication of effort which 

could have been avoided if the inspector had been permitted to accompany Barmore to the scene of the accident 

in the first instance. 

Considering the demoralizing effect which Barmore's action 

had on MSHA's inspection responsibilities, a penalty of $500 

is warranted under the criterion of gravity. 

4 FMSHRC 616, 640-41. The judge's characterization of Barmore's conduct 

to which the majority refers, relates not to gravity, but to his rejection 

of U. S. Steel's contention that the inspector was not precluded from 

making the inspection because he had the power to go anywhere on mine 

property to inspect without U. S. Steel's consent. The judge concluded 

that the inspector was precluded from inspecting the rollover site 

because of Barmore's "sudden, hostile, and arrogant manner of forbidding 

the inspector to accompany him," the lack of transportation, the lack of 

a U. S. Steel safety engineer as an escort, and the lack of an accompanying 

miners' representative. !± ./ 4 FMSHRC at 641. 

The facts and clear record testimony make it evident that ·the dispute 

between mine inspector Bagley and U. S. Steel were not legalistic quibbles 

over statutory application. Despite the lessons of Donovan v. Dewey, 452 U.S. 

594 (1981), this operator deliberately decided to challenge the core of the 

statute, the mine inspector's indisputable right to inspect this mine for 

not only potential safety violations, but, as in this case, those which 

have actually caused injury. It is contended--although not explained--

that the "cold words of the transcript" are "susceptible to various interpretations" (slip op. at 10) •. To the contrary, one need hardly strain to 

find copious and substantial evidence in support of the judge's interpretation. 

Observation of demeanor (slip op. at 10) is unnecessary given the record before 

us. Indeed, one need look no further than the transcribed testimony of the 

operator's own witnesses. The admissions of its chief witness, Barmore, are 

sufficient in themselves to support the judge's conclusions. 1/ 

4/ The majority's suggestion that Bagley's hesistance in asserting his 

Inspection authority may have been due to his own inhibitions is more 

properly addressed to the merits, as was the judge's contrary view. My 

colleagues would reward Barmore's defiance and penalize "Bagley's hesistance 

in asserting his authority." Slip op. at 10. Apparently, if Barmore 

had commandeered a vehicle to travel to the accident scene, that would be less 

disturbing to the majority than the manner in which he actually proceeded. 

ii Although the testimony is obviously too voluminous for reproduction 

here in its entirety (transcript pages 179 to 232), the samples quoted 

accurately reflect, and support at least the "indifference about the way 

[this operator] treated inspectors," and, indeed, the "disdain" found by 

the judge below. 4 FMSHRC at 642. 

1441 
Barmore determined, without investigation, "that it didn't appear that 

anyone was injured at the time, you know, as far as real bad" (Tr. 182) and 

concluded that he would deny Bagley access to the accident scene (Tr. 

182-84). The majority asserts that there was no "condonation" of Barmore's 

actions by this operator. More compelling, however, is the fact that 

nothing in this record reveals even a word of criticism of this,"safety 

engineer's" behavior. Indeed, Starkovich, Barmore's supervisor, specifically 

agreed with Barmore's barring of access to this mine accident site, testifying that he, too, would object to the MSHA inspector going to the accident 

site, even in a government vehicle, and that MSHA had no right to go to the 

scene of the accident (Tr. 274, 279). 

Barmore also contends--astonishingly--that he "assumed" Inspector 

Bagley was "satisfied, a little bit reluctantly," with Barmore's explanation of why Bagley was being denied the access he had requested to the. 

mine accident (Tr. 186); that Bagley could have secured other transportation; 

" ••• [a]ll he had to do was use a little initiative" (Tr. 197). Later 

testimony, however, reveals the obvious futility of any attempt to secure 

transportation since both Barmore and Starkovich believed Bagley had "no 

right to investigate this accident" (Tr. 200-01, 279). 

Compounding the denial of access to the mine accident site, was U. S. 

Steel's refusal to permit its employee to give statements concerning the 

accident, without the presence of an attorney (another new policy, Tr. 

80) ordered and employed by U. S. Steel (Tr. 261, 264-66, 307). Whether 

this too rises to the level of disdain may be open to differing assessments; 

clearly it does not evidence an attitude of cooperation or willingness to 

permit unhampered access to the facts of the accident. (Tr. 245). 

My colleagues have given unsubstantiated credence to Barmore's 

denial of the evidence which the judge Cfedited. This no more than 

substitutes their opinion for that of the judge, who properly evaluated 

this operator's response to the undisputed evidence that MSHA Inspector 

Bagley at all times acted with scrupulous professional courtesy in 

seeking to carry out his duties under the Act. 

Thus, although one need not endorse every step of the penalty assessment process taken by the judge below, my colleagues have failed to provide 

a more reasoned analysis supporting their reducing by more than 70% the 

penalty assessed by the judge for this violation. The violation was 

deliberate, not inadvertent. As the majority notes, uncontroverted evidence 

makes it clear that U. S. Steel had never denied MSHA personnel on mine 

property transportation by a company vehicle on previous mine inspections, 

but did so in this instance. One can only speculate as to the reason for 

this refusal, but the unknown, and later determined to be serious nature 

of this accident, suggests ample reason for concern. Slip op. at 9. 

1442 
There is no dispute that U. S. Steel violated section 103(a) of 

the Act by preventing Bagley from inspecting the accident scene. It is 

thus established that the MSHA inspector was precluded from carrying out 

his enforcement functions, even though there existed an acknowledged 

possibility of a fuel tank explosion. Slip op. at 9. Accordingly, the 

record contains substantial evidence to support the judge's finding.of 

moderately serious gravity and his corresponding allocation of $500 for 

this penalty criteria. ii 

With respect to the negligence criteria, the judge stated that 

Barmore's action was deliberate and thus constituted a high degree of 

negligence. He also indicated that Barmore's "indifference" may not 

have been used to evaluate U. S. Steel's negligence, had Barmore's 

supervisor not supported his denial of Bagley's right to inspect. 

Whether the judge properly or improperly characterized Barmore's attitude, ll substantial evidence cleairly supports a finding of a high 

degree of negligence when an operator deliberately prevents an inspector 

from carrying out his enforcement functions, as a matter of company 

policy. 

The majority has again embarked upon the uncharted waters of 

independent penalty assessment. See Southern Ohio Coal Co., 4 FMSHRC 

1459 (August 3, 1982)(dissenting opinion). Their opinion fails to cure 

what they view as judicial deficiencies below by an independent assignment of numerical or other objective indicia to the Act's "negligence" 

or "gravity" criteria. No guidance is furnished for either mine operators 

or the Secretary by their conclusorily glossing over the penalty reduction 

for this violation. This is no doubt attractive, particularly to U. S. 

2_1 The majority errs when it asserts that it is "apparent" that the judge 

exaggerated the demoralizing effect which Barmore's action had on MSHA 

inspection responsibilities. Slip op. at 10. The judge's statement that 

Barmore's "action" had a demoralizing effect on MSHA's enforcement responsibilities is certainly true as it relates to this case. Moreover, it is 

hard to conceive of a more "demoralizing" course of conduct than that 

initiated by· this operator, in denying Inspector Bagley his absolute right 

to investigate this accident. Contrary to the assertion that Barmore's 

actions had no negative on MSHA's enforcement program, given the size of 

this operator, the effect of this recalcitrance by U. S. Steel could 

indeed have a demoralizing effect on inspection". responsibilities at a 

wide range of mining operations, not only the mines of this large and 

diverse mine operator. 4 FMSHRC at 642. 

II Before the Commission, U. S. Steel takes exception to certain credibility 

resolutions regarding Barmore's conduct made by a substitute judge who did 

not preside at the hearing. U. S. Steel maintains it was error for the judge 

to base his negligence assessment (his gravity determination is not challenged) 

on these attitude findings rather than on the operator's action alone. Inasmuch 

as the Commission rejects U. S. Steel's challenge to these findings, 

I cannot conclude that the judge erred in relying on these same findings 

in the only manner to which U. S. Steel objects. 

1443 
Steel, but falls far short of being either judicially permissible or in 

accord with the Act. The majority, as in Southern Ohio Coal Co., supra, 

asserts that its assessed penalties are "appropriate and consistent with 

the statutory criteria," slip op. at 10. However, it completely fails 

to evaluate the gravity of the violations, merely parses the negligence 

for an admittedly deliberate violation, Id., and fails to explicate its 

reasons, contrary to the careful conformity to the statute exercised by 

the judge. 

The majority's further reduction of the judge's penalty assessment for 

U. S. Steel's second violation of section 103(a) is similarly deficient. 

The judge assessed a penalty of $80, which my colleagues have reduced to 

$70, because they find error in the judge's analysis of U. S. Steel's 

good faith. The parties stipulated that U. S. Steel demonstrated good 

faith abatement after being cited. The judge found "normal good-faith 

abatement," 4 FMSHRC at 663, that warranted neither an increase nor 

decrease in the penalty otherwise assessable. Whatever disagreement my 

colleagues may have with the judge's dicussion of U. S. Steel's abatement 

efforts, his view apparently did not adversely affect his acceptance of 

the parties' stipulation regarding good faith. The $80 penalty assessed 

by the judge was properly based on the statutory criteria, with due 

consideration to the stipulations of the parties. As he stated, his 

finding of "normal good faith abatement .•• is consistent with the 

parties' stipulation to the effect that U. S. Steel showed good faith 

abatement as to all violations after the citations were written." Id. 

Accordingly, the majority's almost frivolous $10 reduction of the assessed 

penalty for this violation, for reasons irrelevant to the judge's assessment, 

is unwarranted, and would appear, given the amount involved, to serve no 

purpose other than to reward this operator for another deliberate violation. 

The judge's assessments were based on the premise that "the purpose of 

assessing penalties under the Act is to deter companies from future violations of the mandatory safety and health standards." 4 FMSHRC at 675. I 

agree. The penalties imposed by the judge for each violation accurately 

reflect that rationale and are in accord with Congressional intent expressed 

in the Act's legislative history. Legis. Hist. at 603, 628-30. 

As the Senate Committee Report notes: 

In short, the purpose of a civil penalty is to induce 

those officials responsible for the operation of a mine 

to comply with the Act and its standards. 

* * * In overseeing the enforcement of the Coal Act the 

Committee has found that civil penalty assessments 

are generally too low, and wpen combined with the 

difficulties being encountered in collection of 

assessed penalties (to be discussed, infra), the 

effect of the current enforcement is to eliminate 

to a considerable extent, the inducement to comply 

with the Act or the standards, which was the intention of the civil penalty system. 

S. Rep. No. 95-181, Legis. Hist. at 629 (emphasis added). 

1444 
The Commission has stated that, 

The determination of the amount of the penalty that should 

be assessed for a particular violation is an exercise of 

discretion by the trier of fact. Cf. Long Manufacturing Co. 

v. OSHRC, supra, 554 F.2d [903] at 908 [8th Cir. 1977]. This 

discretion is bounded by proper consideration of the statutory 

criteria and the deterrent purpose underlying the Act's penalty 

assessment scheme. 

Sellersburg Stone Co., supra, 5 FMSHRC at 294. As in Sellersburg, 

Although the penalties assessed by the judge far exceed 

those proposed by the Secretary before hearing, based on 

the facts developed in the adjudicative record [I] cannot 

say that the penalties assessed are inconsistent with the 

statutory criteria and the deterrent pμrposebehind the 

Act's provision for penalties. Hence, [I] find that the 

judge's penalty assessments do not constitute an abuse of 

discretion. 

Id at 295, quoted in part, No. 83-1630, slip op. at 11 (7th Cir. June 11, 

1984). 

I therefore dissent to the reduction of the penalties imposed. 

A. ~. Lawson, Commissioner 

1445 
Distribution 

Louise. Q~ Symons, Esq •. 

U.S. Steel Mining Company 

600 Grant Street 

Room 1585 

Pittsburgh, PA 15230 

Debra Feuer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virgi:p.ia 22203 

Administrative Law Judge Richard Steffey 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church., Virginia 22041 

1446 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 27, 1984 

UNITED MINE WORKERS OF AMERICA 

On behalf of BILLY DALE WISE 

v. Docket No. WEVA 82-38-D 

CONSOLIDATION COAL COMPANY 

DECISION 

This discrimination case arises under section 105(c) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(l982), and 

involves an operator's alleged discriminatory suspension of a miner. 

After investigating the miner's complaint of discrimination the Department 

of Labor's Mine Safety and Health Administration (MSHA) determined that 

a violation of section 105(c) had not occurred. Thereafter, pursuant to 

section 105(c)(3) of the Mine Act, the United Mine Workers of America 

(UMWA) filed a discrimination complaint on behalf of the miner with this 

independent Commission. 30 U.S.C. § 815(c)(3). A Commission administrative 

law judge found that a violation of section 105(c) had not occurred and 

dismissed the complaint. 4 FMSHRC 1307 (July 1982)(ALJ). The Commission 

granted the UMWA's petition for discretionary review of the judge's 

decision. For the reasons that follow, we affirm. 

On Friday, July 10, 1981, Billy Dale Wise, Leo Conner and James 

Siburt were conducting an inspection of the One North Section of 

Consolidation Coal Company's (Consol) Ireland Mine. Wise and Conner 

were UMWA safety committeemen at this mine and Siburt was Consol's 

acting shift foreman. They were conducting the annual safety inspection 

made at this mine before miners returned to work after a vacation period. 

During this inspection, they discovered an overcast .requiring additional 

roof support: roof bolts were loose; wire mesh was hanging down; and 

the overcast was loaded with stone. 1/ Foreman Siburt contacted Robert 

Omear, the mine superintendent, and explained the situation to him. 

±/ An overcast is "an enclosed airway to permit one air current to 

pass over another one without interruption." A Dictionary of Mining, 

Mineral, and Related Terms, U.S. Department of Interior, at 780 (1968). 

1447 
Omear came to the area and examined the overcast. He agreed that 

additional support was necessary. Omear and Siburt hung a "danger 

board" to prevent travel in the area until proper support could be 

provided. Wise, Conner and Siburt then continued with their inspection 

and Omear began preparations to correct the condition. 

Later that day, Wise, Conner and Siburt returned to the overcast. 

In response to a request by Omear, Conner was carrying a saw needed by 

the miners repairing the overcast. A man-door had been erected in the 

overcast. Wise could see two miners working outby the door, but from 

his position outby the danger board he could not see the miners working 

behind the man-doo~. Wise and Conner proceeded beyond the danger board. 

Connor delivered the saw he was carrying and returned outby the danger 

board. Wise looked inside the man-door and asked the miners inby the 

door how the work was progressing. While inby the danger board, Wise 

and Omear had a brief exchange. The testimony of the witnesses to this 

conversation varies as to its particulars. The judge found that Wise 

was ordered to leave the area by Omear, Omear's instructions were ignored, 

and Wise remained in the area until he had completed, to his own satisfaction, his observations of the work being done. Substantial evidence 

supports these findings. 

After Wise returned outby the danger board, Omear told him that he 

would investigate the matter and determine whether disciplinary action 

against Wise would be taken for his failure to respond to Omear's 

instructions. The following Monday, July 13, Wise and Omear discussed 

the matter again, but no decision regarding disciplinary action was 

made. On July 14, Wise was told by Omear that he was suspended for 

three days, effective July 15. Wise was given a suspension letter that 

stated that he had been insubordinate on July 10 by going past the 

danger board and refusing to leave the area when ordered, and that his 

conduct was in violation of state and federal laws and company policy. 

The disciplinary action was a collective decision made by Consol's 

management. ]:../ 

Wise filed a grievance under the National Bituminous Coal Wage 

Agreement of 1981 (Wage Agreement) and the grievance was submitted to 

arbitration. The arbitrator affirmed Wise's grievance, finding that he 

]:_/ Although disciplinary decisions are collective decisions by Consol's 

management, Omear was especially concerned about disciplining Wise. 

Within the two weeks immediately prior to the incident at issue here, 

Wise had filed three separate safety complaints with a state mine 

inspector. As a result of these complaints, Omear was concerned that 

under state law he personally could be fined if it were determined that 

his suspension of Wise was a reprisal for the safety complaints. Omear 

voiced this concern to Consol's management. In his decision, the 

administrative law judge found that "Mr. Wise does not contend that the 

disciplinary action taken against him was out of reprisal for his filing 

safety complaints with the State of West Virginia mining authorities •..• 

The UMWA does not advance an argument that Mr. Omear, or any other mine 

management official, suspended Mr. Wise because of these complaints." 

4 FMSHRC at 1329-30. These findings have not been challenged on review. 

1448 
had acted properly under the Wage Agreement in his role as a UMWA safety 

committeeman. The arbitrator ordered Consol to reimburse Wise for lost 

wages and expunge the suspension from Wise's personnel records. Wise 

also filed a discrimination complaint with the Coal Mine Safety Board of 

Appeals for the State of West Virginia alleging that his suspension 

violated West Virginia law. The State Board of Appeals dismissed the 

complaint stating that through the contractual arbitration Wise had been 

granted all of the relief that the Board could grant. The instant 

complaint alleging discrimination under the Mine Act was filed with the 

Commission after MSHA determined that discrimination under section 

105(c) had not occurred. After a hearing, the Commission's administrative law judge concluded that Wise had not engaged in activity 

protected under the Mine Act by walking past the danger board and refusing 

orders to leave the area. 

The administrative law judge found that Wise believed he had the 

right, as a safety committeeman, to enter any area of the mine, including dangered-off areas, for the purpose of insuring compliance with 

mine safety laws as well as to insure the safety of miners engaging in 

work connected with the correction of hazardous conditions brought to 

the attention of mine management. 4 FMSHRC at 1320. The judge also 

found that Consol conceded that Wise had certain prerogatives as a 

safety committeeman including access to most areas of the mine to conduct 

inspections. Consol took the position, however, that Wise's access to 

areas that are dangered-off is limited by state and federal law to 

individuals specifically authorized to be there. Id. In arguing whether 

Wise had a right under the Mine Act to go inby the danger board at 

issue in this case, the parties relied on sections 303(d)(l) and 104(c)(3) 

of the Mine Act. 1/ 

1_/ Section 303 (30 u.s.c. § 863) provides in part: 

Ventilation 

* * * * * 

(d)(l) Within three hours immediately preceding the beginning 

of any shift, and before any miner in such shift enters the active 

workings of a coal mine, certified persons designated by the 

operator of the mine shall examine such workings •••• If such mine 

examiner finds a condition which constitutes a violation of a 

mandatory health or safety standard or any condition which is 

hazardous to persons who may enter or be in such area, he shall 

indicate such hazardous place by posting a "DANGER" sign conspicuously at all points which persons entering such hazardous 

place would be required to pass, and shall notify the operator of 

the mine. No person, other than an authorized representative of 

the Secretary or a State mine inspector or persons authorized by 

the operator to enter such place for the purpose of eliminating the 

hazardous condition therein, shall enter such place while such sign 

is so posted •••• 

(footnote continued) 

1449 
The judge rejected Consol's argument that Wise himself violated the 

Mine Act. The judge found that Consol's reliance on § 303(d)(l) of the 

Mine Act was misplaced because there was no evidence that the posting of 

the danger board resulted from a firebossing examination by a certified 

mine examiner conducted pursuant to that section. 4 FMSHRC at 1334. The 

UMWA took the position that under the 1981 Coal Wage Agreement Wise was 

"qualified" to make mine examinations under section 104(c)(3) and that 

he was not required to be removed from an area covered by an MSHA withdrawal order. 4 FMSHRC at 1334-35. Consol argued that Wise did not 

fall within that section of the statute. The judge concluded that being 

chosen a safety co~tteeman pursuant to the Wage Agreement did not 

"necessarily" transform Wise into a certified mine examiner for the 

purposes of section 104(c)(3) of the Act. He noted that acceptance of 

the UMWA's theory inevitably would lead to the conclusion that all 

safety committeemen would be "qualified" or "certified" under that section 

of the Act. 

Thus the judge concluded that the Mine Act granted Wise no right to 

be in the area beyond the operator-posted danger board and that his 

refusal to leave the dangered-off area when ordered was not protected 

activity under the Act. The judge stated: "Since mine management has 

the primary obligation under the law to insure compliance and to preclude 

any of its personnel being injured or killed by walking into these 

areas, I see nothing unreasonable in mine management's requiring that 

they be allowed to monitor and control these areas." Id. at 1337. 

Because Wise's action was not protected activity, the judge found no 

discrimination by Consol and dismissed the case. 

footnote 3 cont'd. 

Section 104 (30 U.S.C. § 814) provides in part: 

Citations and Orders 

* * * * * 

(c) The following persons shall not be required to be 

withdrawn from, or prohibited from entering, any area of the coal 

or other mine subject to an order issued under this section: 

(1) any person whose presence in such area is 

necessary, in the judgment of the operator or an 

authorized representative of the Secretary, to eliminate the condition described in the order; 

(2) any public off ic:ifil whose official duties 

require him to enter such area; 

(3). any representative of the miners in 

such mine who is, in the judgment of the operator 

or an authorized representat~ve of the Secretary, 

qualified to make such mine examinations or who is 

accompanied by such a person and whose presence in 

such area is necessary for the investigation of the 

conditions described in the order. 

(4) any consultant to any of the foregoing. 

1450 
In order to establish a prima facie case of discrimination under 

section 105(c) of the Mine Act, a complaining miner bears the burden of 

production and proof to establish (1) that he engaged in protected 

activity and· (2) that the adverse action complained of was motivated in 

any part by that activity. Secretary on behalf of Pasula v. Consolidation 

Coal Co. v. Marshall, 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

(3d Cir. 1981); and Secretary on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity occurred 

or that the adverse action was in no way motivated by protected activity. 

Id. See Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. 

Stafford Constr. ·Co., No. 83-1566, D.C. Cir. (April 20, 1984)(specifically 

approving the Commission's Pasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp.,~- U.S.~-' 76 L.Ed. 2d 667 (1983). 

In this case there is no dispute that Wise was disciplined for 

refusing to leave the dangered-off area when ordered to do so by management. Thus, the only issue presented is whether Wise had an express or 

implied right, protected by the Mine Act, to be in the area beyond the 

danger board contrary to the operator's orders. If Wise had such a 

right, then Consol violated section 105(c)(l) by suspending him for 

exercising this right. If Wise did not have this right, then the judge 

properly dismissed the discrimination complaint. 

The Mine Act does not address expressly the question of whether a 

safety committeeman, as a representative of miners, may proceed inby a 

danger board posted by the operator upon discovery of a hazardous condition during an "inspection" conducted by the operator and miners' 

representatives, rather than by MSHA. The parties suggest on review, as 

they did before the judge, that sections 104 and 303(d)(l) of the Mine 

Act are pertinent to this question. We disagree. 

The UMWA concedes that the danger board was not posted pursuant to 

section 104 during an inspection conducted by a federal inspector. 

Thus, this case does not pose the question of whether Wise could have 

accompanied a federal inspector inby this or any other danger board. 

The UMWA's fear that a decision upholding the judge in the present case 

could be interpreted as prohibiting safety committeemen from accompanying 

federal inspectors during inspections and investigations is unfounded. 

The UMWA also alleges that the judge erred in ruling.that safety representatives do not fall within the exception provided in section 104(c)(3) 

of the Act, and that he erred by applying the definition of a "qualified 

person" in 30 C.F.R. § 75.2 to section 104(c)(3). Because of our 

conclusion that this case does not involve the interpretation or application 

of section 104, the judge's analysis concerning that section, and whether 

safety committeemen in general or Wise in particular fall within the 

exception in 104(c)(3), is dicta. For this same reason, we need not 

reach the question of whether the judge erred by applying the definition 

of a qualified person in 30 C.F.R. § 75.2 to section 104(c)(3) of the 

Act. We concur with the judge's rejection of Consol's argument that 

1451 
the inspection conducted by Wise was comparable to a pre-shift examination 

under section 303(d)(l). The circumstances at issue did not arise from 

a pre-shift examination conducted by a certified person under section 

303(d)(l) of the Act and that section is not applicable to the present 

case. 

Thus, we conclude that neither section 104(c)(3) nor section 

303(d)(l) is pertinent in the present situation. We further-conclude 

that the Mine Act does not grant a right to Wise as a union safety 

c~mmitteeman to proceed, contrary to orders of management, inby operatorposted danger boards in these circumstances. The well-recognized purpose 

of a danger board is to restrict or eliminate access to a hazardous 

area. Although the inspection team (of which Wise was a part) performed 

a vital mine safety function in discovering the hazardous overcast, 

under the Mine Act the statutory responsibility for accomplishing abatement of a hazardous condition is placed on mine operators. In this 

case, immediately upon discovery of the hazard the operator began abatement 

work. Where an operator has posted a danger board, and such posting has 

not occurred as a result of a withdrawal order issued _by the Secretary, 

an operator may restrict access to dangerous areas to such employees as 

it deems necessary to accomplish effective correction of the hazard. 

Cf. Ronnie R. Ross v. Monterey Coal Co., 3 FMSHRC 1171 (May 1981). If a 

safety committeeman, or any miner, has reasonable grounds to believe 

that abatement work is being performed in a manner contrary to the 

statute or mandatory standards, and that a danger or hazard is thereby 

presented, such miner has available the normal statutory procedures for 

securing an MSHA inspection and, if appropriate, the issuance of any 

necessary citations and orders. 30 U.S.C. § 813(g). See Local Union 1110, 

UMWA and Robert L. Carey v. Consolidation Coal Co., 1 FMSHRC 338 (May 

1979). !±./ 

!±_/ We reject the UMWA's assertion that the judge's decision authorizes 

an operator to interfere with the exercise of statutorily protected 

safety activities of a miners' representative, contrary to the holding 

in Carney. The Commission held in Carney that the operator violated 

section llO(b) of the Coal Act by disciplining safety committeeman 

Carney for leaving his assigned work area to contact a federal mirie 

inspector concerning a perceived safety hazard, contrary to the operator's 

policy that permission by management was necessary before he could 

leave. The Commission stated that "[t]he Company's policy effectively 

impedes a miner's ability to contact the Secretary when alleged safety 

violations or dangers arise." 1 FMSHRC at 341. Unlike the circumstances 

presented in this case, Carney involved the statutorily protected right 

to notify the Secretary of any alleged violation or dang~r. In this 

case, that right is not at issue. 

1452 
We agree with the judge's conclusion that, in proceeding into and 

refusing orders to leave an area dangered-off by the operator, Wise was 

not engaged in activity protected by the Mine Act. Accordingly, the 

judge's dismissal of the discrimination complaint for failure to 

establish a prima facie case is affirmed. 2_/ 

~t/A~ 

C~issioner 

, 7k_c_~(-1 Clair Nelson, Conunissioner 

5/ The UMWA also argues that because the judge found that Wise's 

actions did not violate the Mine Act, the judge should not have proceeded 

to find that Wise's discipline was "reasonable and proper in the circumstances." This statement by the judge is contrary to the arbitrator's 

finding that disciplinary action under the applicable 1981 Wage Agreement 

was not warranted. We agree that having concluded that Wise did not 

engage in activity protected by the Mine Act, the judge's comment 

concerning the appropriateness of the discipline constitutes dicta on an 

issue not before him. Further, in light of our conclusion that a prima 

facie case of discrimination was not established, the various substantial 

evidence arguments raised by the UMWA are immaterial and we need not and 

do not reach them. 

