FEBRUARY 1984 

Connnission Decisions 

2-14-84 

2-21-84 

2-29-84 

2-29-84 

2-29-84 

Peabody Coal Company 

Consolidation Coal Company 

A. H. Smith 

Council of So. Mts. v. Martin County 

Metric Constructors, Inc. 

Administrative Law Judge Decisions 

2-01-84 

2-01-84 

2-01-~4 

2-03-84 

2-07-84 

2-07-84 

2-07-84 

2-07-84 

2-07-84 

2-07-84 

2-08-84 

2-14-84 

2-14-84 

2-14-84 

2-14-84 

2-15-84 

2-16-84 

2-17-84 

2-23-84 

2-23-84 

2-24-84 

2-29-84 

Helvetia Coal Company 

Eddie Sharp v. Magic Sewell Coal Co. 

Lawrence Ready Mix Concrete Corp. 

U.S. Steel Mining Company, Inc. 

Randall & Blake of Oklahoma, Inc. 

Apex Mining, Inc. 

Pyro Mining Company 

Pyro Mining Company 

Broas Mining Company 

United States Steel Corp. 

U.S. Steel Mining Company 

Minerals Exploration Company 

Minerals Exploration Company 

Minerals Exploration Company 

Minerals Exploration Company 

Kenneth Pittman v. Consolidation Coal 

Kenneth Wiggins v. Eastern Assoc. Coal 

Bobby Holt v. Southern Stone Co. 

Mich Coal Company 

Monterey Coal Company 

Helvetia Coal Company 

Chadrick Casebolt v. Falcon Coal Co. 

KENT 80-318-R 

PENN 82-203-R 

YORK 81-67-M 

KENT 80-222-D 

SE 80-31-DM 

PENN 83-117-R 

WEVA 82-399-D 

YORK 82-14-M 

PENN 83-85 

CENT 83-64 

KENT 83-59 

KENT 83-101 

KENT 83-186 

KENT 83-245 

WEVA 83-160-R 

PENN 83-95 

WEST 80-339-RM 

WEST 80-338-RM 

WEST 81-79-M 

WEST 81-319-M 

WEVA 82-334-D 

WEVA 82-300-D 

SE 83-49-DM 

CENT 83-4 

LAKE 83-68-R 

PENN 83-229 

KENT 83-56-D 

Pg. 183 

Pg. 189 

Pg. 199 

Pg. 206 

Pg. 226 

Pg. 237 

Pg. 242 

Pg. 246 

Pg. 248 

Pg. 253 

Pg. 255 

Pg. 258 

Pg. 270 

Pg. 290 

Pg. 291 

Pg. 310 

Pg. 316 

Pg. 324 

Pg. 329 

Pg. 355 

Pg. 360 

Pg. 406 

Pg. 410 

Pg. 416 

Pg. 424 

Pg. 4.{5 

Pg. 485 
COMMISSION DECISIONS 
FEBRUARY 

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

Jack Gravely v. Ranger Fuel Corporation, Docket No. WEVA 83-101-D; (Judge 

Koutras, January 13, 1984) 

Secretary of Labor, MSHA v. Monterey Coal Company, Docket No. HOPE 79-323-P; 

(Interlocutory Review of Judge Fauver's December 28, 1983 Order) 

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

Secretary of Labor, MSHA v. U.S. Steel Mining Company, Docket Nos. PENN 82-218, 

PENN 82-219; (Judge Fauver, December 28, 1983) 

William Haro v. Magma Copper Company, Docket Nos. WEST 79-49-DM, WEST 80-116-DM; 

(Judge Morris, January 20, 1984) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

HINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEABODY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 14, 1984 

DECISION 

Docket Nos. KENT 80-318-R 

KENT 81-32 

The narrow issue in this case is whether an authorized representative 

of the Secretary of Labor, employed as a "special investigator", needed to 

obtain a search warrant in order to require the mine operator to produce 

certain accident and illness reports required to be kept by the Federal 

Hine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. 

V 1981), and its implementing regulations. The Commission administrative 

law judge held that a search warrant was not required. 4 FMSHRC 447 

(March 1982)(ALJ). For the reasons set forth below, we agree. 

The issue in this case arose in a factual context uncontested by the 

parties. There was no hearing; the case was decided on the basis of joint 

stipulations and copies of exhibits that the parties submitted to the judge. 

One of the exhibits is the affidavit of Byron Culbertson, a Peabody Coal 

Company employee, stating that he was injured on May 9, 1977 "while timbering 

and crosscolaring [sic] a rock fall that had been cleared in the main north 

area." According to the affidavit, Culbertson informed his face boss that 

afternoon of the injury, and an accident report was later completed by the 

assistant mine foreman. Id. 

Peabody submitted a st<;mdard-form "Coal Accident, Injury, and Illness 

Report" (SF 7000-1) concerning the rock fall to HSHA. Govt. Ex. 2. 1/ The 

parties stipulated that this report states that no injury occurred. On 

July 29, 1980, a United Hine Workers of America ("UMWA") official filed with 

1/ The rock fall occurred while the Federal Coal ~Une Heal th and Safety Act 

of 1969, 30 U.S.C. § 801 et seq. (1976) was in effect. The 1969 Coal Act was 

enforced by the DepartmentoEln terior' s :-lining Enfo r-cement ;.ind Safety 

Administration (MESA). With enactment of the 1977 Mine Act, t!ESA's enfor-ce111ent 

functions \vere transfer-red to the Department 0f Labor's 11ine Safety and Health 

Administration (MSHA). All references here will he to :!SHA. 

183 

84-2-7 
the district manager of HSHA's Madisonville, Kentucky office a written request 

for an inspection pursuant to section 103(g) of the Mine Act. 2/ The UMWA 

official's request for inspection stated: 

I have reasonable grounds to believe that a 

violation of Title 30, Federal Regulation Part 50.20 

has occurred concerning the filing of Report Form 

7000-1, at Peabody Coal Company's Ken Mine of a 

rock fall accident on 5/9/77. 

Byron Culbertson was injured in this accident. 

The attached copy of 7000-1 Form does not reflect 

that there was an injury. Therefore, I am requesting 

an immediate inspection (or investigation) under 

103(g) of the Act to determine whether there is a 

violation or not. 

Govt. Ex. 3. 3/ The request apparently included a copy of Peabody's "Coal 

Accident, Injury, and Illness Report," referred to above. MSHA found "no 

record of the injury suggested by the letter of the UHWA official." Stip. 6. 

J:./ Section 103(g) provides: 

Whenever a representative of the miners or a miner in 

the case of a coal or other mine where there is no such representative has reasonable grounds to believe that a violation 

of this Act or a mandatory health or safety standard exists, or 

an imminent danger exists, such miner or representative shall 

have a right to obtain an immediate inspection by giving notice 

to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, 

signed by the representative of the miners or by the miner, and 

a copy shall be provided the operator or his agent no later than 

at the time of inspection, except that the operator or his agent 

shall be notified forthwith if the complaint indicates that an 

imminent danger exists. The name of the person giving such notice 

and the names of individual miners referred to therein shall not 

appear in such copy or notification. Upon receipt of such 

notification, a special inspection shall be made as soon as 

possible to determine if such violation or danger exists in 

accordance with the provisions of this title. If the Secretary 

determines that a violation or danger does not exist, he shall 

notify the miner or representative of the miners in writing of 

such determination. 

30 u.s.c. § 813(g)(l) 

:}_/ The issue in this proceeding is not whether Peabody in fact kept records 

required by the Mine Act and the regulations, but whether a warrant was 

required before the MSHA official could review such records. There is no 

dispute between the parties that the records at issue here were required 

records under the Act. 

184 
Thereafter, the MSHA district manager sent an MSHA special investigator, 

Jesse Rideout, to the mine to inspect Peabody's records relating to the rock 

fall and purported injury. Rideout stated his purpose at the mine office to 

Peabody's safety director and gave him a copy of the UMWA's section 103(g) 

request. Rideout requested no other records. The safety director informed 

Rideout that Peabody previously had filed with MSHA all required reports 

relating to the rock fall and he refused to allow Rideout to see the records 

that Peabody was required to keep at the mine office. This decision not to 

produce the records in the absence of a search warrant was reaffirmed to 

Rideout in a telephone conversation with counsel for Peabody. 

On instructions from counsel for the Secretary, Rideout again demanded 

to see the required records pertaining to the rock fall and injury. Peabody's 

mine superintendent repeated the company's refusal and Rideout proceeded to 

issue a citation and withdrawal order alleging a violation of the Mine Act 

which Peabody refused to abate. 

Peabody filed a notice of contest with the Commission challenging the 

citation and order and the proceeding was consolidated with MSHA's proposal 

for an assessment of a civil penalty. Relying primarily on the Supreme 

Court's decision in Donovan v. Dewey, 452 U.S. 594 (1981), the Commission 

administrative law judge found that Peabody violated the Mine Act by 

refusing to produce the requested records. The judge therefore upheld the 

citation and assessed a $500 civil penalty. We granted Peabody's petition 

for review and heard oral argument. 

On review Peabody argues that the judge erred in finding "that the 

inspection was not of the type so random, infrequent or unpredictable that 

the appellant, for all practical purposes, had no real expectation that its 

property would from time to time be inspected by government officials." 

Peabody argues that a search warrant was required for this specific records 

request because Inspector Rideout was a "special investigator" whose 

appearance at the mine in response to a section 103(g) request could not 

have been predicted. Peabody repeatedly refers to the fact that the official 

duties of a special investigator include conducting investigations that, in 

appropriate circumstances, could lead to the institution of criminal proceedings by law enforcement officials. In Peabody's view, a warrant would 

not have been required had the same request been made by a "regular" mine 

inspector. 

We affirm the judge's conclusion that a search warrant was not required 

in this case. Peabody has not established that it has a privacy interest in 

these records necessitating the protection of a search warrant. Section 103(d) 

of the Hine Act requires operators to maintain accident records and make them 

"available to the Secretary or his authorized representative." It also provides 

that "[s]uch records shall be open for inspection by interested persons." 4/ 

!!._/ The complete text of section 103(d) reads as follows: 

All accidents, including unintentional roof falls (except 

in any abandoned panels or in areas which are inaccessible 

or unsafe for inspections), shall be investigated by the 

(Footnote continued) 

185 
In accordance with the Act, the recordkeeping regulations in effect at the 

time of the rock fall in 1977 (30 C.F.R. §§ 80.22, .23 and .3l(a)(l977)) and 

the similar regulations in effect at the time of inspection in 1980 (30 C.F.R. 

§§ 50.20, .40, .41 (1980)), clearly delineate the operator's duty to investigate 

accidents and make reports of them. The operator is required to maintain the 

reports for five years and make them accessible on demand to the Secretary or 

his authorized representative as well as any interested person. Based on these 

statutory and regulatory provisions, we conclude that Peabody had no realistic 

expectation of privacy in these records. See United States v. Blue Diamond Coal 

Company, 667 F.2d 510, 521-22 (6th Cir. 1982)(Wiseman, J., concurring); 

Youghiogheny and Ohio Coal Company v. Morton, 364 F. Supp. 45, 51 n. 5 (S.D. 

Ohio 1973). ?_/ 

The fact that this inspection was conducted by an HSHA "special invesfigator" 

rather than a "regular" MSHA inspector, is of no consequence. The Mine Act 

refers only to "authorized representatives" of the Secretary of Labor and 

does not distinguish between "regular" inspectors and "special investigators." 

The fact that the Secretary may have established different classes of authorized representatives is not relevant in the circumstances of this case. 

Both "regular" inspectors and "special investigators" are authorized to 

issue citations and orders when they discover violations of the Act, 

standards, and regulations, and the findings of any authorized representative may, if appropriate, be referred to the Department of Justice for 

possible criminal prosecution. Accordingly, Peabody's potential liability 

was in no way heightened by the Secretary's choice of a special investigator 

to conduct the statutorily authorized section 103(g) inspection. !!_/ 

Peabody stipulated that the special investigator was an authorized 

representative of the Secretary. Peabody violated the Act in refusing 

Fn. 4/ continued 

operator or his agent to determine the cause and the means 

of preventing a recurrence. Records of such accidents 

and investigations shall be kept and the information shall 

be made available to the Secretary or his authorized representative and the appropriate State agency. Such records 

shall be open for inspection by interested persons. Such 

records shall include man-hours worked and shall be reported 

at a frequency determined by the Secretary, but at least 

annually. 

3 0 u. s . c. § 813 ( d) • 

?_/ Because this case involved only a request for records specifically 

required by the Act to be maintained, it does not present the situation 

faced in Sewell Coal Company, 1 FMSHRC 864 (July 1979)(ALJ). There the 

inspector sought to personally review accident, injury and illness and 

medical and compensation records at the mine. Those records were contained in individual personnel files which also contained other data not 

required to be maintained by the Mine Act. l FHSHRC at 865. 

!!_/ We note that by their very nature section 103(g) requests and the 

required follow-up inspections are unpredictable. Furthermore, unless 

otherwise authorized, the Act prohibits giving advance notice of any 

inspection. 30 U.S.C. § 820(c). 

186 
him access to the records at issue without a search warrant. We 

emphasize that the facts stipulated by the parties establish the reasonableness of -the special investigator's conduct. He arrived at the mine 

during normal business hours, identified himself, explained the reasons for 

his inspection, and delivered a copy of the UMWA's section 103(g) request 

for inspection. When he was denied access to the required records, he 

sought guidance from his MSHA superiors before proceeding. 

The decision of the administrative law judge is affirmed. 

Commissioner 

A. E. Lawson~missioner 

k!!'-'h!~ 

J/1.~ L. Clair Nelson, ILLRA-~ Commissioner 

18-7 
Distribution 

Michael O. McKown, Esq. 

Peabody Coal Company 

P.O. Box 235 

St. Louis, Missouri 63166 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Michael Holland, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

188 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 21, 1984 

UNITED MINE WORKERS OF AMERICA 

Docket Nos. PENN 82-203-R 

PENN 82-204-R 

PENN 82-217 

v. 

CONSOLIDATION COAL COMPANY 

DECISION 

This consolidated proceeding presents the question of whether 

violations of a mandatory safety standard, cited under section 104(a) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 814(a)(Supp. 

V 1981), may be found to be of a "significant and substantial" nature. 

The Commission's Chief Administrative Law Judge concluded that significant and substantial findings could be made in a section 104(a) 

citation, and concluded that the violations in issue were significant 

and substantial. 4 FMSHRC 2093 (November 1982)(ALJ). We subsequently 

granted the petition for discretionary review filed by Consolidation 

Coal Company ("Consol"). 1J For the reasons stated, we affirm the 

judge's decision. 

During an inspection of Consol's Renton Mine, an underground coal 

mine located near Pittsburgh, Pennsylvania, Richard Zelka, an inspector 

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

("MSHA"), issued two citations for alleged violations of 30 C.F.R. 

§ 75.1100-3, a mandatory safety standard for underground coal mines. The 

portion of the standard alleged to have been violated states, "All fire 

fighting equipment shall be maintained in usable and operative condition." 

The citations were issued under section 104(a) of the Mine Act. '];_/ 

1J We also granted the motion of the United Mine Workers of America 

for leave to intervene on review. 

'.!:_/ Section 104(a) states in part: 

If, upon inspection or investigation, the Secretary or his 

authorized representative believes that an operator of a coal or 

other mine subject to the Act has violated this Act, or any mandatory health or safety standard, rule, order or regulation promulgated pursuant to this Act, he shall, with reasonable promptness, 

issue a citation to the operator. Each citation shall be in writing 

and shall describe with particularity the nature of the violation, 

including a reference to the provision of the Act, standard, rule, 

regulation, or order alleged to have been violated. 

30 U.S.C. § 814(a). 

189 84-2-9 
Inspector Zelka checked a box on each citation form to indicate that 

the violations were significant and substantial. '}_/ 

The citations involved two discharged fire extinguishers. The 

inspector observed the first inoperable extinguisher in the mine's 

underground car shop. The shop is an area in the mine, approximately 16 

feet by 40 feet, where mine cars are repaired. The repair work includes 

welding and torching, which are usually carried out on a daily basis. 

One car was in the shop when the inspector conducted his inspection, and 

he believed that it was scheduled for welding that day. The inspector 

observed coal dust on the car. He also observed oil and grease, as well 

as wood, on the floor of the shop. !±_/ Two miners worked in the shop, 

and both were present during the inspection. 

In subsequently explaining his conclusion that the violation was 

significant and substantial, the inspector testified that "a fire is 

always likely in car shops like this," and that when a fire does occur, 

the most important thing is to extinguish it immediately. Tr. 13. He 

stated that in the event of a fire, "a lot of time" would be wasted 

while the miners went outside the car shop to look for an operable 

extinguisher. Id. 

Following his inspection of the car shop, Inspector Zelka proceeded 

along the mine's track entry. He observed another discharged fire extinguisher located on a vehicle (a trackmen's motor) that was sitting on 

the track. 2_/ The vehicle was energized in that its trolley pole was 

attached to the trolley wire. The trackmen who rode in the vehicle had 

left it and were some distance away. Upon being questioned by the 

inspector, they stated that they were required to do track repair work 

every day and that this work normally included the cutting of rails and 

bolts with an acetylene torch. The inspector observed coal along the 

track where the men would be working. The inspector also observed 

grease, coal dust, and oil on the motor, particularly on the trolley 

pole and in the engine controller area. In addition, he noticed cutting 

torches on the vehicle as well as bottles containing the gas to be used 

in welding and torching. 

'}_/ The box on the face of the form is followed by the legend "S AND S 

(SEE REVERSE)." The reverse of the form states: 

Significant and substantial violations. By checking the significant and substantial block the inspector has indicated that based 

upon the particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature. Checking the 

significant and substantial block also means that the violation can 

be considered in determining whether a pattern of violations exists. 