1453 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 1 1984 

ROBERT SIMPSON, 

Complainant 

: DISCRIMINATION PROCEEDING . . v. : Docket No. KENT 83-155-D 

MSHA Case No. BARB CD 83-06 

KENTA ENERGY, INC., & 

ROY DAN JACKSON, 

Respondents 

: No. 1 Mine . . 

Appearances: 

Before: 

DECISION 

Tony Oppegard, Esq., Hazard, Kentucky and 

Stephen A. Sanders, Esq., Prestonsburg, 

Kentucky for Complainant; 

Rudy Yessin, Esq., Frankfort, Kentucky, for 

Respondents. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainant alleges that he was constructively discharged 

by Respondents in that he was forced to leave his job as scoop 

operator on September 21, 1982, because of safety related 

conditions at the subject mine •. He further complains that 

Respondents refused to reinstate him on or about December 7, 

1982. Both the constructive discharge and the refusal to 

reinstate are alleged to have been in violation of section 

105(c)Cl) of the Mine Safety Act. 

Following extensive pretrial discovery, the case was 

noticed for hearing and was heard in Hazard, Kentucky on 

September 8 and 9, 1983 and on January 11 and 12, 1984. 

Robert Simpson, Henry Quesenberry, Paul David Helton, Marvin 

Brewer, Charles Patterson, ~oy Anthony Gentry and Clyde 

Gailey were called as witnesses for Complainant. Respondent 

Roy Dan Jackson was called as an adverse witness. The depositions of Vernon Morgan, Danny Noe, Roy Dan Jackson, and 

Charlie Patterson were received in evidence pursuant to 

Rule 32 of the Federal Rules of Civil Procedure. Mike McClure 

and Roy Dan Jackson testified on behalf of Respondents. Both 

parties have filed posthearing briefs. Based on the entire 

record, and considering the contentions of the parties, I make 

the following decision. 
FINDINGS OF FACT 

The Operator 

The complaint alleges that Respondent Kenta Energy 

Incorporated C"Kenta") operated the coal mine in which 

Complainant was employed. It also alleges that Respondent 

Jackson was the President and owner of Kenta. The record 

contains some confusing evidence concerning the relationship 

of Jackson and Kenta, and concerning the relationship of 

Jackson to the operation of the subject mine. It was 

decided at the hearing that the issue of the personal liability of Jackson would await a determination of whether a violation of section 105Cc> was established. If such a 

violation was found, the parties would be afforded the opportunity of submitting additional evidence on the question of 

Jackson's liability. 

From January, 1981, until September 20, 1982, Complaina~t was employed as a scoop operator at the subject 

mine, variously known as the Kenta No. 1 Mine, the Black Joe 

Mine, and the No. 1 Mine, and bearing MSHA ID No. 15-12090, 

located in Harlan County, Kentucky. The mine height varied 

from 28 to 32 inches, and the coal was extracted by cutting 

into the face with a cutting machine, drilling and shooting. 

The coal was then removed by a scoop. · 

Mine Foreman 

Danny Noe was mine foreman at the subject mine from 

December, 1980 until September 3, 1982. He reported 

directly to Roy Dan Jackson. Noe performed the preshift and 

onshift examinations required by law. He called the information out to Charles Patterson, the "outside man," who signed 

Noe's name on the books. As of September 3, 1982, the mine 

had been driven over 3,000 feet from the drift mouth. It 

was contemplated that it would be driven about 4,000 feet to 

the property line and then turned right toward an abandoned 

mine property. Noe's last day of work was September 3, 1982. 

He entered the hospital on September 4, because of a back 

condition, and did not return to work. 

Respondent Jackson testified that Stanley Gilbert, a 

certified mine forem~n, was tent to the subject mine to act 

in Noe's place. There is also some evidence that Tony 

Gentry, the bolting machine operator at the subject mine who 

was attending a foreman's school, did some of the "firebossing" for Gilbert. There is substantial other evidence that 

1455 
Gilbert was not at the mine between September 3 and 

September 21, 1983. Respondent did not call Gilbert as a 

witness. Gentry denied that he performed the required preshift and onshift examinations during this time. Patterson 

testified that he continued to sign Noe's name to the books 

although Noe did not come back to the mine. I find that the 

preponderance of the evidence establishes that there was no 

supervisor at the subject mine between the time that Noe 

left and the time Complainant left. I further find that the 

preshift and onshift examinations were not performed during 

the same period. 

The Old Works 

Some time after Noe left (and the record is unclear as 

to the exact date), the mine headings turned right, toward 

the old abandoned works. The crew had advanced about 200 to 

250 feet in the headings to the right as of September 21, 

1982. Test holes were not drilled before the cuts were made. 

In fact a workable test auger had not been provided at the 

mine site before September 21, 1982. Complainant and at 

least two other miners specifically requested that 

Patterson, who was in charge of supplies and equipment, 

obtain a test auger. One was ordered but did not arrive at 

the mine site until some days after September 21. 

Complainant and at least some of the other crew members had 

expressed their fear of cutting into the old works on many 

occasions. The fear related to the possibility of releasing 

"black damp" (oxygen deficient air), methane or water into 

the section where the miners were working. 

Respondent Jackson testified that he crawled through 

the old works on two occasions and found them safe, once 

with his engineer Mike McClure and once with Barry Rogers 

who became foreman after Noe and Simpson l~ft their employment. There is confusion and dispute as to whether he 

crawled the old works with McClure before Complainant left. 

Whether he did or not, it is clear that Complainant and at 

least some other members of the crew were not informed that 

he had done so. Complainant had no reason to believe that 

the old works were safe and free from black damp, methane 

and water. 

Work Refusal 

After completing his shift on September 20, 1983, 

Complainant decided not to return to the job. He stated 

that he made this decision because there was no boss and no 

test auger at the mine and this made working dangerous. Two 

1456 
days later at about mid-shift, he returned to the mine site 

to pick up his equipment. He talked to Patterson and told 

him that he had quit. Patterson suggested that he return to 

work and he would be paid for the whole day. (Patterson was 

the mine time keeper, but had no supervisory or hiring 

authority). Complainant asked whether there was a foreman 

and a test auger. Patterson replied there was not. 

Complainant said "it still wouldn't help me none" (Tr. 48), 

and did not return to work. There is no evidence in the 

record that Complainant notified Jackson or Noe or anyone 

else in authority that he was quitting or the reasons for 

his quitting at the time he left or for some weeks thereafter. There is no evidence in the record that.Complainant 

complained to Jackson or anyone else in authority between 

September 3 and September 20 about the absence of a boss and 

a test auger at the mine. Complainant lived about 3 or 

4 miles from Jackson's home. He had known him for about 

15 years. On three or four occasions, Complainant went to 

Jackson's home to borrow money. 

Refusal.to Rehire 

About 1 month after Complainant quit, Vernon Morgan Ca 

member of the crew at the subject mine) told Complainant's 

father that a boss had been sent to the mine and a test 

auger supplied. Complainant then attempted to call Jackson 

but could not reach him. Thereafter (approximately in 

December, 1982), Complainant and his father saw Jackson and 

Complainant asked for his job back. For the first time, he 

told Jackson that he had been afraid while on the job 

because there was no boss and no test auger. Jackson told 

him that he had no opening at that time, and refused to 

rehire or reinstate Complainant. He also told him, "next 

time you'll learn not to get a wild hair" (Tr. 51). 

Subsequent Work History 

Since leaving his job with Respondent, Claimant has 

worked 3 days at a soft drink plant, about 4 months for a 

reclamation company on strip mined land, and about 1 month 

for a coal mine company. He was laid off the latter two 

jobs and was not working at the time of the hearing in this 

case. When he left his job with Respondent, Complainant was 

earning $10.64 per hour. 

STATUTORY PROVISION 

Section 105(c) of the Act provides in part as follows: 

1457 
Cc)(l) No person shall discharge or in 

any manner discriminate against or cause to 

be discharged or cause discrimination against 

or otherwise interfere with the exercise of 

the statutory rights of any miner, representative of miners or applicant for employment in 

any coal or other mine subject to this Act 

because such.miner, representative of miners, 

or applicant for employment • • • has filed 

or made a complaint under or related to this 

Act, including a complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health 

violation in a coal or other mine • • • or 

because of the exercise by such miner, represenative of miners or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

(2) Any miner or applicant for employment or representative of miners who believes 

that he has been discharged, interfered with, 

or otherwise discriminated against by any 

person in violation of this subsection may, 

within 60 days after such violation occurs, 

file a complaint with the Secretary alleging 

such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy 

of the complaint to the respondent and shall 

cause such investigation to be made as he 

deems appro~riate. 

* * * * * * * 

(3) Within 90 days of the receipt of a 

complaint filed under paragraph C 2) '· the 

Secretary shall notify, in writing, the 

miner, applicant for employment, or representative of miners of his determination whether 

a violation has occurred. If the Secretary, 

upon investigation, determines that the provisions of this subsection have not been violated, the complainant shall have the right, 

within 30 days of notice of the Secretary's 

determination, to file an action in his own 

behalf before the Commission, charging discrimination or interference in violation of 

1458 
paragraph Cl). The Commission shall afford 

an opportunity for a hearing Cin accordance 

with section 554 of title 5, United States 

Code, but without regard to subsection (a)(3) 

of such section), and thereafter shall issue 

an order, based upon findings of fact, dismissing or sustaining the complainant's 

charges and, if the charges are sustained, 

granting such relief as it deems approrpiate, 

including but not limited to, an order requiring the rehiring or reinstatement of the 

miner to his former position with back pay 

and interest or such remedy as may be appropriate. Such order shall become final 

30 days after its issuance. Whenever an 

order is issued sustaining the complainant's 

charges under this subsection, a sum equal to 

the aggregate amount of all costs and 

expenses (including attorney's fees) as determined by the Commission to have been reasonably incurred by the miner, applicant for 

employment or representative of miners for, 

or in connection with, the institution and 

prosecution of such proceedings shall be 

assessed against the person committing such 

violation. Proceedings under this section 

shall be expedited by the Secretary and the 

Commission. Any order issued by the 

Commission under this paragraph shall be 

subject to judicial review in accordance with 

section 106. Violations by any person of 

paragraph Cl> shall be subject to the provisions of section 108 and llO(a). 

ISSUES 

1. Whether Complainant's leaving work at the end of 

the shift on September 20, li82, was activity protected 

under the Mine Act? 

2. Whether Complainant was constructively discharged 

for protected activity? 

3. Whether Respondent's refusal to reinstate or rehire 

Complainant was a violation of section 105(c) of the Act? 

4. If a violation of section 105Cc> of the Act is 

established, to what relief is Complainant entitled? 

1459 
CONCLUSIONS OF LAW 

Refusal to Work 

It is no longer a matter of doubt that a miner is protected under the Mine Act where he refuses to perform work 

which he reasonably and in'good faith believes to be hazardous. Secretar:Y/Pasula v. Consolidation Coal Company, 

2 FMSHRC 2786 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981>1 Secretary/Robinette v. United Castle Coal Co., 

3 FMSHRC 803 (1981). It is his refusal to work that constitutes the basis of the complaint in this case. Respondent's 

argument that Complainant did not make a safety complaint to 

MSHA is beside the point. Respondent introduced evidence 

that Complainant quit work because of family problems rather 

than because of safety concerns. I have considered this 

evidence, but conclude that it is not sufficient to overcome 

the credible testimony of Complainant that he quit work in 

good faith because of concerns for his safety. The evidence 

very clearly establishes that the work refusal was reasonable. I have found that there was no qualified supervisor 

at the mine to perform the required preshift and onshift 

examinations. Complainant and at least some of the other 

members of the crew believed that they were cutting in the 

direction of an abandoned mine. The failure to drill test 

holes in such a situation is hazardous and a clear violation 

of 30 C.F.R. § 75.1701. If in fact Jackson had crawled 

through the old works and found .them free of hazards, he 

failed to communicate this fact to Complainant. 

Complainant's work refusal resulted from a reasonable good 

faith belief that continuing to work would be hazardous. 

Adverse Action 

The next issue is whether Respondent took adverse 

action against Complainant because of his work refusal. 

Unlike·Pasula and Robinette, he was not formally discharged. 

Two theories are advanced by Complainant to show adverse 

action: Cl) he was constructively discharged because he 

quit to escape an intolerable situation1 (2) he was refused 

reinstatement or rehiring when he sought it in December, 

1982. 

Constructive Discharge 

The doctrine of constructive discharge as developed in 

cases under the National Labor Relations Act and Title VII 

1460 
of the Civil Rights Act holds that if an employee's working 

conditions are made so intolerable that he is forced into an 

involuntary resignation, the employer is deemed to have constructively discharged him and is liable as if it had formally discharged the employee. Young v. Southwestern 

Savings and Loan Association, 509 F.2d 140 (5th Cir. 1975); 

J. P. Stevens & Co. v. N.L.R.B., 461 F.2d 490 (4th Cir. 

1972). The doctrine is applicable under the Mine Act if the 

"intolerable ~onditions" are motivated in any part because 

of activity protected under the Act. Rosalie Edwards v. 

Aaron Mining Inc., 5 FMSHRC 2035 (1983). The evidence 

before me establishes intolerable conditions, i.e., a perceived dangerous work environment. There is no evidence 

that Respondents were "motivated" in maintaining that environment by any protected activity. But this in a way is circular reasoning. The protected activity here is Complainant's 

refusal to work itself. The intolerable conditions which 

caused him to quit his employment are the same conditions 

justifying his work refusal. Under such circumstances, I hold 

that Respondent's motivation is not controlling. 

Communication to Operator 

The most difficult question in this case is whether 

Complainant communicated his safety concerns to Respondent 

prior to or reasonably soon after his work refusal, or, if 

he did not, whether unusual circumstances excused his failure 

to do so. In Secretary/Dunmire and Estle v. Northern Coal 

Company, 4 FMSHRC 126, 133 (1982), the Commission formulated 

the rule as follows: 

Where reasonably possible, a miner r~fusing to work should ordinarily communicate, or 

at least attempt to communicate, to some representative of the operator his belief in the 

safety or health hazard at issue. 'Reasonably possibility' may be lacking where, for 

example, a representative of the operator is 

not present, or exigent circumstances require 

swift reaction. We also have used the word, 

'ordinarily' in our formulation to indicate 

that even where such communication is reasonably possible, unusual circumstances--such as 

futility--may excuse ~ failure to communicate. 

If possible, the communication should ordinarily 'be made before the work refusal, but, 

depending on circumstances, may also be made 

reasonably soon after the refusal. 

1461 
The safety hazards in this case involve Cl) approaching 

the old works without drilling test holes, and (2) working 

without a foreman and therefore without preshift and onshift 

examinations being made. Complainant did not directly 

communicate his belief in the hazard of approaching the old 

works to Jackson or to anyone in authority before December, 

1982. He did ask the outside man, who was not a supervisor 

(but was related to Jackson), for a test auger and told him 

that he was quitting because of the perceived hazards. This 

communication was not relayed to Jackson so far as the 

record shows. Neither Jackson nor any other management personnel were at the mine site at the time, and therefore 

communication to the operator may not have been reasonably 

possible at that time. However, Complainant knew where the 

mine office was Che drove there every day while working), 

and he knew where Jackson resided. It was certainly reasonably possible for him to have directly communicated his concerns to Jackson and thus give him an opportunity to correct 

the situation or to explain that he had crawled the old 

works and they were hazard-free. See Secretary/Bennett v. 

Kaiser Aluminum and Chemical Corporation, 3 FMSHRC 1539 

( 19 81) ( ALJ ) • 

On the other hand, with respect to the absence of a 

foreman and the failure to perform the preshif t and onshift 

examinations, Jackson must be charged with actual knowledge 

of the hazards related to these situations, and communication of them I believe would have been futile. I do not 

consider that it is necessary in order to invoke the protection of section 105(c), that it be shown that the operator 

was specifically aware of the reason for a miner's work 

refusal, if the operator was aware of the hazardous conditions which prompted the refusal. 

Refusal to Rehire 

Respondent contends that because of a recession in the 

coal business, Complainant would have been laid off in any 

event and that he was not rehired in December because there 

was no job for him. However, no one had been laid off from 

the mine as of December, 1982, and the two miners who were 

laid off in January or February, 1983, were not scoop 

operators. 

CONCLUSIONS 

1462 
I conclude that Complainant's refusal to return to work 

after September 20, 1982, resulted from a good faith, reasonable belief that continuing on the job would be hazardous. 

The perceived hazards were cutting toward old works without 

drilling test holes, and working without a foreman and without preshift and onshift examinations being performed. 

Although his safety concerns were not communicated.to 

Respondent, Respondents were aware of the hazardous conditions and communication of Complainant's concerns would have 

been futile. Therefore, the evidence establishes a violation of 105(c) of the Mine Act. The evidence does not show 

the Complainant would have been laid off for economic 

reasons. Therefore, he is entitled to reinstatement and 

back pay. 

EVIDENTIARY RULINGS ON EXHIBITS 

Respondent offered in evidence a copy of· an order of 

the Kentucky Unemployment Insurance Commission which 

affirmed a Referee's Decision denying unemployment benefits 

to Complainant because he voluntarily left his employment 

without good cause attributable to the employment. 

Respondent's Exh. 1. I excluded the document on the ground 

of relevance. A determination that an employee is not 

entitled to unemployment compensation benefits has no 

bearing on his rights under section 105Cc) of the Mine Act. 

Complainant served a subpoena to MSHA Special Investigator Larry Layne who investigated Complainant's discrimination complaint to MSHA. The Solicitor of Labor declined to 

authorize Layne to testify and the subpoena was not honored. 

Thereafter, an expurgated copy of MSHA's investigation 

report was supplied Complainant's attorney and it was 

offered in evidence, under the Seal of the Department, as 

Complainant's Exhibit 5. I obtained from the Solicitor an 

unexpurgated copy of the report (attached to numerous other 

documents) in camera with the understanding that I would not 

disclose anY-part of the report which would give the names 

of informers. I admitted the exhibit, as supplemented by my 

reading into the record all the deleted parts of the report 

(including the conclusions of the Investigator) except those 

identifying informants. The report is clearly relevant, and 

the upholding of the government's informer privilege is 

supported by case law. Usery v. Ritter, 547 F.2d 528 (10th 

Cir. 1977). 

The Depositions of Danny Noe, Vernon Morgan, and 

Charlie Patterson were admitted in evidence pursuant to 

Federal Rule of Civil Procedure 32Ca)(3) and the Deposition 
of Roy Dan Jackson was admitted in evidence pursuant to Rule 

32(a)(2). 

RELIEF 

Based upon the above findings of fact and conclusions 

of law, I conclude that Claimant was constructively discharged on September 21, 1982, for activity protected under 

the Mine Safety Act. Respondent's refusal to reinstate or 

rehire him was a further violation of section lOSCc> of the 

Act. Complainant is entitled to reinstatement in the position he held on September 20, 1982, or a similar position at 

the same rate of pay and with the same employment benefits. 

Respondents are ORDERED to reinstate him in such position. 

Complainant is entitled also to back pay from September 21, 

1982 until the date of his reinstatement with interest 

thereon. His earnings at other employment shall be a credit 

against his back pay entitlement. Complainant is entitled 

to be reimbursed by Respondent for reasonable attorneys' 

fees and costs of litigation. Further proceedings shall be 

had in this matter to resolve the question of Respondent 

Jackson's liability and, if necessary, the amount to which 

Complainant is entitled as back pay and attorneys' fees. In 

preparation for these proceedings, the following is ordered: 

1. Complainant shall on or before June 28, 1984, file 

a statement explaining with particularity the legal basis 

for his claim against Respondent Jackson, and the evidence 

it expects to produce to establish that claim. 

2. Complainant shall file a statement on or before 

June 28, 1984, showing the amount he claims as back pay and 

interest using the formula set out in the case of 

Secretary/Bailey·v. Arkansas-Carbona, 5 FMSHRC 2042 (1983) 

to determine the interest due. (A copy of the ArkansasCarbona decision is appended hereto). 

3. Complainant shall file a statement on or before 

June 28, 1984, showing amount he rquests for attorneys' fees 

and necessary legal expenses. The attorneys' hours and 

rates shall be set out in detail. 

4. On or before July 14, 1984, Respondents shall reply 

to the above statements, and, if they object to the amounts 

claimed as back pay or attorneys' fees, shall state their 

objections with particularity. 

5. Following receipt of the above statements, a 

further hearing will be scheduled, if it appears necessary. 

1464 
6. Until the issues of Jackson's liability, if any, 

the amount due as back pay and interest and the amount due 

as attorneys' fees are determined, the decision is not 

final. 

~~~ James A. Broderick 

Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc, P.O. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Stephen A. Sanders, Esq., Appalachian Research & Defense 

Fund of Kentucky, Inc., 205 Front Street, Prestonsburg, KY 

41653 (Certified Mail) 

Rudy Yessin, Esq., 411 West Broadway, P.O. Drawer B, 

Frankfort, KY 40602 (Certified Mail) 

/fb 

1465 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 12, 1983 attachment to KENT 83-155-D 

On behalf of MILTON BAILEY Docket No. CENT 81-13-D 

v. 

ARKANSAS-CARBONA COMPANY 

and 

MICHAEL WALKER 

DECISION 

This discrimination case presents four· issues: whether the Commission's 

administrative law judge abused his discretion in severing the Secretary of 

Labor's request for a civil penalty from the complaint of discrimination; 

whether the judge erred in awarding 6% interest on the back pay award; 

whether he erred in tolling the back pay award on the date the Secretary 

filed a complaint on Bailey's behalf; and whether he erred in refusing to 

award Bailey tuition and certain miscellaneous expenses. 

For the reasons tjlat follow, we hold tha_t the judge did not abuse his 

discretion in this case when he severed the request for a civil penalty from 

the discrimination complaint, but we also announce our intention to amend 

Commission Procedural Rule 42, 29 C.F.R. § 2700.42, to end the need for such 

severance in future cases. We adopt as the.Commission's interest rate formula 

for back pay awards the interest formula used by the National Labor Relations 

Board--that is, interest set at the "adjusted prime rate" announced semiannually. by the Internal Revenue Service for the underpayment and overpayment of taxes. We hold that the judge erred in assessing 6% interest on the 

back pay award and remand for recalculation of the award pursuant to the 

computation rules announced in this decision. We reverse the judge's order 

tolling back pay on the date of the Secretary's complaint on behalf of Bailey. 

We continue the ?Ward until the date Bailey informed the Secretary he did not 

wish reinstatement, and additionally remand for determination of the date when 

that notification occurred. Finally, we affirm the judge's holding that 

Bailey was not entitled to payment of college tuition and related expenses. 

1466 
I. Factual and procedural background 

We briefly summarize the facts, which are undisputed, as background 

for our discussion of this case. Arkansas-Carbona Company, a joint venture, 

operated a small surface anthracite coal mine in Dardanelle, Arkansas at 

the relevant time. Milton Bailey was employed by Arkansas-Carbona from 

May 13, 1980, until his discharge on June 27, 1980. Bailey was the company's 

safety director and he earned $1,000 per month. Michael Walker was the 

president of one of the firms comprising the Arkansas-Carbona joint venture, 

and after June 13, 1980, took over ·control of mine operations at the mine 

site. On June 27, 1980, Bailey complained to Walker that the mine's first 

aid kit, which had been moved from the main office to a screened porch, 

should remain in the office to prevent its exposure to dust. Walker contended the kit was in a dustproof container. An argument ensued which 

resulted in Bailey's discharge. 

On October 20, 1980, the Secretary of Labor filed a discrimination complaint before this independent Commission on behalf of Bailey against 

Arkansas-Carbona and Michael Walker. 1/ His complaint alleged that Bailey was 

unlawfully discharged for exercising rights protected by section lOS(c}(l) of 

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

(1976 & Supp. V 1981). The relief sought included back pay with~% interest, 

and reinstatement on the same shift with the same or equivalent duties at a 

rate of pay, "presently proper" for the position. The Secretary's complaint 

also requested "an order assessing a civil penalty of not more than $10,000 

against [the operator] for [the] violation of section lOS(c) of the Act." 

30 U.S.C. § 815(c)(Supp. V 1981). On January 22, 1981, the Secretary filed 

a motion to amend his discrimination complaint. The motion stated in part: 

"Subsequent to his filing of the complaint the Secretary was informed by 

complainant Bailey that he did not wish to be reinstated by respondents and 

that in lieu of reinstatement he would accept tuition for one year of 

college plus an allowance for expenses." 

The Commission's administrative law judge first held that Bailey's 

complaint concerning the first aid kit on the day of his discharge was 

protected activity and that Bailey's discharge was motivated in part by 

that protected activity. Thus, the judge held that a prima facie case of 

discrimination, that is, adverse action motivated in part by protected 

activity, was proved. 3 FMSHRC 2313, 2318-19 (October 198l)(ALJ). The 

judge then examined each non-discriminatory ground the operator presented 

as the cause of Bailey's termination and concluded, "Neither singularly 

nor in combination do Respondents' contentions establish that Respondents 

would have discharged Complainant for the reasons given." 3 FMSHRC at 2319. 

Therefore, the judge determined that Arkansas-Carbona's discharge of Bailey 

violated section lOS(c)(l) of the Mine Act. 30 u.s.c. § 815(c)(l). 

The judge awarded Bailey back pay with 6% interest from the date 

of discharge until October 19, 19~0, one day before the Secretary's 

complaint was filed. 3 FMSHRC at 2323. Because the complaint on behalf 

of Bailey was amended January 22, 1981, to request one year's college 

tuition and .. related expenses in lieu of reinstatement, the judge applied 

!/ We refer to the respondents collectively as "the operator." 

1467 
Rule 15(c), Federal Rules of Civil Procedure, and concluded that the 

amendment related back to October 20, 1980, the date of the Secretary's 

complaint. 1:../ Therefore, the judge concluded that Bailey did not request 

reinstatement from that date and that, accordingly, the obligation for 

back pay ceased on that date. 3 FMSHRC at 2321. The judge also declined 

to order the payment of one year's college tuition and expenses because 

Bailey "failed to establish any entitlement to an award of 1 year of 

college tuition." 3 FMSHRC at 2322. The judge also ordered expunging 

of all references to "this matter" from Bailey's employment record. 

In addition, the judge severed MSHA's proposed assessment of a 

civil penalty from this proceeding, and he ordered MSHA to proceed under 

Commission Procedural Rule 25, 29 C.F.R. § 2700.25. 3/ At the outset of 

the administrative hearing, the judge explained the reason for the severance: 

"I will sever the civil penalty proceeding because there ha's not been the 

required administrative processing of the proposal through the notification 

to the respondents of the amount of the proposed penalty or the opportunity 

to discuss this matter with the District Manager's office." Tr. 4. 

II. Severance of the civil penalty from the proceedings 

involving the complaint of discrimination 

We first consider the question of how civil penalties for violations of 

section 105(c) should be proposed and assessed in cases where the Secretary 

files a complaint on behalf of a miner, and then whether the judge erred in 

severing the penalty proceeding. 

Civil penalties are assessed under the Mine Act to induce compliance 

with the Act and its standards. See, for example, S. Rep. No. 181, 95th 

Cong., 1st Sess. 40-41 (1977) (''S. Rep."), reprinted in Subcommittee on 

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

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

628-29 (1978) ("Legis. Hist."). Penalties are mandatory for violations of 

J:./ Rule 15(c), Fed. R. Civ. P., provides in part: 

Relation Back of Amendments. Whenever the claim or 

defense asserted in the amended pleading .arose out of 

the conduct, transaction, or occurrence set forth or 

attempted to be set forth in the original pleading, the 

amendment relates back to the date of the original pleading. 

1/ Commission Procedural Rule 25 provides: 

The Secretary, by certified mail, shall notify the operator 

or any other person against whom a penalty is proposed of: 

(a) the violation alleged; (b) the amount of the penalty proposed; and (c) that such person shall have 30 days to notify 

the Secretary that he wishes to contest the proposed penalty. 

If within 30 days from the receipt of the Secretary's notification or proposed assessment of penalty, the operator or other 

person fails to notify the Secretary that he intends to cont~st the proposed penalty, the Secretary's proposed penalty 

shall be deemed to be a final order of the Commission and 

shall not be subject to review by the Commission or a court. 

1468 
the Act and its standards. The Act separates the procedures for civil 

penalty assessment between the Secretary and the Commission. The 

Secretary proposes the penalty he wishes assessed for a violation and 

the Commission assesses a penalty of an appropriate amount. See 

Sellersburg Stone Co., 5 FMSHRC 287, 290-92 (March 1983), pet-:-for 

review filed, No. 83-1630, 7th Cir., April 8, 1983; Tazco, Inc., 

3 FMSHRC 1895, 1896-98 (August 1981). !:_! 

This bifurcation of functions is set forth in sections 105 and 110 of 

the Act. 30 U.S.C .• §§ 815 & 820 (Supp. V 1981). Section 105(a) requires the 

Secretary to take certain steps to notify an operator of the civil penalty 

"proposed to be assessed under section llO(a) for the violation cited." 

30 U.S.C. § 815(a). Section llO(a) provides, in turn, for penalty assessments 

of not more than $10,000 per violation. 30 U.S.C. § 820(a). Section llO(i) 

provides, "The Commission shall have authority to assess all civil penalties 

provided in this Act." 30 U.S.C. § 820(i). After listing the six statutory 

penalty criteria, section llO(i) concludes, "In proposing civil penalties under 

this Act, the Secretary may rely upon a summary review of the information 

available to him and shall not be required to make findings of fact concerning 

the above [six] factors." 2../ 

Section 105(a) states that the civil penalty proposal procedures set forth 

for the Secretary therein are only invoked "[i]f, after an inspection or 

investigation, the Secretary issues a citation or order under section 104 

[30 U.S.C. § 814)." 30 U.S.C. § 815(a). 6/ The Secretary must notify an 

operator "within a reasonable time" of the penalty he proposes. If the 

operator chooses to contest a proposed penalty, the Secretary must 

"immediately advise" the Commission so that a hearing can be scheduled. 

30 U.S.C. § 815(d). The statutory procedures for prompt notification 

!:./ When penalties proposed by the Secretary are not contested, however, 

a proposed civil penalty is not actually assessed but is deemed to be a 

final order of the Commission, as if the Commission had assessed it. 

30 U.S.C. § 815(a). See also Commission Procedural Rule 25 (n. 3 supra). 

5/ The words "shall be assessed a civil penalty by the Secretary" in 

section llO(a) must be read in pari materia with sections 105(a) and 

llO(i). Although section llO(a) uses the language "shall be assessed a 

civil penalty by the Secretary," the express language of sections lOS(a) 

and llO(i) makes clear that this Secretarial function is one of proposal, 

not disposition. The legislative history bears out this reading of 

section llO(a). Conf. Rep. No. 461, 95th Cong., lst Sess. 58 (1977) 

reprinted in Legis. Hist. 1336; S. Rep. 43, 45-46, reprinted in Legis. 

Hist. 631, 633-34. Thus, the reference to "shall be assessed""in 

section llO(a) means "shall be subject to a proposed assessment of a 

civil penalty by the Secretary." See Sellersburg Stone Co., supra. 

6/ Section 104, 30 U.S.C. § 814-CSupp. V 1981), contains the procedures 

through which an operator's violations of the Act or its standards are 

enforced. Section 104(a) makes clear that citations shall be issued for 

violations ·of ,·,this Act, or any mandatory health or safety standard, rule, 

order, or regulation p~omulgated pursuant to this Act." 30 u.s.c. § 814(a). 

1469 
and contest of a proposed civil penalty assessment reflect Congress' belief 

that penalty assessment had lagged under the 1969 Coal Act, 30 U.S.C. § 801 

~~· (1976)(amended 1977), and its consequent desire to speed the process. 

Thus, the thrust of the penalty procedures under the Mine Act is to reach a 

final order of the Commission assessing a civil penalty for violations 

without delay. 

Cases involving violations of the discrimination provisions, however, 

are not initiated with the issuance of a citation or order under section 

104 but, rather, with filing of special complaints before the Commission 

under sections 105(c)(2) or 105(c)(3). 30 U.S.C. §§ 815(c)(2) & (3). 

These two statutory subsections provide for complaint by the Secretary 

if he believes discrimination has occurred, or complaint by the miner 

if the Secretary declines to prosecute. 

It is clear that a penalty is to be assessed for discrimination in 

violation of section lOS(c)(l). The last sentence of section 105(c)(3) 

states, "Violations by any person of paragraph (1) shall be subject to 

the provisions of sections 108 [30 U.S.C. § 818] and section llO(a)." 

30 U.S.C. § 815(c)(3). 7/ Section llO(a) requires the Secretary to 

propose penalties to be-assessed for violations of the Act. Neither 

section lOS(c) nor section llO(a), however, states how and when the 

Secretary is to propose a penalty for a violation of section lOS(c)(l). 

The Secretary's regulations in 30 C.F.R. Part 1_00 set forth "criteria 

and procedures for the proposed assessment of civil penalties under section 

105 and 110 of the [Mine Act]." 30 C.F.R. § 100.1. 8/ Section 100.5 lists 

a number of "categories [of violations which] will be individually reviewed 

to determine whether a special assessment is appropriate" including 

"discrimination violations under section lOS(c) of the Act." J../ 

In spite of this reference to discrimination cases, none of the Part 100 

regulations specifies how the Secretary shall propose a civil penalty when he 

files the complaint of discrimination, and it does not appear that the 

Secretary contemplated that his administrative review procedures for proposed penalties should apply to a determination that an operator had violated 

7/ Section 108 permits injunctive relief and is not relevant to the 

issues presented in this case. 

8/ In this analysis, for convenience, we will refer to the current 

Part 100 regulations, which became effective May 21, 1982. They are 

substantially similar to those in effect when the judge's decision 

issued. The changes made do not affect our analysis, and we would 

reach ·the same conclusions under either version. 

9/ A review of the discrimination cases adjudicated by this Commission indicates that the Secretary has used the section 100.5 special 

assessment procedure in discrimination cases only when the miner has 

proceeded on his own behalf pursuant to section 105(c)(3) of the Act 

and prevailed, or when, as here, the judge has severed the penalty 

proceedings_.from the discrimination case. In other discrimination 

cases, the Secretary has requested a penalty in his complaint of 

discrimination. 

1470 
section 105(c)(l). Similarly, the Commission's procedural rules do not 

specifically address penalty procedures for alleged violations of section 

105(c)(l). Our rules more generally require the Secretary to notify the 

operator of "the violation alleged" and the penalty proposed and to afford 

the operator 30 days in which to notify the Secretary if it wishes to contest 

the proposal. Commission Pro.cedural Rule 25 (n. 3 supra). See also 

Commission Procedural Rules 26 through 28, 29 C.F.R. §§ 2700.26 through 28. lfl/ 

Tiie Secretary argues that the penalty proposal procedures in section 

105(a) of the Mine Act and Commission Procedural Rule 25 apply only to 

citations and orders issued under section 104. Violations of the discrimination section, the Secretary urges, are subject only to the provisions expressly mentioned in section 105(c) itself. Tiie Secretary relies 

on the last sentence in section 105(c)(3), which states that violations 

of section 105(c)(l) "shall be subject to the provisions of sections 108 

[injunctions] and llO(a)." 30 U.S.C. § 815(c)(3). He argues that because 

section llO(a) contains no reference to section 104 or to section 105(a), 

the assessment proposal procedures required therein need not be applied 

in penalty proposals under section 105(c)(3). 

Tiius, from the language of sections 105(c)(3) and llO(a), the Secretary 

argues that it is not necessary to have separate penalty proceedings in 

discrimination cases. Rather, he contends that penalties should be assessed 

by Commission judges when liability is determined--that is, when an operator 

is found in a discrimination proceeding to have violated section 105. Tiie 

Secretary asserts he is "always" prepared to provide the information on the 

penalty criteria in section llO(i), and that an administrative law judge will 

never be more competent to decide the penalty question than at the close of 

a discrimination case in which the judge has determined the existence of a 

violation. 

10/ Commission Procedural Rules 40 through 44 (29 C.F.R. §§ 2700.40 

through 44) deal with discrimination complaints, but do not resolve the 

issue of how a penalty is to be proposed. Rule 42 requires that a 

discrimination complaint include, among other things, na statement of 

the relief requested." Tiie rule tracks section 105(c)(2) of the Act, 

which requires the Secretary in his complaint to "propose an order 

granting appropriate relief." 30 U.S.C. § 815(c)(2). Tiie Secretary 

contends that a civil penalty is part of the "relief" he may request 

in the complaint, and that inclusion of such a request in a complaint 

conforms to Rule 42 and section 105(c)(2). We conclude, however, that 

"relief" as used in section 105(c) and Rule 42 indicates only those 

remedies available to make the discriminatee whole. Section 105(c)(3) 

states· in part, "Tiie Commission shall ••• issue an order ••• granting ••• 

relief ••• including ••• rehiring or reinstatement ••• with backpay and 

interest or such remedy as may be appropriate." 30 U.S.C. § 815(c)(3). 

The legislative history also supports this reading of "relief." See 

Secretary on behalf of Dunmire and Estle v. Northern Coal Company, 

4 FMSHRC 126, 142 (February 1982), citing to S. Rep. 37, reprinted in 

Legis. ~~ 625. A civil penalty, on the other hand, is not intended 

to compensate the victim but rather to deter the operator's future 

violations. 

1471 
We agree with the Secretary that it is desirable to adjudicate in one 

proceeding both the merits of the discrimination clai.II} and the civil penalty. 

The Mine Act emphasizes, "Proceedings under [section lOS(c)] shall be 

expedited by the Secretary and by the Commission." 30 U.S.C. § 81S(c)(3). 

Because the last sentence of section 105(c)(3) references penalty proposals 

under section llO(a), we conclude that penalty proposals for section lOS(c) 

violations are to be expedited as well. The express statutory intent to 

expedite these proceedings is furthered by having the Secretary avoid dual 

proceedings and incorporate his penalty proposal in his discrimination 

complaint. 

We also conclude, however, that it is incumbent upon the Secretary in a 

combined proceeding to set forth in the discrimination complaint the precise 

amount of the proposed penalty with appropriate allegations concerning the 

statutory criteria supporting the proposed amount. Experience makes us 

somewhat skeptical about the Secretary's -assertion that he has "always" been 

prepared to present evidence on penalty criteria. Formal penalty allegations 

in the complaint better afford operators adequate notice of penalty issues in 

discrimination cases. Because the Secretary may "rely on a summary review of 

the information available to him" in proposing penalties (30 U.S.C. § 820(i)), 

the penalty allegations in the discrimination complaint may be stated in summary 

fashion. 

In this case, the Secretary's naked request in his complaint for a penalty 

of "up to $10,000" is scarcely a penalty proposal at all. Henceforth, we shall 

require in these cases that the Secretary propose in his complaint a penalty in 

a specific dollar amount supported by information on the section llO(i) criteria 

for assessing a penalty. This new rule shall apply to cases pending with our 

judges as of the date of this decision or filed with the. Commission as of, or 

after, the date of this decision. Leave to amend complaints to add the penalty 

allegations shall be freely granted. Thus, the operator will be informed not 

only of the dollar amount proposed, but also the basis therefor. The parties 

will then be better prepared to litigate at the hearing any disputes concerning 

the penalty sought. 

Because the Secretary did not provide in his complaint sufficient notice 

to the operator of the amount of the penalty sought and the basis therefor, we 

cannot say that the judge erred in severing. the penalty proposal in order to 

provide such notice to the operator. Nor do we see the utility of a remand 

to allow the Secretary to amend his complaint. The judge's approach to the 

Secretary's inadequate proposal is consistent with the Act's notice requirements and with the position we now enunciate. Accordingly, we affirm the 

judge's severance of the penalty proposal from the underlying discrimination 

complaint. 1l_/ 

.!!.I We are presently in the process of adopting an interim amended Rule 42, 

which will reflect our resolution of the penalty issue. We also note that 

this case does not raise, and we do not reach, the question of how penalties 

should be p:roposed when the Secretary does not file a discrimination complaint 

on the miner's behalf and the miner files his own complaint under section 

105 (c) (3). 

1472 
III. The rate and computation of interest on back pay awards 

The next question in this case is whether the judge erred in assessing 

6% interest on the back pay award. The remedial goal of section lOS(c) is to 

"restore the [victim of illegal discrimination] to the situation he would have 

occupied but for the discrimination." Secretary on behalf of Dunmire and 

Estle v. Northern Coal Co., 4 FMSHRC at 142. As we have previously observed, 

"'Unless compelling reasons point to the contrary, the full measure of relief 

should be granted to [an improperly] discharged employee."' Secretary on 

behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982), 

quoting Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962). 

Included in that "full measure of relief" is interest on an award of 

back pay. Section 105(c)(3) of the Mine Act expressly includes interest 

in the relief that can be awarded to discriminatees, while leaving it up 

to the discretion of the Commission to determine the exact contours of 

such an award. 12/ The Senate Committee that drafted the section which 

became section lOS(c) stated in its report: 

It is the Committee's intention that the Secretary 

propose, and the Commission require, all relief 

that is necessary to make the complaining party 

whole and to remove the deleterious effects of the 

d~scriminatory conduct including, but not limited 

to reinstatement with full seniority rights, backpay with interest, and recompense for any special 

damages sustained as a result of ·the discrimination. 

S. Rep. 37, reprinted in Legis. Hist. 625 (emphasis added). 

Our judges have awarded interest at rates varying from 6% per 

annum to 12.5% per annum and have used a variety of methods to compute 

interest awards. At least two of our judges have adopted the NLRB's rate 

of interest on back pay awards. See, e.g., Bradley v. Belva Coal Co., 

3 FMSHRC 921, 925 (April 198l)(ALJ) affld in part, remanded in part on 

other grounds, 4 FMSHRC 982 (June 1982); Secretary on behalf of Smith et al. 

v. Stafford Construction Co., 3 FMSHRC 2177, 2199 (September 198l)(ALJ) aff'd 

in part, rev'd in part on other grounds, 5 FMSHRC 618 (April 1983), pet. for 

review filed, No. 83-1566, D.C. Cir., May 27, 1983. The experience of our 

12/ Section 105(c)(3) provides in part: 

The Commission ••• shall issue an order, ••• if the 

charges [of discrimination] are sustained, granting 

such relief as it deems appropriate, including, but 

not limited to, an order requ\ring the rehiring or 

reinstatement of the miner to ·11is former position 

with back pay and interest or such remedy as may 

be appropriate. 

30 u.s.c. §'81S(c)(3). 

1473 
judges in this area has greatly aided our evaluation of different methods 

of assessing interest. It has also led us to the conclusion that it is time 

to adopt a uniform method of computing interest so that all discriminatees 

will be treated uniformly when they are awarded back pay under the Mine Act. 

The miner has not only lost money when he or she has not been paid in 

violation of section 105(c), but has also lost the use of the money. As the 

NLRB has stated with regard to interest on back pay awards under the National 

Labor Relations Act, "The purpose of interest is to compensate the discriminatee 

for the loss of the use of his or her money." Florida Steel Corp., 231 NLRB 

651, 651 (1977). Thus, in selecting an interest rate, we have considered the 

potential cost to the miner both as a "creditor" of the operator, and as a 

potential borrower from a lending institution under real economic conditions. 

We have therefore sought a rate of interest that compensates the discriminatee 

fully for the loss of the use of money. In addition, we have attempted to 

select a rate of interest flexible enough to reflect economic and market 

realities, but not so complex in application as to place an undue burden on 

the parties and our judges when attempting to implement it. 

For all of these reasons we adopt the interest rate formula used by the 

NLRB: interest set at the "adjusted prime rate" announced semi-annually by the 

Internal Revenue Service under 26 U.S.C.A. § 6621 (West Supp. 1983) as the 

interest it applies on underpayments or overpayments of tax. The "adjusted 

prime rate" of the IRS is the average predominant prime rate. quoted by 

commercial banks to larger businesses as determined by the Federal Reserve 

Board and rounded to the nearest full percent. 26 u.S.C.A. § 6621 (West 

Supp. 1983). Under the Tax Equity and Fiscal Responsibility Act of 1982, 

Pub. L. 97-248, § 345, 96 Stat. 636 (to be codified at 26 U.S.C. § 6621), 

the adjusted prime rate must be established semi-annually: by October 15 

based on the prime rates from April 1 to September 30, and by April 15 

based on the prime rates from October 1 to March 31. The rate announced 

in October becomes effective the following January 1, and the rate 

announced in April becomes effective the following July 1. 

We agree with the NLRB that the IRS adjusted prime rate comes closest 

to compensating the miner fully for loss of the use of money. On the one 

hand, if the miner had the money, he or she could invest it or save it and 

probably earn less than the prime rate. On the other hand, if the miner has 

to borrow money because he or she is deprived of a paycheck, the rate of 

interest most likely would be higher than the prime rate. In these 

circumstances, we concur with the NLRB that the IRS formula "achieves 

a rough balance between that aspect of remedial interest which attempts to 

compensate the discriminatee or charging party as a creditor and that which 

attempts to compensate for his loss as a borrower." Olympic Medical Corp., 

250 NLRB 146, 147 (1980). This "rough balance" in our view achieves the goal 

of making the miner whole for the loss of the use of money. 

The IRS adjusted prime rate is also attractive for pragmatic reasons. 

It is a per annum rate adjusted semi-annually, based on the prime rates for 

the six months preceding its calculation. In this way, the rate reflects 

economic conditions with reasonable accuracy. Its announcement well in 

advance of the effective date offers notice to all parties and our judges. 

g_. Olympic Medical Corp., supra. 

1474 
The relevant adjusted prime rates, which we adopt as the Commission's 

remedial interest rates, are: 

January 1, 1978 to December 31, 1979 ••• 6% per year (.0001666% per day) 

January 1, 1980 to December 31, 1981. •• 12% per year (.0003333% per 

January 1, 1982 to December 31, 1982 ••• 20% per year (.0005555% per 

January 1, 1983 to June 30, 1983 ••••••• 16% per year (.0004444% per 

July 1, 1983 to December 31, 1983 •••••• lU per year (.0003055% per 

January 1, 1984 to June 30, 1984 ••••••• 11% per year (.0003055% per 

Because the IRS rates of inter(;?st are announced as annual rates, ·it is 

necessary, as explained below, to convert them to daily rates to calculate interest on.periods of less than one year ... !1/ 

day) 

day) 

day) 

day) 

day) 

There must also be a uniform method of computing the interest on 

back pay awards under the Mine Act. We have considered a number of 

possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's 

general back pay methodology is sound and has met with judicial approval. 

The labor bar is familiar with this system. We conclude that rather 

than expending adrainistrative resources in attempting to devise a new 

system, we will best, and most efficiently, effectuate the remedial 

goals of section 105(c) of the Hine Act by adopting the major features 

of the NLRB computational system. We are satisfied that this system 

will do justice to the miner, avoid unnecessary penalization of the 

operator, and not prove unduly burdensome for our judges and bar to 

apply. 

We therefore announce the following general rules for the computation of interest on back pay. 

Back pay and interest shall be computed by the "quarterly" method. 

See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289 

(1950), approved NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953). J!!_/ 

11/ Prior to the passage of the Tax Equity and Fiscal Responsibility 

Act of 1982, the IRS announced the adjusted prime rate in the October 

of the appropriate year to take effect the following February. For ease 

of administration under the Mine Act, however, we have bounded certain 

interest periods at December 31 and January 1 rather than at January 31 

and February 1. (The NLRB's General Counsel has followed the same 

simplifying approach. NLRB Memorandum GC 83~17, August 8, 1983.) 

14/ Back pay is the amount equal to the gross pay the miner would have 

earned from the operator but for the discrimination, less his actual 

interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC 982, 994-95 (June 

1982). The first figure, the gross pay the miner would have earned, is 

termed "gross back pay." The third figure, the differen~e resulting ·:rem 

subtraction of actual interim earning from gross back pay, is "net back 

pay"--the amount actually owing the discriminatee. Interest is awarded 

on net back pay only. 

In a discrimination case where, as here, there has been an illegal 

discharge, the back pay period normally extends from the date of the 

discrimination to the date a bona fide offer of reinstatement is made. 

(As we conclude below, the period may also be tolled when the discriminatee waives the right to reinstatement.) 

1475 
Under this method (referred to as the "Woolworth formula," after the 

NLRB's decision in the case of the same name, supra), computations are 

made on a quarterly basis corresponding to the four quarters of the 

calendar year. Separate computations of back pay are made for each of. 

the calendar quarters involved in the back pay period. Thus, in each 

quarter, the gross back pay, the actual interim earnings, if any, and 

the net back pay are determined. See n. 14. 

Interest on the net back pay of each quarter is assessed at the 

adjusted prime interest rate or rates in effect, as explained below. 

Like the NLRB, we will assess only simple interest in order to avoid 

the additional complexity of compounding interest. Interest on the 

amount of net back pay due and owing for each quarter involved in the 

back pay period accrues beginning with the-last day of that quarter 

and continuing until the date of payment. See Florida Steel Corp., 231 

NLRB at 652. In calculating the amount of interest on any given quarter's 

net back pay, the adjusted prime interest rates may vary between the last 

day of the quarter and the date of payment. If so, the respective rates 

in effect for any quarter or combination of quarters must be applied for 

the period in which they were operative. The interest amounts thus accrued 

for each quarter's net back pay are then summed to yield the total interest 

award. 

For administrative convenience, we will compute interest on the basis 

of a 360-day year, 90-day quarter, and 30-day month. Using these simplified 

values, the amount of interest to be assessed on each quarter's net back pay 

is calculated according to the following formula: 

Amount of interest = The quarter's net back pay x 

number of accrued days of interest (from the last 

day of that quarter to the date of payment) x daily 

adjusted prime rate interest factor. 

The "daily adjusted prime rate interest factor" is derived by dividing 

the annual adjusted prime rate in effect by 360 days. For example, the 

daily interest factor for the present adjusted prime rate of 11% is 

1476 
.0003055% (.11/360). The daily interest factors are shown in the list of 

adjusted prime rates above. A computational example is provided in the 

accompanying note. ];11 

15/ The mechanics of the quarterly computation system may be illustrated 

by the following hypothetical example, in which a miner is discriminatorily 

discharged on January 1, 1983, and offered reinstatement on,September 30, 

1983. Payment of back pay and interest is tendered on October 15, 1983. 

After subtraction of the relevant interim earnings, the net back pay of 

each quarter involved in the back pay period is as follows: 

The 

The 

First quarter (beginning January 1, 1983) 

Second quarter (beginning April 1, 1983) 

Third quarter (beginning July 1, 1983) 

Total net back pay 

adjusted prime interest rates in effect in 1983 

$1,000 

§1,000 

$1,000 

$3,000 

are: 

16% per year (.0004444% per day) from January 1, 1983, to 

June 30, 1983; 

11% per year (.0003055% per day) from July 1, 1983, to 

December 31, 1983. 

interest award on the net back pay of each of these quarters is as follows: 

(1) First Quarter: 

(a) At 16% interest until end of second quarter of 1983: 

$1,000 net back pay x 91 accrued days of interest 

(last day of first quarter plus the entire second 

quarter) x .0004444 = $40.44 

Plus, 

(b) At 11% interest for entire third quarter through the 

date of payment: 

$1,000 net back pay x 105 accrued days of interest (the 

third quarter plus 15 days) x .0003055 = $32.07 

(c) Total interest award on first quarter: 

$40.44 + $32.07 = $72.51 

(2) Second Quarter 

(a) At 16% interest for the last day of the second quarter 

$1,000 x 1 accrued day of interest x .0004444 = $.44 

Plus, 

(b) At 11% interest for the entire third quarter through date 

of payment: 

$1,000 x 105 accrued days of interest x .0003055 = $32.07 

(c) Total = $.44 + $32.07 = $32.51 

(3) Third Quarter: 

At 11% interest for the last day of the third quarter 

through date of payment: 

$1,000 x 16 accrued days of interest x .0003055 = $4.88 total 

(4) Total Interest Award: 

$72.51 + 32.51 + 4.88 = $109.90 

This amount is added to the total amount of back pay ($3,000), for a total 

back pay award of $3,109.90. 

1477 
The major alternative computational approach would involve awarding 

interest on the total lump sum of net back pay from the date of discrimination to the time of payment. We recognize that this method would involve 

less complex calculations. We reject the lump sum method, however, because 

it would penalize the operator by assuming that the entire amount of the 

back pay debt was due and owing on the first day of the back pay period. 

We will carefully monitor the experience of our judges and parties in 

applying the computational system announced in this decision. We will 

modify the system if that experience over time demonstrates the 

desirability of adjustment. 

In discrimination cases, our judges should advise the parties of the 

methodology for calculating back pay and interest. The parties shall submit 

to the judge the requisite back pay figures and calculations, and are urged 

to make as much use of stipulation as possible. The burden of computation 

of interest on back pay awards should be placed primarily on the parties to 

the case, not the judge, in order to comport with the adversarial system. 

We apply the foregoing principles in this proceeding because the issue 

of the appropriate rate of interest in discrimination cases arising under 

the Mine Act was squarely raised on review. As a matter of discretionary 

policy in judicial administration, we will otherwise apply these principles 

only prospectiveiv to discrimination cases pending before our judges as of 

the date of this decision or filed with the Commission as of, or after, the 

date of this decision. We do not mean to intimate that any previous awards 

of interest by our judges in other cases, based on different computational 

methods, are infirm. 

Applying our formula to the present case, we conclude that reversal 

is necessary. The judge's award of 6% interest is so disparate from the 

adjusted prime rates in effect from the date of Bailey's discharge on 

June 27, 1980, as to raise questions concerning whether the complainant 

would truly be made "whole" if the judge's award stands. Accordingly, 

we hold that the judge erred in awarding 6% interest, and will remand 

for recalculation of interest pursuant to the interest formula and 

computational methods announced in this case. 

IV. Tolling of the back pay award 

The judge concluded that Bailey was not entitled to back pay after 

October 20, 1980, the date on which Bailey's complaint was filed. That 

complaint requested reinstatement, but it was amended January 22, 1981. 

The amended complaint sought back·pay and requested the Commission to 

"order respondents to pay Hr. Bailey $900.00 for one year college tuition 

plus $400.00 book and maintenance expense allowance in lieu of reinstatement at respondents' mine." The accompanying motion to amend stated: 

Subsequent to his filing of the complaint the Secretary 

was informed by complainant Bailey that he did not wish 

to be reinstated by respondents and that in lieu of reinstatement he would accept tuition for one year of college 

pius an allowance for expenses. 

1478 
The judge granted the motion to amend and, when determining the 

back pay award, applied Rule 15(c), Fed. R. Civ.P., and tolled the award 