!±_/ The wood was used to prop up the machines while they were being 

repaired. 

2_/ A trackmen's motor is an electrically-powered, self-propelled vehicle, 

used to carry the miners who repair and maintain the mine tracks and 

their equipment and supplies. Electric current reaches the vehicle's 

engine when its trolley pole is in contact with trolley wires located 

above the track. 

190 
In explaining his notation that the violation was significant and 

substantial, the inspector testified that the motor could catch on fire if 

there were a fault in the electrical system and that a fire could start 

during the torch work. The vehicle was found by the judge to be "covered 

with grease, oil, and coal dust." 4 FMSHRC at 2096. The inspector 

concluded that the presence of those combustible materials could be a 

contributing factor to the occurrence or spread of a fire. He also 

stated that the chance of a fire was increased by what he characterized 

as a general history of trackmen's motors and similar vehicles catching 

on fire. 

In concluding that significant and substantial findings may be included in a section 104(a) citation issued for violation of a mandatory 

safety standard, and that both violations were significant and substantial, the Commission judge relied on Cement Division, National 

Gypsum Co., 3 FMSHRC 822 (April 1981). In that case, we held that a 

violation of a mandatory safety or health standard significantly and 

substantially contributes to the cause and effect of a mine safety or 

health hazard when "there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature." 3 FMSHRC at 825. Although the citations contested in 

National Gypsum were issued under section 104(a) of the Mine Act, the 

operator in that case did not renew its challenge on review to the 

validity of making such findings in section 104(a) citations. Consequently, we did not review the conclusion of the judge below in that 

case that the practice was proper. We resolve the issue now. 

It is clear that section 104(a) does not specifically require or 

prohibit the practice of making significant and substantial allegations 

on a citation issued for an alleged violation of a mandatory health or 

safety standard. An inspector's significant and substantial findings 

are, however, specifically mentioned as a prerequisite to citing violations and issuing orders under section 104(d) of the Mine Act, 30 U.S.C. 

§ 814(d)(Supp. V 1981). !2_/ Consol argues that because the phrase 

!2_/ Section 104(d) provides as follows: 

(1) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of 

such nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory 

health or safety standards, he shall include such finding in any 

citation given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authorized representative 

of the Secretary finds another violation of any mandatory health or 

safety standard and finds such violation to be also caused by an 

(footnote continued) 

191 
"significant and substantial" is not contained in section 104(a), Congress 

did not intend to authorize a significant and substantial finding in 

conjunction with a section 104(a) citation issued for a violation of a 

mandatory safety or health standard. A careful reading of sections 

104(a) and 104(d) convinces us, however, that this is not the case. 

Section 104(a) requires that the citation be in writing and that it 

"describe with particularity the nature of the violation." (Emphasis 

added.) The "nature" of a violation refers to its characteristics and 

properties. Thus, when an inspector describes the nature of a violation 

he may articulate in writing not only the objective conditions that 

result in the violation, but he may also indicate, where appropriate, 

his subjective judgment as to its other distinguishing characteristics. 

That one of those characteristics may be whether the violation is 

significant and substantial is made clear by section 104(d)(l), which 

requires the inspector to determine, among other things, whether the 

violation "is of such nature as could significantly and substantially 

contribute to the cause and effect of a ••• mine safety or health hazard." 

(Emphasis added.) Thus, construing sections 104(a) and (d) together, we 

conclude that the required description of the nature of the violation of 

a mandatory safety or health standard cited under section 104(a) may 

include a finding by the inspector that the violation is significant and 

substantial. 

This leaves the question of whether the violations in this case 

were in fact significant and substantial. The judge noted the presence 

of combustible materials in the vicinity of both discharged extinguishers. 

footnote 6 continued 

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 ref erred 

to in [section 104(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. 

(2) If a withdrawal order with respect to any area in a coal 

or other mine has been issued pursuant t-0 paragraph (1), a withdrawal order shall promptly be issued by an authorized representative 

of the Secretary who finds upon any subsequent inspection the 

existence in such mine of violations similar to those that resulted 

in the issuance of the withdrawal order under paragraph (1) until 

such time as an inspection of such mine discloses no similar 

violations. Following an inspection of such mine which discloses 

no similar violations, the provisions of paragraph (1) shall again 

be applicable to that mine. 

30 U.S.C. § 814(d)(emphasis added). 

192 
He also noted the presence of potential ignition sources at both locations, 

in that welding and torching were routinely done at both locations and 

power was going into the track.men's motor. 4 FMSHRC at 2096. The judge 

found the danger of fire to be "inherent and ever present" when welding 

and torching are routinely carried out. 4 FMSHRC at 2097. He concluded 

that "injury of a reasonably serious nature becomes a reasonable likelihood when firefighting equipment such as extinguishers are not in working 

condition in such an environment." Id. 

During the hearing, Consol sought to establish the presence of 

other fire extinguishers and of rock dust, which may also be used to 

suppress a fire,. in the vicinity of both violations. The judge made no 

finding with respect to the existence of this firefighting equipment and 

material, but concluded that, even assuming their presence, a significant and substantial finding would still be appropriate. He accepted 

the testimony of a MSHA accident investigator Gerald Davis, that in the 

event of a fire, panic often was likely and that it therefore could not 

be assumed that a miner would attempt to obtain a second extinguisher, 

if the nearest one were not operable, or rock dust to fight a fire. 

4 FMSHRC at 2097. ]__/ 

As noted above, we have held that a violation is significant and 

substantial "if, based upon the particular facts surrounding the violation, 

there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." National 

Gypsum, 3 FMSHRC at 825. Noting that the Act does not define "hazard," 

we construed the term to "denote a measure of danger to safety or health." 

3 FMSHRC at 827. We stated further that a violation "'significantly and 

substantially' contributes to the cause and effect of a hazard if the 

violation could be a major cause of a danger to safety or health. In 

other words, the contribution to cause and effect must be significant 

and substantial." Id. (footnote omitted). 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory safety standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety--contributed to by the violation; §_/ (3) a 

reasonable likelihood that the hazard contributed to will result in 

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

be of a reasonably serious nature. See Mathies Coal Co., 6 FMSHRC __ , 

FMSHRC Docket No. PENN 82-3-R, etc., slip op. at 3-4 (January 6, 1984). 

The third element embraces a showing of a reasonable likelihood that the 

hazard ~ill occur, because, of course, there can be no injury if it does 

not. 

]__/ Investigator Davis was also an electrical inspector. He had worked 

for MSHA in both capacities for eleven and one-half years. He was a 

member of MSHA's mine rescue team for fighting mine fires and explosions, 

and was accepted by Consol as an expert in the field of mine electricity. 

§_/ We note that this case involves the violation of a mandatory safety 

standard. 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. 

193 
In this case, there is no dispute as to the existence of the 

violations. Rather, Consol argues that the inoperable fire extinguishers 

could not cause the feared hazard to safety--a mine f ire--and thus could 

not pose "a significant and substantial contribution to the cause and 

effect of a .•• mine safety ••• hazard." Consol also argues that even 

if the cause and effect of a hazard were contributed to, there was not 

a reasonable likelihood the hazard would result in a reasonably serious 

injury. We do not agree. 

With regard to Consol's argument concerning cause and effect, the 

causative chain of a danger in a mine may have many links. Hazards may 

result from the interactions of various conditions. We believe it is 

beyond dispute that the inoperable fire extinguishers created a major 

threat that a mine fire, once started, would spread or intensify without 

control. As the inspector testified, the most important step to take 

when a mine fire starts is to extinguish it innnediately. If the fire 

fighting equipment is inoperable, such suppression may be impossible. 

Thus, the violations in this case presented a discrete safety hazard, 

i.e., propagation or intensification of a fire. 

The next question is whether there was a reasonable likelihood that 

the hazard contributed to would result in injury. To prove this aspect 

of his case, the Secretary of Labor first had to establish that a fire 

was reasonably likely to occur, for without a fire there could be no 

reasonable likelihood of injury resulting from the hazard of propagation 

or intensification due to inoperable extinguishers. Consol argues that 

the evidence does not establish a reasonable likelihood of a fire. We 

disagree. 

Substantial evidence supports the judge's findings as to the 

existence of combustible materials in the car shop and combustible 

materials on and near the trackmen's motor. Indeed, their presence was 

not seriously disputed. Inspector Zelka stated his opinion that a fire 

in the car shop was "always likely" and "could easily happen." Tr. 13, 

17. He also testified that a fire was reasonably likely to occur with 

respect to the trackmen's motor. Investigator Davis stated his opinion 

that any time there is a combination of oil and grease and proximate 

welding and torching in a mine, the likelihood of a fire is increased. 

With respect to the trackmen's motor, Inspector Zelka testified that 

welding and torching could ignite the accumulated materials along the 

track and that a fault in the machine's electrical system could ignite 

the accumulations on the motor. Davis further testified, without dispute, 

that acetylene hoses could develop pin holes and that an arc or spark 

from the welding could ignite the acetylene coming out of the hoses. 

The investigator reviewed reports of previous mine fires involving 

similar vehicles. He stated that he found 28 such fires during 1959-

1973. 2./ The informed opinions of the inspector and the investigator 

2/ The mine is located in MSHA District 2. The accidents which were 

reported and reviewed all occurred in that district. A summary of the 

reports was introduced into evidence by the Secretary. This exhibit 

indicates that of the 28 fires listed, eight involved ignition of 

accumulations of combustible materials and three involved ignition of 

acetylene. 

194 
are an important component in determining whether there is a reasonable 

likelihood that the hazard contributed to will occur. See, for example, 

Mathies Coal Co., supra, slip op. at 5. Based upon the reasoned opinions 

of the inspector and the investigator, as well as the evidence of previous 

fires on similar equipment, we agree with the judge's findings that a 

danger of fire was reasonably likely at both locations. 

The next question is whether there was a reasonable likelihood that 

such a fire, in conjunction with the inoperable fire extinguishers, 

would result in an injury. Both MSHA witnesses testified that in the 

event of a fire in the car shop, the two miners who worked in the shop 

would be in danger of being burned or being overcome by toxic smoke. 

Investigator Davis additionally testified that in such a situation, the 

miners might panic. 10/ Consol offered no evidence to rebut this testimony. 

With regard to the trackmen's motor, Inspector Zelka testified that 

there was a high velocity of air in the track entry, and that if a fire 

occurred it would spread rapidly. He stated that the smoke would spread 

through the entry and that the eight miners working inby the trackmen's 

motor could be overcome. He also testified that the two miners repairing 

track might be burned. Consol's project engineer testified that the 

trackmen could telephone those inby and warn them of the approaching 

smoke and that the eight miners could then enter an escapeway and the 

inspector conceded the presence of telephones and escapeways between the 

trackmen's motor and the area where the eight men were working. However, 

Investigator Davis stated that in one fire he knew of, miners tried to 

come up the entry through the smoke rather than take the escapeway. In light 

of the unrebutted testimony that the extinguishers did not work, that 

miners were present in the car shop, on the track and inby the trackmen's 

motor, that mine fires may produce highly toxic fumes, and that miners 

in the face of fire may panic, we conclude that substantial evidence 

10/ The investigator stated: 

[T]he shop [has] ..• two metal doors [and] .•. the guy uses a fire 

extinguisher that does not work. The second he runs out of that 

door and closes the door behind him to seal the fire off ... 

[t]here is no guaraμtee the other fire extinguisher that he grabs 

is going to work; ... [a]fter he grabs the door, after whatever 

length of time, the fire has already kindled to the point to a 

great degree of smoke, especially if there's greas·e and oil which 

gives off a ... large amount of smoke which is very toxic. The 

second he opened that door, the smoke would come out and hit him in 

the face and there's no guarantee at that point that he is even 

going to be able to go in there to fight the fire after you open 

that door. [l]t's been our experience through other accidents that 

a guy never does the logical. 

Tr. 84. 

195 
supports the judge's conclusion that there was a reasonable likelihood 

the hazard contributed to would result in injury. 11/ 

The 

serious. 

injuries 

supports 

judge also concluded that any injuries would be reasonably 

4 FMSHRC at 2097. Because the evidence indicates that any 

would be caused by smoke and/or fire, substantial evidence also 

this conclusion. 

For the foregoing reasons, we affirm the judge's holdings that 

significant and substantial findings may be made in connection with a 

citation issued under section 104(a) of the Mine Act for violation of a 

mandatory safety or health standard and that the violations in this case 

were significant and substantial. 

11/ Like the judge, we are persuaded that the presence of other fire 

extinguishers 50 to 100 feet from the discharged fire extinguishers is 

irrelevant to the question of whether there was a reasonable likelihood 

that a fire would result in an injury. The judge stated, "Even if other 

fire extinguishers and rock dust were where the operator alleged they 

were •.• there would be no guarantee that in the event of a fire a miner 

would go [to them] ••.• [A] miner might run in the other direction and 

the first couple of minutes in any fire is critical with smoke the major 

problem." 4 FMSHRC at 2097. We note, however, that any question 

involving the presence of other firefighting equipment is hypothetical. 

Consol introduced a map into evidence which indicated the locations 

where other extinguishers and bags of rock dust were said to exist. The 

record contains testimony concerning their possible presence. However, 

there was no proof that any of the fire extinguishers were actually 

present at the locations indicated on the map, that they were operable, 

or that rock dust was present in usable amounts. 

19.6 
Commissioner Lawson concurring: 

I agree with the majority as to the disposition of this case and 

their holding that significant and substantial findings may be made for 

a citation issued under section 104(a) of the Mine Act. However, for 

the reasons expressed in my dissent in National Gypsum, supra, I disagree with their analytical approach as set forth here and in that case. 

A. E. Lawson, Commissioner 

197 
Distribution 

Robert M. Vukas, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Anna L. Wolgast, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

UHWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

198 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

A. H. SMITH 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 29, 1984 

Docket Nos. YORK 81-67-M 

DECISION 

This consolidated civil penalty and contest of citation proceeding arises 

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

(1976 & Supp V 1981). At issue is an alleged violation of 30 C.F.R. §---"56.5-50, 

a mandatory standard, regulating miners' exposure to noise, applic-able to sand, 

gravel and crushed stone operations. l/ A.H. Smith was issued a citation for 

allegedly failing to implement feasible administrative or engineering controls 

on a diesel shovel to reduce the shovel operator's noise exposure to within the 

levels required by the standard. The administrative law judge found a violation 

and assessed a civil penalty. 4 FMSHRC 1371 (July 1982)(ALJ). For the reasons 

that follow, we affirm. 

1/ 30 C.F.R. § 56.5-50 provides: 

(a) No employee shall be permitted an exposure to noise in 

excess of that specified in the table below. Noise level measurements shall be made using a sound level meter meeting specifications 

for type 2 meters contained in American National Standards Institute 

(ANSI) Standard Sl.4-1971, "General Purpose Sound Level Meters," 

approved April 27, 1971, which is hereby incorporated by reference 

and made a part hereof, or by a dosimeter with similar accuracy. 

This publication may be obtained from the American National 

Standards Institute, Inc., 1430 Broadway, New York, New York 10018, 

or may be examined in any Metal and Nonmetallic Mine Safety and 

Health District or Subdistrict Office of the Mine Safety and Health 

Administration. 

(Footnote continued) 

199 84-2-14 
On July 19, 1978, a Department of Labor Mine Safety and Health 

Administration (MSHA) inspector conducted an inspection at Smith's 

Brandywine Pits and Plant, a sand, gravel and concrete operation. As part 

of this inspection, a noise survey was conducted on a diesel-powered clam 

shovel. This shovel, manufactured in the 1940's and purchased by Smith in 

1956, had no barrier between the operator's cab and the engine compartment, 

no glass in the window openings of the operator's cab, and no muffler on the 

engine's exhaust. The noise survey results showed that the shovel's operator 

had been exposed to a noise level 189 percent greater than permitted under 

section 56.5-50. Smith was issued a citation for violation of the standard. 

Based on his previous experience with other shovels, the MSHA inspector 

suggested to Smith that a sound absorption barrier be erected between the 

cab and engine compartment. Two possible methods were suggested: constructing 

a permanent barrier out of plywood covered with sound absorption material or 

installing a prefabricated sound-barrier curtain. The inspector estimated the 

cost of these methods as between $100-$300 and $400-$500, respectively. 

Smith requested the name of the supplier of the prefabricated curtain, which 

the inspector provided tq him. 

MSHA reinspected the shovel in May 1979. At that time the HSHA inspector 

observed that the sound-barrier curtain was installed with large gaps at the 

ceiling. The sides of the curtain were not attached to the shovel. A noise 

survey taken at that time revealed a reduction in the noise level in the cab, 

but a continued exposure in excess of permissible limits. Smith was informed 

~f the need to install the curtain properly. Additionally, the inspector 

suggested that window glass be installed in the openings around the cab to 

further insulate the operator from the noise. 

Fn. 1 continued 

PERMISSIBLE NOISE EXPOSURE 

Duration per day, 

hours of exposure 

Sound level dBA, 

slow response 

8 ------------------------- 90 

6 ------------------------- 92 

4 ------------------------- 95 

3 ------------------------- 97 

2 ------------------------- 100 

1!2 ------------------------- 102 

1 ------------------------- 105 

!2 ------------------------- 110 

!z; or less -------------------- 115 

No exposure shall exceed 115 dBA. Impact or impulsive 

noises shall not exceed 140 dB, peak sound pressure level. 

(b) When employees' exposure exceeds that listed in the above 

table, feasible administrative or engineering controls shall be 

utilized. If such controls fail to reduce exposure to within 

permissible levels, personal protection equipment shall be provided and used to reduce sound levels to within the levels of 

the table. [Emphasis added.] 