on October 20, 1980. Rule 15(c) provides that where a claim or defense 

in an amended pleading arises out of the same circumstances set forth 

in the original pleading, the amendment relates back to the date of 

the original pleading. Relation back has been generally permitted where 

the movant seeks to enlarge the basis or extent of a demand for relief. 

See, for example, Goodman v. Poland, 395 F. Supp. 660, 682-86 (D. Md. 

1975)(change of theory of recovery from equity to law permitted); 

Wisbey v. Amer. Community Stores Corp., 288 F. Supp. 728, 730-32 (D. 

Neb. 1968)(amendment seeking additional damages in FLSA action permitted). 

We do not believe that the restrictive application of relation back 

by the judge was appropriate in this case. 

Rather, in determining when back pay should terminate, we look to the 

date when Bailey informed the Secretary he no longer sought reinstatement 

at Arkansas-Carbona. We agree with the judge's related conclusion: "It 

would be unfair and improper to require a mine operator to pay a former 

employee back pay for a period of time when the employee has unequivocally 

stated that he does not want to return to his former employment." 3 FMSHRC 

at 2321. In a case involving similar issues, this judge compared a miner's 

lack of desire to be reinstated to a rejection of an offer of reinstatement 

under the National Labor Relations Act. Secretary on behalf of Ball v. 

B&B Mining, 3 FMSHRC 2371, 2378 (October 198l)(ALJ). We concur with the 

NLRB rule that an employer is released from his back pay obligations when 

the employee rejects an appropriate offer of reinstatement, and consider 

the analogy to the facts of this case appropriate. See, for example NLRB v. 

Huntington Hospital, 550 F.2d 921, 924 (4th Cir. 1977); NLRB v. Winche;ter 

Electronics, Inc., 295 F.2d 288, 292 (2d Cir. 1961); Lyman Steel Co., 246 

NLRB 712 (1979). 

Tolling the back pay award on the date Bailey informed the Secretary 

that he no longer desired reinstatement effectuates the preceding principles, 

while the judge's relation back to the original complaint needlessly and 

unfairly penalizes Bailey. Therefore, we reverse the judge's relation back 

to the date of the original pleading. The present record does not reveal 

the date Bailey informed the Secretary of his waiver of reinstatement. 

Accordingly, we additionally remand for determination of that date in order 

that the back pay period may be established and the necessary computations 

properly made. 

V. College tuition and related expenses. 

Bailey's remaining contention concerning the award is that the judge 

erred in not granting him tuition and miscellaneous college expenses. The 

judge held, "Complainant failed to establish any entitlement to an award of 

1 year of college tuition plus $400tbook and miscellaneous expense allowance." 

3 FMSHRC at 2322. We affirm the judge on this point. 

The Secretary argued in his brief before the judge that Bailey would 

not have paid tuition and expenses, bu~ for his accepting the position at 

Arkansas-Carbona. 'J:!/ The judge found that, prior to his employment with 

16/ The Secretary did not raise this issue on review and, although 

Bailey briefly raised it in his petition for review, he did not file 

a brief before us. 

1479 
Arkansas-Carbona, Bailey worked as a campus security guard at Arkansas Tech, 

and as a fringe.benefit of that campus job did not pay tuition. 3 FMSHRC 

at 2315. (The judge made no finding on whether Bailey's campus job also 

entitled him to college expenses.) After Bailey accepted a position at 

Arkansas-Carbona, and resigned from his campus job, he paid his own tuition. 

The remedial goal of section lOS(c) of the Act is to return the miner 

to the status quo before the illegal discrimination. Secretary on behalf 

of Dunmire and Estle v. Northern Coal, 4 FMSHRC at 142. Had Bailey not been 

discharged illegally, he would have been working at Arkansas-Carbona and 

would have had to pay tuition for his classes. We do not see how ArkansasCarbona can be held responsible for a fringe benefit Bailey did not receive 

from that company. Although at times we may need to seek alternative 

remedies to make a miner whole for illegal discrimination (for example, 

where reinstatement is impossible or impractical), such considerations are 

not present in this case. 

Accordingly, we affirm the judge's refusal to award tuition and 

college expenses. 

VI. Conclusion 

For the foregoing reasons, we affirm the judge's severing of the 

request for a civil penalty from the merits of the discrimination case, 

and hold that in future cases the Secretary must propose in his discrimination complaints a specific penalty supported by allegations 

relevant to the statutory penalty criteria. As we have stated above, 

we are accordingly in the process of amending our Procedural Rule 42 to 

provide for unified proceedings in the future. 

We reverse the Judge's assessment of 6~~ interest on back pay, and remand 

to the Chief Administrative Law Judge for assignment to a judge for calculation of back pay and interest according to the principles and methodology 

announced in this decision. 1J..../ We reverse the judge's tolling of the back 

1J....I The judge who decided this case has left the Commission. 

1480 
pay award on the date the complaint was filed, and additionally remand for 

determination of the date Bailey informed the Secretary he no longer wished 

reinstatement. Finally, we affirm the judge's denial of Bailey's request 

for college tuition and related expenses. 

iL~ L. Clair Nelson, Commissioner 

1481 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 4 1984 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 84-8 

A.C. No. 34-01358-03506 

v. . . Checotah No. 1 Mine 

TURNER BROTHERS, INC., 

Respondent 

. . Docket No. CENT 84-9 

Appearances: 

Before: 

: A.C. No. 34-01317-035~8 

. . Heavener No. 1 Mine 

DECISION 

Richard L. Collier, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, 

Texas, for Petitioner~ 

Robert J. Petrick, Esq., Turner Brothers, 

Inc., Muskogee, Oklahoma, for Respondent. 

Judge Melick 

These cases are before me upon petitions for assessment 

of civil penalty filed by the Secretary of Labor, pursuant 

to section 105(d) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s."c. § 801 et seq., the "Act," for alleged 

violations of regulatory standards. The general issues 

before me are whether Turner Brothers, Inc., has violated 

the cited regulatory standards and, if so, what is the appropriate civil penalty to be assessed for those violations. 

In addition, where the Secretary has alleged that the violation is "significant and substantial" a determination in 

that regard must also be made. A violation is "significant 

and substantial" if: (1) there is an underlying violation 

of a mandatory safety standard, (2) there is a discrete 

safety hazard i.e. a measure of danger to safety contributed 

to by the violation, (3) there is a reasonable likelihood 

that the hazard contributed to will result in an injury, and 

(4) there is a reasonable likelihood that the injury in question will be of a reasonable serious nature. Secretary v. 

Mathies Coal Company, 6 FMSHRC 1 (1984). 

1482 
DOCKET NO. CENT 84-8 

Citation No. 2007410 alleges a violation of the regulatory standard at 30 C.F.R. § 71.400 and charges that the 

mine operator had not provided bathing facilities, clothing 

change rooms and sanitary flush toilet facilities for the 

use of the miner's employed at the mine. According to 

Inspector Boatwright of the Federal Mine Safety and Health 

Administration CMSHA), the mine operator had previously 

obtained a waiver of these requirements in accordance with 

30 C.F.R § 71.403, however, that waiver had expired the 

month before. The operator abated the violation by obtaining a new waiver. Under the circumstances, the proposal for 

settlement of this citation in the amount of $20 is 

approved. 

Citation No. 2077215 alleges a significant and substantial violation of the standard at 30 C.F.R. § 77.1605(b) and 

reads as follows: 

The 980C Caterpillar front-end loader 

Company No. 495 being operated in the 002-0 pit 

cleaning coal was not equipped with adequate 

brakes in that when the brakes were tested on a 

small incline, they would not stop or hold the 

loader. Four rock trucks, two front-end loaders 

and one water truck was being operated in this 

area. 

The cited standard requires that mobile equipment be 

equipped with adequate brakes. The testimony of Inspector 

Boatwright is undisputed. He testified that the cited 

front-end loader had absolutely no brakes at all, and 

observed that in addition to the rock trucks and front-end 

loaders operating in the vicinity of the cited front-end 

loader, one person was walking about in the vicinity of ~hat 

loader. In addition, the evidence shows that the cited 

loader had no front horn and at the beginning of the shift 

and following the lunch break the cited loader would be 

driven down an incline into the pit area, thus increasing 

the hazard. While the inspector acknowledged that there 

might not have been a serious hazard to the machine operator's so long as they remained in their cabs, there clearly 

was a grave danger of serious bodily injury or death to any 

pedestrian walking in the vicinity of the cited loader. 

Under the circumstances, I find that the violation was 

"significant and substantial" and a serious hazard. 

1483 
I further find that the operator was negligent in failing to have the cited equipment removed from service. It is 

apparent from the uncontested evidence that the brak~ def iciency had existed for some time and should therefore have 

been discovered during preshift examinations. The condition 

was abated immediately by the addition of brake fluid. 

There was no apparent leak in the system from which brake 

fluid would have rapidly discharged. 

Citation No. 2077216 alleges a significant .and substantial violation of the standard at 30 C.F.R. § 77.1605(d) and 

charges that the front-end loader previously cited also had 

an inoperable front horn. The cited standard requires that 

mobile equipment be provided with audible warning devices. 

According to the undisputed testimony of Inspector 

Boatwright, the hazard associated with this violation was 

significantly increased by the failure of this front-end 

loader to have brakes. Accordingly, should the equipment 

lose control because of the absence of brakes, no warning 

could be given to persons in its path. As previously indicated, there was one pedestrian walking about in the vicinity of this front-end loader. Within this framework, I find 

that the violation was indeed significant and substantial 

and a serious hazard. 

It is apparent that the operator was negligent in failing to check its equipment since three or four other pieces 

of equipment at the mine were also without operative horns 

that morning. The deficiency should have been observed on 

preshift examination and corrected before the equipment was 

put into service. The condition was abated by reconnecting 

a loose wire. 

Citation No. 2077219 alleges a violation of the standard at 30 C.F.R. § 77.1110 and charges that the 777 Caterpillar rock truck being operated in the 002-0 pit hauling 

rock to the spoil area was not provided with a fire extinguisher maintained in an operative condition. The gauge on 

the fire extinguisher showed the extinguisher to have been 

discharged. The cited standard requires that fire fighting 

equipment be continuously maintained in a useble and operative condition. 

The undisputed testimony of Inspector Boatwright was 

that the gauge showed the extinguisher to have been "discharged" and that should have been detected during the preshi ft examination. Boatwright conceded, however, that the 

1484 
extinguisher could have discharged between the time of the 

preshift examination and the time he cited the violation. 

Under the circumstances, the proof does not support a finding of high negligence. Boatwright also felt that the 

hazard was minimal in light of the fact that all of the 

other equipment operating in the pit area had operative fire 

extinguishers and that little distance would separate these 

vehicles. 

Citation No. 2077220 alleges another significant and 

substantial violation of the standard at 30 C.F.R. 

§ 77.1605Cd) and charges that the 992C Caterpillar front-end 

loader, Company No. 876, being operated in the 002-0 pit was 

not provided with an operating front horn. According to 

Inspector Boatwright, there should not ordinarily be pedestrians in the pit area where the front-end loader was operating, but nevertheless there was nothing to have prevented 

pedestrian traffic in that area. Moreover, the vehicles are 

driven in and out of the pit for shift changes, service and 

refueling so that there is an increased area of exposure to 

pedestrians. It is reasonably likely that the inability to 

provide a· warning with a front horn could lead to serious 

injuries and death. The violation is accordingly signif icant and substantial and serious. It is apparent that the 

operator was not making thorough preshif t checks in his 

equipment because there were so many defects with horns and 

back-up alarms on equipment that morning. The operator was 

accordingly negligent. 

Citation No. 2077301 also alleges a violation of the 

standard at 30 C.F.R. § 77.1605Cd) and charges that the 

other 992C Caterpillar front-end loader was also without a 

front horn. Since this vehicle was operated in the same 

manner as the subject of the previous citation, I find that 

this violation too is significant and substantial and a 

serious hazard. For the reasons noted above, I also find 

that the operator was negligent. 

Citation No. 2077302 also charges a violation of the 

standard at 30 C.F.R. § 77.1605Cd). The same 992C Caterpillar front-end loader cited for failing to have a front 

horn in the previous citation also had no backup alarm. 

Boatwright observed that this equipment is operated in 

reverse about 50 percent of the time and presented a serious 

hazard to pedestrians in th9tpit area or in the fueling area. 

Under the circumstances, I find that the violation was significant and substantial and serious. Inasmuch as there 

were indeed so many defective warning devices found during 

this inspection, I fin~ it unlikely that a proper preshift 

1485 
examination was done on the equipment and that the operator 

was accordingly negligent. 

Citation No. 2077303 and Citation No. 2077304 charge 

significant and substantial violations on the same rock 

truck for having no operative backup alarm and front horn 

respectively. As previously noted, the rock trucks were 

used to haul rock out of the pit area to the spoil area and 

were taken outside the pit to a fueling area during lunch 

and at the end of the shift. I find it reasonably likely 

that pedestrians would be placed in danger of serious bodily 

harm and death from the f ailiure of this rock truck to have 

the required alarm equipment. The violation is significant 

and substantial and serious. For the reasons previously 

noted, I also find that the operator was negligent in failing to have detected and corrected these violations. 

Citation No. 2077305 charges a violation of the standard at 30 C.F.R. § 77.410 charging that the International 

coal truck, Company No. 126 which was hauling coal from the 

pit to the coal stock pile area had not been provided with 

an automatic audible reverse warning device. Boatwright's 

charges are not disputed by the operator. Based on 

Boatwright's testimony, I find that it was reasonably likely 

for a pedestrian to have been struck and killed by this 

vehicle for failing to have the required warning device. I 

find the violation to be significant and substantial and 

serious. I also find the operator to have been negligent. 

The truck had been on the premises for some period of time 

and it is not disputed that the operator was aware of the 

requirement for a backup alarm on this truck. 

Citation No. 2077306 charges a violation of the standard at 30 C.F.R. § 77.1109Cc)(l) and alleges that no portable fire extinguisher was provided for the coal truck 

previously cited. Inspector Boatwright found only a minimal 

hazard in that nearby equipment did have operative fire 

extinguishers. The operator's explanation is not disputed 

that it had provided an extinguisher on the equipment, but 

one of the employees had temporarily removed it without the 

permission or knowledge of management. 

Citation No. 2077307 alleges a violation of the standard at 30 C.F.R. § 77.1707 and charges that the operator 

did not have a full complement of first-aid equipment 

available. According to Inspector Boatwright, the operator 

had at one time the full complement of equipment, but the 

first-aid kit had been pilferred and that a fully equipped 

first-aid kit was available within a quarter of a mile. 

1486 
There is no requirement for the first-aid kit to be examined 

during preshift examinations. The operator promptly abated 

all violations. Within this framework, I accept the 

proffered settlement of $20 for this violation. 

DOCKET NO. CENT 84-9 

At hearing, the parties proposed a settlement of the 

one citation at issue, Citation No. 2007409, for $20. The 

evidence shows that the mine operator had not indeed provided bathing facilities, clothing change rooms and sanitary 

flush toilet facilities for the use of the miners employed 

at the mine, however, the operator had previously obtained a 

waiver of those requirements and had merely failed to apply 

for a new waiver. The condition was abated upon the operator's obtaining of a new waiver of the requirements. Under 

the circumstances, I find that the proffered settlement is 

appropriate. 

In determining the amount of penalties in this case, I 

am also considering that the operator is of ·medium size and 

abated all of the cited violations promptly and in good 

faith. The Secretary has failed to present any evidence of 

the operator's prior violations, and, therefore, I am not 

considering that factor in determining the amount of 

penalties herein. 

ORDER 

Turner Brothers, Inc. is hereby ordered to pay the 

following civil penalties within 30 days of the date of this 

decision: 

DOCKET NO. CENT 84-8 

Citation No. 2007410 $ 20 

Citation No. 2077215 200 

Citation No. 2077216 125 

Citation No. 2077219 30 

Citation No. 2077220 100 

Citation No. 2077301 100 

Citation No. 2077302 75 

Citation No. 2077303 75 

Citation No. 2077304 100 

Citation No. 2077305 150 

Citation No. 2077306 30 

Citation No. 2077307 20 

1487 
DOCKET NO. CENT 84-9 

Citation No. 2007409 

Total Penalties 

Distribution: 

' 

~/ Gary Me 

Assist . 

I 

20 

$1,045 

\ 

dministrative Law Judge 

Richard L. Collier, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square, Suite 501, Dallas, 

TX 75202 (Certified Mail) 

Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box 

447, Muskogee, OK 74401 (Certified Mail) 

/fb 

1488 
FEDERAL MINE SAFETY·AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

June 4, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PEABODY COAL.COMPANY, 

Respondent 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 84-66 

A.C. No. 02-00533-03507 

Black Mesa Mine 

Docket No. WEST 84-67 

A.C. No. 02-01195-03506 

·Kayenta ~ine 

Appearances: John c. Nangle, Esq., Associate Regional 

Solicitor, U.S. Department of Labor, Los 

Angeles, California, for Petitioner. 

Before: Judge Merlin 

In accordance with the duly issued Notice of Hearing, 

the above-captioned cases as well as several others, came on 

for hearing on May 30, 1984, as scheduled. The Solicitor 

entered an appearance on behalf of the Mine Safety and 

Health Administration. Pursuant to permission given in a 

prior telephone conversation, operator's counsel did not 

appear. 

The Solicitor explained that the citations were improperly cited under 30 C.F.R. 1605(d). On this basis, the 

Solicitor moved to withdraw the penalty petitions. The 

Solicitor's motion being well taken, it was granted from the 

bench. 

Accordingly, these cases are Dismissed. 

Law Judge 

Distribution: 

John c. Nangle, Esq., Associate Regional Solicitor, U.S. 

Department of Labor, 11071 Federal Building, 450 Golden Gate 

Avenue, Box 36017, San Francisco, CA 94102 (Certified 

Mail) 

Michael O. McKown, Esq., P.O. Box 373, St. Louis, MO 63166 

(Certified Mail) 

/nw 1489 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROGER LEE 

CHESTNUT 

JAMES H. 

CHESTNUT 

MELVIN E. 

CHESTNUT 

RALPH R. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 5 1984 

WELCH : DISCRIMINATION PROCEEDINGS 

Complainant 

·: Docket No: WEVA 84-5-D 

v. 

MORG CD 83-22 

RIDGE COAL COMPANY, 

Respondent 

HARVEY, Docket No: WEVA 84-6-D 

Complainant 

MORG CD 83-22 

v. 

RIDGE COAL COMPANY, . . Respondent . . 

DUNITHAN, Docket No: WEVA 84-7-D 

Complainant 

MORG CD 83-22 

v. 

RIDGE COAL COMPANY, . . 

LUCAS 

Complainant 

Docket No: WEVA 84-8-D 

MORG CD 83-22 

v. 

·Potomac Manor No. 1 Mine 

CHESTNUT RIDGE COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Mark D. Moreland, Esq., Romney, West Virginia, 

for Complainants 

Thomas R. Lanager, Esq., Elk Ga;rden, West Virginia, 

for Respondent 

Judge Moore 

The above case came on for hearing in Cumberland, Maryland, 

on May 15, 1984. Complainants' counsel Mr. Mark D. Moreland 

called as his first witness Mr. Thomas Lanager who is the 

president and majority stockholder of defendent Chestnut Ridge 

Coal Company. Mr. Lanager testified for approximately 2-3/4 

hours, and while he freely admitted that he had, on occasion, 

1490 
committed· violations of certain regulations, Mr. Moreland 

was unable to impeach him or shake his story to the effect 

that the only reason that the four complainants had been 

laid off was economics. They had all indicated that they 

could not work for less then $12 an hour and he could not 

afford to pay that much for the type of work they did. He 

had put a substantial amount of his own money into the company 

to try to keep it from going under. He could not convince 

the men that the company was losing money and could not 

afford to pay· $12 an hour when there were others willing to 

do the same work for eight dollars an hour. 

After calling five more witnesses, none of them being a 

complainant, Mr. Moreland announced that after listening to 

the approximate five hours of testimony and consultations 

with his clients, it was apparent to him that there had been 

a failure in communication between the parties as well as 

misunderstandings, and that he no longer wished to prosecute 

the cases. On the basis of the testimony I had heard, I 

approved his action and announced that the four cases would 

be dismissed. 

I have withheld issuing this decision pending receipt 

of the transcript. Inasmuch as the transcript has been 

received, I hereby RATIFY the decision made at the hearings, 

and these cases are accordingly DISMISSED. 

Distribution: 

·2~ e.?/J~1~· Charles c. Moore, Jr. 

Administrative Law Judge 

Mark D. Moreland, Esq., 52 Rosemary Lane, Romney, West 

Virginia 26757 (Certified Mail) 

Mr. Thomas R. Lanager, Chestnut Ridge Coal Company, R.D. 1, 

Box 277, Elk Garden, West Virginia 26717 (Certified Mail) 

/db 

1491 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 _JUN 6 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

SHAMROCK COAL COMPANY, INC., 

Respondent 

Docket No. KENT 83-131 

A. C. No. 15-11065-03502 

No. 10 Mine 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

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

for Petitioner; 

Neville Smith, Esq., Smith & Emmons, Manchester, 

Kentucky, for Respondent. 

Before: Judge Steffey 

A hearing in the above-entitled proceeding was held on 

May 1, 1984, in Barbourville, Kentucky, pursuant to section 

105(d), 30 u.s.c. § 815(d), of the Federal Mine Safety and Health 

Act of 1977. At the conclusion of presentation of evidence, 

counsel for the parties made summations and I rendered a bench 

decision, the substance of which is set forth below. 

The proposal for assessment of civil penalty filed in Docket No. KENT 83-131 seeks to have a penalty assessed for an alleged violation of 30 C.F.R. § 48.5(d). The issues in a civil 

penalty case are whether a violation occurred and, if so, what 

civil penalty should be assessed, based on the six criteria set 

forth in section llO(i) of the Act. The witnesses' testimony 

and the exhibits in this proceeding support the following find- . ings of fact: 

1. Inspector Joe K. Burke went to the No. 10 Mine of 

Shamrock Coal Company on March 17, 1982. He arrived at the 

mine about 6:00 a.m. The miners went underground shortly after 

the inspector arrived, but the mantrip was so· crowded that the 

inspector could not go underground at that time. It was about 

8:05 a.m. before the inspector obtained a means of transportation into the underground mine. 

2. The inspector proceeded to the 001 Section where mining 

was in progress. He noticed that a miner who was installing a 

safety jack was wearing a new hat, a new belt, and new rubber 

1492 
boots, and the inspector concluded that he was a new miner. He 

talked to the miner who confirmed the inspector's conclusion 

that he was working his first day in the No. 10 Mine or any other 

coal mine. The miner's name was Darrell Brock and he explained 

to the inspector that he had received 48 hours of new-miner training at the Hazard, Kentucky, Vocational School, but he stated 

that he had not been given any training at the No. 10 Mine that 

day. Specifically, he had not been given any training in roof 

control, or training as to entering and leaving the mine or in 

the mine escapeway system. 

3. Shortly after the inspector had asked the last of the 

above-described questions about Brock's training, the electrical 

power for the entire section suddenly went off so that all miners 

had to be withdrawn. As a result of the power failure, the inspector came out of the mine about noon. On the surface, he 

talked to the mine foreman, Stanley Couch, who verified Brock's 

statements to the effect that no specific training had been given 

to Brock before he went underground. 

4. On the basis of the information summarized above, Inspector Burke issued Citation No. 1112116 which alleged a violation of section 48.S(d) of the regulations. The "condition or 

practice" set forth in the citation reads as follows: 

A newly hired inexperienced miner has commenced 

work at this mine on the 001 Section of the mine and 

the miner (Darrell Brock) is assigned duties as a 

roof bolt machine helper and the miner commenced 

work on this day. The miner has not been trained in 

the provisions of Part 48.6(b) and Part 48.7. 

Section 48.S(d}, the section alleged to have been violated, provides as follows: 

Upon proof by an operator that a newly employed 

miner has received the courses and hours of instruction set forth in paragraphs (a) and (b) of this section within 12 months preceding initial employment 

at a mine, such miner need not repeat the training, 

but the operator shall give and the miner shall receive and complete the instruction.and program of 

training set forth in paragraph (b) of § 48.6 (Training of newly employed experienced miners), and § 48.7 

(New task training of miners), if applicable, before 

commencing work. 

5. Exhibits 2 and 3 show that Brock received 48 hours of 

training at the Hazard Vocational School in compliance with the 

State of Kentucky's requirements under which a person is given 

48 hours of training, instead of the 40 hours of training 

1493 
required by section 115(a) of the Act and by 30 C.F.R. § 48.5(a). 

Exhibit 3 is a certification indicating that Brock on March 18, 

1982, the day after the citation was issued, was given training 

in such subjects as "Introduction to Work Environment, Hazard 

Recognition, H & S Aspects of Tasks Assigned, Statutory Rights 

of Miners, Self-Rescue & Respiratory Devices, Transport & Communication Systems, Roof/Ground Control & Ventilation, Electrical 

Hazards, First Aid, Mine Gases, and Prevention of Accidents." 

That certificatio.n is signed by Ikie Whitaker who is an MSHAapproved instructor at Shamrock Coal Company's mines. 

6. Gordon Couch was a witness for Shamrock Coal Company. 

He is the safety director at Shamrock's mines and he testified 

that, as far as he was concerned, Darrell Brock, the new miner, 

was given the instruction or training required by section 48.5 

(d). He explained that he believes the regulations are ambiguous in directing the sequence in which training must be given 

before work tasks are assigned. He said that it was not only 

the practice in March 1982, but is still the practice at the 

Shamrock No. 10 Mine, for a new miner to be trained on the job, 

so to speak, by the various people who are in charge of a given 

area of responsibility. For example, as to Exhibit 3 described 

above, Couch stated that the first aspect of the training given 

to Darrell Brock, that is, "Introduction to Work ·Environment", 

would have been done by the section foreman as they went underground, because the section foreman at that time would have 

tried to assure that the experienced miners did not frighten 

the new miner with erroneous allegations made in jest and the 

section foreman would have given correct information concerning 

the hazards which Brock would encounter underground. 

7. Gordon Couch explained further that the health and 

safety aspects of the task assigned to Brock would have been 

explained by the sect~on foreman on the section. Couch said 

that training with respect to the specific task to which Brock 

was to be assigned, that is, the position of helper to the roofbolting machine operator, would have been given by the roofbolting machine operator himself. Couch additionally stated 

that a category of training, such as "Electrical Hazards", would 

have been given by the mine electrician. Couch also testified 

that such subjects as "Statutory Rights of Miners, First Aid, 

Mine Gases, and Prevention of Accidents", would have been 

covered in Brock's training by the Hazard Vocational School, 

and that all Whitaker would have had to do before certifying 

that Brock had been trained in those subjects would have been 

to have asked Brock if he had been trained in those matters. 

If Brock had answered Whitaker's questions in the affirmative, 

those answers would have enabled Whitaker to certify on Exhibit 

3 (or MSHA Form 5000-23) that Brock had received training in 

those areas. 

1494 
I believe that the findings set forth above are the essential facts which the parties have presented. By way of argument, 

counsel for the Secretary of Labor stated that he believed that 

Shamrock was conducting its training of new miners in an entirely erroneous fashion because section 48.6(a) speci~ically refers 

to the fact that the program of instruction prescribed by that 

section has to be given before a new miner 1/ has been assigned 

to specific work duties. The Secretary's counsel believed that 

the regulations are so clear in specifying how training will be 

given that Shamrock operated in a flagrant manner in claiming 

that new-miner training can be given at random by assorted 

supervisors and other persons trained in a given position because that procedure fails to assure that the types of training 

described in the regulations and in Shamrock's training program 

(Exh. 4) are provided. 

Counsel for Shamrock Coal Company responded to the Secretary's arguments by contending that there is no specific sequence 

set out in the regulations as to the order of training versus the 

assignment of working tasks. Shamrock's counsel stressed the 

provisions of section 48.7(e) which states that "All training 

and supervised practice and operation required by this section 

shall be given by a qualified trainer, or a supervisor experienced in the assigned tasks, or other person experienced in the 

assigned tasks." 

The Secretary's counsel answered Shamrock's argument by emphasizing that while section 48.7(e) permits a non-MSHA-approved 

instructor to give training in the performance of a newly assigned 

task, section 48.6(a), which is also part of the program of instruction to be given to newly employed miners, clearly provides 

that "A newly employed experienced miner shall receive and complete training in the program of ins~ruction prescribed in this 

section before such miner is assigned to work duties." 

It seems to me that the Secretary's counsel presented a logical argument which is supported by the evidence and by the 

provisions of the regulations. The section which is alleged to 

1/ Section 48.2(b) defines Brock as an "experienced miner" because he had received 48 hours of MSHA-approved training from 

the Hazard Vocational School within 12 months prior to the time 

he was hired by Shamrock, but Brock was also a "newly employed 

experienced miner" within the meaning of section 48.6 and was 

therefore required to be given "the program of instruction" described in that section. Consequently, my reference to Brock as 

a "new miner" is a simplified term which at all times should 

technically be considered the equivalent of saying that Brock 

was a "newly employed experienced miner" (Tr. 102-103). 

1495 
have been violated is section 48.S(d) which has been quoted in 

Finding No. 4 ·above. If one examines section 48.S(d) 's reference to section 48.6, he finds that subparagraph (a) of that 

section states that the program of instruction prescribed for a 

new miner is to be completed before such miner is assigned to 

work duties. Thereafter, subparagraph (b) lists the instruction 

which is required to be given. 

I can sympathize with the safety director's problems in 

reading regulations. I am required to read them frequently in 

order to interpret them and I run into ambiguities myself, but I 

think that it is clear from subparagraph (a) that the types of 

training described in section 48.6 must be given before the miner 

is assigned to work duties. It is true, as the safety director 

pointed out, that an operator could have a section foreman explain to a new miner the "work environment", referred to in section 

48.6(b) (1), while they were going into the mine, and that could 

be done before a person has been assigned to work on a roof-bolting 

machine or elsewhere in the mine. 

The second provision to be considered is subparagraph 48.6 

(b) (2) which states that "The course shall include the mandatory 

health and safety standards pertinent to the tasks to be assigned." 

It is true, as the safety director claimed, that a supervisor 

could explain to a new miner underground, before he starts doing 

assigned tasks, what health and safety standards are associated 

with such tasks. 

Subparagraph 48.6(b) (3) refers to "Authority and responsibility of supervisors and miners' representatives," and that subsection states that 11 The course shall include a review and description of the line of authority of supervisors and miners' 

representatives and the responsibilities of such supervisors and 

miners' representatives; and an introduction to the operator's 

rules and the procedures for reporting hazards." It is conceivable that a section foreman would have time to do all of the 

instructing mentioned in the subparagraph I have just quoted, 

but it is extremely unlikely that such a course would be given 

on a working section. The section foreman can hardly stop and 

explain to a new miner all the rights of miners and miners' 

representatives, and explain the operator's rules for reporting 

hazards because he has a whole section to run, and I do not believe that those things would be explained underground before a 

new miner is assigned to work duties. 

The next part of the training program is described in subparagraph 48.6(b) (4) which has the caption "Entering and leaving 

the mine; transportation; communications" and that subsection 

states that: 

1496 
The course shall include instruction in the procedures 

in effect for entering and leaving the mine; the checkin and check-out system in effect at the mine; and the 

procedures for riding on and in mine conveyances; the 

controls in effect for the transportation of miners 

and materials; and the use of the mine communication 

systems, warning signals, and directional signs. 

Section 48.6(a) requires that all the instruction described above 

is to be given before any tasks have been assigned. I doubt that 

such instructions would be given underground on the working section before new miners are assigned to work duties. 

Subparagraph 48.6{b) (5) provides that: 

The course shall include a review of the mine map; 

the escapeway system; the escape, firefighting, and 

emergency evacuation plans in effect at the mine; 

the location of abandoned areas; and where applicable, methods of barricading and the locations of 

barricading materials. The program of instruction 

for escapeways and emergency evacuation plans approved by the District Manager shall be used for 

this course. 

All of the above-described instruction is required to be given 

before work duties are assigned. Again, it is conceivable that 

such detailed instructions could be given by a section foreman 

underground before work duties are assigned, but there is no evidence in this proceeding to show that the section foreman in 

Shamrock's No. 10 Mine provided the detailed instructions prescribed by subsection 48.6{b) (5). 

Subparagraph 48.6(b) (6) provides that: 

The course shall include an introduction to and instruction on the roof or ground control plan in 

effect at the mine and procedures for roof and rib 

or ground control; and an introduction to and instruction on the ventilation plan in effect at the 

mine and the procedures for maintaining and controlling ventilation. 

While the roof-bolting machine operator or section foreman could 

undoubtedly explain the roof-control plan before assigning a new 

miner his work duties, I doubt that the section foreman would 

also explain the ventilation plantbefore assigning work duties. 

Finally, subparagraph 48.6{b) (7) provides for "Hazard recognition" and states that "The course shall include the recognition 

and avoidance of hazards present in the mine, particularly any 

1497 
hazards related to explosives where explosives are used or stored 

at the mine." A new miner could be trained in hazard recognition 

underground. Since the No. 10 Mine uses a continuous-mining 

machine, there probably are no explosives stored underground. 

Nevertheless, the foregoing review of section 48.6 in detail 

causes me to conclude that the courses prescribed by that section 

should be given before a new miner is taken underground and it is 

certain that section 48.6(a) requires that the course has to be 

provided before any work duties are assigned to a new miner. 

It should be noted that certain aspects of the evidence cast 

considerable doubt on the question of whether Shamrock's section 

foremen and other personnel were providing new miners with the 