200 
MSHA reinspected the shovel in June 1981. At that time the sound-barrier 

curtain was on the floor of the engine compartment and window glass had not 

been installed. A noise survey established that the shovel operator remained 

exposed to excessive noise. The inspector issued a withdrawal order. The 

need for the window glass and proper installation of the curtain was reiterated, 

and the use of a muffler proposed.. Four days later MSHA reinspected the shovel. 

A muffler had been added to the exhaust, but no glass was in the windows and 

the curtain was still improperly installed. Subsequently, for reasons not 

reflected in the record, the operator withdrew the shovel from use. 

In his decision the Commission administrative law judge concluded that, 

in order to establish a violation of this standard, the Secretary carried the 

burden of proving an excessive noise level, as well as the technological and 

economic feasibility of the proposed noise controls. Because it was uncontradicted that there was excessive noise, the judge framed the issue as 

whether HSHA had met its burden of proving the feasibility of the proposed 

controls. In finding that MSHA had met its burden, the judge relied on the 

testimony of the inspector with respect to his experience with similar 

shovels. The judge found that the Secretary's evidence established that 

installation of the sound barrier, window glass, and muffler would have 

brought the shovel into compliance, and that the cost would have been $600 

or less at the time of inspection. He concluded that even if the operator's 

later actual cost of $948.75 for the sound-barrier curtain were added to the 

inspector's "high" estimates of $450 for muffler, glass, and labor, this sum 

(about $1,400) was not an unreasonable economic burden in order to achieve 

full compliance with the standard. 4 FMSHRC at 1375. ]:_/ 

We granted Smith's petition for discretionary review. Subsequently, in 

Secretary of Labor v. Callanan Industries, Inc., 5 FMSHRC 1900 (November 1983), 

the noise standard at issue here was interpreted for the first time by the full 

Commission. The broad question before us in the present case is whether the 

judge's decision can be sustained in light of Callanan. 

The cited standard provides that no miner shall be permitted exposure 

to noise levels in excess of those established by the standard. When noise 

levels exceed the limits established by the standard, "feasible administrative or engineering controls shall be utilized" by the operator to reduce 

the miner's exposure to within permissible limits. If such controls fail 

to reduce exposure to within permissible levels, personal protective equipment must be provided and used. In Callanan, after an extensive discussion 

of the history of the standard, we concluded that no special meaning was 

intended for the word "feasible" in this standard. We therefore used the 

Supreme Court's statement of the plain meaning of the word as "capable of 

2/ The judge further found that MSHA's proposed use of multiple shovel 

operators, to reduce an individual's exposure to permissible levels, was a 

feasible administrative control. On review, Smith also challenges this 

aspect of the judge's decision. The Secretary has not addressed directly 

Smith's arguments concerning the alleged infeasibility of the suggested 

administrative controls. Because of the paucity of evidence and focused 

argument on this issue, and in light of the potential importance of the 

general question of ~hat constitutes a feasible administrative control, 

we do not reach that issue in this case. Rather, because we find that the 

feasibility of engineering controls was established, we rest our decision 

on this basis alone. 

201 
being done, executed, or effected." 5 FMSHRC at 1907, citing American Textile 

Mfrs. Inst. v. Donovan, 452 U.S. 490, 508-509 (1981). We also held that "the 

determination of whether use of an engineering control to reduce a miner's 

exposure to excessive noise is capable of being done involves consideration of 

both technological and economic achievability." Id. Thus, we established in 

Callanan that: 

[I]n order to establish his case the Secretary must 

provide: (1) sufficient credible evidence of a miner's 

exposure to' noise levels in excess of the limits 

specified in the standard; (2) sufficient credible 

evidence of a technologically achievable engineering 

control that could be applied to the noise source; 

(3) sufficient credible evidence of the reduction in 

the noise level that would be obtained through implementation of the engineering control; (4) sufficient 

credible evidence supporting a reasoned estimate of the 

expected economic costs of the implementation of the 

control; and (5) a reasoned demonstration that, in view 

of elements l through 4 above, the costs of the control 

are not wholly out of proportion to the expected benefits. 

After the Secretary has established each of the above 

elements, the operator in rebuttal may refute any of the 

components of the Secretary's case. 

5 FMSHRC at 1909. 

In this case, the administrative law judge appropriately placed the burden 

of proof on the Secretary. Additionally, the first element of establishing a 

violation, credible proof of over-exposure to noise, was uncontroverted. The 

second element concerns proof of the technological achievability of the proposed 

engineering control. Smith, in essence, argues that HSHA itself did not know 

precisely what engineering controls would be sufficient to abate the violation. 

Smith contends that the Secretary utilized a "trial and error" approach in 

determining which engineering controls would abate the citation. Whatever the 

possible merits of Smith's "trial and error" objection to proof of a violation 

of the noise standard, on the facts of this case we find the argument 

unpersuasive. The Secretary presented credible evidence that the excessive 

noise levels resulted from the fact that the operator's cab was not segregated 

sufficiently from the engine compartment and other noise sources. The noise 

controls proposed by the Secretary are all basic and uncomplicated, and involve 

no complicated studies or experimental technology. Rather, several self-evident, 

readily available controls were suggested. In our view, the Secretary presented 

sufficient credible evidence establishing several technologically achievable 

engineering controls that could have been applied to Smith's equipment. 

The ·third element of proof concerns the reduction in noise Level that 

would be attained if the proposed controls were implemented. He conclude that 

the Secretary presented sufficient credible evidence in this regard. The 

inspector testified that he had experience with abatement of noise vinlations 

involving similar diesel shovels, nsing engineering controls such as those 

t"ecommended in this case. Although the inspector did not predict the exact 

amount of noise reductLon achievable i'rom each proposed control, hased on his 

past experience he indicated that each control would reduce the noise level 

202 
and that compliance could be achieved by a combination of the proposed controls. 

On this record the Secretary thus established that the proposed engineering 

controls would.reduce the noise level. 

The fourth element requires proof of a reasoned estimate of the expected 

economic cost of the controls. In this instance, based on his previous 

experience the inspector was able to estimate a cost for the controls. He 

testified that another operator had installed a commercial sound curtain for 

approximately $500. He also testified that he told Smith that two other 

operators had successfully built homemade barriers to bring their equipment 

into compliance at a cost of $100 or less. An installed muffler was priced 

at between $50 and $100. The inspector estimated the cost for the window 

glass at between $100 and $200. Although these estimates are not documented 

beyond the inspector's personal knowledge and experience, we conclude that 

the inspector established sufficient experience with these proposed noise 

controls to make his testimony credible as a reasoned estimate of their cost. 

Smith did not rebut the testimony on the costs of glass and muffler and 

only demonstrated that the actual cost of the curtain, months after the 

inspection and original estimate, was more than predicted. 

The final element of the Secretary's proof is a demonstration that the 

cost of the suggested controls is not wholly out of proportion to the expected 

benefits. Again, the facts support the conclusion that the Secretary met this 

burden. The estimated total cost of the engineering controls suggested by 

the Secretary ranged from a low estimate of $600 or less to a high estimate of 

about $1,400. The benefit to be attained from installation of the controls 

apparently would be full compliance with the standard by reducing the miner's 

exposure to noise to permissible Levels. We agree with the judge that even 

if the higher cost estimates are used, it cannot be said that these costs are 

unreasonable or wholly out of proportion to the expected benefits to be 

attained. }../ Thus, we conclude that the Secretary established a violation 

of 30 C.F.R. § 56.5-50. 

2./ In view of the amount of the maximum estimated costs of the engineering 

controls, this case also does not require us to address in detail the 

"prohibitively expensive" test of economic feasibility suggested by the 

Secretary. See Callanan, 5 FMSHRC at 1908. As in Callanan, under any 

reasonable interpretation of that phrase the costs of the controls at 

issue here can not be considered "prohibitively expensive." 

203 
Accordingly, the judge's finding of a violation and assessment of a 

$300 civil penalty are affirmed. 

Commissioner Lawson concurring: 

--L. Cl_air Nelson, Commissioner 

I / 

I/ 

v 

I agree with the majority as to the result reached and would, therefore, 

affirm the finding of a violation by the judge below. However, for the reasons 

expressed in my dissent in Callanan Industries, Inc., supra, I disagree with 

their requiring the Secretary to establish as part of his prima facie case 

the economic feasibility of technologically feasible controls. 

A. E. Lawson, Commissioner 

204 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mr. Wheeler Green, Safety Director 

A. H. Smith Company 

Branchville, Maryland 20740 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

205 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 29, 1984 

COUNCIL OF SOUTHERN MOUNTAINS, 

INC. 

v. 

MARTIN COUNTY COAL CORPORATION 

Docket No. KENT 80-222-D 

DECISION 

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

1977, 30 U.S.C. § 801 et~· (1976 & Supp. V 1981). The issue presented is whether the Mine Act grants to non-employee representatives of 

miners the right to monitor training classes for miners on mine property. 

A Commission administrative law judge held that such a monitoring right 

was impliedly conferred by the Mine Act, and that the operator had 

interfered with its exercise in violation of section 105(c)(l) of the 

Act. 30 U.S.C. § 815(c)(l). 1./ We disagree. Connnission recognition of 

the asserted right would be tantamount to amendment of the Mine Act. 

Accordingly, we reverse. 

I. 

The essential facts are stipulated or undisputed. On October 25, 

1979, Martin County Coal Corporation refused to permit persons from a 

non-employee representative of miners, the Council of Southern Mountains, 

Inc. (the "Council"), to enter the property of Martin County's No. 1-S 

coal mine to monitor Martin County's training classes for its miners. 

The Council's representatives were not accompanied by an inspector nor 

were they participating in an ongoing inspection. The classes were 

being conducted pursuant to section 115 of the Mine Act. 30 U.S.C. 

§ 825 (n. 4 infra). The Council was the authorized representative of 

miners, for purposes of the Mine Act, at Martin County's No. 1-S and 1-C 

1/ The judge's decisions are reported at 2 FMSHRC 2829 (October 1980) 

(ALJ)(decision on the merits), and 3 FMSHRC 526 (February 198l)(ALJ) 

(award·of attorney's fees). 

206 84-2-15 
mines, and had complied with the Department of Labor's filing requirements for miners' representatives under 30 C.F.R. Part 40. ]:_! 

In December, as a result of Martin County's refusal to permit 

monitoring on October 25, the Council filed a discrimination complaint 

under section lOS(c) of the Mine Act with the Department of Labor's Mine 

Safety and Health Administration ("MSHA"). MSHA investigated the complaint and on March 5, 1980, issued Martin County a citation alleging a 

violation of 30 C.F.R. § 48.3, which is a training regulation implementing section 115 of the Mine Act. MSHA advised the Council by 

letter, however, of its determination that Martin County's refusal to 

allow the Council to monitor training classes was not a violation of 

section 105(c)(l) of the Act. 

On March 18, 1980, the Council was again denied permission by 

Martin County to enter mine property to monitor miner training classes 

at the No. 1-S mine. Again, the Council's representatives were not 

asserting any right to accompany an inspector. On the same date, MSHA 

issued a withdrawal order for Martin County's failure to abate the 

alleged violation of section 48.3. Martin County filed a notice of 

contest of the citation and withdrawal order. The Council, in turn, 

filed a discrimination complaint with the Commission, which is the 

subject of this case, based on Martin County's October and March 

refusals to allow monitoring. The complaint was filed pursuant to 

section 105(c)(3) because of MSHA's prior determination that Martin 

County's refusal to permit monitoring did not violate section 105(c)(l). 

Finally, MSHA filed a civil penalty petition for the alleged violation 

of section 48.3. The Commission's administrative law judge subsequently 

consolidated the proceedings. 

On October 3, 1980, the Commission's judge rendered his decision 

concluding that Martin County had violated section 105(c)(l). He 

awarded the Council attorney's fees and expenses but did not, at that 

point, specify the sums involved. Both Martin County and the Council 

filed petitions for discretionary review. On November 12, 1980, we 

returned the case to the judge for a determination of the amount of 

attorney's fees. 2 FMSHRC 3216 (November 1980). On February 23, 1981, 

the judge awarded the Council $14,730.51 in attorney's fees and expenses. Martin County then filed a petition for discretionary review, 

which we granted on April 3, 1981. The Secretary of Labor filed an 

amicus brief on review, and we heard oral argument in the case. 

2/ Earlier, in March 1979, Martin County had also denied Council 

~epresentatives permission to monitor training classes. On March 12, 

1979, the Council filed a section 105(c) discrimination complaint over 

this incident and other aspects of Martin County's refusal to recognize 

the Council's status as a representative of miners. On October 24, 

1979--the day before Martin County again refused the Council permission 

to monitor classes--the Council voluntarily withdrew its complaint 

pursuant to a settlement with Martin County. The withdrawal letter 

stated that the Council and Martin County had reached an understanding 

that the Council was the authorized representative of miners at the No. 

1-S and 1-C mines. The letter did not mention the subject of monitoring 

training classes. 

207 
In his decision on the merits, the judge vacated the citation and 

withdrawal order alleging a violation of section 48.3. He concluded 

that no provision in the regulation, expressly or by implication, 

granted non-employee miners' representatives a right to monitor an 

operator's training classes. He also determined that section 48.3 

reserves to the Chief of MSHA's Training Center the exclusive right to 

evaluate the effectiveness of operators' training programs. Neither the 

Secretary of Labor nor the Council sought review of this aspect of the 

judge's decision. 

With respect to the section 105(c) violation alleged by the Council, 

the judge determined that the Mine Act confers on non-employee miners' 

representatives an implied right to monitor classes being conducted on 

mine property. He therefore concluded that the refusal to let the 

Council monitor the classes violated section 105(c)(l), because it 

directly interfered with the exercise of a statutory right of a representative of miners. In holding that there was an implied monitoring 

right, the judge stated such an "implied right to monitor training 

classes must be found as a part of the purposes of the Act and its 

provisions in general." 2 FMSHRC at 2839. 

The judge observed that section 2(e) of the Mine Act provides that 

operators "with the assistance of miners, have the primary responsibility to prevent the existence of unsafe and unhealthful conditions and 

practices in the mines.'' 30 U.S.C. § 80l(e). The judge reasoned that 

since miners are to assist operators in health and safety matters and 

may act through their representatives, section 2(e) supported representatives' active participation in operators' safety training classes. 

The focus of the judge's reasoning, however, was section 115 of the Mine 

Act. 

The judge noted that section 115(a)(l) requires instruction on "the 

statutory rights of miners and their representatives." He stated that 

this provision constituted "a strong indication that the miner's representative shbuld be present when that instruction is given." 2 FMSHRC 

at 2840. Additionally, the judge reasoned that section 115(b), which 

provides that training can be given at some place other than the mine 

site, was also "significant" because an "operator would have difficulty 

in objecting to a miners' non-employee representative coming to that 

site to monitor the training classes." Id. The judge also relied on 

section 115(c), which requires that miners be given certificates of 

instruction after training and that the certificates be made available 

for inspection at the mine. He stated that this section implied that 

miners' representatives, whether employees or not, would have the right 

to examine the certificates after training has been completed. We 

respectfully disagree with the judge's analysis of the statute. 

II. 

Neither the Mine Act nor its legislative history--nor, for that 

matter, the Secretary's extensive regulations implementing section 115 

208 
of the Act--refers to a right of miners' representatives to monitor 

training classes. This legislative silence dictates cautious review of 

any argume~t that the Commission "recognize" such a statutory right. 

We do not quarrel with the general proposition that statutory 

rights and duties may be judicially inferred. In our opinion, however, 

due respect for the limits of judicial power requires that any such 

inference be founded on a persuasive textual or legislative indication 

of the intended presence of the claimed right or duty. Legislative 

history, for example, may unquestionably show that statutory language 

embraces matters not expressly stated. Indeed, we found this to be the 

case with regard to the right to refuse work under the Mine Act. 

Secretary ex rei. Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2789-

93 (October 1980), rev'd on other grounds sub. nom. Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). Different provisions of a statute, when viewed together, may clearly yield a result 

that neither suggests alone. 

Examples could be multiplied, but we conclude that there must be a 

persuasive nexus between that which is stated in a statute and that 

which is inferred from it. Ambitious inference all too easily becomes 

amendment. In view of some of the suggestions made in this case, it 

bears restating that the Commission is an independent adjudicatory 

agency that exists to provide administrative trial and appellate review. 

The Commission is in no way part of MSHA or the Department of Labor. 

Our statutory mandate does not include amendment of the Act or promulgation of legislative regulations implementing it. 

The right we are asked to detect is sophisticated: Non-employee 

miners' representatives would be empowered to enter mine property and 

attend the operator's training classes; there, they would monitor the 

operator's teaching methods and its compliance with all applicable 

training requirements. We do not discern a persuasive nexus between the, 

Mine Act and this asserted private avenue to enforce its training provisions. ]._! 

The Act's reference in section 2(e)(30 U.S.C. § 80l(e)) to "miner 

assistance" to operators in the prevention of unsafe and unhealthful 

conditions is a preambulary statement of general "findings and purpose." 

As such, it does not definitively indicate whether this specific form of 

asserted "assistance" is impliedby the Act. We cannot treat this 

general statement in the Act's preamble as a congressional carte 

blanche to engraft onto the Mine Act whatever judicial afterthought we 

might deem useful or expedient. As the Court of Appeals for the 

District of Columbia Circuit declared in a similar context: 

]._! Our decision in this case is not based on any distinction between 

the rights of employee and non-employee miners' representatives. Rather, 

we distinguish only between those who would regularly and properly be 

scheduled to attend an operator's training session and those who would 

not be present without an implied monitoring right or invitation. Obviously, nothing in our holding would bar permissive or contractual 

attendance by any miners' representative at training classes on mine 

property. 

209. 
The •.• argument based on the language in the 

preamble is based on an erroneous perception of the 

operation and significance of such language. A preamble no doubt contributes to a general understanding 

of a statute, but it is not an operative part of the 

statute and it does not enlarge or confer powers on 

administrative agencies or officers. Where the enacting or operative parts of a statute are unambiguous, 

the meaning of the statute cannot be controlled by 

language in the preamble. The operative provisions 

of statutes are those which prescribe rights and 

duties and otherwise declare the legislative will. 

Association of American Railroads v. Castle, 562 F.2d 1310, 1316 (D.C. 

Cir. 1977)(footnote omitted). 

Nor do we find indicia of the claimed right in section 115 itself. 

This section, set forth in the accompanying note, is a provision of 

considerable specificity. !±_/ None of the language of section 115, however, hints at a monitoring right for non-employee miners' representatives on mine property. 

!±_/ Section 115 provides: 

(a) Each operator of a coal or other mine shall have a health 

and safety training program which shall be approved by the Secretary. 

The Secretary shall promulgate regulations with respect to such 

health and safety training programs not more than 180 days after 

the effective date of the Federal Mine Safety and Health Amendments 

Act of 1977. Each training program approved by the Secretary shall 

provide as a minimum that--

(1) new miners having no'underground mining 

experience shall receive no less than 40 hours 

of training if they are to work underground. Such 

training shall include instruction in the statutory 

rights of miners and their representatives under 

this Act, use of the self-rescue device and use 

of respiratory devices, hazard recognition, escapeways, walk around training, emergency procedures, basic ventilation, basic roof control, 

electrical hazards, first aid, and the health and 

safety aspects of the task to which he will be 

assigned; 

(2) new miners having no surface mining experience shall receive no less than 24 hours of 

training if they are to work on the surface. Such 

training shall include instruction in the statutory 

rights of miners and their representatives under 

this Act, use of the self-rescue device where 

appropriate and use of respiratory devices where 

appropriate, hazard recognition, emergency procedures, electrical hazards, first aid, walk around 

training and the health and safety aspects of the 

task to which he will be assigned; 

(footnote continued) 

210 
The judge stated that the requirement in section 115(a)(l) and (2) 

for training on "the statutory rights of miners and their representatives" 

footnote 4 cont'd. 

(3) all miners shall receive no l~ss than 

eight hours of refresher training no less frequently than once each 12 months, except that 

miners already employed on the effective date 

of the Federal Mine Safety and Health Amendments 

Act of 1977 shall receive this refresher training 

no more than 90 days after the date of approval 

of the training plan required by this section; 

(4) any miner who is reassigned to a new 

task in which he has had no previous work experience shall receive training in accordance 

with a training plan approved by the Secretary 

under this subsection in the safety and health 

aspects specific to that task prior to performing 

that task; 

(5) any training required by paragraphs (1), 

(2) or (4) shall include a period of training as 

closely related as is practicable to the work in 

which the miner is to be engaged. 

(b) Any health and safety training provided under subsection 

(a) shall be provided during normal working hours. Miners shall be 

paid at their normal rate of compensation while they take such 

training, and new miners shall be paid at their starting wage rate 

when they take the new miner training. If such training shall be 

given at a location other than the normal place of work, miners 

shall also be compensated for the additional costs they may incur 

in attending such training sessions. 

(c) Upon completion of each training program, each operator 

shall certify, on a form approved by the Secretary, that the miner 

has received the specified training in each subject area of the 

approved health and safety training plan. A certificate for each 

miner shall be maintained by the operator, and shall be available 

for inspection at the mine site, and a copy thereof shall be given 

to each miner at the completion of such training. When a miner 

leaves the operator's employ, he shall be entitled to a copy of his 

health and safety ~raining certificates. False certification by an 

operator that training was given shall be punishable under section 

llO(a) and (f); and each health and safety training certificate 

shall indicate on its face, in bold letters, printed in a conspicious manner the fact that such false certification is so 

punishable. 

(d) The Secretary shall promulgate appropriate standards for 

safety and health training for coal or other mine construction 

workers. 

(e) Within 180 days after the effective date of the Federal 

Mine Safety and Health Amendments Act of 1977, the Secretary shall 

publish proposed regulations which shall provide that mine rescue 

teams shall be available for rescue and recovery work to each 

underground coal or other mine in the event of an emergency. The 

cost of making advance arrangements for such teams shall bP ~orne 

by the operator of each such mine. 

30 u. s. c. § 825. 

211 
is a "strong indication that the miner's representative should be present 

when that instruction is given." 2 FMSHRC at 2840. We are not persuaded. 

The invoked language does not invite the creation of new statutory 

rights. On the contrary, it is simply a direction that operators instruct 

miners in the rights Congress has granted them in the Mine Act. This 

training must b'e provided by operators, but it does not follow that nonemployee miners' representatives are thereby discriminated against under 

section 105(c) when a mine operator refuses to allow them to monitor the 

instruction. 

The judge's reliance on section 115(c) presents the same problem. 

Operators must provide training certificates upon the completion of the 

requisite instruction. The certificates shall be available for inspection 

in the mine. These requirements do not add up to a demonstration that 

non-employee miners' representatives should have overseen the instruction. 

In sum, we find no support for the monitoring right in the one portion 

of the statute where such support would be vital to judicial recognition. 

As we have indicated, the legislative history affords no extrinsic 

evidence of a monitoring right. Congress expressed a deep concern over 

the problem of poorly trained miners. See, for example, S. Rep. No. 

181, 95th Cong., 1st Sess. 49-51 (1977) ["S. Rep."], reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 

2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, 'at 637-39 (1978) [ "Legis. Hist."]. Congress chose to act upon 

this concern by passage of section 115. Other legislative responses, 

including provision fpr monitoring, could have been made but were not. 

Moreover, the legislative history reflects a congressional intent that 

training be the "business" and responsibility of operators, not of the 

Secretary or, ~ fortiori, of miners' representatives: 

It is not the Committee's contemplation that the 

Secretary be in the business of training miners. 

This is clearly the responsibility of the operator, 

as long as such training meets the Act's minimum 

requirements. 

S. Rep. 50, reprinted in Legis. Hist. 638. See Secretarv of Labor, 

Mine Safety and Health Administration (MSHA), on behalf of Bennett, 

Cox, et al. v. Emery Mining Corp., 5 FMSHRC 1391, 1394-95 (August 1983), 

pet. for review filed, No. 83-2017, 10th Cir., August 17, 1983. 

Recently we rejected a claim that we should recognize an implied 

statutory right of miners to initiate review of citations, issued by the 

Secretary of Labor, through the filing of a notice of contest. United 

Mine Workers of America v. Secretary of Labor, Mine Safety and Health 

Administration (MSHA), 5 FMSHRC 807 (May 1983), aff'd mem. sub nom. 

United Mine Workers of America v. Donovan, No. 83-1519, D.C. Cir., 

December 2, 1983. In the course of examining the structure of rights 

212 
granted miners in the Act, we stated, "Where Congress intended for 

miners to have an affirmative right under the Mine Act, it clearly 

provided for .such." 5 FMSHRC at 815. 2._/ The same notation applies in 

this case. Congress expressly granted miners and their representatives 

many valuable rights, in section 115 and in other provisions of the Act, 

but monitoring of mine site training classes by non-employee miners' 

representatives is not included among them. In the absence of any 

convincing implication of this asserted right in the Act and its history, 

we cannot presume a congressional intent that it be inferred and added 

to the statute. 

We also have concerns as to whether, if we infer a right to monitor 

compliance with the Mine Act's training provisions from generalized 

statutory language, the monitoring right could logically be confined to 

section 115. If there is a right to monitor the operator's provision of 

training and its conformity with all training requirements, we must ask 

why there is not an even larger implied right of access to the mine to 

monitor every aspect of the operator's compliance with the Act and 

implementing regulations. Nothing in the Act or its history reveals 

that Congress intended to go so far in the direction of granting the 

miners' representatives private inspection authority. Thus, we must 

conclude that the Act does not impliedly confer upon non-employee miners' 

representatives the right to monitor operators' training classes on mine 

property. It therefore follows that an operator does not interfere with 

the exercise of statutory rights and does not violate section 105(c) 

when it refuses entry to mine property for non-employee miners' representatives to monitor classes. 

2._/ See, for example, section 10l(a)(7), 30 U.S.C. § 8ll(a)(7)(transfer 

of miners overexposed to hazardous substance); section 103(c), 30 

U.S.C. § 813(c)(requiring the Secretary to adopt regulations permitting 

miners to observe the monitoring or measuring of toxic materials and 

harmful physical agents, and to have access to the records of one's own 

exposure); section 103(d), 30 U.S.C. § 813(d)(interested persons' access 

to accident reports); section 103(f), 30 U.S.C. § 813(f)(right to 

accompany MSHA inspector during inspection of mine, without loss of 

pay); section 103(g), 30 U.S.C. § 813(g)(right to request a special 

inspection if there is a reason to believe that a violation or an 

imminent danger exists and right to obtain informal review if the inspector does not issue a citation or a withdrawal order); section 

105(c)(3), 30 U.S.C. § 815(c)(3)(right to bring an independent action 

for discrimination before the Commission in the event that the Secretary 

declines to do so); section 107(e)(l), 30 U.S.C. § 817(e)(l)(right to 

seek Commission review of the Secretary's issuance, modification or 

termination of an imminent danger withdrawal order); section 111, 30 

U.S.C. § 821 (right to seek compensation if idled as a result of a 

withdrawal order issued under certain sections of the Act); section 

302(a), 30 U.S.C. § 862(a)(miners' access to roof control plan); section 

303(d)(l), (f), (g) and (w), 30 U.S.C. § 863(d)(l), (f), (g), and (w) 

(interested persons' access to records of operator's safety and health 

examinations); and section 312(b), 30 U.S.C. § 872(b) (miners' access to 

confidential mine map). 

213 
III. 

Other,_more general, arguments have been pressed on review, but 

neither singly nor in combination do they warrant a different decisional 

outcome. 

We are asked to read into the statute this asserted right as a 

matter of sound "policy." The Commission does have a policy-making role 

under section 113 of the Mine Act. 30 U.S.C. § 823(d)(2)(A)(ii)(IV) and 

(B). This case does not require us to describe the outer boundaries of 

that jurisdiction. It must be exercised, however, within the parameters 

of the Act and implementing regulations, as they are written. We must 

be faithful to the higher policy of respecting the plain demarcations of 

legislative and judicial responsibility under the Act. 

We are urged to weigh the crucial importance of training in the 

effectuation of the Act's goals. Important as training is, that consideration does not justify judicial amendment of the Act. We are told 

that where two interpretations of the Act are possible, the one promoting safety must be favored. There is a limit to this salutary principle of construction, reached here, where the interpretation claimed to 

promote safety lacks a basis in the statute. 

We emphasize that our holding does not deprive miners and their 

representatives of protection from inadequate training. Section 115 of 

the Act and the Secretary of Labor's comprehensive training regulations, 

30 C.F.R. Part 48, require operators to file detailed training plans 

with the Secretary for his approval. 30 C:F.R. § 48.3(d) directs 

operators to furnish miners' representatives with copies of proposed 

training plans prior to approval by MSHA, and guarantees the representatives a right of comment on the plans. Section 48.3(k) requires 

that approved plans be posted at the mine for MSHA inspection and 

examination by miners and miners' representatives. As noted above, the 

Part 48 regulations do not expressly create any right of miners' representatives to monitor training classes. MSHA, however, may conduct 

inspections or investigations, upon a miner's complaint, of an operator's 

training program. 30 U.S.C. § 813(g)(l). Citations and withdrawal 

orders issued by MSHA can remedy any lack of compliance. 30 U.S.C. 

§ 814. Thus, we are hard pressed to discover the glaring gap in protection and enforcement that the proponents of the claimed right allege. 

214 
IV. 

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

dismiss the Council's discrimination complaint. The judge's supplemental award of attorney's fees to the Council.as the prevailing party 

is accordingly reversed as well. 30 U.S.C. § 815(c)(3). 

, Commissioner 

. /' . '--. 

<:c£ l J __ --· ,,. 7{c. .LJ..t--,·, 

·L. Clai~elson, Connuissioner 

215 
Commissioner Lawson dissenting: 

The majority's reversal of the decision below reflects a 'solution' 

to a nonexisting problem, contrary to the careful and legally circumspect 

analysis of the judge below. In this case, the authorized miners' representative 1/ seeks to monitor the mandatory health and safety training 

classes required to be given by the statute. Indeed, since the decision 

below was issued (in October 1980) these classes have been attended and 

observed by this non-employee miners' representative, without reported 

incident or disruption, and pursuant to agreement between the parties as 

to the limits and details of that monitoring (oral arg. 26-27, 38). No 

cost or prejudice to the operator has been demonstrated or will result. 

Even the operator is less absolutist on the right of access to these 

classes than is the majority, contending only for a "balancing" of 

rights, while acknowledging that "liberal construction" of the Act is 

appropriate (oral arg. 8, 54, 59). !:_/ 

1/ It is conceded that Council of Southern Mountains (Council) has at all 

relevant times been certified as the miners' representative. Oral arg. 4. 

(Stipulation No. 1). 

2/ The operator in this case was characterized by the judge below as 

11extremely recalcitrant," having attempted to block Council's status as 

the miners' representative, and then, having capitulated, immediately 

denying this representative the earlier disputed monitoring rights 

(Dec. at 1, n. 2) (Dec. 21). The prior discrimination complaint was based 

on a series of events between December 1978 and March 1979, during which 

time the operator (1) refused to furnish the representative copies of two 

proposed training programs, prior to submission to MSHA, contrary to the 

requirements of 30 C.F.R. § 48.3(d); (2) failed to note on modified 

programs, resubmitted to MSHA, that its miners were represented by a 

representative, claiming instead "non-agreement," (3) responded to the 

representative's request to attend classes by denying their representative 

status, (4) failed to respond to ten subsequent attempts by the representative to discuss the issue of attending classes, and finally, (5) failed to 

permit two representatives to pass through the main access road guard gate 

to monitor training sessions. The complaint was withdrawn when the operator 

agreed to recognize Council as the miners' representative and to comply with 

training regulations. See Exh. A through G. 

216 
There are no factual disputes in this case. No credible reason has 

been advanced by the majority for distinguishing between employee and 

non-employee miners' representatives. The majority's assertion that the 

mine operator may restrict attendance to" ••• those who would regularly 

and properly be scheduled to attend an operator's training session ••• " 

(slip op. at 4, n.3), but is empowered to refuse to permit non-employee 

representatives to attend these classes, effectively separates and 

distinguishes between miners' representatives. This is an obvious 

diminution of the participatory status of non-employee representatives, 

and a distinction that impermissibly lessens their statutorily authorized 

role. It is not disputed by the majority, and the operator concedes, that 

the statute which binds us makes no such distinction. Oral arg. 6. A 

miner's representative is a miner's representative, regardless of 

employee status. The Act does not limit the miners in their fundamental 

right to select a representative of their choice. 11 As here, nonemployees may be chosen, and those selected are granted no different or 

fewer rights than would be true if they were employees. See note 3, 

supra. 

Phrased differently, the majority's decision must thus bar employee 

miners' representatives from monitoring safety and health training 

classes. But if an employee miner who is an employee representative, 

e.g., a union official, is participating in the employer's training 

class, nothing prevents him or her from monitoring that class for content, 

effectiveness, or compliance with the training program (30 C.F.R. § 48.3), 

and reporting those observations to fellow miners, the union or MSHA. 

Indeed, both in law and in fact, how could that monitoring be prohibited? 

It must therefore be concluded that the majority's decision is not in 

reality an exercise in judicial restraint, but merely an unacknowledged 

means of barring only non-employee miners' representatives 'from monitoring safety and health training instruction. This is, indeed, an impermissible amendment of the Act. 

The remedial legislation we are called upon to interpret must be 

liberally construed, as the operator concedes, supra. Court and Commission 

precedent, as the judge below observed, holds that "should a conflict develop 

between a statutory interpretation that would promote safety and an interpretation that would serve another purpose at a possible compromise to 

safety the first should be preferred." Old Ben Coal Co., 1 FMSHRC 1954, 

1957-58 (1979), quoting, UMWA v. BMOA [Kleppe], 562 F.2d 1260, 1265 (D.C. 

Cir. 1977). 

11 Recognition that employees may designate their own representative has 

been long honored under the basic charter for employee democracy, section 7 

of the National Labor Relations Act, 29 U.S.C. § 157. See Minnesota Mining 

& Manufacturing Co. v. NLRB, 415 F.2d 174, 177, 178 (8th Cir. 1969); Standard 

Oil Co. v. NLRB, 322 F.2d 40 (6th Cir. 1963); NLRB v. Deena Artware, Inc., 

198 F.2d 645{6th Cir.}, cert. denied; 345 u.s--:--906 (1952); Native Textiles 

& Communication Workers, 246 NLRB No. 38, 102 LRRM 1456 (1979); see also 

Consolidated Coal Co. v. MSHA, 3 FMSHRC 617 (1981). 

217 
The legislative history of the 1977 Mine Act reveals congressional 

acknowledgement that lack of miner training had contributed in large 

measure to the great loss of life in the Sunshine and Blacksville mine 

disasters, events which stimulated passage of this legislation, Sen. 

Rep. No. 95-181 at 49, Legis. Hist. at 637, and that health and safety 

training is essential to achieving the Act's goals. Sen. Rep. at 50, 

Legis. Hist. at 638. In authorizing participation by miners' representatives in inspections and in pre- or post-inspection conferences, the 

legislators recognized the important role of representatives in the 

education of miners: 

It is the Committee's view that such participation 

will enab.le miners to understand the safety and health 

requirements of the Act and will enhance miner safety 

and health awareness. 