kind of instruction required by section 48.6 before work duties 

are assigned. The new miner, Brock, and the other miners had 

gone into the mine to work about 7:00 a.m. so that they had been 

underground for about 3 hours and 45 minutes before the inspector observed Brock setting a safety jack. At that time the roofbolting machine operator was drilling a hole in the roof. He was 

not just standing there instructing the new miner in the technique 

of installing safety jacks. There was every indication that the 

inspector was observing a working section and that Darrell Brock 

was routinely performing .the duties of a helper to the operator 

of the roof-bolting machine. The mine was otherwise engaged in 

mining coal and the only reason that Brock went out of the mine 

at that time, so far as the record shows, is that the electricity 

went off and all miners had to be withdrawn until power was restored. Consequently, the questions which the inspector might 

have asked the roof-bolting machine operator about Brock's newminer training were never asked. 

Other aspects of the evidence which cause me to doubt that 

Shamrock was properly performing new-miner training is that the 

mine foreman, when asked whether Brock had been given the required training, said that he had not. If the mine foreman knew 

that the variegated training discussed above was supposed to be 

provided by the section foreman, the roof-bolting machine operator, the chief electrician, etc., as explained by Gordon Couch, 

surely the mine foreman would have explained those procedures to 

the inspector, but he failed to do so. 

The evidence, considered in its entirety, causes me to conclude that if Shamrock did intend to train Darrell Brock in all 

of the subjects which are required by section 48.6, that the 

company is failing to give the training in the manner required 

by that section, that is, before work duties are assigned. Additionally, I believe that Shamrock's safety director had failed 

to instruct his supervisors in the kind of training which they 

are required to give new miners. The legislative history in 

Senate Report No. 181, 95th Congress, 1st Session, at page 49, 

refers to the lack of training provided for the miners who were 

1498 
working in the Scotia mine at the time it exploded. It was the 

fact that miners were not being thoroughly trained that caused 

Congress to insert section 115 into the Act. While it is certain that Darrell Brock had received a lot more training than 

the Scotia miners had, I fear that the use of underground personnel to provide training, as described by Shamrock's safety 

director in this proceeding, amounts to a failure to carry out 

the intent of Congress and the requirements expres~ed in section 

48.5(d}. Therefore, I find that a violation of section 48.5(d} 

occurred. 

Section llO(i} of the Act requires consideration of six 

criteria in assessing civil penalties. There was introduced as 

Exhibit 6, for the purpose of explaining the criterion of the 

size of the operator's business, one of the proposed assessment 

sheets submitted in Docket No. KENT 83-131, and that shows that 

the No. 10 Mine produces approximately 500,000 tons of coal per 

year. Exhibit 6 also shows the controlling company's production 

to be over 13,000,000 tons annually. Counsel for Shamrock 

stated that the aforesaid figure may or may not be the production of Sun Oil Company and further stated that he believes 

Shamrock's annual production from all of its mines was in the 

neighborhood of 2,500,000 tons per year. Those production 

figures support a finding that Shamrock is a large operator, 

and to the extent that the penalty is determined under the criterion of the size of the operator's business, it should be in 

an upper range of magnitude. 

The second criterion is whether the payment of penalties 

would cause the operator to discontinue in business. No specific 

information was submitted in connection with the operator's financial condition. The Commission held in Sellersburg Stone Co., 

5 FMSHRC 287 (1983), that if an operator fails to produce facts 

about its financial condition, the judge may presume that payment 

of penalties would not cause the operator to discontinue in 

business. 

The third criterion is the history of the operator's previous violations. There was introduced as Exhibit 5 a sheet from 

the proposed assessment and that shows that Shamrock had 68 previous violations over an applicable 24-month period during 132 

inspection days. If those figures are used in accordance with 

the provisions of MSHA's assessment formula set forth in 30 C.F.R. 

§ 100.3, the result would be to assign four penalty points under 

the assessment formula which would indicate a moderate history 

of previous violations. Therefore, no portion of the penalty 

will be assigned under the criterion of history of previous violations because of the operator's relatively favorable history. 

There was a stipulation by the parties that the operator 

demonstrated a good-faith effort to achieve rapid compliance 

after the citation was issued. It has been my practice to 

1499 
increase a penalty only if there is a showing of a lack of effort 

to achieve compliance, and to decrease a penalty only if there is 

evidence indicating some outstanding effort to achieve compliance. 

In this case, the compliance was normal. Therefore, the penalty 

should neither be increased nor decreased under that criterion. · 

The remaining two criteria are gravity and negligence. They 

are the criteria which normally cause a penalty to be high if 

either criterion is shown to exist in any serious degree. Counsel for the Secretary emphasized that Shamrock had no basis for 

proceeding as it did and asserted that there was a rather high 

degree of negligence involved, but when I discussed above the 

provisions in section 48.G(b) prescribing the training that is 

required before a new task is assigned, I found that it would 

have been within the realm of possibility for an operator to give 

the required new-miner instruction underground, but the preponderance of the evidence in this proceeding did not show that the 

training had been given. 

In such circumstances, the evidence does not support a finding of gross negligence. Shamrock contested the citation here 

involved because it believed that its method of training new 

miners was in compliance with the regulations. Therefore, I cannot conclude that it did anything other than stand by the procedure which its safety director believed was a proper way to provide training to new miners. Nevertheless, at least a low degree 

of negligence was associated with the violation because the evidence indicates that the safety director had not properly instructed the mine foreman and other personnel in the training 

methods which he expected them to follow ih connection with new 

miners. 

The criterion of gravity remains to be considered. I believe that the violation was serious because Darrell Brock was 

not aware of having received any training during his first day 

of employment, based on the inspector's testimony. Of course, 

as counsel for Shamrock pointed out, only the inspector's version 

of his conversation with Brock was introduced at the hearing because Brock did not appear as a witness. It is possible that 

Brock, in retrospect, might say that the section foreman did explain various safety matters to him underground, but the available evidence shows that Brock was not aware of having received 

any specific training when questioned by the inspector. There 

were strong indications that Brock had worked as a helper for 

the roof-bolting machine operator for quite a while before being 

brought out of the mine after the mine's electrical power was 

unexpectedly cut off. When the inspector first saw Brock, he 

was setting a safety jack and appeared to be working as part of 

a full production crew with no particular emphasis being given to 

the training of a new miner. The possibility that Brock could 

have been injured because of a lack of the kind of training which 

the regulations require causes me to conclude that the violation 

was serious. 

1500 
The discussion of the six criteria above shows that Shamrock 

operates a large business, that payment of penalties will not 

cause Shamrock to discontinue in business, that Shamrock demonstrated a good-faith effort to achieve compliance after the citation was written, that Shamrock has a favorable history of previous violations, that the violation was serious, and that the violation was associated with a low degree of negligence. In such 

circumstances, a civil penalty of $500 is warranted. 

WHEREFORE,· it is ordered: 

Shamrock Coal Company, within 30 days from the date of this 

decision, shall pay a civil penalty of $500.00 for the violation 

of section 48.5(d) alleged in Citation No. 1112116 dated March 17, 

1982. 

Distribution: 

Richard 

~~.sJ~ C. Steffey 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department 

of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Neville Smith, Esq., Smith & Emmons, 110 Lawyer Street, Manchester, 

KY 40962 (Certified Mail) 

1501 
FEDERAL ~INE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 6 1984 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, 

INC., 

Respondent 

LOCAL 2300, UNITED MINE 

WORKERS OF AMERICA, 

Intervenor 

. . 

. . 

: 

. . 

. . 

. . 

. . 

. . 

: 

. . 

Docket No. PENN 83-103 

A.C. No. 36-050)8-03512 

Docket No. PENN 83-142 

A.C. No • 36-05018-03516 

Docket No. PENN 83-199 

A.C. No. 36-05018-03522 

Cumberland Mine 

DECISION 

Appearances: 

Before: 

Matthew J. Rieder, Esq., and William M. 

Connor, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., United States Steel 

Corporation, Pittsburgh, Pennsylvania, for 

R_espondent. 

Judge Melick 

These cases are before me upon the petitions for civil 

penalty filed by the Secretary, pursuant to section lOSCd> 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq., the "Act," for violations qf regulatory standards. The general issues before me are whether U.S. Steel 

Mining Company, Inc. (U.S.' Steel) has violated the regulations as alleged, and, if so, whether those violations are 

of such a nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or 

health hazard i.e. whether the violations are "significant 

and substantial." If violations are found, it will also be 

necessary to determine the appropriate penalty to be 

assessed in accordance with section llO(i) of the Act. 

1502 
Citation No. 2013059 alleges a violation of the standard at 30 C.F.R. § 75.316 and reads as follows: 

The approved ventilation and methane and 

dust control plan was not being complied with. 

Water sprays were inoperative on the section 

feeder on 13 Butt section (007) located in No. 3 

entry approximately 20 feet outby survey spad 

6193. The water sprays were inoperative due to 

a missing water hose. The feeder was in operation at the time of finding. 

The relevant provisions of the operator's methane and 

dust control plan are as follows: "Sprays are provided at 

shuttle car discharge points, belt conveyor transfer points, 

and underground dumps to allay dust." 

Respondent does not dispute that a violation occurred 

as charged, but argues that the violation was not "significant and substantial." In order to establish that a violation of a mandatory safety standard is "significant and 

substantial," the Secretary must prove: Cl> the underlying 

violation of a mandatory safety standard; (2) a discrete 

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

contributed to by ~he 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. Secretary v. Mathies 

Coal Company, 6 FMSHRC 1 (1984). 

The essential facts surrounding the violation are not 

disputed. According to Inspector Thomas A. Woods of the 

Federal Mine Safety and Health Administration CMSHA), the 

cited water sprays were not operating because the hose 

providing water to the feeder had not been extended and 

connected after the feeder had been advanced on December 2, 

1982. Since the condition was cited on December 7, 1983, it 

is apparent that the condition had existed for 5 days and 

six production shifts. In addition, according to Inspector 

Woods, visibility was so impaired by the coal dust in the 

section that he had to feel his way along the ribs to guide 

himself. Under the circumstances, supervisory personnel 

could easily have discovered hnd corrected the deficiency 

and were negligent in failing to do so. 

According to Woods, the excessive dust at the 

feeder/crusher was caused by the· absence of the water sprays. 

When combined with potential ignition sources from power 

1503 
cables, shuttle cars and the continuous miner, the excessive 

dust created a reasonable likelihood of fire or explosion. 

The hazard was aggravated by the fact that the Cumberland 

Mine is a "gassy mine," liberating more than 6,000,000 cubic 

feet of methane in a 24-hour period. The decreased visibility created by the excessive dust also made it reasonably 

likely that the shuttle car operator would strike pedestrian 

miners causing serious injuries or death. 

The operator maintains that the violation was not "significant and substantial" because at the time the citation 

was issued, the belt had not operated for at least 8 hours. 

According to the operator, when the belt does not run for 

such a period of time, the bottom of the belt dries out. 

There is accordingly a dusty period when the shift begins 

because the sprays have no effect upon dust on the bottom of 

the belt. It further argues that 36 gallons of water per 

minute are sprayed on the coal as it is mined, so the coal 

is already wet when it is dumped at the cited feeder/crusher. 

This theoretical contention is based upon the testimony of 

Robert Bohach, a U.S. Steel safety engineer who was not 

present at the time the violation occurred. Based upon the 

actual observations of Inspector Woods, the excessive dust 

was primarily caused by the absence of water spraying over 

the coal as it was being crushed. I give the greater weight 

to the first-hand testimony of Inspector ~oods. 

Under all the circumstances, I find that the violation 

was "significant and substantial" and constituted a serious 

hazard. The condition was abated in a timely and good faith 

manner. 

Citation No. 2013060 also charges a violation of the 

operator's ventilation and methane and dust control plan 

under the standard at 30 C.F.R. § 75.316. The relevant 

provisions of the operator's plan read as follows:- " [ f] low 

of air in belt may be in the direction of belt flow or 

against depending on individual section requirements or 

limitations. If air travels against flow of coal, air will 

be dumped to return it last crosscut feeder." Citation 

No. 2014246 and Citation No. 2011680 also charge violations 

of the operator's ventilation plan for using air coursed 

through belt haulage entries to ventilate active working 

places. Violations are additionally charged in these citations under the provisions of 30 C.F.R. § 75.326. 

The violations alleged and the facts supporting the 

preceding three citations are not disputed. The operator 

1504 
argues that the violations were not "significant and substantial." Inspector Woods, Moats and Sokoloff all testified 

that belt air ventilating the working section would likely 

result in smoke from hot rollers on the beltline moving 

toward the miners working at the face, thereby resulting in 

serious smoke inhalation hazards to those miners •. The operator's witness, Safety Engineer Bohach, acknowledged that 

the most likely place fqr a fire in a mine would be the beltIine. In addition, Inspector Moats cited experiences in a 

nearby mine where smoke was caused by a hot roller and a 

beltline burned through after jamming. 

According to Mark Skiles, a U.S. Steel safety inspector, there was no hazard in allowing be.lt air to move over 

the face area because belt fires are ordinarily "smokers" 

and belt fires are therefore easily detectable. Thus according to this view, the miners would be expect~d to discover 

the fire hazard before being seriously endangered. The contention is, however, dangerously speculative and without 

empirical support. 

The operator contends in its posthearing brief that the 

beltlines are subject to preshift examinations, that the 

belts are fire resistant, that heat sensors are located 

along the beltline and that Cumberland Mine has never had a 

belt fire. Assuming that these contentions are accurate, 

they do indeed serve to mitigate the degree of hazard. They 

are not, however, sufficient in my opinion to reduce the 

"significant and substantial" nature of the violation. 

U.S. Steel further argues that belt air is permitted by 

MSHA to ventilate the faces of so-called "pre-1970" mines, 

such as the Gateway Mine, a mine with a history of belt 

fires, whereas it is deemed by MSHA to be a "significant and· 

substantial" violation at the Cumberland Mine, a mine.with 

no history of belt fires. MSHA suggests in response that 

the "pre-1970" mines that are permitted to ventilate the 

faces with belt air may be required to take other steps to 

avoid the hazard of belt smoke at the faces though MSHA 

fails to reveal what those steps might be. Since I am not 

in any event evaluating whether there has been a "significant and substantial" violation in a "pre-1970" mine and 

since insufficient evidence has been presented to permit any 

valid comparisons, I find the operator's argument to be 

unpersuasive. 

Under ·the circumstances of this case, I am convinced 

that the violations are "significant and substantial" and a 

serious hazard. I also find that the operator was negligent 

1505 ~. 
in failing to detect the incorrect air 

shift examinations. Indeed it appears 

intentionally permitted the violation. 

abated in a timely good faith manner. 

movement during prethat the operator 

The conditions were 

In determining the amount of penalties in these cases, 

I am also considering that the operator is large in size and 

has a fairly substantial history of violations. 

ORDER 

The U.S. Steel Mining Company, Inc., is hereby ordered 

to pay the following civil penalties within 30 days of the 

date of this decision: 

Citation No. 2013059 

Citation No. 2013060 

Citation No. 2014246 

Citation No. 2011680 

Distribution: 

Total 

< 

$ 250 

250 

250 

250 

$1,000 

Judge 

Matthew J. Rieder, Esq., and Wil]' m M. Connor, Esq., Office 

of the Solicitor, U.S. Department of Labor, Room 144~0 

Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail)' 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant 

Street, Pittsburgh, PA 15230 (Certified Mail) 

Arthur E. Guty, Sr., Representative of Miners, Local 2300, 

United Mine Workers of America, 341 Derrick Avenue, 

Uniontown, PA 15401 (Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 2~ 

June 8, 1984 

JUN 8 1984 

SECRETARY OF LABOR, CIVIL PENALTY ~ROCEEDING 

Docket No. YORK 84-8 

A.C. No. 18-00655-03516 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

METTIKI COAL CORPORATION, 

Respondent 

C-Mine 

DECISION 

Appearances: Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for Petitioner; 

Before: 

Thomas C. Means, Esq., Crowell and Moring, 

Washington, D.C., for Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil 

penalty filed on March 5, 1984, by the Government against 

Mettiki Coal Corporation. The operator filed an answer 

denying the alleged violation and requesting a hearing. By 

amended notice of hearing issued May 3, 1984, this case was 

set for hearing on May 17, 1984. The hearing was held as 

scheduled. , 

Section 75.329 provides as follows: 

On or before December 30, 1970, all areas 

from which pillars have been wholly or partially 

extracted and abandoned areas, as determined by 

the Secretary or his authorized representative, 

shall be ventilated by bleeder entries or by 

bleeder systems or equivalent means, or be 

sealed, as determined by the Secretary or his 

authorized representative. When ventilation 

of such areas is required, such ventilation 

shall be maintained so as continuously to dilute, 

render harmless, and carry away methane and other 

explosive gases within such areas and to protect 

the active workings of the mine from the hazards 

of such methane and other explosive gases. Air 

coursed through underground areas from which 

pillars have been wholly or partially extracted 
which enters another split of air shall not contain more than 2.0 volume per centum of methane, 

when tested at the point it ente;rs such other 

split. When sealing is required, such seals 

shall be made in an approved manner so ~s to 

isolate with explosion-proof bulkheads such 

areas from the active workings of the mine. 

Citation No. 2117299 describes the condition or practice as follows: 

In the exploratory butt entries mined to 

the left of the right sub mains three rooms 

was mined [sic] to the left off the exploratory butt for a distance of 7 connecting 

crosscuts which is a distance· of 560 feet 

and the coal in the blocks between the Nos. 

1 and 2 rooms were partially extracted 

without establishing a bleeder system or 

other equivalent means to ventilate the 

pillared area. 

The coal in the blocks between the Nos. 2 

and 3 rooms were not extracted [sic) and a 

row of permanent stoppings had been erected 

between these rooms up to the No. 5 connecting crosscut f6r the purpose of f o~cing the 

air over the pillared area up to the No. 7 

crosscut and returning back, but due to a 

massive cave-in in the Nos. l and 2 ;rooms, 

the concussion of the falls blew the permanent stoppings out in the Nos. 3, 4, ~nd 5 

crosscuts, and at the No. 7 cros$CUt which is 

the last open between the Nos. 2 and 3 rooms 

there was .4% methane gas detected when examined 

with a permissible M-402 hand held methane detector, also a bottle sample was collected for a 

laboratory analysis, and ai,r measurement was 

made in this area with a chemical smoke cloud 

and only 2,000 cubic feet of air per minute 

could be obtained. 

There is no dispute between the parties wi.th .respect to 

the facts. It was explained at the hea,ring that the air 

coursing through the One Butt right sub mains was not directed through the bleeder entries so as to carry away 

methane from gobbed out areas. This misdi,rection of air 

happened because metal stoppings in the affected area had 

been blown out by a roof fall. The operator abated by 

installing permanent concrete stoppings. 

The violation was serious because without a bleeder 

system, methane would not be carried away but would instead 

travel to the working areas. The operator was negligent, 

1508 
although there apparently was some confusion on the opera-

. tor's part as to whether a bleeder system plan had been 

approved for this area. 

The operator is large in size. Its prior history is 

average and payment of a penalty will not affect its ability 

to continue in business. 

The operator agreed to pay the original assessed penalty of $1000 which the Solicitor agreed to accept. After 

being acquainted with all the facts, I approved the recommended settlement from the bench. 

The operator is Ordered to pay $1000 within 30 days 

from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson ~oulevard, .N:;:lington, VA 

22203 (Certified Mail) 

Thomas C. Means, Esq., Crowell and Moring, 1100 Connecticut 

Avenue, N.W., Washington, DC 20036 lCe;rti;fied M.ai.ll 

/nw 

1509 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 8, 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, INC. , 

Respondent 

DECISION 

Docket No. PENN 83-143 

A.C. No. 36-05018-03518 

Docket No. PENN 83-154 

A.C. No. 36-05018-03520 

Docket No. PENN 83-223 

A.C. No. 36-05018-03527 

Cumberland Mine 

Docket No. PENN 83-219 

A.C. No. 36-00970-03525 

Maple Creek No. 1 Mine 

Docket No. PENN 83-226 

A.C. No. 36-03425-03536 

Docket No. PENN 83-246 

A.C. No. 36-03425-03538 

Maple Creek No. 2 Mine 

Appearances: David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Before: 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for U.S. Steel Mining Company, Respondent. 

Judge Merlin 

These cases are petitions for the assessment of civil 

penalties filed under section llO(a) of the Act by the Secretary of Labor against U. S. Steel Mining Company, Inc. for 

alleged violations of the mandatory safety standards. 

1510 
The hearing was held as scheduled and documentary exhibits and· oral testimony were received from both parties. At 

the conclusion of the hearing, I directed the filing of 

written briefs simultaneously by both parties within- 21 days 

of receipt of the transcript. The briefs have been received 

and reviewed. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 7-8): · · 

1. U.S. Steel Mining Company, Inc. is the owner and 

operator of the Maple Creek No. 1 Mine. 

2. The operator and the mine are subj ec_t to the 

jurisdiction of the Federal Mine Safety and 

Health Act of 1977. 

3. The presiding administrative law judge has 

jurisdicEion over these proceedings. 

4. The inspectors who issued the subject citations 

were duly authorized representatives of the 

Secretary. 

5. The subject citations were properly served on 

the operator. 

6. Copies of the citations may be ad~itted into 

evidence for the purpose of establishing their 

issuance and not for the truthfulness or relevancy of the statements asserted therein. 

7. Imposition of penalties will not qffect the 

operator's ability to continue in business. 

8. The alleged violations were abated in a ti~ely 

fashion. 

9. The operator's prior history is average. 

10. The operator's size is large. 

PENN 83-219 

Citation No. 2103177 

Section 75.701-5 of the m?ndatory standards provides: 

1511 
lows: 

The attachment of grounding wires to 

a mine track or other ground power conductor will be approved if separate clamps, 

suitable for such purpose, are used and 

installed to provide a solid connection. 

The subject citation describes the condition as folThe frame ground for the metallic 

switch box supplying power to the car 

spotter and return ground to signal lights 

at loading ramp in 8 flat 56 room section 

were connected to the ground (~aii) with 

one clamp. Both were energized. 

There is no dispute that the condition described.by the 

inspector existed. Nor does it appear from the testimony 

that the operator contests that the condition constituted a 

violation. In any event, it is clear that a violation existed and I so find. 

The danger created by the violation was that the metallic switch box could become energized. The current was 550 

watts which is enough to electrocute an individual. However, for this to happen both wires would have to come out 

of the ~lamp but still remain connected together, which was 

unlik~ly. The most likely occurrence would be a break in 

the electrical circuit shueting off the equipment. Probability was therefore not high. On balance, I find the 

violation was moderately serious. 

The two wires were intentionally put together, but the 

Solicitor produced no evidence bearing on whether such acts 

properly could be.attributed to the operator under the tests 

adopted by the Commission. Southern Ohio Coal Company, 4 

FMSHRC 1459 (1982) ; Nacco Mining Company:, 3 FMSHRC 848 

(1981). The inspector observed the violation when he was 

walking by; on this basis, I find the operator was negligent. 

In light of the foregoing and on the basis of the 

stipulation relating to the other statutory criteria, a 

penalty of $70 is assessed. 

PENN 83-246 

Citation 2106427 

Section 75.701-5 of the mandatory standards provides: 

The attachment of grounding wires to a 

mine track or other grounded power conductor 

1512 
lows: 

will be approved if separate clamps, suitable 

for such purpose, are used and installed to 

provide a solid connection. 

The subject citation describes the condition as folThe electrical and the frame ground wires 

for the No. 49 water pump located in the 8 Flat 

6 Rm. Section MMV 011 were connected to the 

same.clamp where it connected to the mine track. 

This is the same type of situation 

the preceding citation. Two wires from 

improperly attached to the same clamp. 

violation existed. Given the danger of 

the violation was serious. 

as ~as present in 

the water pump were 

I conclude that a 

electrical shock, 

I also conclude the operator was negligent. The condition existed on a prior shift but the supervisor in charge 

elected to have it-fixed on the following shift. 

In light of the foregoing and on the basis of the other 

statutory criteria, a penalty of $70 is assessed. 

Citation 2106428 

. 

MSHA vacated this citation and the Solicitor's motion 

to dismiss the penalty petition with respect to it was 

granted from the bench. 

PENN 83-143 

Citation 2011673 

Section 75.326 of the mandatory standards provides: 

In any coal mine opened after March 30, 

1970, the entries used as intake and return 

air courses shall be separated from belt 

haulage entries, and each operator of such 

mine shall limit the velocity of the air 

coursed through belt haulage entries to 

the amount necessary to provide an adequate 

supply of oxygen in such entries, and to 

insure that the air therein shall contain 

less than 1.0 volume per centum of methane, 

and such air shall not be used to ventilate 

1513 
lows: 

active working places. Whenever an autho-

.rized representative of the Secretary finds, 

in the case of any coal mine opened on or 

prior to March 30, 1970, which has been 

developed with more than two entries, that 

the conditions in the entries, other than 

belt haulage entries, are such as to permit 

adequately the coursing of intake or return 

air through such entries, (a) the belt haulage entries shall not be used to ventilate, 

unless such entries are necessary to ventilate, active working places, and (b) when 

the belt haulage entries are not necessary 

to ventilate the active working p~aces, the 

operator of such mine shall limit the velocity of the air coursed through the belt haulage entries to the amount necessary to provide an adequate supply of oxygen in such 

entries, and to insure that the air therein 

shall contain less than 1.0 volume per centum 

of methane. 

--· The subject citation describes the condition as folThe belt air ventilating the belt conveyor entry of the 13 Butt West 5 face South 

(007) was being used to ventilate the active 

working places on the 13 Butt West 5 Face 

South (007) Sectibn. Approximately 12,500 

cfm of air was measured traveling up the 

Belt Entry over the Belt feeder and into the 

Section. The Section. foreman is Robert Hall, 

Supervised by Charles Zabrosky, mine foreman. 

The operator admitted the existence of a violation tTr. 

92). Belt air traveling up to the working faces created the 

danger that if there was a fire on the belt, smoke-filled 

air would travel inby to where the miners were working, 

contributing to lung problems and creating difficulties in 

escaping to fresh air. Accordingly, I conclude the v;i..olation was serious. I accept the inspector's evaluation that 

someone in authority should have known of this conditj,on. 

The operator was negligent. 

However, the record does not contain sufficient evidence to support the finding of significant and substantial. 

The inspector did not know the definition of "significant 

and substantial" under governing Commission decisions ('.r;r. 

61-62). He stated that the violation was significant and 

1514 
substantial because contaminated air corning up the belt " * 

* * would happen if it was never abated, or never corrected, 

·at some time maybe in our lifetime, that this could possibly 

happen***" (Tr. 63). It is disturbing that at this late 

date, an inspector is ignorant of the proper definition of 

the statutory terms he is supposed to enforce. The Solicitor should not call witnesses without preparation. 

A penalty of $85 is assessed. 

PENN 83-154 

Citation 2Dl4207 

Section 75.316 of the mandatory standards provides; 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to 

the conditions and the mining system of the 

coal min~ 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 rn,ine, such additional or improved equipment as the Secretary may require, 

the quantity and Nelocity of air reaching each 

working face, and such other i.nforrnation as 

the Secretary may require. Such plan shall 

be reviewed by the operator and the Secretary 

at least every 6 months. 

The subject citation describes the condition as follows: 

Only 9 sprays out of a total of 16 

water sprays (7 not working) was operating [sic] on the Jay 17 CM Set No. 2085 

which was cutting and loading coal in 

the No. 5 entry 24 to 25x cut in the 121 

Mains West Sec 001. The approved methane 

and dust control plan requires water spray 

systems to be maintained ·at 75% efficiency. 

The operator admitted that seven sprays were not working out of a iequired total of sixteen and that this constituted a violation of its methane and dust control plan (Tr. 

125, 126). This condition would increase the amount of 

1515 
respirable dust in the air and contribute to the existence 

of lung disease. Certain sprays that were not working ("C" 

on Exhibit M-5) were particularly significant in controlling 

dust at the time the violation was cited because of where 

the continuous miner was cutting coal {Tr. 138-139). Accordingly, I find the violation was serious. I accept the 

operator's evidence that the sprays had been working at the 

beginning of the shift, but I also accept the inspector's 

testimony that the fact they were not operating was obvious. 

I conclude that negligence was minimal. 

There remains for deter:mination whether the violation 

was significant and substantial. Dust samples were far 

better than required. Under such circumstances, I do not 

believe there was a reasonable likelihood that the increased 

dust created by the inoperable sprays would result in a 

reasonably serious injury or illness. I recognize that I 

have concluded the violation was serious but a violation can 

have a measure of gravity without meeting the cri~eria for 

significant and substantial. 

A penalty of $65 is assessed. 

l?ENN 83-223 

Citation 2103294 

lows: 

Section 75.1105 of the mandatory standards provides: 

Underground transformer stations, battery 

charging stations, substations, compressor stations, shops, and permanent pumps shall be housed 

in fireproof structures or a~eas. Air currents 

used to ventilate structures or areas enclosing 

electrical installations shall be coursed directly into the return. Other underground structures installed in a coal mine as the Secretary 

may prescribe shall be of fireproof construction. 

The subject citation describes the condition as folThe Section belt load center #214 located 

in the 110 crosscut in the 133 Butt West Section was not properly vented to the return in 

that the air movement over the load center was 

toward the intake fresh air. 

1516 
The inspector testified that he sprinkled rock dust in 

the air over the power center and that the dust flowed over 

the top of the power center up towards the section instead 

of going out into the return air course (Tr. 145, 146). I 

accept the inspector's testimony and based upon it conclude 

that there was a violation of the cited standard. I also 

accept the inspector's testimony that if there was·a fire, 

smoke would go up to the section where people were working 

(Tr. 147). I find the violation was serious because the 

smoke could impede escape and is dangerous to health. 

Finally, I accept the inspector's conclusion that because he 

did not know how long the violation existed, negligence was 

low (Tr. 149). 

The record does not contain sufficient evidence to 

support a finding of significant and substantial. This 

inspector also did not appear to know what the definition of 

"significant and substantial" is under Commission decisions. 

He stated that the violation was "reasonably likely" because 

"there's always a possibility [of fire] in any piece of 

electrical equipmen~" (Tr. 150). The fact that something is 

always possible does not create a reasonable likelihood~ 

Moreover, the inspector did not analyze or explain what was 

reasonably likely in the manner required by the Commission 

decisions. It is disturbing to have those charged with the 

enforcement of the Act show such confusion about elementary 

terms and fundamental concepts. The Solicitor should not 

call such witnesses and attempt to rely on their testimony 

unless he prepares them sufficiently. 

A penalty of $126 is assessed. 

Citation 2103296 

lows: 

Section 75.503 of the mandatory standards provides: 

The operator of each coal mine shall maintain 

in permissible condition all electric face equipment required by §§ 75.500, 75.501, 75.504 to be 

permissible which is taken into or used inby the 

last open crosscut of any such mine. 

The subject citation describes the condition as folThe S&S battery operated scoop was not maintained in permissiable [sic] condition and being 

operated in the 133 Butt West Section. All battery cover lids were loose and not fastened down 

properly. 

1517 
The inspector testified that the lid covers for the 

batteries of the scoop and for the battery boxes themselves 

had corresponding tongues with holes in them on the back and 

front (Tr. 177). The tongues came on the covers and boxes 

from the manufacturer. The inspector believed that the 

standard required that when the covers slid on, the operator 

should insert some sort of locking device like a bolt 

through the hole fastening the lid to the box. 

The Solicitor argued that section 75.503 which requires 

that equipment be maintained in permissible condition must 

be read in conjunction with section 75.2 and 18.44(_c). 

Section 75.2(i) provides that permissible as applied to 

electrical face equipment means all electrically operated 

equipment taken into or used by inby the last open crosscut 

of an entry or room of any coal mine the electrical parts of 

which including, but not limited to, associated electrical 

equipment, components and accessories, are designed, constructed, and installed in accordance with the specifications of the Secretary, to assure that such equipment will 

not cause a mine explosion or a mine fire. Section 18.44(~} 

of Part 18, 30 C.F.R. 18.44(c), dealing with manufacturers' 

specifications for approved electrically operated equipment, 

provides that battery-box covers shall be provided with a 

means for securing them in closed position. 

Assuming that the Solicitor's position regarding section 18.44(c) is correct, I still cannot find a violation. 

The i~spector described ho~ a 2" lip went all around the 

cover so that the cover slid down over the battery box like 

a lid on a can or jar (Tr. 194). The inspector agreed that 

because of the lip, the cover would have to jump up 2 inches 

before it would slide (Tr. 194). The cover weighs 50 _to 100 

pounds (Tr. 210-211). In addition, there were tongues on 