Sen. Rep. at 28, Legis. Hist. at 616. 

The history also reflects an intent that miners and their representatives 

have maximum impact and involvement with the implementation and enforcement 

of the 1977 Act, including the inspection and safety training provisions, and 

that full participation by miners and their representatives be statutorily 

protected through the Act's anti-discrimination provisions: 

If our national mine safety and health program is to be 

truly effective, the miners will have to play an active 

part in the enforcement of the Act. The Committee is 

cognizant that if miners are to be encouraged to be active 

in matters of safety and health, they must be protected 

against any possible discrimination which they might 

suffer as a result of their participation •.•. 

Section 106(c) [105(c)] of the bill prohibits any discrimination against a miner for exercising any right 

under the Act. It should also be noted that the class 

protected is expanded from the current Coal Act. The 

prohibition against discrimination applies to miners, 

applicants for employment, and the miners' representatives. The Committee intends that the scope of the 

protected activities be broadly interpreted by the 

Secretary, ... 

Sen. Rep. at 35, Legis. Hist. at 623. (Emphasis added.) 

21& 
Congress also made clear that- the anti-discrimination protection 

applied to implementation of the safety training provisions: 

The listing of protected rights contained in section 

106(c)(l) [105(c)(l)] is intended to be illustrative and 

not exclusive ••.. The Committee also intends to cover 

within the ambit of this protection any discrimination 

against a miner which is the result of the safety training provisions of Section 115 or the enforcement of those 

provisions under Section 105(f) [104(g)]. 

Sen. Rep. at 36, Legis. Hist. at 624. (Emphasis added.) 

An expansive role for miners and their representatives in implementation 

of the Act was initially recognized on April 19, 1978, in one of the first 

"Interpretive Bulletins" issued by the Secretary: 

The .•. Act is a federal statute designed to achieve safer 

and more healthful conditions in the nation's mines. 

Effective implementation of the Act and achievement of 

its goals depends in large part upon the active but 

orderly participation of miners at every level of safety 

and health activity. Therefore, under the Act, miners 

and representatives of miners are afforded a wide range 

of substantive and procedural rights. [i/] 

43 Fed. Reg. 17546 (April 25, 1978). 

Hore directly, the Preamble to the Secretary's pubiished regulations 

for implementation of section 115 of the Act states: 

Numerous references to the "representative of miners" 

throughout the Hine Act evidence the importance of 

involving the miner in all aspects of mine health and 

safety. Nowhere does the Hine Act either explicitly 

or implicitly limit the participation of the representatives of miners only to the enumerated situations in 

the Act ...• Indeed, HSHA would be remiss in attempting 

to fulfill its statutory obligation to insure that the 

training plan submitted by the operator would afford 

adequate training to miners if it failed to include 

the representative of miners in the approval process. 

43 Fed. Reg. 47454, 47456 (October 13, 1978). 

ii Nowhere in this or any other Secretarial bulletin or regulation is any 

distinction made between non-employee and employee miners' representatives. 

219 
Contrary to the majority's contention, the absence of an express 

monitoring right in the statute is not dispositive of the issue before 

us. Congress has indicated that its listing of rights is illustrative 

only, Sen. Rep. at 36, Legis. Hist. at 624, supra, and that the scope of 

protected activities is to be broadly interpreted. 

[I]f Congress has made a choice of language which fairly 

brings a given situation within a statute, it is unimportant 

that the particular application may not have been contemplated by the legislatures. 

Barr v. United States, 324 U.S. 83, 90 (1945). See also Diamond v. 

Chakrabarty, 447 U.S. 303, 315 (1980), and cases cited. 

My colleagues would also exclude from consideration the expression of 

congressional intent contained in the "Findings and Purpose" section of 

the Mine Act. Slip op. at 4. 5/ However, not only the Act but ample 

precedent makes clear the defi~iencies in the majority's artificial 

separation of section 2(e) from the statute of which it is a part. It 

would appear superfluous to note that the "Findings and Purpose" section 

of the Act, under which 2-(e) appears, represents an express statement of 

Congressional policy, see,~·· Lehigh & New England Railway Co. v. 

I.C.C., 540 F.2d 71, 79 (3d Cir. 1976), cert. denied, 429 U.S. 1061 

(1977), that is not severable from the statute. This expression of 

legislative policy has been described as a guide to the "public interest" 

that a statute addresses, McLean Trucking Co. v. United States, 321 U.S. 

67, 82 (1944), 6/ and as a "mandate" in construing the reach of a statute, 

American Trucki~g Associations, Inc. v. Atchison, Topeka, & Sante Fe Railway, 

387 U.S. 397, 412 (1967). If "(t]he purpose of Congress is the ultimate 

touchstone," Retail Clerks International Association v. Schermerhorn. 

375 U.S. 96, 103 (1963), Congress' express statement of purpose in the 

1977 Mine Act must be considered in determining the rights derived from 

the statute. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-12 (1980), 

where the court expressly relied upon the statutory purpose and policy 

expressed in the preamble to the Occupational Safety and Health Act of 

1970, 29 U.S.C. §§ 651-678, to determine whether a right to refuse work 

is embodied in the legislation. Indeed, the lead decision of this 

Commission interpreting section 105(c) was substantially based on the 

conclusion that the right to refuse work, on which this Act is silent, was 

"necessary to fully effectuate the Congressional purpose [of the Mine Act]." 

Pasula, supra, at 2790. 

2_/ It is manifest that if the relevant provisions of the Mine Act were so 

unambiguous as to preclude reliance on the statement of purpose contained 

in the statute, the majority's review of the legislative history (slip. op. 

at 3, 7) would be equally impermissible. 

!!_/ See also Wiggins Bros, Inc. v. Department of Energy, 667 F.2d 77, 88 

(Em. App. 1981), cert. denied, 456 U.S. 905 (1982). 

220 
The interrelationship of the Act's various training sections, even 

without section 2(e), makes evident additional fallacies in the rationale 

of the majority. More specifically, section 2(g)(4) states that one of 

the major purposes of the Act is to "improve and expand ••• training 

programs aimed at preventing .•• accidents •••• " Further, section 104(g) 

of the Act provides for the mandatory immediate withdrawal from the mine 

of any untrained miners found therein. Sen. Rep. at 50, Legis. Hist. at 

638. And section 115 of the Mine Act, "Mandatory Health and Safety 

Training," describes in detail the requirements for the safety training 

of miners. 

Section 115(a) demands that "each operator of a coal or other mine 

shall have a health and safety training program ...• " (Emphasis added.) 

The majority's characterization of these classes as "the operator's," 

is thus misleading, since Martin County's duty to instruct is neither 

personal nor "private." In truth, both the classes, and any monitoring 

thereof, are for a statutory purpose, and charged with that legislatively 

expressed public concern. 

Section 115(a) of the Mine Act also states that training classes" ... 

shall include instruction in the statutory rights of miners and their 

representatives." (Emphasis added.) Notwithstanding, the majority would 

bar these admittedly statutorily indistinguishable miners' representatives 

(oral arg. 16), from observing instruction on the "statutory rights" of 

these very representatives. It would appear obvious that miners' representatives would, indeed must, be present when that instruction is given, if 

section 115 is to be meaningfully implemented. 

Section 115(b), moreover, provides for training classes to be held 

at locations other than the mine site. Although the operator itself 

presented the classes in this case, the training required by the statute 

may be satisfied with instruction by non-operator personnel at, e.g., 

local public colleges or universities. 30 C.F.R. § 48.4(a). Cf. Bennett 

v. Emery Mining Co., 5 FMSHRC 1391 (1983), appeal filed, No. 83-2017 

(10th Cir. Aug. 17, 1983). The operator was unable to articulate any 

basis under the Act, or in law, which would permit it to bar miners' 

representatives from those classes held away from the mine site, admittedly 

non-hazardous locales. (Oral arg. 10-12). Indeed, the statute reveals none. 

One searches in vain to discover statutory--or other--support sanctioning 

restrictions by an operator on a public educational institution's 

admission policy. 

221 
Section 115(c) requires that miners who have received the mandatory 

safety and health training not only be given certificates of instruction 

after completion thereof, but that these certificates be made available 

for inspection at the mine site. If the training certificate is to be 

meaningful, the training given must be open to evaluation. Monitoring 

of the training process, designed to enable miners to work safely and 

survive in this most dangerous of industries, is crucial, indeed, 

indispensable, to the "business of training miners." Sen. Rep. at 50, 

Legis. Hist. at 638. 

It would also be impossible for the miners' representative to 

exercise its undisputed right to propose revisions to safety and health 

training plans, undeniably granted by 30 C.F.R. § 48.23, if it is unable 

to monitor and intelligently evaluate that training. Certainly miners' 

representatives can hardly be expected to receive, much less benefit 

from, this required instruction on their rights, if they are to be barred 

from these classes. Under the reasoning of the majority, newly hired 

miners, who have never seen the inside of a mine, would be required to 

determine on their own whether the training received satisfied the 

statutory criteria of section 115 and the training regulations contained 

in 30 C.F.R. Part 48, and then relay their observations to their representative. The miner is, after all, being trained, and if he or she were 

knowledgeable about the safety and health instruction being presented, 

there would obviously be no need for the training. Indeed, the asserted 

possibility of confusion, misinformation or disruption--admittedly totally 

without record support (oral arg. 57)--would be maximized, not minimized, 

by barring access to this safety and health training. This is surely contrary to both the language of section 115 and the goal of the safety and 

health instruction being presented. 

The instructors of these mandatory safety and health classes may 

also have their approval as instructors revoked by MSHA for "good cause." 

30 C.F.R. § 48.3(i). It would appear beyond argument that the miners' 

representative, if permitted access to these classes, would be in the 

best position to demonstrate "good cause," if any revocation were to be 

sought of an instructor's teaching approval certificate. 

It is thus essential, as the Secretary agrees, that representatives 

be able to monitor the training being given, in order to effectuate these 

several statutory rights. (Oral arg. 39-42.) Absent miner monitoring, 

it strains credibility to believe, for example, that an operator will 

enthusiastically instruct its employees on the right to refuse work. As 

Phillips v. Board of Mine Operations Appeals, 500 F.2d 772, 778 (D.C. Cir. 

1974), cert. denied, 420 U.S. 938 (1975), instructs us: "The miners are 

both the most interested in health and safety protection, and in the best 

position to observe the compliance or noncompliance with safety laws." 

222 
The majority contends that the miners' representative is asserting a 

"private avenue" or is acting as a "private attorney general" to enforce 

the training .provisions of the Act. Slip op. at 4, 8. It is scarcely 

necessary to observe that no recompense is claimed by, nor will any accrue 

to this miners' representative if it were to monitor these mandated safety 

and health classes. Moreover, in contrast to the active intrusion 

legislatively [and judicially--UMWA v. FMSHRC, 671 F.2d 615 (D.C. Cir.), 

cert. denied sub nom. Helen Mining Co. v. Donovan, 51 U.S. L. W. 3288 

(U.S. Oct. 12, 1982), corrected, 51 U.S.L.W. 3300 (U.S. Oct. 19, 1982)(No. 

82-33)--] granted to miners who not only accompany federal mine inspectors 

to assist in searching out safety and health hazards, but are paid by the 

mine operator for. their time, the passive "intrusion" here is truly 

de minimis. ]_/ 

The right of access to training classes for miners and their chosen 

representatives, whoever they may be, is thus amply implied, if not 

explicitly required by, the Act. The Act is also silent as to the right 

of a miner to refuse work in unsafe conditions. Nonetheless, that most 

fundamental right has, as the majority concedes, been determined to be 

implicit in section 105(c) of the 1977 Mine Act, Pasula, supra, as well 

as under section llO(b) of the 1969 Act, 30 U.S.C.A. 820, under language 

significantly narrower than that of the 1977 Act: !}_/ 

Nothing in the 1969 Mine Safety Act or mine procedure 

suggests that the company has a right to fire a miner 

for refusing to work in a particular area of a mine 

when he fears a chronic, long-term threat to his health 

or safety there due to safety violations. 

]_/ The majority, although never directly, apparently approves this operator's 

shopworn contention that its property rights outweighs the duty of the operator 

to provide accessible safety and health training. This Commission has previously held that non-employee miners' representatives have access to mine 

property for walkaround inspection purposes. See Consolidation Coal Co. v. 

MSHA, supra note 3. It would also appear beyond serious question that a nonemployee miners' representative could have monitored any of these classes 

under section 103(f) of the Act if an MSHA inspector had asked the representative to accompany him. Dec. at 9. 

!}_/ Section llO(b)(l) states: 

No person shall discharge or in any other way discriminate 

against or cause to be discharged or discriminated against 

any miner or any authorized representative of miners by 

reason of the fact that such miner or representative (A) 

has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed 

instituted, or caused to be filed or instituted any proceeding under this Act, or (C) has testified or is about 

to testify in any proceeding resulting from the administration or enforcement of the provisions of this Act. 

223 
Phillips, 500 F.2d at 780. Congress thereafter explicitly confirmed 

that right under the 1977 Mine Act, specifically approving Phillips. 

Sen. Rep. at 36, Legis. Hist. at 624. The final and definitive ruling 

on that implicit right, under comparable statutory language, was set 

forth by the Supreme Court in Whirlpool Corp. v~ Marshall, supra. 

Finally, although given their disposition of this case the majority 

does not reach this issue, it is clear that if the right exists to 

monitor these classes, this operator has interfered with the exercise of 

that right, and that interference is prohibited by section 105 of the 

Act. Sen. Rep. at 35-6, Legis. Hist. at 623-24. 9/ The essence of the 

diS'Crimination here is this operator's treatment of this non-employee 

miners' represen·tative in a manner that it would not, and indeed could 

not, for the reasons stated, impose on an employee miners' representative. 

See Consolidation Coal Co. v. MSHA, supra note 3. 

I therefore dissent, and would affirm the judge below. 

A. E. Lawson, Commissioner 

2./ As Fasula makes clear, it is not necessary that discriminatory action 

be premised on a violation of a specific statutory right or administrativE 

requirement. 

224 
Distribution 

Jack W. Burtch, Jr., Esq. 

Mcsweeney, Stutts & Burtch 

121 Shockoe Slip 

Richmond, Virginia 23219 

L. Thomas Galloway, Esq. 

Galloway & Greenburg 

1725 I Street, N.W. 

Suite 60.1 

Washington, p.c. 20006 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

J. Davitt McAteer, Esq. 

Center for Law & Social Policy 

1751 N Street, N.W. 

Washington, D.C. 20036 

Administrative Law Judge Richard Steffey 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

225 

/ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

METRIC CONSTRUCTORS, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 29, 1984 

Docket No. SE 80-31-DM 

DECISION 

This case involves a complaint of discrimination filed by the Secretary 

of Labor with this independent Commission pursuant to the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981). The 

complaint alleged that Metric Constructors, Inc. ("Metric"), violated section 

lOS(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l)(Supp. V 1981), when it terminated the employment of seven of its workers following their refusal to 

perform certain work that they believed was.hazardous. A Commission 

administrative law judge concluded that the terminations were discriminatory, 

awarded back pay with interest to six of the seven complainants, awarded 

hearing expenses to five of the seven, and assessed a civil penalty of $1,000 

for the violation of section lOS(c)(l). 4 FMSHRC 791 (April 1982)(ALJ). We 

subsequently granted petitions for review filed by Metric and the Secretary, 

and we heard oral argument. For the reasons set forth below, we affirm the 

judge's finding of a violation of the Mine Act and his assessment of a civil 

penalty. However, we remand certain aspects of his remedial awards. 

I. 

Metric, a subcontractor, was engaged to do repair work at a cement plant 

owned by Florida Mining and Materials Corporation near Brooksville, Florida. 

Beginning on February 27, 1979, the kiln and the preheater at the plant were 

taken out of service so that repair work could be done. Much of the repair 

work involved welding. The seven complainants, all welders, were hired on a 

temporary basis to do the work. 1/ It was agreed they would work 12 hours per 

day, seven days per week, for approximately four weeks beginning February 27, 

1979. It was also agreed that they would work a night shift, from 7:00 p.m. 

to 7:00 a.m. 

1/ The complainants are: Joe Brown, Johnny Denmark, David Mixon (deceased), 

the McGuire brothers (Jerry and Terry) and the Parker brothers (John and 

Wes). 

228 84-2-16 
On the nights of February 27, 28, and Harch 1, 1979, the complainants 

worked on and around the kiln. On the night of March 2, they were assigned 

to weld vortex ducts, i.e., air intakes, on the pre-heater, a tall, smokestacklike structure. Their work area was approximately 180 feet above the ground. 

The judge has accurately described the crucial events. 

The seven Complainants proceeded with Night Foreman 

Davis to inspect their working area by climbing a set of 

stairs to it. Their working area was pointed out by Bob 

Davis from a platform. The Complainants could not reach 

it, however, because there was a gap of at least 6 to 8 

feet between the platform where they were standing and 

the actual working area. 

It was then determined that four of the Complainants 

(Joe Brown, Terry McGuire, Jerry McGuire and John Parker) 

would weld ·on the duct work, while the other three would 

pull leads (power supply for the welding machines) and act 

as relief when the welders got tired. Since there was no 

direct access to the duct work, the four welders were lifted 

to the work site in a basket by a crane. The other three 

Complainants pulled leads to within 6 to 8 feet of the duct 

work and stood on a platform handing supplies to the welders 

as needed. The platform had no fence or handrail around it. 