the back of each battery box which stuck out through holes 

in the cover when the cover was put on (Tr. 201-204). The 

inspector agreed here too, that this device would secure the 

cover if the scoop were moving forward (Tr. 206-207). 

Finally, the battery covers overlapped and interlocked in 

the center (Tr. 201). I conclude that each of the foregoing 

devices constituted a means for securing the battery box 

covers in a closed position within the meaning of section 

18.44(c). As section 18.44(c) presently stands, it is 

sufficiently general to encompass the circumstances presented here. I will not read into the mandatory standards a 

specificity which they plainly do not have. If the Secretary wants the battery boxes secured in a particular way, 

it would be a simple enough matter for him to change the 

regulations to so provide. Judge Melick reached the same 

conclusion in a case involving the same operator and the 

Solicitor did not appeal. U.S. Steel Mining Co., FMSHRC 

Docket No. PENN 82-305, Slip Op. (January 30, 1984). 

1518 
In light of the foregoing, Citation 2103296 is vacated. 

Citation 2103297 

A violation of section 75.503 is alleged here also. 

The only difference is that in this case, the inspector 

testified that the locks (or tongues) were actually broken 

off so there was no means of fastening the covers down (Tr. 

197). However, the inspector was unable to specify which 

fasteners were broken, stating that at least four lugs were 

broken (1 mor~ or less on both endsl (~r. 197) • Clearly, 

the inspector did not remember which lugs or tongues were 

missing. This evidence is too vague to support the citation 

of a violation. In any event, the missing lugs or tongues 

appear to relate only to the one device which would require 

a bolt to be put through the tongues of the battery box and 

the cover. In this case there is nothing to indicate that 

the securing devices described in Citation 2103296 were not 

present here also. 

Accordingly, Citation 2103297 is Vacated. 

Citation 2103300, Citation 2104061, Citation 2104063, 

Citation 2104064 

The parties agreed that the decision in Citation 

2103296 would govern the results in these citations. 

Accordingly, these ci€ations are vacated. 

PENN 83-226 

Citation 2104311, Citation 2105301 

In an off-the-record conference, the Solicitor advised 

that MSHA had agreed to vacate these citations and I approved a withdrawal of the penalty petition with resl?ect to 

them. 

Order 

In light of the foregoing, it is Ordered that within 30 

days from the date of this decision, the operator pay $416 

in penalties apportioned as follows: 

Citation No. 2011673 $ 85 

Citation No. 2014207 65 

Citation No. 2106427 70 

Citation No. 2103177 70 

Citation No. 2103294 126 

1519 
It is further Ordered that Citation Nos. 2103296, 

2103297, 2103300, 2104061, 2104063, 2104064, 2104311, 

2105301, and 2106428 be Vacated. 

: 

Law Judge 

Distribution: 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor, 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., United States Steel Mining Company, 

600 Grant Street, Pittsburgh, PA 15230 (Certified Mail) 

/nw 

1520 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 13 1984 

JOSEPH J. CEREMUGA, 

Complainant 

v. 

COTTER CORPORATION, ~espondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 83-114-DM 

MSHA Case No. MD 83-25 

Schwartzwalder Mine 

ORDER OF DISMISSAL 

Before: Judge Carlson 

Joseph J. Ceremuga, the pro se complainant herein, has moved 

for the dismissal of his complain~in this discrimination case on 

grounds that he does not want to leave his present job in Arizona 

to attend the hearing scheduled in Denver, Colorado for June 27, 

1984. The mine at which the complaint arose is near Denver, 

Colorado, and the mine operator has previously made clear its 

wish that the hearing be held near the mine site. The hearing 

.was previously continued from March 21, 1984 at complainant's request. 

Since it is now clear that complainant wishes to abandon his 

claim, the motion will be granted. 

Accordingly, the miner's complaint is dismissed with prejudice. 

SO ORDERED. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

Mr. Joseph J. Ceremuga, P.O. Box 23701, Tucson, Arizona 85734 

(Certified Mail) 

Barry D. Lindgren7 Esq., Cotter Corporation, P.O. Box 539, Denver, 

Colorado 80201 (Certified Mail) 

/ot 

1521 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE ..00 

DENVER, COLORADO 80204 JUM 141984 

SECRETARY OF LABOR, 

MINE SAFE'l'Y AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

MAGMA COPPER COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-17-M 

A.C. No. 02-00152-05501 

Superior Mine 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petit i"oner: 

N. Douglas Grimwood, Esq., Twitty, Sievwright & 

Mills, Phoenix, Arizona, 

for Respondent. 

Before: Judge Vail 

STATEMENT OF THE CASE 

Pursuant to provisions of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 802 et seg. (the "Act"), the petitioner 

seeks an order assessing a civil penalty against the respondent 

for an alleged violation of 30 C.F.R. § 57.19-128. 1/ 

An evidentiary hearing was held in Phoenix, Arizona, on 

March 6, 1984. Both parties filed post-hearing briefs. Based on 

the evidence presented at the hearing and considering the 

contentions of the parties, I make the following decision. To 

the extent that the contentions of the parties are not incorporated in this decision, they are rejected. 

1/ Mandatory. Ropes shall not be used for hoisting when they 

have: 

(a) More than six broken wires in any lay. 

(b) Crown wires worn to less than 65 percent of the original 

diameter. 

(c) A marked amount of corrosion or distortion. 

(d) A combination of similar factors individually less severe 

than those above but which in aggregate might create an 

unsafe condition. 

1522 
ISSUES 

The principal issues presented in t~ese proceedings are: Cl) 

whether respondent has violated the provisions of the Act and 

implementing regulations as alleged in the proposal for assessment of civil penalties filed herein; and, if so, (2) the 

appropriate civil penalty that should be assessed against the 

respondent for the alleged violations upon the criteria as set 

forth in section llOCi) of-the Act. Additional issues raised by 

the parties are. identified and disposed of in the course of this 

decision. 

In determining the amount of a civil penalty assessment, 

section llOCi) of the Act requires consideration of the following 

criteria: Cl) the operator's history of previous violations, (2) 

the appropriateness of such penalty to the size of the business 

of the operator, (3) whether the operator was negligent, (4) the 

effect on the operator's ability to continue in business, (5) the 

gravity of the violation, and (6) the demonstrated good faith of 

the operator in attempting to achieve rapid compliance after 

notification of the violation. 

STIPULATIONS 

This case was heard in conjunction with two other cases. At 

the outset of the hearing, the parties stipulated to the 

following: 

1. At all times pertinent to these proceedings, respondent 

was the owner and operator of an underground copper mine and mill 

near Superior, Arizona, known as the Superior Division, Magma 

Copper Company. 

2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the 

subject mine and mill, and I have jurisdiction over the parties. 

3. Respondent is considered a large mining company with a 

moderate history of past violations. It was stipulated by the 

parties that any penalty imposed as a result of this citation 

should neither be increased or decreased because of this history. 

4. Payment of the proposed penalty in this case would not 

affect the respondent's ability to remain in business. 

5. The citation involved in this matter was issued on the 

date indicated thereon and was abated promptly and in good faith. 

6. Whether a cited violation is properly designated as a 

significant and substantial violation is per se irrelevant to a 

1523 
determination of the appropriate penalty to be assessed. The 

penalty hereinafter assessed is based on the criteria in section 

llOCi> of the Act. 

FINDINGS OF FACT 

1. On June 10, 1982, MSHA inspector Juaguyn G. Sepulvada 

issued a 104(d)Cl> type Citation No. 383670 alleging a violation 

of 30 C.F.R. § 57.19-128(d) in which it was stated as follows: 

"The counter balance (weight) wire rope of the No. 9 shaft manhoist had within ·a distance of 100 ft 64 broken and some distorted wires in different lays. Inspector's reports revealed and 

employees stated that this condition had been reported on several 

occasions. Efforts were not made to correct the condition by 

changing of the rope until 6-8-82 before the inspection." (Exh. 

P-16). 

2. In June 1979, during a regular inspection of the 

counterweight cable, respondent's cable inspectors reported 

observing steel slivers throughout its length. Further inspection convinced Joseph L. Clark, maintenance supervisor, that 

these were not steel slivers on the wire rope, but were fibers 

from the center core working through the cable strands. Measurements of the cable diameter persuaded Clark that there was no 

great loss of fiber. CExh. R-6 and Tr. at 132, 133). 

3. A semi-annual electromagnetic test of the entire 

counterweight cable in February 1982 revealed several anomalies 

which would indicate broken wires in the following distances 

above the conveyance; 882 ft., 140 ft., 1475 ft., 1520 ft., 2380 

ft., and 2608 ft. Other variations in the test indicated the 

normal rope pattern with slight lay irregularities CExh. R-7 and 

Tr. at 138). A visual inspection of the above locations was 

performed and accord~ng to Clark, no problems were found (Tr. at 

140). 

4. Early in June 1982, Scott asked Doug Dutton, mechanical 

engineer, to inspect the counterweight cable to evaluate its 

condition. On June 3, 1982, Dutton reported the results of his 

test verbally and later, on June 14, 1982, furnished a written 

report (Tr. at 140 and Exh. R-8). 

5. On June 8, 1982, Scott requested permission from Frank 

Florez, general manager, to replace the counterweight cable on 

July 4, 1982. Florez suggested the rope change be done on June 

19, 1982. Scott informed the employees in the "shop" and the 

underground general maintenance foreman that the rope change 

would occur on June 19, 1982 (Tr. at 144). 

6. On June 9, 1982, Scott learned that a citation would be 

issued on June 10, 1982 against the counterweight cable. A 

meeting was held the following day between Sepulvada and 

1524 
respondent's employees including Joe Vindials who told Sepulvada 

that the rope was to be replaced June 19, 1982. Sepulvada's MSHA 

subdistrict manager requested that he permit the respondent to 

wait until June 19, 1982, to replace the rope. Sepulvada agreed 

to the requested extension of time for abatement of this 

violation (Tr. at 101, 102). 

7. Approximately a month after the cable was removed from 

the shaft and placed on a storage reel, respondent cut off a 12 

foot piece considered to be the "worst section" and sent it .to 

Bethlehem Wire Rope Company for testing. The test results revealed that this section of wire rope had a breaking strength of 

355,000 pounds. The catalog breaking strength for this particular type wire rope is 358,000 pounds (Tr. at 150 and Exh. R-9). 

8. In February 1983, MSHA representatives, including Roy L. 

Jameson, examined the wire rope involved in this citation at 

respondent's mine. They also removed a section of the wire rope 

for further inspection. Jameson, at that time, was a health and 

safety specialist with MSHA's Denver Technical Support Center. 

After conducting an initial examination at the mine and a later 

analysis at the laboratory facility in Denver, Colorado, Jameson 

concluded that the continued use of this wire rope had created an 

unsafe condition (Tr. at 43). This conclusion was based upon the 

number of fractured wires, loss of wire rope from wear, that it 

had been "peened" 2/, had a "popped" core, and extended lay 

length. Jameson found 12 broken wires in one lay length of the 

wire rope (Tr. at 30, Exh. P-2). He also found the core sticking 

out of the wires and exceedingly-dry (Tr. at 31 and Exh. P-3). 

9. At the hearing and £allowing a visual inspection of 

petitioner's exhibit P-2, Robert Donner, wire rope and sales 

engineer for Bethlehem Steel Wire Rope Division, counted six 

broken wires in one strand of Exhibit P-2 (Tr. at 117-118). He 

also observed some "nicks" and "peening" but was of the opinion 

that the wire rope could have been used for another three or four 

weeks. 

DISCUSSION 

Counsel for respondent argues in his post-hearing brief that 

§ 57.19-128Cd}, as applied in this case is too vague to convey 

the standard of conduct required of the mine operator. However, 

he does concede that subsections Ca}, Cb}, and Cc} of the cited 

±_I "Peening" is when the metal in the wire, due to pounding of 

metal against metal, causes an extrusion to the outer edge of the 

wire, or flattens out. 

1525 
standard does specifically state objective criteria by which an 

operator can guide his actions to avoid MSHA sanctions (Resp's 

brief at p. 15). 

If I were to have found from the facts in this case that 

there was not a violation of one or more of the first three 

subsections of 57.19-128, and the petitioner was required to rely 

on subsection (d) to support a violation, I would have to agree 

with the respondent. In FMC Corporation, Docket No. WEST 

80-477-M, FMSHRC (May 4, 1984)(ALJ) involving a 

similar question, I dismissed a citation for the reason that 

subsection (d) of 57.19-128 was too vague. However, I find that 

in the case at issue here a violation of subsection (a) of 

57.19-128 was established as the most credible evidence shows 

there were more than six broken wires in one lay of the cited 

wire rope on the counterweight. Jameson testified that he 

counted twelve. Respondent's expert witness, Robert Donner, 

testified that he could see six broken wires of the wire rope 

when he examined it visually on the witness stand (Finding Nos. 8 

and Tr. at 117-118). 

Respondent argued that some of the wires identified by 

Jameson were identified as "cracked" and should not be considered 

broken wires as required under the standard. However, Jameson 

stated that a "crack" must be considered a break within the 

meaning of the standard for the danger is there has been a loss 

of a part or percentage of strength in the wire from each crack 

(Tr. 78). Also, Donner testified that a crack in a wire of a lay 

of wire rope would constitute a broken wire if it were 

"significant". He defined "significant" as that which could be 

seen with the "naked eye" (Tr. 126-127). 

Based upon the above evidence, which is not refuted, I find 

that the violation of 57.19-128(a) occurred. In addition to the 

broken wires, there was evidence of wear to the rope, peening, 

and extended lay length as testified to by petitioner's witnesses. 

Respondent's witnesses contended that these latter factors were 

not significant. However, the historical facts refute this 

contention as these same employees had continued to closely examine and observe this wire rope for a period of time prior to 

the date the citation was issued. The evidence shows that the 

wire rope had exhibited a deteriorating condition to the extent 

that it was scheduled for removal and replacement eight days 

prior to the date the citation was issued. 

As to the above, respondent argues that it was complying 

with 57.19-128 in a manner consistent with conduct of a reasonable and prudent mine operator familiar with the practices in the 

industry (Resp's brief at p. 12). 

I find that this argument fails in light of the requirement 

of the standard's wording that states in part as follows: "Ropes 

shall not be used for hoisting when they have: Ca) More than six 

1526 
broken wires in any lay." (Emphasis added). It is clear that 

replacement of the wire rope is required when such a condition is 

found. The ~vidence in this case is not clear as to whether an 

imminent danger existed from continuing to use this particular 

wire rope. Petitioner in his brief states that it is not his 

contention that failure was imminent or immediate (Pet's brief at 

p. 4). Also, MSHA extended the abatement period for several days 

to allow the wire rope to be replaced on the date originally 

scheduled by respondent. I find the question of imminency goes 

to whether a significant and substantial violation occurred in 

this violation. Based upon the above evidence, and concession by 

the petitioner, 1 find it did not. 

PENALTY 

Petitioner suggests in his petition proposing ·a penalty that 

the amount should be $210.00. He argues that the violation was 

significant and substantial; that respondent was aware of the 

condition for several months showing a high degree of negligence. 

I disagree that the evidence shows a high degree of 

negligence. MSHA's requirement at the time of this violation 

under 30 C.F.R. § 57.19-126 required that operators examine hoist 

ropes over their entire length at least every month. The 

respondent had established a practice of having the rope crew 

inspect the full operating length once per week (Tr. at 135). As 

to the rope cited here, the evidence shows that respondent was 

watching the rope carefully and had made a determination to replace it prior to being cited. During the time leading up to 

this decision, several outside experts were called in to examine 

the rope and give their opinions as to its continued use. I do 

not find this history to reveal a high degree of negligence but 

rather slight negligence in delaying the replacement of the wire 

rope. 

As to gravity, the facts show that the counterweight 

attached to the rope cited here travels in a vertical steel tube 

which runs .from a point 60 feet above the collar of the shaft to 

a point 15 feet above the bottom. The counterweight moves at 

1500 feet per minute inside the tube. There is a 1/2 inch 

clearance between the weight and the tube with the force of air 

passing over the tapered, aerodynamically designed end keeping it 

centered in the tube. 

The 3/8 inch thick steel tube housing the counterweight is 

in a separate compartment in the shaft from that which houses the 

hoists used to lift men and materials. Should the rope break, 

the counterweight would fall to the bottom of the shaft. It is 

unlikely that it would crash or break through the tube housing it. 

Also, it is unlikely that anyone would ever be at the bottom of 

the tube. Also, the counterweight is used to reduce the energy 

requirements of lifting the load on the hoist and is attached to 

1527 
a double drum system. The 2000 horse-power motor which drives 

the hoist is capable of lifting full loads from the bottom of the 

shaft without assistance of the counterweight should it break 

away. The evidence also shows that the operator of the hoist 

would detect any loss of the counterweight should the rope fail. 

From the design of the counterweight and its compartment, I 

do not believe there is a great likelihood of an injury resulting 

from the wire rope breaking. Therefore, the gravity of this 

violation is small. 

I find from ·the above that a penalty of $100.00 is reasonable for this violation. 

CONCLUSION OF LAW 

1. The respondent is subject to the jurisdiction of the Act. 

The undersigned Judge has jurisdiction over the parties and 

subject matter of these proceedings. 

2. Respondent violated 30 C.F.R. § 57.19-128(a} of the Act 

as supported by the facts presented in this case. 

3. A reasonable p~nalty is $100.00. 

ORDER 

Citation No. 383670 is AFFIRMED and respondent is ordered to 

pay a civil penalty of $100.00 within 40 days of the date of this 

decision. "--:?'"~ 

t/A14d?~ 

Distribution: 

Virg~. Vail 

Administrative Law Judge 

Marshall P. Salzman, Esq., Office of the Solicitor, Department of 

Labor, 11071 Federal Building, Box 36017, 450 Golden Gate Avenue 

San Francisco, California 94102 (Certified Mail} 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills 

2702 N. Third Street, Suite 4007, Phoenix, Arizona 85004 

(Certified Mail} 

/blc 

1528 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE~ 

DENVER, COLORADO 80204 JUN 14 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v •. 

MEDIC!NE BOW COAL COMPANY, 

Respondent 

: 

: 

. . 

. . 

. . 

. 

. 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 81-163 

A.C. No. 48-00900-03018 

Medicine Bow Mine 

Appearances: James H. Barkley, Esq., Office ·of the Solicitor, 

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

for Petitioner: 

Brent L. Motchan, Esq., Medicine Bow Coal Company, 

St. Louis, Missouri, 

for Respondent. 

Before: Judge Carlson 

This proceeding arose out of an inspection of respondent's 

surface coal mine on August 12, 1980. The case was transferred 

to the undersigned judge on June 8, 1983, and was heard in 

Denver, Colorado on February 15, 1984 under provisions of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq., (the "Act"). The parties asked for leave to file 

post-hearing briefs, but ultimately agreed to waive such 

submissions. At issue here is whether the respondent, Medicine 

Bow Coal Company (Medicine Bow), committed three violations of 

the mandatory safety standard published at 30 C.F.R. § 77.1104. 

The standard relates to accumulations of combustible materials. 1/ The Secretary contends that two of the three alleged 

l/ 30 C.F.R. § 77.1104 provides: 

Combustible materials, grease, lubricants, paints, 

or flammable liquids shall not be allowed to accumulate where they can create a fire hazard. 

1529 
violations were "significant and substantial" under the Act. He 

seeks civil penalties of $150.00 for one violation, and $160.00 

each for the remaining two. ~/ 

REVIEW AND DISCUSSION OF 

THE EVIDENCE 

The evidence shows that Mine Safety and Health Inspector 

John E. Thompson ·visited Medicine Bow's surface coal mine at 

Hanna, Wyoming on August 12, 1980. In the course of this 

inspection he examined three pieces of heavy mobile equipment 

which are the subject of the three citations at issue in this 

case. 

According to the inspector, the government's sole witness, a 

Caterpillar off-highway dump truck, a Clark front-end loader, and 

a skidder, had "excessive accumulations" of "combustible 

materials" on and around the engines, belly pans, transmissions, 

and rear-end housings. The materials, he testified, were 

composed chiefly of oil, grease, and related lubricants, along 

with coal dust and some dirt or soil. His testimony indicated 

that the composition of the accumulations vari~d from place to 

place (e.g. engine oils on engine parts, transmission lubricants 

on transmissions) but all were mixed with coal dusts. The depths 

of the deposits, he said, varied from 1/2 to 3 inches. These 

figures were the product of visual estimates onlyi he took no 

measurements. He did not touch or handle the accumulations, nor 

did he obtain a laboratory analysis. His determination, he 

acknowledged, was based upon the appearance of the accumulations 

and their locations. 

The inspector maintained that the accumulations constituted 

a fire hazard because they would burn if ignited. In his belief, 

ignition could be furnished by exhaust heat, friction heat 

(brakes for example), malfunctioning electrical components, or 

engine heat. He further believed that if a fire did occur, from 

whatever source, the accumulations would serve to fuel and 

intensify it.' 

Inspector Thompson was of the further view that heavy 

equipment fires expose operators and fire fighters to possible 

injuries in the f~m of burns, fractures, and smoke inhalation. 

2/ The case originally included five citations. At the outset 

of the hearing the parties announced that two of these, numbers 

828415 and 828439, had been settled and would be disposed of by 

separate written agreement. The citations tried were numbers 

828440, 828442, and 828443. The settlement agreement was not 

received until June 4, 1984. The separate approval of the 

settlement agreement is issued contemporaneously with this 

decision. 

1530 
Through the inspector the Secretary introduced computer 

print-outs summarizing all reported machine or equipment fires in 

surface coal mines for the years 1978 through 1983. Prepared by 

the Mine Safety and Health Administration's Health and Safety 

Analysis Center, these listings show that such fires ranged in 

number from a high of 20 in 1981, to a low of 13 in 1978·and 1983. 

The reports contain a brief description of the cause of each fire. 

The most frequent single cause was ruptured hydraulic lines. The 

print-outs (petitioner's exhibit 1) were admitted as demonstrating that fires in surface mining equipment are not uncommon. 

Donald E. Burkhart, Jr., Medicine Bow's safety director at 

the time of inspection, testified for the respondent. Burkhart, 

who accompanied Inspector Thompson on the inspection, acknowledged that he saw accumulations of lubricating oils and fluids, 

but insisted that they were only 1/4 to 1/2 inches in depth. 

Mr. Burkhart denied that the accumulations constituted a 

fire hazard. Essentially, his opinion was that fire hazards do 

not exist without the presence of an ignition source. Measurements of the heat generated by the three pieces of equipment in 

question, he testified, showed that none generated temperatures 

sufficient to cause autoignition of the accumulations. The 

Caterpillar truck, for example, showed temperatures ranging from 

350 Farenheit on the belly pan to 3270 on the turbocharger (the 

hottest engine component on most diesels). On the Clark 

front-end loader, the turbocharger gave a reading on an optical 

thermometer of 4300. The hottest point on the skidder was the 

exhaust manifold at 3180. 

Mr. Burkhart conceded that equipment fires do occur on 

mining equipment, but that they nearly always result from broken 

hydraulic or fuel lines where the fuel or hydraulic fluid is 

ignited by the heat of the exhaust system. Such a fire, the 

witness admitted, could then ignite oil or grease accumulations 

which would intensify the fire hazard "to a minor degree." 

Mr. Carl J. Dahn, a consulting engineer, also testified for 

Medicine Bow. This witness heads a research firm which, he 

testified, had done extensive studies in engineering hazard 

analysis with respect to mechanical, chemical, electrical, 

hydraulic, and pneumatic systems. His work included analysis 

dealing with equipment fire and explosion hazards, including 

those involving diesel engines. 

1531 
According to Mr. Dahn, the autoignition temperature for the 

oil and grease found around diesel engines ranges from aooo to 

1200° Fahrenheit. ~/ Coal in grease tends to increase 

autoignition temperatures. The witness indicated that the 

turbocharger is ordinarily the hottest engine part with 

temperatures ranging 3000 and 4000. Mr. Dahn agreed that the 

accumulations in this case could ignite if exposed to high enough 

temperatures, but insisted that the facts in the present case 

showed no likely sources for such ignition. He acknowledged that 

the most common source of fires in heavy equipment are ruptured 

fuel or hydraulic ·lines. While not ignition sources themselves, 

sprayed fuel or hydraulic fluids may be ignited by exhaust stacks. 

Electrical shorts, frictional heating, or outside sources such as 

cigarettes are possible but less likely sources, according to Mr. 

Dahn. 

Repeatedly throughout his testimony Mr. Dahn expressed the 

opinion that the grease and coal accumulations in this case -

including the 1/2 to 3 inch deposits described by the inspector -

could not constitute a fire hazard. Behind this reasoning was 

his conviction that the extent to which the accumulations would 

intensify or fuel a fire would be so insignificant as to make no 

real difference. At various times he described the potential 

intensification as "slight," as "small," and as "secondary." He 

also stressed that since the Caterpillar and Clark vehicles 

carried coal, the residues of coal dust in their beds would be 

significantly more dangerous than the comparative small amount of 

grease, oil and coal dust on the locations pinpointed by the 

inspector. In essence, according to Mr. Dahn, even though the 

accumulations could burn under certain circumstances their hazard 

potential, compared to primary fire dangers such as ignited fuel 

or hydraulic fluids, was de minimis. 

In deciding whether violation occurred, we should first 

examine the words of the standard. The inspector, in his 

testimony, repeatedly referred to "excessive" accumulations of 

combustible materials, although the standard uses no such term. 

The inspector was doubtless correct, however, in implying that 

violations cannot occur with only trivial (as opposed to· 

excessive) accumulations. Even with the best cleaning program, 

traces ·of lubricants will l.ikely be present on heavy equipment. 

ll The autoignition point is the lowest temperature at which a 

material will burn in a closed vessel. Under other than 

laboratory conditions, the temperature for ignitions would likely 

be higher. 

1532 
I find that the accumulations on each piece of equipment 

were essentially as the inspector described them: from 1/2 inch 

to 3 inches in depth. Accumulations of that magnitude are large 

enough to have significance under the standard. I also find that 

the various areas of excessive accumulations described by the 

inspector were potential targets for either fuel or hydraulic 

fluids, or both, sprayed from ruptured, pressurized lines. 

Respondent suggests that the Secretary's evidence was 

insufficient to establish violation because the mixed components 

of the accumulations were not determined with precision through a 

laboratory analysis. In support of this claim, counsel cited a 

case decided by a judge of this Commission where charges were 

dismissed, in part at least, because of the failure.to obtain a 

laboratory analysis of an allegedly "combustible" solvent. Magma 

Copper Company, 1 FMSHRC 837 (1979). A question in the case, 

however, was the propriety of relying on three-year-old label 

information from a source other than the containers at the 

worksite. 

The evidence in the present case convinces me that the 

substances in question were of the sort proscribed by the 

standard. Greases and lubricants are named specifically in the 

standard, and no one doubts that coal dust qualifies as a 

"combustible material." I cannot conclude that the admitted fact 

that some dirt or soil was contained in the mix requires the 

Secretary to obtain a laboratory analysis when significant 

amounts of proscribed substances are clearly present. Both 

witnesses for Medicine Bow conceded that the accumulations would 

burn if subjected to a fire involving motor fuel or hydraulic 

fluid. 

Medicine Bow also relies upon another judge's decision, 

Pittsburg and Midway Coal Mining Company, 2 FMSHRC 3049 (1980), 

in which a lubricant accumulation charge, under the same standard 

as that cited in the present case, was dismissed. The case is 

inapposite. There the maximum accumulation was a mere 1/8 of an 

inch thick, and the chief issue was the "sufficiency" of the 

accumulation. Moreover, unlike the present case, there were no 

credible proofs that fuel or hydraulic line breaks are a major 

cause of equipment fires. 

Mr. Dahn suggests that neither a "bad safety practice" nor 

a "significant fire hazard" results from the presence of up to 

three inches of grease and coal dust accumulation. This is so, 

he claims, because the extent to which such accumulations would 

add to the severity a fuel or hydraulic fluid fire would be "very 

small" (Tr. 230-239). 

1533 
On this issue I must agree with the Secretary. Mr. Dahn's 

argument goes· to the gravity of the violation, not its existence. 

Because the Act is remedial, the mandatory standards promulgated 

thereunder must be construed in consonance with their underlying 

purpose - the protection of miners from injury and illness. 

Nothing in the Act suggests that only major hazards must be 

suppressed. The evidence here indicates that the accumulations 

present could sustain or intensify fuel or hydraulic liquid 

fires. Any fire on a piece of heavy equipment poses some degree 

of danger to the equipment operator or persons performing rescue 

or firefighting operations. Additional fuel sources that enhance 

the intensity or duration of a fire, even marginally, therefore 

fall within the ambit of the standard. In this connection the 

word "create," as used in the phrase "create a fire hazard" in 

the standard, cannot be construed in the narrow or hypertechnical 

sense of a first cause. Any substance which may reasonably be 

expected to enlarge, propagate or intensify a fire, "creates" a 

greater fire hazard. ~/ I therefore conclude that Medicine Bow 

violated the standard-as to all three machines. 

4/ In furtherance of the de minimis argument, Mr. Dahn also 

pointed out that the truck involved in one citation carried loads 

of coal and that even when empty the bed inevitably contained 

coal dust residues. The coal in a full load, or the dust in an 

empty bed, he contended, so dwarfed the potential of grease and 

coal dust accumulations on engines or undercarriages as secondary 

fuel sources as to render the latter inconsequential. I reject 

this reasoning. The purpose of the standard is to minimize fire 

hazards to the maximum practical extent. The hazard from 

flammables or combustibles carried as a part of the normal load 

of a vehicle is essentially unavoidable. Such hazards merely 

underscore the obvious proposition that some enterprises are 

inherently more dangerous than others. The standard with which 

we deal in this present case is aimed at th.e type of fire hazard 

which is avoidable. Lubricant accumulations, as the evidence 

shows, may be removed by routine equipment cleaning procedures. 

They pose an unnecessary risk. The attempt to introduce a 

comparative hazard principle, carried to its logical extreme, 

would produce unacceptably awkward distinctions. It would mean, 

for example, that water trucks whose loads would rather clearly 

not burn, would require an engine cleaning program. Fuel trucks, 

on the other hand, could presumably accumulate grease and oil 

deposits on the engine and elsewhere indefinitely because of the 

volatile character of their loads. The standard does not contemplate such an anomalous result. Only if we accept the premise 

(which this decision does not) that lubricant accumulations are 

permissible without limit, could respondent's reasoning be 

accepted. 

1534 
Although the evidence supports a finding of violations, it 

does not sustain a finding that the violations were "significant 

and substantial" under section 104(d)(l) of the Act. Citations 

828442 (the Clark loader) and 828443 (the skidder) were alleged 

by the Secretary to be "significant and substantial" while 828440 

Cthe Caterpillar truck) was not. At the hearing, counsel for the 

Secretary explained that all three should have been given that 

classification but, through oversight, were not. (The inspector 

simply failed to place an "X" in the box on the citation form 

designated "S and S.") This judge then stated that no motion for 

amendment would be entertained since any such oversight should 

have come to the attention of the Secretary during the extensive 

pre-hearing procedures in this case. 

The Commission in Cement Division, National.Gypsum Co., 3 

FMSHRC 822 (1981), articulated the test to be used in determining 

whether a violation, in the words of the statute " ••• could significantly and substantially contribute to the cause and effect 

of ••• a mine safety or health hazard." The violation must be 

one where there exists "a reasonable liklihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." In the present case, essentially for the 

reasons urged by Medicine Bow, I must conclude that the violations do not rise to the "significant and substantial" level. 

Much of the government's case was premised on the notion, rejected in this decision, that the accumulations could be ignited 

directly by such heat sources as the vehicle engines, turbochargers, or exhaust systems. The evidence demonstrates that the 

accumulations would burn only if ignited by a fire originating 

from broken fuel or hydraulic lines. Such fires would likely be 

quite serious in their own right, made only somewhat more so by 

the presence of lubricant and coal dust deposits. I agree with 

Medicine Bow that the additional hazard presented by the burning 

of such deposits would add in a minor way to a serious fire 

originating from unrelated causes. Thus, the violations 

established here cannot be classified as serious and substantial. 

We now turn to the matter of penalty. Section llOCi) of the 

Act requires the Commission, in penalty assessments, to consider 

the size of the operator's business, its negligence, its ability 

to continue in business, the gravity of the violation, and the 

operator's good faith in seeking rapid compliance. Most of the 

evidence concerning tpese penalty factors in this case came into 

the record through stipulations in the settlement agreement 

entered into with respect to citations 828415 and 828439. The 

stipulations show that Medicine Bow is a large operator and that 

in the two years prior to the inspections here it was cited 79 

times in 33 days of inspection. The record shows that imposition 

1535 
of civil penalties of the magnitude proposed by the Secretary 

would not impair its ability to continue in business, and that it 

abated the present violations expeditiously. 

Upon the evidence, I find that the gravity of the violations 

was low and that the operator's negligence was moderate. The 

Secretary seeks a civil penalty of $150.00 for the violation 

involving the Caterpillar truck and $160.00 each for the 

violations involving the Clark loader and the skidder. Because 

of the low gravity of the violations, I find these proposals 

excessive. On balance, I conclude that $35.00 is an appropriate 

penalty for each violation. 

CONCLUSIONS OF LAW 

Based upon the entire record herein, and in accordance with 

the findings of fact embodied in the narrative portions of this 

decision, the following conclusions of law are made: 

(1) This Commission has the jurisdiction necessary to decide 

this case. 

(2) The respondent, Medicine Bow, violated the mandatory 

safety standard published at 30 C.F.R. § 77.1104 as alleged in 

citations 828440, 828442, and 828443. 

(3) The violations were not "significant and substantial" 

within the meaning of section 104(d)(l) of the Act. 

(4) The appropriate civil penalty for each of the three 

violations is $35.00. 

ORDER 

Accordingly, all citations are ORDERED affirmed, and the 

respondent Medicine ~ow shall pay to the Secretary of Labor civil 

penalties totaling $105.00 within 40 days of the date of this 

decision. 

Distribution: 