Once the four Complainants reached the duct work in the basket, 

they found there were no scaffolding or handrails around the 

work site nor were there any padeyes on which to hook their 

safety belts. [..?_/] They were thus required to weld padeyes 

before they could attach their safety belts. Terry McGuire 

and Joe Brown went inside the [duct] ••• that was being 

welded onto the pre-heater, while Jerry HcGuire went on top 

of the duct, and John Parker worked from an unsecured oneboard scaffold below the duct. 

The four Complainants ••• worked for approximately 2 

hours under conditions which they considered unsafe. Jerry 

McGuire, who was on top of the duct, was being blown about 

by heavy winds. John Parker, who was below the duct on the 

one-board scaffold, was being "burned" by the welding fire 

from above as were Terry McGuire and Joe Brown inside the 

duct. The lighting a't the work site was insufficient and 

by 7:30-8:00 p.m. on }farch 2, 1979, it was dark outside. 

The four welders working on the duct were able to reach 

the platform where the other three were standing only by 

walking around on a ring which encircled the pre-heater. 

2/ A padeye (or pad eye) is a plate with a round opening, usually welded or 

fixed to a structure, to which safety belts or Lines may be attached. 

227 
Shortly after 9:00 p.m., all seven Complainants went 

on break. They decided that because of what they believed 

to be unsafe and hazardous working conditions Terry McGuire 

and Joe Brown would talk to Bob Davis about improving the 

conditions by getting additional lights, fire blankets, 

scaffolding, cables for handrails and jacks for scaffolding 

board at the work site. 

Once on the ground, and after their break, Joe Brown, 

Terry McGuire and Jerry McGuire, on behalf of all seven 

men sought out Night Foreman Bob Davis and registered their 

complaints about the unsafe and hazardous working conditions, 

i.e., no handrails, no scaffolding, and no lights and to 

request angle irons, scaffold jacks, scaffold boards, fire 

blankets, cable for handrail and lighting. While they were 

so engaged, the other four Complainants returned to the 

platform located 6 to 8 feet from the duct. 

4 FMSHRC at 793-795 (transcript citations and footnotes deleted). 

Following the complaints, Foreman Davis went to the office trailer where 

he told Thelbert Simpson, the night superintendent, that the complainants wanted 

a scaffold and handrails before they resumed welding. Davis and Simpson agreed 

to call Russ Jones, the project superintendent, who was not on the job site. 

Simpson called Jones, and told him that the complainants refused to continue 

working on the pre-heater. Jones asked if Simpson had any other work for them. 

Simpson said that he did not, and Jones r-esponded that the complainants should 

go home and come back in the morning for their pay. Simpson apparently did not 

tell Jon.es why the complainants refused to work. 

Simpson then told Brown and the McGuire brothers that Jones had said to go 

home and to come back in the morning for their pay. The employees asked if 

there was other work for them to do on the ground and Simpson said there was 

not. They asked if they were being fired, and Simpson said they were not. 

Davis told the employees that Jones had said they would have to continue weld~ns 

as before. He also told them that if they refused they would have to go home, 

and that they could come back in the morning and get their money. 

Following this conversation, the employees went home. They returned the 

next morning to collect their pay. Each was asked to sign a slip which indicated 

that they had voluntarily quit, and each refused. That same morning other 

welders, who had been hired along with the complainants, were assigned to do 

the welding on the pre-heater. That work was completed three or four days 

before the end of the four-week work period of employment at the cement plant. 

In his decision below, the Commission's administrative Law judge found 

that the conditions under which the employees were asked to work were in 

fact unsafe. He also concluded that they engaged in a work refusal that was 

"reasonable and fully justified by the circumstances." 4 FHSHRC at B02. ~retri.c 

asserted, in defense of its termination of the complainants, that lt too had 

.;i. reasonable belief--that the conditions of employment were safe. '·!etric arg11l•d 

that because it had no duty to change the conditions to the employees' satisfaction and because no other work was available for the emplovees to do, Lt 

had no oblization to continue to employ them. The judge found, however, that 

228 
Metric's argument that it reasonably believed the conditions were safe was 

undermined by its failure to investigate the conditions and by Simpson's 

failure to advise Jones of the reason why the men refused to work. 4 FHSHRC 

at 802. 3/ Consequently, the judge concluded that Metric's decision that the 

men could either work under the unsafe conditions or have their employment 

terminated was equivalent to discharging them for engaging in protected activity. 

4 FMSHRC at 803-04. The judge awarded back pay and hearing expenses, and 

assessed a civil penalty for Metric's violation of the Mine Act. 

II. 

The Violation of Section 105 (c) (1) 

Metric argues that the judge's finding of a violation is at odds with the 

scheme and policies of the Mine Act. According to Metric, the result of the 

judge's decision is that an operator must continue to employ and pay miners who 

exercise a protected right to refuse work, even though there is no alternative 

work for them to do, unless the operator reasonably believes that working 

conditions are safe. Metric asserts that this transforms the right to refuse 

work into a mechanism for coercing compliance with safety standards. Metric 

argues, as it did before the judge, that it owed no duty to its employees to 

ensure that the conditions were safe or to believe that they were safe. Thus, 

Metric submits that in the absence of alternative work, it had no obligation 

to keep the complainants on the payroll. 

We have held that a miner's work refusal is protected under the 

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

condition. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (April 1981). See also Miller v. FMSHRC, 

687 F.2d 194 (7th Cir. 1982). In this case, the judge found that conditions 

on the night of March 2, 1979, resulted in an unsafe working environment and 

that the complainants had a reasonable belief this was the case. Substantial 

3/ Foreman Davis died before the hearing. In a statement taken before his 

death, Davis asserted that he, rather than Simpson, called Jones and told him 

of the safety complaints. The statement was made to the Department of Labor's 

Mine Safety and Health Administration and was offered into evidence by the 

Secretary. Metric asserts that the judge erred, to its prejudice, by treating 

the statement of Davis as testimony introduced on Metric's behalf that created 

a conflict between Metric's witnesses. 

Although the judge referred to Davis' statement several times and noted 

that it conflicted with Simpson's and Jones' testimony in respect to what Jones 

was told, he ultimately discounted the statement and credited the testimony of 

Simpson and Jones. 4 FMSHRC at 800-01 n.5. Thus, although the judge may have 

been imprecise or mistaken in referring to a conflict in the testimony of 

Metric's witnesses (4 FMSHRC at 795 n.4, 801 n.5)) we do not believe Metric was 

thereby prejudiced. Horeover, and more important, the judge's conclusions as to 

the fundamentals of the violation are supported by the record without reference 

to Davis' statement. 

229 
evidence supports these findings, and Metric does not contest them on review. 

There is no hint in the record that the employees fraudulently expressed a 

fear of the working conditions. Because they shared a reasonable, good 

faith belief that their working environment was unsafe, their work refusal 

was protected under the Act. See Robinette, supra. 

A complainant establishes a prima facie case of discrimination under the 

Mine Act by proving that he engaged in protected activity and that the adverse 

action complained of was motivated in any part by the protected activity. See, 

for example, Hollis v. Consolidation Coal Co., 6 F?IBHRC , Docket No. 

WEVA 81-480-D, sl.ip op. at 5-6 (January 9, 1984), and cases cited. In cases 

involving a mine:~·, s work refusal, one of the factors which may be considered 

in deterQining the intent behind the adverse action is the reasonableness of 

the opera tor's reaction to the work refusal. 

We have tield that a miner refusing to work on the basis of a good faith, 

reasonable belief in a hazard "should ordinarily communicate, or at least 

attempt to communicate, to some representative of the operator his belief in 

the ... hazard at issue." Secretarv on behalf of Dunmire and Estle v. 

Northern Coal Co., 4 FMSHRC 126, 133 (Feburary 1982). A corresponding rule 

of reason applies to the operator's response as well. Thus, as we recently 

stated, "Once a reasonable good faith fear in a hazard is expressed by the 

miner, the operator has an obligation to address the perceived danger.'' 

Secretary on behalf of Pratt v. River Hurricane Coal Co., Inc., 5 fMSHRC 1529, 

L534 (September 1983). See also Secretary on behalf of Bush v. Union Carbide 

Corp., 5 FMSHRC 993, 997-99 (June 1983). If an operator precipitately disciplines a miner, without attempting in any manner "to address the perceived 

danger," it does so at its own legal risk if it is later determined in 

litigation under the Act that the work refusal lvas protected. 

The judge 1 s decision accords with these general principles. The judge 

found that ~··!etr.ic did not reasonably believe that the working conditions complained of ""ere safe. The evidence in this record as to the hazardous nature 

of the conditions is strong. Metric presented no evidence from which it could 

be concluded that it reasonably believed the hazards did not exist. Nor did 

Metric's supervisory personnel take any action which implied that they reasonably believed the conditions were not hazardous. As the judge noted, none of 

Metric's personnel investigated the complaints to determine their validity, and 

Simpson did not even advise the project superintendent that the safety complaints 

had been made. 4/ 

4/ .Metric argues that its termination of the employees' could not have been 

motivated by their protected safety complaints because Project Superintendent 

Jones, who made the decision to terminate, was not told of their protected 

activity. It is clear, however, that ~ight Superintendent Simpson knew why 

the men were refusing to work. An operator may not escape responsihility by 

pleading ignorance d11e to the division of company personnel functions. See, 

for example, A.Lle~henv Pepsi Cola Bottling Co. v. NLRB, '312 r~.2d '5'29, 53lC3rd 

Cir. L962). Accordingly, the fact that :'Jig~1t Superintendent Simpson <lid not 

communicate the n1iners' safety concerns to Project ')uperinten<lcnt J<)nes 

eannot serve to i.nsnl.ate ifetric from tiability for this unlawful discharge. 

230 
We conclude that substantial evidence supports the judge's finding that 

Metric did not have a reasonable belief that the conditions were safe when it 

offered the complainants the option of either working under those conditions 

or of not working at all. Moreover, even if Metric's belief in the safety of 

the working conditions were a reasonable one, we find compelling the lack of 

an affirmative response by Metric to the complainants' concerns under these 

circumstances. Miners have been accorded the right to refuse work under the 

Act in order to help achieve the goal of a safe workplace. Pasula, 2 FMSHRC 

at 2790-93. If an operator may take action which adversely affects miners 

when it does not have a basis for a reasonable belief that the complained-of 

conditions are safe, and without addressing the miners' fears, the exercise of 

the right to register safety complaints and to refuse work will be chilled. 

Here we endorse the judge's view that "where the mine operator's belief that 

the working conditions are safe is unreasonable and the miners' belief that 

such conditions are unsafe is reasonable, the discharge of complaining miners 

for such work refusal is discril]Jinatory and a violation of the Act." 4 FMSHRC 

at a04. Accordingly, we affirm the judge's conclusion that the termination of 

the employees violated section lOS(c)(l) of the Act. l_/ 

III. 

The Remedies 

Back pay--rnitigation 

At the hearing, Metric attempted to establish that several of the 

discharged employees had failed to mitigate their loss of pay by refusing 

to search for other employment. The judge held that when an employer 

raises such a defense, the discriminatees are required to establish that they 

at least engaged in "reasonable exertions" to find employment. 4 FMSHRC at 805. 

Counsel for the Secretary of Labor argues that to establish a mitigation 

defense, an operator must prove not only that the employee did not make the 

required reasonable efforts, but also that an employee could have obtained 

suitable employment. We do not agree. 

Because the Mine Act's provisions for remedying discrimination are modeled 

largely upon the National Labor Relations Act, we have sought guidance from 

settled cases implementing that Act in fashioning the contours within which 

a judge may exercise his discretion in awarding back pay. Secretary on behalf 

of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC l, 2 (January 1982); Dunmire 

and Estle, supra, 4 FMSHRC at 142. Back pay may be reduced where a miner 

5/ Metric contends that the record supports a finding that the complainants 

were terminated because there was no alternative work for them when they 

refused to do the work assigned them. Given our disposition of the case, we 

need not and do not at this time decide questions pertaining to the relationship between the availability of alternative work and the validity of discipline 

over a work refusal. Metric also complains of the judge's assessment of n 

civil penalty. In affirming the judge's finding of a violation, however, we 

affirm his penalty assessmer..t as well. The Act requires a penalty where 

there has been a violation. We conclude that the judge's findings with 

respect to the statutory penalty criteria are supported. 30 U.S.C. 

§ 820(i)(Supp. V 1981). 

231 
fails to mitigate damages, for example, by failing to remain in the labor 

market or to search diligently for alternative work. Dunmire and Estle, 

4 FMSHRC at 144. ·However, we conclude that when such diligence is lacking, 

the operator should not also be compelled to shoulder. the additional burden 

of establishing that suitable interim employment could have been found. The 

employee must reasonably search for a suitable alternative job; where he 

does not, the existence of the alternative work is irrelevant. See, for 

example, NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1317-19 (D.C. Cir. 

1972). 

With respect to James Parker, the judge denied back pay on the basis that 

Parker's testimony established a failure to make reasonable efforts to obtain 

other employment. Parker's testimony shifted. He initially stated that after 

he was terminated by Metric on March 2, 1979, he first applied for other work 

in July 1979. I Tr. at 200. He then stated that the period in which he did 

not look for a job was only a month, or three to four weeks. I Tr. at 204. 

Final.Ly, he stated that he sought another welding job on March 5, 1979. I Tr. 

at 211-213. The judge accepted Parker's initial statement and found the other 

testimony "not sufficiently trustworthy." 4 FMSHRC at 807 n. 12. Where a 

judge's finding rests upon a credibility determination, we will not substitute 

our judgment for his absent a clear indication of error. The shifting nature 

of Parker's testimony leads us to agree with the judge that Parker failed to 

make reasonable efforts to find other employment after being discharged. The 

denial of back pay with regard to Parker is affirmed. 

The judge also denied one week of back pay to Joe Brown. He concluded that 

Brown did not make reasonable efforts to seek suitable alternative employment 

during the week following the termination of his employment with Metric. 

4 FMSHRC at 806. A discriminatee must make "reasonable efforts" to find other 

employment. OCAW v. NLRB, 547 F.2d 598, 603 (D.C. Cir. 1976), cert. denied, 

429 U.S. 1078---cT977).----nl"e determination as to what constitutes a reasonable 

effort is made on the basis of the factual background peculiar to each case. 

See NLRB v. Madison Courier, Inc., 472 F.2d at 1318. Here John Parker, 

James McGuire, and Terry McGuire all sought employment within one to three 

days of the loss of their jobs. 4 FMSHRC at 806, 809 and 810. This factor 

is helpful in determining what could reasonably be expected of Brown. 

Brown's failure to make comparable efforts or to offer any explanation as 

to why he was unable to do so supports the judge's conclusion that he made 

no responsible effort to find alternative employment following the loss of 

his job. We are not prepared to say that the judge erred in denying Brown 

one week of back pay. Our decision is restricted to the facts of this 

case. We are not intimating that a failure to seek alternative employment 

for one week after an unlawful termination is per se unreasonable. 6/ 

6/ Counsel for the Secretary argues that :qr own 1 s failure for one \ve,~k to 

seek other employment does not establish that 11is efforts were unreasonable. 

Counsel notes that in Dunmire and Est.le, supra, we found that complainant 

Estle made reasonable efforts to mitigate his loss of income. 4 FMSHRC at 

130, 144. However, unlike Rrown, Est.le sought to he reinstated the first 

working day after he was •iischarged. 4 E<'HSHRC at 130. Hoceover, in this 

case, unlike Dunmire and Estle, detailed evidence concerning mitigation and 

what others rl.iJ to try to find suitable alternative employment was L1troduced. 

Also, of course, complainants' jobs with Metric were only schedule•i to last 

far:- four weeks • 

232 
The judge awarded full back pay to David Mixon and Johnny Denmark, although 

neither appeared at the hearing. 4 FMSHRC at 808-09. Mixon died one month 

before the hearing, and Denmark was overseas serving in the Navy. Metric, 

which elicited its evidence with respect to mitigation through the crossexamination of the complainants who testified, consequently had no evidence 

to present with regard to whether Mixon or Denmark failed to mitigate their 

losses. The judge found that Metric did not establish a lack of reasonable 

effort by Mixon and Denmark to find suitable alternative employment and 

awarded both full back pay. 4 FMSHRC at 808-09. 

The judge did not err. The operator bears the burden of proof with 

respect to willful loss. OCAW v. NLRB, 547 F.2d at 602-03. We recognize 

that there are circumstanc~such--as-those at hand, under which a complainant may not appear to testify. However, an operator may prepare for 

that possibility by initiating pre-trial discovery relating to the issue of 

mitigation. Significantly, although Metric submitted two sets of 

interrogatories to the Secretary of Labor and one request for production of 

documents, none of the questions asked or the items sought related to the 

issue of mitigation. Nor did Metric seek to depose either Mixon or Denmark 

prior to the hearing. We therefore affirm the judge's conclusion that 

Metric failed to establish a willful loss of earnings with respect to Mixon 

and Denmark and his conclusion that both were entitled to full back pay. 

Overtime compensation 

In his post-hearing brief, the Secretary of Labor requested overtime 

pay in the amount of time and a half for each hour over 40 hours per week 

that would have been worked absent the discriminatory discharges. The judge 

concluded that the record lacked an evidentiary basis for such an award. 

4 FMSHRC at 806. Our duty is to restore the discriminatees to the enjoyment 

of the wages they lost as a result of the illegal terminations. We are 

mindful of the fact that the Fair Labor Standards Act of 1938, as amended, 

29 U.S.C. § 201 et seq. (1976 & Supp. V 198l)("FLSA"), requires compensation 

for each hour worked over 40 hours per week at one and one half times the 

regular rate of pay for certain classes of employees and employers. 29 U.S.C. 