~~~~-~- ~~ Carlson Administrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294 (Certified Mail) 

Brent L~ Motchan, Esq., Medicine Bow Coal Company, 500 North 

Broadway, St. Louis, Missouri 63102 (Certified Mail) 

/blc 

1536 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 14 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSH~), 

Petitioner 

v. 

MEDICINE BOW COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 81-163 

A.C. No. 48-00900-03018 

Medicine Bow Mine 

DECISION APPROVING SETTLEMENT 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner; 

Brent L. Motchan, Esq., Medicine Bow Coal Company, 

St. Louis, Missouri, 

for Respondent. 

Before: Judge Carlson 

The parties have submitted a motion styled "Stipulation, 

Motion to Withdraw Notice of Contest, and Order Payment." The 

motion would dispose of two of the five citations comprising 

Docket No. WEST 81-163. It relates to citations 828415 and 

828439. {The remaining citations, 828440, 828442 and 828443, 

are dealt with in a full decision following hearing on the 

merits, issued contemporaneously_ with this present settlement.) 

The parties, in the present motion, ask that respondent be 

granted leave to pay the full penalties originally proposed for 

the two citations in question, and to withdraw its notices of 

contest. Under section llO{k) of the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. § 801, et seq.), I construe the 

pleading as one for approval of a settlement agreement. 

The agreement is appropriate and is approved in its entirety. 

Accordingly, citations 828415 and 828439 are affirmed. Respondent 

shall, within 40 days of the date of this decision, pay a civil 

penalty of $395.00 in connection with citation 828415 and 

$345.00 in connection with citation 828439. 

SO ORDERED. 

1537 

John A. Carlson 

Administrative Law Judge 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U. S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Brent L. Motchan., Esq., Medicine Bow Coal Company, 500 North 

Broadway, St. Louis, Missouri 63102 (Certified Mail) 

/ot 

1538 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 18 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA)~ 

Petitioner 

v. 

AMHERST COAL COMPANY, 

Respondent 

. . 

Docket No. WEVA 83-271 

A.C. No. 46-01369-03516 

MacGregor Cleaning Plant 

DECISION 

Appearances: - William M. Connor, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner; 

Edward W. Conch, Esq., Lexington, Kentucky, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for four alleged 

violations of the same mandatory safety standard - that contained in 30 C.F.R. § 77.205Ce). The Secretary takes the 

position that the violations were significant and substantial (although one was not so designated in the citation). 

Respondent denies that the alleged violations occurred, and 

asserts that the regulation involved is void and unenforceable because of vagueness. Pursuant to notice, the case was 

heard on the merits on May 1, 1984, in Charleston, 

West Virginia. David Francis Mulkey testified on behalf of 

Petitioner; Robert Doss and Ernest Marcun testified on 

behalf of Respondent. Both parties waived their rights to 

file posthearing briefs. Each argued its position on the 

record at the close of the hearing. 

Based on the entire record and considering the contentions of the parties, I make the following decision. 

FINDINGS OF F·ACT 

1. At all times pertinent hereto, Respondent was the 

owner and operator of the MacGregor Preparation Plant 

located in Logan County, West Virginia. 

1539 
2. Respondent is a wholly owned subsidiary of Diamond 

Shamrock Coal Company and produces approximately 1.5 millon 

tons of coal annually. Respondent is a large operator. 

3. The imposition of penalties in this proceeding will 

have no effect on Respondent's ability to continue in 

business. 

4. Between October 15, 1982 and June 2, 1983, the 

subject mine had a history of 57 paid violations, 31 of 

which were designated as significant and substantial. 

Seventeen of these violations were of the safety standard in 

30 C.F.R. § 77.205 concerning travelways. This is a significant history of prior violations. 

5. The conditions cited as violations in each of the 

citations invcrlved herein were abated promptly and in good 

faith after the citations were issued. 

6. On June 3, 19a3, Federal Mine Safety Inspector 

David Mulkey issued a citation charging a violation of 

30 C.F.R. § 77.205Ce) because Respondent failed to provide 

toe boards on the walkways in the bottom of the "foreign" 

silo. 

7. On June 3, 1983, the walkways in the bottom of the 

"foreign" silo were not completely provided with toe boards. 

The foreign silo was a raw coal storage area for coal before 

it was taken to the preparation plant. Toe boards had been 

installed, apparently by the contractor who built the silo, 

on about half of the walkway. 

8. The walkway area was in part open to the weather. 

Rain and snow could blow into the area. Coal dust was 

present in the area and on portions of the walkway. 

9. The walkway was elevated about 6 feet above a 

cement floor. There was also a conveyor belt running under 

the walkway. 

10. The walkway itself was constructed of expanded 

metal with holes in it. It was approximately 24 inches wide. 

It contained a hand rail or top rail approximately 42 inches 

from the walkway, and a midrail approximately 24 inches from 

the walkway. 

11. 

issued. 

The walkway was dry at the time the citation was 

There were metal guards and feeder top covers lying 

1540 
against the handrail on part of the walkway at the time the 

citation was issued. 

12. Toe boards were installed along the entire walkway 

to abate the citation. They were made of metal and were 

approximately 5 inches high. 

13. On June 6, 1983, Inspector Mulkey issued a citation charging a violation of 30 C.F.R. § 77.205(a) because 

Respondent did not provide toeboards on the walkways of the 

pan line ramp in the rear area of the preparation plant. 

14. On June 6, 1983, the walkways in the pan line ramp 

in the subject mine did not have toeboards. There was water 

and mud on parts of the walkways. The area was exposed to 

the weather. The walkway was elevated about 7 feet above 

the surface. There were no work areas or travelways beneath 

this walkway.· There was a mid rail about 16 inches from the 

walkway and a hand rail about 30 inches from the walkway. 

15. Toe boards were installed along the walkway to 

abate the citation. They were metal and were approximately 

4 inches high. 

16. On June 6, 1983, Inspector Mulkey issued a citation charging a violation of 30 C.F.R. § 77.205(e) because 

toeboards were not provided in certain areas of the internal 

part of the preparation plant including the control room, 

the platform around the raw coal conveyor, the top or roof 

of the preparation plant, the top of the slate silo, and the 

No. 2 cut slate belt platform and walkways. 

17. On June 6, 1983, toeboards were not present on the 

walkways described in the citation referred to in Finding of 

Fact No. 16. (The top or roof of the preparation plant was 

not designed as a walkway but was used as such). Tools and 

buckets were present on the control room platform which was 

about 10 feet above the next level. It was not exposed to 

the weather. There was a midrail 23 inches from the platform floor and a handrail 41 inches from the floor. There 

was grease on the platform of the raw coal conveyor. This 

platform was 52 inches high. The top of the preparation 

plant was exposed to the weather. There was scrap metal 

lying around what was used as a walkway. Its height varied 

from 2 to 60 feet. There was a safety net 8 to 10 feet wide 

along the edge of the plant under the belt line. The net 

did not extend all around the plant, however. There was a 

bottom railing 16 inches from the floor, a second rail 

22 inches from the floor and a top rail approximately 

1541 
10 inches above that. The top of the slate silo was exposed 

to the weather, and there were pieces of perforated metal 

lying on the walkway. It was about 30 feet high. There was· 

a midrail 19 inches from the floor and a handrail 38 inches 

from the floor. The cut slate belt platform had pieces of 

slate on the walkway. It was 49 inches high. There was a 

midrail 19 inches from the floor and a handrail 40 inches 

from the floor. 

18. Toeboards were installed in the areas cited to 

abate the violation. They were constructed of 4 inch metal. 

19. On June 7, 1983, Inspector Mulkey issued a citation charging a violation of 30 C.F.R. § 77.205Ce) because 

toeboards were not provided in the entrance platform by the 

front door of the preparation plant and throughout the 

entrance level of the plant. 

20. On June 7, 1983, toeboards were not present in the 

entrance platform by the front door of the preparation plant 

and throughout the entrance level of the plant. The 

entrance platform was open to the weather. The entrance 

level of the plant was not exposed to the weather. This 

area contained steel plates and perforated metal piled 

against the outside of the plant, and in one area screens 

were lying against the railing. The entrance platform was 

approximately 19 feet high. The walkways had midrails 

23 inches from the floor, and handrails 39 inches from the 

floor. The platforms were constructed of metal and concrete. 