§ 207 (1976 and Supp. V 1981). As counsel for the Secretary has noted, this 

statutory obligation is a part of every employment contract between an employee 

and an employer subject to the terms of the FLSA. See, for example, Roland 

Electric Co. v. Black, 163 F.2d 417, 426 (4th Cir. 1947), cert. denied, 333 U.S. 

854 (1948). While we understand the judge's concern over the lack of specific 

evidence on this point, we cannot ignore the possibly applicable mandates of 

the FLSA. 

We remand in order 

this issue more fully. 

to Metric, the back pay 

necessary overtime pay. 

to permit the parties, on an expedited basis, to address 

If the judge on remand determines that the FLSA applied 

award in this case should reflect inclusion of the 

7/ 

7/ We leave undisturbed the judge's assessment of interest on the back pay 

awards at the rate of 12% per annum compounded annually from March 3, 1979, 

until paid. Barring an abuse of discretion in the assessment of interest hy 

a judge, we will not in this case retroactively implement our recently 

announced prospective policy for the computation of .interest based upon use 

of the IRS "adjusted prime rate." Secretary on behalf of Bailey v. ArkansasCarbona Co., 6 FHSHRC 2042, 2049-54 (December 1983). 

233 
Expenses 

The judge awarded the complainants, on an individual basis, $125.00 in 

expenses for each day they attended the hearing. 4 FMSHRC at 810-11. The 

judge concluded the daily amount of $125.00 was "fair [and] reasonable." 

4 FMSHRC at 811. 

Recovery of expenses incurred in bringing a successful claim may be part 

of the relief necessary to make a discriminatee whole. Northern Coal, 4 FMSHRC 

at 143-44. The burden of establishing a claim for expenses is upon the Secretary. 

It is he who must introduce sufficiently detailed evidence so that a determination may be made whether the complainants' claims are justified. When he does 

not do so and when, as here, the judge's award is without record support, we 

have no basis for meaningful review. We therefore vacate the award of expen~es. 

However, in view of the statutory duty to make these miners whole, we remand 

in order to afford the parties the opportunity to submit evidence concerning 

the appropriate amount, if any, of the expenses to be awarded the complainants. 

IV 

For the foregoing reasons, the judge's finding of a violation and 

assessment of a civil penalty are affirmed. The award of expenses is vacated, 

and the matter is remanded for expeditious reconsideration of that issue. The 

back pay awards are also remanded for expeditious determination of whether 

overtime pay, pursuant to the FLSA, should be included in the award. The 

j~dge who decided the case below is ill, so the proceeding is remanded to 

the Chief Administrative Law Judge for reassignment o another judge. 

A. E. Lawson, Commissioner 

L. ~lair Nelson, Commissioner 

234 
Distribution 

J. Dickson Phillips, III, Esq. 

Fleming, Robinson, Bradshaw & Hinson, P.A. 

2500 First Union Plaza 

Charlotte, North Carolina 28282 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

235 
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 

HELVETIA COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSH~) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HELVETIA COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. PENN 83-117-R 

Order No. 2015555; 2/28/83 

Lucerne No. 8 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-153 

A.C. No. 36-04597-03511 

Lucerne No. 8 Mine 

DECISION 

Appearances: 

Before: 

William M. Darr, Esq., Indiana, Pennsylvania, 

for Contestant/Respondent; 

David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent/~etitioner. 

Judge Broderick 

STATEMENT OF THE CASE 

The above proceedings have been consolidated for the 

purposes of hearing and decision, because the order contested 

in the contest proceeding charges a violation of a mandatory 

safety standard for which the Secretary seeks a penalty in the 

penalty proceeding. 

At the hearing, the parties stipulated that the violation 

charged in Order of Withdrawal No. 2015555 occurred, that it 

was of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety hazard, and 

that it was based on an underlying citation properly issued 

under section 104(d) (1) of the Act. 

237 
Pursuant to notice, the case was heard in Indiana, 

Pennsylvania, on December 20, 1983. Roy Craver, Thomas Grove 

and Harry Losier testified for the Secretary of Labor; David 

Duplin, Albert Cribbs and Robert D. Anderson testified for 

Helvetia. The parties waived their right to file posthearing 

briefs, and each made oral argument on the record at the conclusion of the hearing. Based on the entire record and considering the contentions of the parties, I make the following 

decision. 

ISSUES 

1. Was.the violation of 30 C.F.R. § 75.200 charged in 

Order No. 2015555 caused by an unwarrantable failure of the 

operator to comply with the mandatory standard in question? 

2. What is the appropriate penalty for the violation? 

FINDINGS OF FACT 

1. At all times pertinent hereto, Helvetia owned and 

operated the subject mine from which it extracted coal. 

2. Helvetia produced 2,579,824 tons of coal annually, of 

which the subject mine produced 533,139 tons. Companies 

affiliated with Helvetia produced an additional 3,994,031 tons 

annually. 

3. In February 1983, a large caved area existed in the 

6 Butt intake escapeway of the subject mine. The area was 

14 feet wide and almost 20 feet long. The cave height was more 

than 69 inches, whereas the coal seam averaged approximately 

48 inches high. 

4. The cave-in had occurred 1 year or more prior to 

February 28, 1983. There was a fault condition running through 

the roof in the area. 

5. The roof in the area had been supported by 4 foot 

resin bolts. 

6. On February 25, 1983, at about 4:30 p.m., assistant 

mine foreman Albert Cribbs examined the intake escapeway in the 

6 Butt section of the subject mine from outby in, and traversed 

the cave area. He placed his initials on both the outby and 

inby side of the cave and noted.in the weekly air course inspection book that the area was in a safe and lawful condition. 

238 
7. On February 27, 1983, Federal Mine Inspector Roy.Craver 

commenced an inspection at the subject mine. He entered the mine 

at approximately 11:45 p.m. The crew working on the 6 Butt 

section entered the mantrip at about 12:01 a.m., February 28, 

1983. 

8. The inspector went to the 6 Butt intake escapeway with 

the miners' representative and walked 300 to 400 feet to the 

cave area. He noted the initials A.C. and the date February 25, 

1983. The inspector also noted four treated timbers lying along 

the right rib inby the cave, and two loose timbers in the cave 

area, also lying along the right rib. 

9. The inspector found unsupported roof in the cave area 

measuring approximately 14 feet by 20 feet. There was loose 

overhanging rock on the outby end of the cave, but the roof 

itself was solid. Only two timbers were set along the side and 

they were 20 feet apart. Coal was not being mined at the time. 

The last coal producing shift was Friday afternoon, February 25. 

10. I find that at the time of Cribbs' weekly aircourse 

examination on February 25, 1983, the six posts found lying on 

the floor February 28, appeared to be properly set in the cave 

area. The escapeway was not more than 6 feet wide between 

supports, and the posts were set on 5 foot centers. No hazardous 

conditions were observable in the roof at that time. 

DISCUSSION 

The Secretary takes the position that it would not have 

been possible for the posts to have fallen out between Friday 

night and Monday morning, under the circumstances present in 

this mine where the roof had been bolted with resin bolts and 

the cave-in had taken place more than 1 year earlier. While I 

concede that settling or shifting of the caved area is unlikely 

under the circumstances, I accept the testimony of Mr. Cribbs 

as to his examination on February 25. I find no possible motive 

for him to have made a' false report of such a highly dangerous 

condition. To have falsifield the report would have jeopardized 

his job and reputation. More importantly, it would have jeopardized miners' lives including his own. The record does not permit 

me to conclude that he was that reckless. Cribbs testified, and 

I find, that there was loose material on the floor of the cave 

which may have made it difficult to obtain solid footing for the 

posts. I find that the posts were dislodged over the weekend by 

natural causes. 

239 
11. The condition was abated by the setting of six timbers 

in the cave area. Two additional timbers were also set. The 

order was terminated at 2:30 a.m., February 28, 1983. 

CONCLUSIONS OF LAW 

1. Helvetia was subject to the provisions of the Federal 

Mine Safety and Health Act of 1977, in the operation of its 

Lucerne No. 8 Mine. 

2. The violation charged in Order of Withdrawal No. 2015555 

issued February 28, 1983, did in fact occur. 

3. Helvetia is a large operator. There is no evidence 

concerning Respondent's history of prior violations. The penalty 

assessed herein will reflect my conclusion as to Helvetia's size. 

It will not be increased on the basis of prior history. 

4. The violation was abated in a timely fashion, and 

Helvetia demonstrated good faith in achieving rapid compliance. 

5. The violation was extremely serious. It could have 

resulted in fatal injuries and compromised the miners' escapeway. 

It was of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety hazard. 

6. The violation was not caused by an unwarrantable failure 

to comply with the standard in question. This conclusions is 

based on my finding (Finding of Fact No. 9) that at the time of 

Cribb's examination, the posts appeared to be properly set. I 

infer, however, that they were not set adequately for the floor 

conditions and this caused them to become dislodged. Such would 

not necessarily be evident to visual examination. Helvetia's 

negligence is based on improper setting of the posts, and is not 

great. 

7. Considering the criteria in section llO(i) of the Act, 

I conclude that the appropriate penalty for the violation is 

$900. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, IT IS ORDERED 

1. Order No. 2015555 is VACATED as a withdrawal order and 

MODIFIED to a citation charging a significant and substantial 

violation of 30 C.F.R. § 75.200. As modified, the citation is 

AFFIR~ED. 

240 
2. Within 30 days of the date of this decision, Helvetia 

shall pay the sum of $900 as a civil penalty for the violation 

found herein to have occurred. 

Distribution: 

J{lo/U£S k!3iroclt_,,vie:~~ James A. Broderick 

Administrative Law Judge 

William M. Darr, Esq., Helvetia Coal Company, 655 Church Street, 

Indiana, PA 15701 (Certified Mail) 

David T. Bush, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

/fb 

241 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

520.3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 

EDDIE LEE SHARP, 

Complainant 

DISCRIMINATION COMPLAINT 

v. 

Docket No: WEVA 82-399-D 

MSHA Case No: CD 82-27 

MAGIC SEWELL COAL COMPANY, 

Respondent 

Stone Run Mine No. 6 

Appearances: 

Before: 

DECISION 

Eddie Lee Sharp, Elkins, West Virginia, 

Complainant; 

John L. Henning, Esq., Elkins, West Virginia, 

for Respondent; 

/ 

Judge Moore 

This discrimination case was heard in Elkins, West 

Virginia on November 29, 1983. The record was left open for 

the purpose of allowing Magic Sewell Coal Company to file 

some sort of documentation, i.e. affidavit of an officer or 

tax return to show that the company has no assets or income. 

No such documentation has been forthcoming. The only evidence 

as to the company's financial condition was presented by Mr. 

Fry, the safety director, who is neither an officer or an 

owner of the company. 

In the early morning hours of August 5, 1982, Mr. Eddie 

Lee Sharp left his continuous mining machine at the face, 

announced he was not feeling well and crawled out of the 

mine. The safety director Mr. Fry had been underground and 

either crawled or rode the belt out at about the same time 

that Mr. Sharp left the mine. 

On the surface Mr. Fry and Mr. Sharp had a conversation 

in which Mr. Sharp said something to the effect that the 

lack of visibility caused by the dusty conditions in the 

mine had made him too nervous to operate the mining machine 

close to other miners. Mr. Sharp did not return to work 

during the remainder of the shift. On the next day, August 6, 

when Mr. Sharp returned to the mine at the beginning of his 

shift, he was not allowed to work. 

The first question is whether Mr. Sharp was fired 

laid off or whether he quit. Although the term "laid off" 

was used at times in the various conversations, no "lay off" 

242 
in the normal sense of the term occurred. Regardless of 

what the slip that Mr. Sharp received may have said, he was 

either fired or he quit. 

None of the people involved in this matter said "I 

quit" or "you're fired". All of the respondent's witnesses, 

Superintendent Crowder, safety director Fry, who Mr. Crowder 

thought owned the mine, and foreman Wolfe all testified at 

one point, that they thought that Mr. Sharp had quit. When 

being cross-examined by Mr. Sharp, Mr. Fry said (Tr. 201) 

"when you came out of the mine, Eddie, I really thought you 

had quit." But back at Tr. 199 he said "When I called 

Crowder [Superintendent] I told him, I talked to him at 

length, and told him that I thought that you were not capable 

of operating that miner. Now, that's the only thing that I 

said to him". That conversation is certainly inconsistent 

with the notion that Mr. Sharp had quit and left. Foreman 

Wolfe assumed he had quit because he left without saying 

anything but both Mr. Sharp and Mr. Fry testified that 

before he left the face area Mr. Sharp said he was not 

feeling well and going outside. 

I found Mr. Crowder's testimony rambling and laced with 

hyperbole to such an extent I could not tell when he was 

just overstating a matter or really meant it. At one point 

he said he worked twentyfour hours a day three or four days 

in a row. (Tr. 96). He stated that Mr. Sharp never mined any 

coal with the continuous mining machine, that he would just 

never reach the coal (Tr. 81). Then he changed it to saying 

that Mr. Sharp would only mine coal five out of ten times. 

He testified positively that he had pulled Mr. Sharp's time 

card out of the clock but on cross-examination he merely 

thought he had, because that was what he would usually do 

(Tr. 130J 131). Referring to Mr. Sharp, he testified "I 

didn't fire him, I just let him go." (Tr. 84). I find that 

Mr. Sharp was fired, but even if he wasn't the result would 

be the same. If Mr. Sharp was engaged in a protected activity 

and, for that reason, was not allowed to continue or resume 

his employment at Magic Sewell then he should prevail regardless 

of whether or not Mr. Crowder thought he had quit. 

Mr. Sharp and other miners had constantly complained of 

the dusty conditions of the mine and the lack of water and 

rock dust. Three former employees of Magic Sewell testified 

as to the dangerous conditions at that mine. One witness 

and his entire crew had been fired because they refused to 

work without a foreman. Another miner quit after one hour. 

Mr. Hinchman was hired to run the continuous miner. His 

testimony at Tr. 55 was: 

243 
A. Well, when I got on the miner, I went to run 

the miner, I couldn't see to run the miner, let 

alone run the miner. 

Q. You couldn't see to run it, what do you mean? 

A. Well, the dust. There wasn't no water on the 

miner, there wasn't no air at the face. And, I 

shut the miner off and the boss was sitting behind 

me. I asked him about it and he said, "It's been 

run like this and it's going to be run like this 

tonight." I says, "Okay." I says, "Get on it 

because I'm going home." 

Mr. Fry and Mr. Crowder had the attitude that it was 

up to the miners to see that the line curtain was properly 

hung and that the place was rock dusted if necessary or that 

water was used. Mr. Crowder seemed to be confused as to the 

difference between respirable dust and combustible dust and 

Mr. Fry was confused about when rock dust is required. He 

did not know the meaning of the term "to wet" as defined in 

30 C.F.R. 75.402-1. I find the mine was sufficiently dusty 

when the continuous miner was operating to require more air 

and water than was provided. In fact, the federal inspectors 

required the use of water on the miner after this case was 

investigated. (Tr. 175). And any areas that were not "too 

wet" should have been rock dusted. 

I find that Mr. Sharp was unlawfully discriminated 

against because of his protected activity of complaining 

about the dangerous conditions in the mine and refusing to 

work under such conditions. As to a remedy, however, I can 

not order that Mr. Sharp be re-instated to a job that no 

longer exists. As to lost wages and expenses. Mr. Sharp is 

ordered to present to me, within 30 days, a document showing 

how much he would have earned between the time he was fired 

and the time the mine was closed, less any wages that he 

earned during that period. Mr. Sharp should include any 

travel or other expenses incurred in the course of prosecuting 

this action. 

Respondent may, within 15 days after receiving Mr. 

Sharp's document make any objections thereto it wishes and 

may at the same time present evidence of its financial 

condition. I will then render a final order unless it 

becomes obvious further testimony is needed. 

Charles C. Moore, Jr. 

Administrative Law Judge 

244 
Distribution: 

Mr. Eddie Lee Sharp, Aero Trailer Park, Rt. 1, Box 274-36, 

Elkins, W VA 26241 (Certified Mail) 

John L. Henning, Esq., 320 Randolph Avenue, P.O. Box 5, 

Elkins, W VA 26241 (Certified Mail) 

/db 

245 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 1, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

LAWRENCE READY MIX CONCRETE 

CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 82-14-M 

A.C. No. 19-00283-05007 

Assonet Sand & Gravel Co. 

ORDER OF DISMISSAL 

Before: Judge Merlin 

In this case, the notice of contest card was signed by 

the operator and mailed to MSHA on November 13, 1981. On 

July 26, 1983, the Secretary of Labor was ordered to show 

cause why the case should not be dismissed for failure to 

file a proposal for a penalty. On August 22, 1983, the 

Secretary of Labor filed a response to the order to show 

cause and a petition for assessment of civil penalty. 

A civil penalty petition should be filed within 45 days 

of receipt of a timely notice of contest of a penalty. 29 

C.F.R. § 2700.27(a). The Commission has held that the late 

filing of a petition will be accepted where the Secretary 

demonstrates adequate cause and where there is no showing of 

prejudice to the operator. An extraordinarily high caseload 

and lack of clerical personnel were held "good cause" for 

filing two months late. Salt Lake County Road Department, 

3 FMSHRC 1714 (July 28, 1981). 

In Medicine Bow Coal Company, 5 FMSHRC 882 (1982), the 

Commission held inadequate clerical help constituted good 

cause for a two week delay, but pointed out that the late 

filings had been before its warnings in Salt Lake. In this 

case the Solicitor's motion for leave to file late petition 

sets forth: 

* * * Petitioner did prepare a timely Proposal on 

December 16, 1981. However, for reasons which 

were caused by the staff attorney's failure to act 

and because of insertion of enclosed documents in 

248 
the wrong file, we submit that the failure to file 

should be construed as excusable neglect. Petitioner did not simply forget to prepare a Proposal. 