The entrance level was approximately 49 inches above the 

floor below. There was a mid rail 19 inches from the floor 

and a top rail 42 inches from the ·floor. 

21. Toeboards were installed to abate the citation. 

They were constructed of 4 inch metal. Almost 3,000 linear 

feet of the boards were installed to abate all the citations 

referred to in this decision. 

REGULATION 

30 C.F.R. § 77.205(e) provides as follows: "Crossovers, elevated walkways, elevated ramps, and stairways 

shall be of substantial construction, provided with handrails, and maintained in good condition. Where necessary 

toeboards shall be provided." · 

ISSUES 

1542 
1. Whether the regulatory requirement that toeboards 

shall be provided where necessary is impermissibly vague? 

2. If it is not, whether the evidence shows that toeboards were necessary in the areas cited in this proceeding? 

3. If violations were shown, what is the appropriate 

penalty for each? 

CONCLUSIONS OF LAW 

Vagueness 

The Review Commission has interpreted the mandatory 

safety standard in 30 C.F.R. § 56.11-2 which is identical 

with that contained in 30 C.F.R. § 77.205Ce). Secretary v. 

El Paso Rock Quarries, Inc., 3 FMSHRC 35 (1981). It held 

that the toe board provision was designed to protect persons 

working below the elevated walkways as well as those using 

the walkways themselves. Id. at 39. The decision did not 

indicate that the standard-Was impermissibly vague because 

of the general terms, "where necessary." See also Secretary 

v. UNC Mining & Milling, 5 FMSHRC 1164 (1983) CALJ). I conclude that a reasonably prudent person familiar with the 

mining industry should be able to determine whether toeboards were "necessary." Therefore, the standard was not 

unconstitutionally vague. 

Violations 

The inspector testified that he cited the absence of 

toeboards on elevated walkways where Cl) there was a 

slipping or tripping hazard and (2) the walkway was used by 

employees with some degree of frequency. He found slipping 

hazards to exist where the walkway was open to the weather 

and thus subject to snow, rain and ice or where there was 

oil, grease, or coal dust on the way itself. He found 

tripping hazards to exist where there were objects present 

along the walkway over which an employee could trip or 

stumble. Whether toeboards are necessary in such instances 

is a matter of judgment. In each case cited, there were 

handrails and midrails present, which reduced the likelihood 

of slipping off the walkway. Nevertheless, I accept the 

inspector's judgment and conclude that in each instance 

cited, toeboards were necessary. The violations charged 

were established by a preponderance of the evidence. I distinguish the case of Secretary v. Big Ten Corporation, 

2 FMSHRC 2266 (1980) CALJ), in which the Judge found toeboards unnecessary where the walkway extended 6 inches 

beyond the rails. Such is not the case here. 

1543 
Significant and Substantial 

Three of the four citations involved in this case were 

designated as significant and substantial. Much of the testimony and argument of counsel was devoted to the propriety 

of these designations. However, the issue was not raised in 

the pleadings or the prehearing submissions. I conclude 

that the issue is not before me and I do not rule on the 

question whether the violations were of such nature as could 

significantly and substantially contribute to the cause and 

effect of a mine safety hazard. 

Penalties 

The seriousness of each of the violations is diminished 

by the fact that hand rails and mid rails were installed on 

all the walkways in question reducing the likelihood that an 

employee could slip or fall through to the level below. 

Should he do so, however, serious injuries could result. 

The inspector deemed Respondent's negligence to be low, and 

I concur in this determination, since MSHA inspectors had 

been through the areas many times previously and had not 

cited the conditions. 

Considering the criteria in section llOCi) of the Act, 

I conclude that appropriate penalties for the violations are 

as follows: 

1. Citation No. 2141934 involved the foreign silo walkways. The seriousness of this violation is increased 

because three slipping or tripping factors were present: 

The area was open to the weather (though it was dry at the 

time the citation was issued)~ coal dust was present on portions of the walkways and objects were present on the walkways. The walkways were elevated 6 feet above the surface 

below. The midrail was 24 inches high. I conclude that an 

appropriate penalty for this violation is $75. 

2. Citation No. 2141~38 involved the pan line ramp 

walkway. Water and mud were on the walkway which was open 

to the weather. The walkway was elevated 7 feet above the 

surface below. However, the seriousness of the violation is 

diminished by the fact that the midrail was only 16 inches 

above the walkway, making the possibility of slipping off 

the walkway unlikely. I conclude that an appropriate penalty for this violation is $40. 

1544 
3. Citation No. 2141939 involved many areas around the 

control room platform, the raw coal conveyor, the roof of 

the preparation plant, the slate silo and the cut slate belt 

platform. Some of these areas were exposed to the weatheri 

there was grease on some of the areas1 the elevations varied 

from 2 feet to 60 feet. The bottom rail height varied from 

16 inches to 23 inches. Because of the number of areas 

involved, I conclude that an appropriate penalty for this 

violation is $100. 

4. Citation No. 2142184 involved the entrance platform 

and throughout the entrance level. Part of this area was 

open to the weather and objects were present on.the walkways. 

The elevation varied from 49 inches to 19 feet. The midrails varied from 19 inches to 23 inches. I conclude that 

an appropriate penalty for this violation is $75. 

ORDER 

Based on the above Findings of Fact and Conclusions of 

Law, IT IS ORDERED that within 30 days of the date of this 

decision, Respondent pay the following civil penalties for 

the violations found herein to have occurred. 

CITATION 

2141934 

2141938 

2141939 

2142184 

PENALTY 

$ 75 

40 

100 

75 

Total· $ 290 

.. ·rf~=··~l A·bvPtk4id_ ·' James· A. Broderick 

Administrative Law Judge 

1545 
Distribution: 

William M. Connor, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Edward w. Conch, Esq., Amherst Coal Company, 1200 First 

Security Plaza, Lexington, KY 40507 (Certified Mail) 

/fb 

1548 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 19 1984 

VESTA MINING COMPANY, 

Contestant 

CONTEST PROCEEDING·· 

v .• 

Docket No. PENN 83-122-R 

Order No. 2103186 Doc~et No. PENN 83-123-R 

Citation No. 2103187 

Docket No. PENN 83-125-R 

Order No. 2103197 

SECRETARY OF LABOR, . . MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent 

. . Vesta Mine 

DECISION 

Appearances: Michael T. Heenan, Esq., Smith, Heenan, Althen 

& Zanoli, Washington, DC, for Contestant, 

Before: 

David E. Street, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA., 

for Respondent 

Judge Fauver 

Vesta Mining contests two orders and one citation issued 

by the Secretary of Labor (MSHA) on March 2, 1983. Jurisdiction 

in this proce~ding is stipulated, and applies under section 

lOS(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801, et ~ 

The three cases were consolidated and heard in Pittsburgh. 

Having considered the testimony, and the record as a whole, 

I find that a preponderance of the probative, reliable, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

Order No. 2103197 

1. Federal Mine Inspector Joseph F. Reid issued this withdrawal order under section 104(d) (2) of the Act on March 2, 1983. 

The order charges a violation of 30 CFR § 75.303(a), based upon 

the following condition or practice: 

1547 
No times, dates and initials of 

examinations made by certified 

persons in the No. 10 entry working 

place of the 9 Butt left 44 Face 

Section (MMU 037) were being 

recorded within the last two (2) 

weeks, as the last date observed 

on .the line canvas in this place 

was February 15, 1983. According 

to the section foreman on this 

shift (Stan Crowson) , the examinations have been made for preshift 

and onshift in this working place, 

but the time, date and initials were 

not placed in the area by him and 

apparently not by the other certified 

persons on the afternoon and midnight 

shifts and therefore a proper examination was not being made. 

2. The 9 Butt area, where the order was issued, had 

originally been developed for longwall mining. 

3. Because of a rock fault in the area, longwall 

mining turned out not to be feasible and the company decided 

to mine the area by the room and pillar method. In accordance 

with standard practice under MSHA regulations, the company submitted 

to MSHA a venilation plan which included projections of this 

mining plan. 

4. Included with the company's mining projections were 

bleeder entries and bleeder projections. The purpose of a 

bleeder is to provide ventilation to gob areas which result 

from pillar mining .. Bleeder entries are intentionally left 

on both sides of the area to be pillared so that as mining 

progresses airways will remain to sweep methane from the gob. 

5. Once established, the bleeder entries are required 

by the regulations to be examined weekly unless the company 

has a monitoring station where bleeder performance can be 

evaluated without an examiner specifically traveling the bleeder. 

Thus, MSHA in approving the ventilation plan, advised the company: 

"Since you did not establish a method 

to evaluate the back end of 9 Butt 44 

gob, it it is assumed you are traveling and 

examining the bleeder entries weekly." 

1548 
6. In addition to the bleeders, which were designed and 

projected to provide air to the gob, the company's ventilation 

plan projected how ventilation was going to be established on 

the working section in 9 Butt. The plan was to use curtains to 

keep fresh air on the section and gob air off the section. 

Bleeders were also projected to be separated from the section 

by curtains. Face ventilation, on the other hand, was to be 

maintained by means of a section fan and tubing leading directly 

into each working face. This plan was being followed at the 

time of the inspection in these cases. 

7. Exhibit C-2 shows the condition of the section on 

March 2, 1983. It also shows, along with Exhibit C-1, how 

the intrusion of the rock fault, which had made longwall 

mining infeasible, interrupted the room and pillar mining. 

8. In mid-February 1983, the place where the company had 

been mining its bleeder projections pinched out at the rock 

fault and all mining was terminated in this area by February 15, 

1983. Ventilation check curtains were installed in the entries 

involved, Nos. 9 and 10, and the entire top entry (No. 10) was 

incorporated into the company's permanent bleeder system. 

9. On the day of the inspection, March 2, 1983, Section 

Foreman Stan Crowsen was in charge of the working section. 

Crowsen had over 12 years mining experience, and had served 

as a section foreman (assistant.mine foreman) at the Vesta mine 

for over 7 years. 

10. Inspector Reid traveled w~th Crowsen to the 9 Butt 

area. On the way in, Crowsen checked all of the stoppings 

between the track and intake air entries. 

11. When they arrived on the section, Crowsen asked the 

inspector whether he wanted to talk with the miners. The 

inspector chose instead to accompany Crowsen on his examination 

of the working faces, located in No. 4 and No. 5 entries. 

l2. In making his examination of the working faces in 

the No. 4 and No. 5 entries, Crowsen placed the time, date, and 

his initials on the ventilation tubing in each face. As he did 

so, Crowsen noted that the faces had initials showing that the 

section had been pre-shifted by the previous section foreman. 

The inspector made a methane check in the No. 5 entry and 

followed Crowsen as he on-shifted the working faces. 

1549 
13. The inspector did not dispute the adequacy of Crowsen's 

inspection or the marking of the date and initials at .the faces 

where mining was being conducted on the section. 

14. Crowsen next went to the area "just behind" the fan 

(see Exhibit C-2) ~nd made a methane check. Crowsen then 

examined the ventiiation check curtain parallel to the fan in 

crosscut No. 22, and determined that it had been properly installed. 

15. After completing these checks, Crowsen examined the 

Section Load Center which provides power to electrical equipment 

on the section. Then Crowsen went up to the Battery Charging 

Station, whe:i:e .. he observed an accumulation of water coming 

from the other side of a stopping which separated the Section 

Charging Station from the No. 10 bleeder entry. 

16. To locate the apparent source of the water, Crowsen 

walked east to the dead-end of the No. 9 entry, and went around 

and behind the curtains which separated the working section from 

the No. 10 return. He then proceeded west up the No. 10 return, 

which directs bleeder air to the gob areas, until he arrived at 

the stopping behind the Battery Charging Station. 

17. After checking on the water accumulation, Crowsen 

retraced his steps back down No. 10, around the deflection 

check curtains in No. 10 and No. 9, and then went to check a 

mechanical problem with the belt feeder. 

18. At this point, Crowsen was informed that the inspector, 

who was back at the dead-end and ext-reme east end of the No. 10 

entry, was preparing to cite a roof control violation (for 

an area between Nos. 3 and 4 entries). Crowsen and a mechanic 

went to the inspector to determine what the problem was about 

the roof. 

19. In their discussion about the roof, the inspector 

questioned Crowsen with respect to whether the dead-end area 

of No.·10 entry had been examined regularly and Crowsen .indicated 

that it had been. 

20. The inspector then issued the subject order, charging 

that pre-shift times, dates and initials should have been placed 

in the east end of No. 10. 

1550 
21. No mining was being conducted in the No. 10 entry, 

on March 2, 1983, and that entry was separated from the working 

section. ~he inspector observed no mining equipment in the 

area; there was no evidence of equipment having been there 

since mining had ceased in mid-February, which was the point 

at which date, time and initials had last been marked. 

22. The No. 10 entry, directing return air to bleeders, 

was inspected each week by Crowsen or other certified 

examiners. In making the regular weekly inspections of the 

No. 10 return, Crowsen and other examiners put their initials 

at different locations along the entry, and not necessarily in 

a given spot. 

23. Inspector Reid did not examine the No. 10 entry for 

dates, times and initials of weekly examinations. Rather, he 

confined his inspection in No. 10 to determining only whether 

Crowsen had written the date "March 2, 1983" on line brattices 

separating No. 9 and No. 10. 

24. Crowsen considered No. 10 a return entry subject to 

regular weekly inspections but not pre-shift or on-shift 

inspections, because no miners were normally required to work 

or travel there. 

25. After mining ceased in mid-February, the No. 10 entry 

was not in a condition suitable for mining. Apart· from the rock 

intrusion, posts had been set up which would have blocked access 

necessary for mining operations and the Battery Charging Station 

had been established only one crosscut away, thus impeding access 

to the No. 9 and No. 10 dead-end headings. In addition, the No. 

10 entry was being relied upon to provide a segregated return 

to direct. ble~der-air to the gob behind the section. 

26. After the cessation of mining in mid-February, 1983, 

two weeks before the issuance of the order involved here, the 

No. 10 return, including the dead-end heading where the subject 

order was issued, was not an area where any miners other 

than certified examiners entered or were assigned to enter. 

27. On March 2, 1983, the No. 10 return, including the 

dead-end where the order was issued, was not part of the 9 Butt 

area working section. 

1551 
Order No. 2103186 

28. During the inspection on February 24, 1983, Inspector 

Reid entered a crosscut between Nos. 3 and 4 entries,·adjacent 

to the belt feeder. There he saw sandstone roof about 8 to 

9 feet high, and observed three pieces of loose and hanging 

sandstone between roof bolts. These pieces were large enough 

to kill or seriously .injure a miner if one fell on him. 

29. Based upon his observations of the roof, Inspector 

Reid informed a company representative, Calvin Smitley, that 

he was issuing a section 107(a) ("inuninent danger") order 

because of the roof condition. The 107(a) order states: 

There was loose and hanging pieces of 

sandstone observed in the middle of 

the No. 8 room crosscut between Nos. 3 

and 4-.. entries of the 1 Panel Ea.st 

Mains section (MMU 036). This 

Order is being issued to assure 

the safety of any persons in this area 

until the time that it is determined 

to be safe. 

30. Smitley found a piece of drill steel and began prying 

down the three pieces of roof. The pieces came down. They 

were about 3 inches thick and, in total, were about 6 square 

feet. 

Citation No. 2103187 

31.. In the same crosscut where he issued the 107 (a) 

order, Inspector Reid observed what appeared to him to be 

excessive spaces between roof bolts. The roof ranged from 

about 8 to 9 feet in height in.the crosscut. 

32. Inspector Reid used a 6-foot rule to measure the 

distance between the roof bolts he questioned. Near the No. 3 

entry, _he saw a large crack about 10 feet long. The roof there 

was about 8 feet high, and he. was able to measure several roof 

bolt distances by holding both ends of the rule against the 

roof. I find these measurements to be accurate, and they 

showed distances of 55 inches, 54 1/2 inches, and 49 inches 

between roof bolts. He attempted to measure distances in areas 

where the roof was too high to hold both ends of the rule 

against the roof. I find that his "measurements" in those areas 

(ranging from 49 1/2 to 66 inches) were merely estimates and 

were subject to too much of a margin of error to be reliable 

figures. 

1552 
33. Based upon his measurements and attempts to measure 

the distances between roof bolts, Inspector Reid issued a 

section 104(a) citation (No. 2103187), which states: 

The approved roof control plan was 

not being complied [with] in the 

No.· 8 room crosscut between Nos. 3 

and 4 entries of the 1 Panel-East 

Mains section (MMU 036) as there 

were 10 areas between the conventional 

roof bolts in the center of the 

crosscut where the spacing between the 

bolts exceeded the required 48 inches. 

Six of the areas ranged from 53 to 59 

inches and four of the areas ranged 

from 60 to 66 inches and there were 

loose~ and hanging pieces of sandstone, 

averaging 3 inches thick, and there 

was a 10 foot long crack in the 

sandstone in this crosscut where the 

height ranged from 8 to 9 feet. 

This crosscut is a regular tramway 

for shuttle cars taking coal to the 

belt feeder. 

Note -The Galis roof bolter at 1200 

was in the process of starting to 

bolt the affected areas after the 

loose and hanging sandstone was 

taken down and two (2) rows of 

roof jacks were installed. This 

citation will not be terminated 

until the plan is reviewed with 

the persons on all three shifts that 

normally work in this section, by 

management personnel. 

The §l04(a) citation was issued on February 24, 1983. On 

February 25, 1983 it was modified as follows: 

1553 
Citation No. 2103187 issued on 

February 24, 1983 is hereby modified 

to include the following statement: 

The excessive roof bolt spacing 

observed in the No. 8 room crosscut 

between Nos. 3 and 4 entries of the 

1 Panel-East Mains section was one 

of the factors that contributed to 

the i·ssuance of Imminent Danger 

Order No. 2103186 dated February 24, 

1983. 

DISCUSSION WITH FURTHER FINDINGS 

Order No. 2103197 

This MSHA order charges a violation of 30 CFR § 75.303(a) 

for failure to place time, date, and initials of a preshift 

examination at tbe east dead-end of No. 10 entry. 

Section 75.303(a) requires preshift examinations and the 

placing of time, date, and initials at the places preshifted 

within three hours before a shift begins and "before any miner 

in such shift enters the active workings of a coal mine." The 

term "active workings" is defined as: 

any place in a coal mine where miners 

are normally required to work or travel. 

(30 U.S.C. § 318(g) (4); 30 CFR § 75.2(.g) 

( 4) • ] 

The intake air was split just a.fter it reached the working 

section in question. Part of it ventilated the working section 

and part of it became return air to ventilate the gob areas. 

No. 10 entry, at the point where Inspector Reid charged a 

preshift violation, was a bleeder entry outside the working 

section. Mining had ceased there on February 14 or 15, 1983, 

over two weeks before the date of the citation. The regulations 

provide that bleeders "shall not include active workings" (30 

CFR 75~316-2(c) (2)). They are required to be examined weekly, 

but not preshif ted. 

Since no miners, other than certified examiners, were 

required to enter the No. 10 entry, there was no require~ent 

for a preshift examination under 30 CFR § 75.303(a). Therefore, 

the Secretary failed to prove a violation as alleged in Order 

No. 2103197. 

1554 
Order No. 2103186 

Inspector Reid observed the roof in question,,and saw 

several pieces of loose hanging sandstone between roof "bolts. 

Calvin Smitley, the management representative, pried down 3 

pieces of roof with a drill steel. He testified that the pieces 

were not loose and that it took extreme.effort to pry them down. 

It was his opinion that the roof was safe, and that it was 

actually a danger to try to pry down a solid roof. ·However, he 

did not use a roof bar designed to pry down roof. A drill 

steel is not wedged and tapered, and is not an appropriate device 

for prying down pieces of a roof. I credit the in~pector's · 

testimony that there were loose, hanging pieces and that these 

were of sufficient size to cause death or serious injury if ·a 

piece fell on a miner. 

In crediting Inspector Reid's testimony that the roof 

condition was an<imminent danger, I have also considered his 

supervisor's testimony that Inspector Reid had correctly issued 

an imminent danger order at another mine, when he observed loose 

roof that fell very shortly after he caused the mine to be 

evacvated. The order in that case, as in this one, was issued 

despite the operator's strong opinion that the roof was safe. 

I find that Smitley's use of drill steel rather than a proper 

prying bar lessens the credibility and weight of his testimony 

as to the actual condition of the roof. I credit Inspector 

Reid's testimony as to the number, size, and danger of the 

pieces pried down by Smitley. 

Roof falls are one of the chief causes of fatalities in 

underground coal mining. The inspector's issuance of an 

imminent danger order was justified by the facts of this case. 

Citation No. 2103187 

As stated in the findings, the inspector measured some 

of the root bolt distances by holding both ends of the 6-foot 

rule against the roof. As to those, I find that the measurements 

were accurate, and that a preponderance of the reliable, 

probative, and substantial evidence establishes that the top 

~hree figures in the inspector's drawing in his notes (Exhibit 

6), showing distances of 55, 54 1/2 and 49 inches, were reasonably 

measured and are accurate. However, the rest of the figures were 

not measured by placing both ends of the rule against the roof. 

The inspector simply placed one end of the rule against the roof 

and held the other end of the rule some distance down from the 

roof and sighted the point of the rule (i.e. the inch mark} 

which he estimated would be the right place if that end were placed 

1555 
ag,ainst the roof. Thus, instead of measuring points A and B 

(the distance between two roof bolts), he was estimating the 

distance between point A (on the roof) and Point C, some 

distance in space beneath the roof. I find that this approach 

was uncertain and not reliable. 

In summary, l find that the top three figures (55, 54 1/2 

and 49 inches) in the inspector's drawing were adequately 

measured and proven by the Secretary. Since the roof-control 

plan provides a margin of error of 5 inches, the figures 55 

and 54 1/2 inches prove violations of the 48-inch standard in 

the roof control plan, and the figure 49 inches does not. 

The rest of the figures· in the inspector's drawing are rejected 

as being unreliable estimates and not actual measurements. 

CONCLUSIONS OF LAW 

1. The Coi:nmission has jurisdiction in these proceedings. 

2. The Secretary did not meet his burden of proving a 

violation as alleged in Order No. 2103197. 

3. The Secretary met his burden of proving a violation 

as alleged in Order No. 2103186. 

4. The Secretary met his burden of proving two violative 

roof bolt distances in Citation No. 2103187 (i.e. 55 and 54 1/2 

inches), but did not prove a violation as to the other alleged 

excessive distances. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The Secretary's Order No. 2103197 is VACATED. 

2. The Secretary's Order No. 2103186 is AFFIRMED. 

3~ The Secretary's Ci~ation No. 2103187 is MODIFIED by 

deleting the following language: 

1556 
10 areas between the conventional 

roof bolts in the center of the 

crosscut where the spacing 

between the bolts exceeded the 

required 48 inches. Six of the 

areas ranged from 53 to 59 inches 

and four of the areas ranged from 

60 to 66 inches. 

and substituting therefor the,following language: 

two areas between the conventional 

roof bolts exceeded the required 48 

inches in that one spacing was 55 

inches and the other spacing was 54 1/2 

inches. 

Citation No. 2103187, as so MODIFIED, is AFFIRMED. 

Distribution: 

(.JJ,t.;..., ::r~Vt/t- William Fauver 

Administrative Law Judge 

Michael T. Heenan, ·Barbara L. Krause, Smith, Heenan, Althen 

& Zanoli, 1110 Vermont Ave., NW, Washington, DC 20005 

(Certified Mail) 

David Street, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, D.C. 20005 (Certified Mail) 

kg 

1557 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 20, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

on behalf of 

TEDDY W. BENTLEY, 

Complainant 

v. 

BETH-ELKHORN CORPORATION, 

Respondent 

DISCRIMINATION PROC.EEDING 

Docket No. KENT 84-157-D 

No. 26 Mine 

ORDER OF DISMISSAL 

DECISION APPROVING SETTLEMENT 

This is a discrimination case brought by the Secretary 

on behalf of Teddy W. Bentley. On May 29, 1984, the Solicitor filed a motion to withdraw the complaint, explaining 

in detail a settlement agreement reached by the parties. 

Attached to the Solicitor's motion is a statement signed by 

Mr. Bentley that he voluntarily entered into the settlement 

and authorized the Solicitor to withdraw this complaint. 

In addition, the Solicitor and the operator have moved 

for approval of a civil penalty settlement in the amount of 

$100. 

I have reviewed the Solicitor's comprehensive motion 

to withdraw. It is Granted and the complaint is Dismissed. 

I have also reviewed the settlement motion and in 

light of unusual circumstances set forth therein, determine 

it proper. The parties' request to delete the last sentence 

of the penultimate paragraph of the settlement motion is 

Granted. The settlement motion is Approved and the operator 

is Ordered to pay $100 within 30 days from the date of the 

decision. 

Paul Merlin 

Chief Administrative Law Judge 

1558 
Distribution: 

W.F. Taylor, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Teddy W. Bentley, Route 2, Box 148, Jenkins, KY 41537 

(Certified Mail) 

Mr. Ernest G. Bentley, Superintendent, Industrial Relations, 

Beth-Elkhorn Corporation, Jenkins, KY 41537 lCertified 

Mail) 

/nw 

1559 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUN·21 \984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), on 

ON BEHALF OF 

LOREN E. Nielsen, Sr. 

Complainant 

v. 

STEWART STONE, INC .• , 

Respondent 

: DISCRIMINATION PROCEEDING . . 

: Docket No. CENT 84-11-DM 

: MSHA Case No. MD 83-34 

. . 

Bird Quarry & Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Vail 

This case is before me upon the complaint filed by the 

Secretary of Labor on behalf of Loren E. Nielsen, Jr., under 

section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977 (the "Act"), for an alleged unlawful discharge on or about 

May 13, 1983. The parties have filed a joint stipulation of 

settlement and proposed order of dismissal in which respondent 

has agreed to pay Mr. Nielsen $3,000.00 in settlement of, on 

account of, or arising out of his employment relationship with 

respondent, specifically the termination of his employment and/or 

any alleged discriminatory emvloyment practice committed by 

respondent against the complainant at any time prior to the 

execution of the agreement. Nielsen seeks to withdraw any and 

all complaints of discrimination filed with Federal Mine Safety 

and Health Administration including the complaint above. The 

Secretary also seeks to withdraw its request for a civil penalty. 

Each party agrees to bear his own fees and other expenses 

incurred herein. 

I have considered the representations and documentation 

submitted in this case, and I conclude that the preferred 

disposition is appropriate. 

WHEREFORE, the proposed settement is APPROVED and this case 

is DISMISSED. 

/blc 

-v:;:;;. ?. ~ 

Administrative 

Vi~Vail Law Judge 

1560 
Distribution: 

James J. Manzanares, Esq., Office of the Solicitor 

U.S. Department of Labor, 555 Griffin Square, Suite 501 

Dallas, Texas 75202 (Certified Mail) · 

Mr. Loren E. Nielsen, Sr., 502 E. 19th, Tearney, Nebraska 68847 

(Certified Mail) 

Aimee Hess, Esq., 2001 Bryan Tower, Suite 1060 

Dallas, Texas 75201 (Certified Mail) 

Mr. Ben Peters, Controller, Stewart Stone, P.O. Box 442 

McKinney, Texas 75069 (Certified Mail) 

.i;i.u.s. GOVERNMENT PRINTING OFFICE• 1984-421"569/13603 

1561