One.was prepared, but inadvertently not filed. 

The Secretary took over a year and a half to file a 

petition which should have been filed within 45 days. The 

only excuse in this case is that the Solicitor put the 

documents in the wrong file. ThLs is not good cause for 

such an extraordinarily long delay. Indeed, the petition 

was filed only in response to my show cause order. The 

operator should not have to answer such a stale claim. 

In light of the foregoing, this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

David L. Baskin, Esq., Office of the Solicitor, U. S. Department 

of Labor, John F. Kennedy Federal Building, Government 

Center, Boston, MA 02203 (Certified Mail) 

Mr. David R. Smith, President, Lawrence Ready Mix Concrete 

Corporation, P. O. Box 7, Ridge Hill Road, Assonet, MA 

02702 (Certified Mail) 

/ln 

247 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 3 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Docket No. PENN 83-85 

A.C. No. 36-03425-03515 

Maple Creek No. 2 Mine 

DECISION 

Appearances: 

Before: 

David A. Pennington, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This case involves two citations alleging violations of 

mandatory safety standards at the subject mine. Pursuant to 

notice the case was heard in Washington, Pennsylvania, on 

November 30, 1983. Citation No. 2013969, issued December 2, 1982, 

alleged a violation of 30 C.F.R. § 75.1403 because of the obstruction of a shelter hole. It was assessed at $136. The parties 

submitted a proposed settlement of the violation for the payment 

of $50. They agreed that the violation was properly designated as 

significant and substantial. Respondent's position is that the 

obstruction was only partial, and the inspector conceded that he 

could not recall whether it was complete or partial. I stated on 

the record that I would approve the proposed settlement for the 

violation in question. 

The other citation was contested. Okey H. Wolfe testified 

on behalf of Petitioner; Joseph Hann testified on behalf of 

Respondent. Both parties have filed posthearing briefs. Based 

on the entire record and considering the contentions of the 

parties, I make the following decision. 

248 
FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Respondent 

was the owner and operator of an underground coal mine in 

Washington County, Pennsylvania, known as the Maple Creek No. 2 

Mine. 

2. Respondent is a large operator, producing in excess of 

15 million tons of coal annually. 

3. In the 2 years preceding the date of the issuance of 

the citations involved herein, the subject mine had 496 paid 

violations of mandatory safety and health standards, 394 of which 

were designated as significant and substantial. This history is 

not such that penalties otherwise appropriate should be increased 

because of it. 

4. The imposition of penalties in this case will not affect 

Respondent's ability to continue in business. 

5. The violations involved in this case were both abated 

timely and in good faith. 

6. On November 15, 1982, the air in the tailgate entry of 

the Longwall section was reversed and had become return air. A 

citation charging a violation of 30 C.F.R. § 75.316 was issued. 

7. The reversal of the air in the tailgate entry was 

caused when the door to a regulator which determines the amount 

of air coursed to the face fell down. This apparently occurred 

on the Saturday preceding the date of the issuance of the 

citation which was on a Monday. 

8. The approved ventilation plan at the subject mine 

required that the tailgate entry be ventilated with intake air. 

9. The approved ventilation plan in effect at the subject 

mine prior to the time involved herein called for return air in 

the tailgate entry. It was changed to bring a greater quantity 

of air back through the bleeder system. 

10. As a result of the reversal of the air in the tailgate 

entry noted in Finding of Fact No. 7, there was less air pressure 

on the gob area. 

11. At the time the condition referred to in Finding of 

Fact No. 6 was cited, 20,000 to 25,000 cfm of air was measured 

at the tailgate end of the longwall face. 

249 
12. At the time the condition referred to in Finding of 

Fact No. 6 was cited, minimal methane (less than .1 percent) 

was detected in the longwall face area. 

13. The longwall equipment has a methane monitor which 

is designed to deenergize the machinery in the presence of 

1.5 percent methane. 

14. The area where the regulator door had fallen down is 

normally inspected by Respondent weekly. It was scheduled to 

be inspected on the day the citation was issued. 

15. The·longwall section involved herein had been almost 

completely mined as of November 15, 1982. There was an extensive 

gob area of 2,000 feet or mor~ behind the longwall face. 

REGULATORY PROVISION 

30 C.F.R. § 75.316 provides as follows: 

§ 75.316 Ventilation system and methane and dust 

control plan. 

[STATUTORY PROVISION] 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by 

the Secretary shall be adopted by the operator and set 

out in printed form on or before June 28, 1970. The 

plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least 

every 6 months. 

ISSUES 

·1. Was the violation of 30 C.F.R. § 75.316 of such a 

nature as could significantly and substantially contribute to 

a mine safety or health hazard? 

2. What is the appropriate penalty for the violation? 

250 
CONCLUSIONS OF LAW 

1. Respon.p.ent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the 

Maple Creek No. 2 Mine, and I have jurisdiction over the parties 

and the subject matter of this proceeding. 

2. The condition described in Findings of Fact Nos. 6 and 

7 was a violation of the approved ventilation plan and therefore 

of 30 C.F.R. § 75.316. 

3. The violation referred to above was of such nature as 

could significantly and substantially contribute to the cause 

and effect of a mine safety hazard. 

DISCUSSION 

In longwall mining, when the coal is removed from the face, 

the unsupported roof falls creating a gob area. Because methane 

is released from the gob, it is imperative that substantial air 

pressure be maintained on the gob to dilute the methane. After 

the face is advanced, subsequent roof falls may occur back in 

the gob area and additional methane may be released into the 

active workings. That such an occurrence has not happened at 

the subject mine does not make the occurrence unlikely. The 

ventilation plan was devised and approved to prevent such an 

occur~ence. To the extent it is deviated from and pressure on 

the gob is diminished, the occurrence of a methane ignition 

becomes likely. Ignition sources include the longwall shear 

which causes sparks while cutting, and possible permissibility 

violations on equipment entering the face area. If a methane 

ignition or explosion occurred, it would cause serious, possibly 

fatal injuries. Whether a violation is significant and substantial must be determined as of the time it is cited. The fact 

that it would likely have been spotted and corrected as a result 

of Respondent's weekly inspection is irrelevant. 

4. The violation was serious because of the likelihood 

that it would cause serious injuries to miners. 

5. Since there was no coal production between the time the 

regulator fell off and the day the citation was issued, 

Respondent's negligence was slight. The deviation on the fan 

chart was not such as should have alerted Respondent to the 

ventilation problem. 

6. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for the violation found 

herein is $300. 

251 
ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED 

1. Citation Nos. 2013969 issued December 2, 1982 and 

2013923 issued November 15, 1982, including their designations 

as significant and substantial are AFFIRMED. 

2. Respondent shall within 30 days of the date of this 

decision pay the following penalties: 

Distribution: 

CITATION NO. 

2013969 

2013923 

Total 

PENALTY 

$ 50 

300 

$350 

/J I 

!l~ .~l~~·de-rt~ l 

James A. Broderick 

Adm1n1strat1ve Law Judge 

David A. Pennington, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) 

/fb 

252 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 

SECRETARY OF LABOR, 

MHJE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RANDALL & BLAKE OF 

OKLAHOMA, INC., 

Respondent 

71984 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 83-64 

A.C. No. 34-01010-03503 

Danger Creek Strip 

DECISION 

Before: Judge Kennedy 

This matter is before me on the Secretary's unopposed 

motion for summary decision. Rule 64 of the Commission's 

rules provides a motion for summary decision shall be granted 

if (1) there is no genuine issue as to any material fact; and 

(2) that the moving party is entitled to summary decision as 

a matter of law. 

On November 9, 1983, the Secretary filed a petition for 

assessment of a civil penalty in the amount of $98.00 for a 

single violation of 30 C.F.R. 77.130l(b) of the mandatory 

safety standards for surface mines. The condition cited was 

storage of detonators and explosives in the same magazine. 

The operator's answer, filed December 27, 1983, failed to 

deny the facts as to the violation charged but raised as a 

plea in bar the operator's petition in bankruptcy filed 

December 13, 1982. 

Thereafter, the Secretary filed a motion for summary 

decision on the ground that (1) the fact of violation must 

be deemed admitted and (2) the plea in bankruptcy is no bar 

to adjudication of respondent's liability for the violation. 

The Secretary's motion was filed January 6, 1984 and is 

accompanied by a certificate of service of same on respondent's 

trustee on January 3. 1984. The operator failed to respond. 

Under 11 U.S.C. § 362(b) (4) and (5) of the Bankruptcy 

Code the filing of a petition in bankruptcy does not stay 

253 
a civil penalty proceeding. Compare Leon's Coal Company, 

4 FMSHRC 572 (1982). Further, under 11 U.S.C. § 523(a) (7) 

fines, penalties or forfeitures that the debtor owes the 

government as the result of the exercise of lawful regulatory power are not subject to discharge by the bankruptcy 

court. See In Re Tauscher, 7 B.R. 918 (D. Wisc. 1981). 

Distribution: 

Joseph B. K nnedy 

Administrative Law 

Jack F. Ostrander, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square, Suite 501, Dallas, 

TX 75202 (Certified Mail) 

Betty Outhier Williams, Trustee for Randall & Blake of 

Oklahoma, Inc., P.O. Box 87, 530 Court Street, Muskogee, 

OK 74402-0087 (Certified Mail) 

/ejp 

254 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 7, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

APEX MINING, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-59 

A.C. No. 15-13538-03501 

No. 3 Strip 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to withdraw the 

petition for assessment of civil penalty for the one violation involved in the above-captioned proceeding. He 

moves, in the alternative, for an order approving settlement 

for the original assessment of $20. 

The Solicitor, noting that the operator paid the 

assessed penalty in full without filing an answer, submits 

merely "that no further proceeding in this case is necessary 

and that the withdrawal of the petition for assessment of 

civil penalty . . . is a satisfactory and appropriate 

resolution of this controversy." He relies upon the Commission's decision in Mettiki Coal Corporation, 3 FMSHRC 

2277 (October 1981), in support of his position. 

The Solicitor's motion to withdraw, alone, is not 

supported by Mettiki. In that case the parties submitted a 

settlement motion for $7900. The Administrative Law Judge 

denied the settlement. Thereafter the Solicitor filed a 

motion to withdraw the petition for penalty assessment 

because the operator tendered full payment of the originally 

proposed penalties of $10,000 for the seven violations at 

issue. The Judge interpreted the Solicitor's motion as one 

for approval of settlement and denied the motion. The 

Commission held the Judge erred in treating the Solicitor's 

motion as one for settlement approval. According to the 

Commission the Solicitor sought withdrawal of the proposed 

penalties and dismissal. The Commission further held that 

255 
the posture and circumstances of that case dictated a 

finding that the Judge abused his discretion in denying 

dismissal. The Commission said it arrived at its conclusion 

on the ba~is of the record which indicated that full payment 

of the $10,000 penalties was a satisfactory and appropriate 

resolution. The Commission concluded by stating: 

This is not to say, however, that the Commission 

or its judges may not deny a party's motion to 

withdraw a pleading where bhe record discloses 

that resolution of the matter pending would best 

be served by the Commission's settlement procedures 

or by an evidentiary hearing. This situation is 

net presented in this case. 

In accordance with Mettiki, a penalty petition may be 

withdrawn due to full payment of the original assessment 

where the record reflects that full payment is a satisfactory 

and appropriate resolution. Therefore, in cases such as 

this the Solicitor must submit information to demonstrate 

that full payment of the originally assessed amount is a 

satisfactory and appropriate resolution of the matter, 

thereby justifying withdrawal of the penalty petition. In 

the instant matter, I find that the citation provides 

sufficient evidence that full payment is an appropriate 

resolution. · 

Citation No. 2005364 was issued for a violation of 30 

C.F.R. § 50.30 because the operator failed to file a quarterly 

employment and injury report with MSHA. This violation is 

non-serious on the face of the citation because there was no 

safety or health hazard created by the cited condition. 

In light of the above, I conclude that payment of a $20 

penalty is a settlement for this non-serious violation consistent with the purposes of the Act. I do not however, 

understand the Solicitor's statement that the operator was 

not negligent. Moreover, the Solicitor should have given 

information about the rest of the six statutory criteria. 

The non-seriousness of the violation however, justifies the 

penalty. And in view of the small amount, the public 

interest would not be served by prolonging this matter 

further. 

256 
ORDER 

The operator having already paid, it is hereby ORDERED 

that this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U. S. 

Department of Labor, 280 U. S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Ms. Kathleen L. Chandler, Vice President, R.B.S., Inc., 

P. 0. Box 15352, Cincinnati, OH 45215 (Certified Mail) 

257 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 71984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

DECISION 

Docket No. KENT 83-101 

A.C. No. 15-11408-03508 

Pride Mine 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

William Craft, Assistant Director of Safety, Pyro 

Mining Company, Sturgis, Kentucky, for Respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to Section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. 820(a), seeking a civil penalty 

for one alleged violation of mandatory safety standard 30 

CFR 75.400. The violation was cited in a Section 107(a) 

"imminent danger" order issued by MSHA Inspector David Furgerson 

on May 12, 1982. The Citation No. 1133821, states the following 

condition or practice: 

Float coal dust was permitted to accumulate 

on the floor of the slope belt entry and adjacent 

crosscuts for a distance of approximately 600 

feet from bottom of slope and inby. Bottom 

rollers were running in float coal dust at 

several locations and were causing rollers to 

heat due to friction. 

The respondent filed a timely answer to the civil penalty 

proposal, and a hearing was conducted in Evansville, Indiana, 

on November 2, 1983. The parties waived the filing of posthearing written arguments and made them orally on the record 

during the course of the hearing. 

258 
Issues 

The issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and · 

implementing mandatory standard as alleged in the proposal 

for assessment of civil penalty filed in the proceeding, and, 

if so, (2) the appropriate civil penalty that should be 

assessed against the respondent for the alleged violation 

based upon the criteria set forth in section llO(i) of the 

Act. Additional issues raised by the parties at the hearing 

are discussed and disposed of in the course of my decision. 

In determining the amount of a civil penalty assessment, 

section llO(i} of the Act requires consideration of the 

following criteria: (1) the operator's history of previous 

violations, (2) the appropriateness of such penalty to the 

size of the business of the operator, (3) whether the operator 

was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting 

to achieve rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. 

2. Section llO(a) of the Act, 30 U.S.C. § 820(a). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Docket No. KENT 83-101 

Petitioner's testimony and evidence 

Larry Cunningham, MSHA District 10 Mine Inspector, 

testified as to his background and experience, and he confirmed 

that he is familiar with the Pride Mine and has conducted 

regular and spot inspections at the facility. He also confirmed 

that he was at the' mine on or about May 12, 1982, with fellow 

inspector David Ferguson for a regular inspection, and that 

Mr. Ferguson is no longer employed by MSHA (Tr. 8-12). 

Mr. Cunningham testified that on the day of the inspection 

he was with mine representative David Sutton in one area 

of the section, while Mr. Ferguson was in another. At some 

point during the inspection about 15 minutes later, Mr. Ferguson 

came to the belt haulage entry and told Mr. Sutton that he 

had issued an order on the belt conveyor and that the belt 

would have to be cleaned and rock dusted. Mr.Cunningham 

identified exhibit P-1 as the Section 107 "imminent danger" 

order issued by Mr. Ferguson, No. 1133821~ and testified 

as to its contents (Tr. 15). 

259 
Mr. Cunningham testified that after the order was issued, 

he walked the cited belt entry for a distance of some 600 

feet while. Mr. Sutton began taking steps to correct the 

conditions. He explained what he observed, and indicated that 

"the coal dust was definitely there," and that there "was 

no doubt in my mind that there was a situation established" 

(Tr. 18). He described the area which he traveled as looking 

black in appearance, and while some locations were worse 

than others, all of the cited locations definitely had 

accumulations of float coal dust. He described the entry 

as being 18 to 20 feet wide, and confirmed that he measured 

the float coal. accumulations with a ruler, and found that 

they ranged froCT one inch to 12 inches. He also stated that 

he counted eight bottom belt conveyor rollers which were in 

loose coal, coal dust, and float coal dust. The belt was 

not running, but if it were, the rollers would have been 

turning in float coal dust (Tr. 20). 

Mr. Cunningham stated that when he first entered the 

section and was separated from Mr. Ferguson, the cited belt 

in question was running, but 20 minutes later when he 

walked it it was not (Tr. 20). Based on his experience, he 

did not believe that the cited accumulations resulted from 

the prior shift, and due to the extent of the accumulations, 

he believed they had existed for "possibly'' 16 to 24 hours 

or longer. He was present when the conditions were corrected, 

and he counted 30 people in the area when clean up and abatement 

tnok place. The clean up took two hours and 45 minutes (Tr. 21). 

On cross-examination Inspector Cunningham stated that 

he was in the mine on May 11, 1982, the day before the order 

issued and that he was in part of the area cited by ~r. Ferguson. 

However, he observed no conditions which would have prompted 

him to issue a citation for coal accumulations. On that day 

he observed two miners "correcting the situation as it occurred." 

He also confirmed that he was in the mine for a total of 

9 or 10 working shifts during the period from April 1, 1982 

to May 12, 1982 and issued no coal accumulations citations 

(Tr. 24). 

Mr. Cunningham stated that the mine is entered by means 

of a slope car hoist which travels down to the belt in question 

and that the belt can be visually observed from the slope 

car. He confirmed that he did not know how many miners were 

in the mine on May 12, 1982, and that no one was actually 

physically removed from the mine as a result of the issuance 

of the order. 

260 
Mr. Cunningham was of the'opinion that the cited coal 

accumulations presented a possibility of a mine fire and 

he described the area cited as dry. He confirmed that the 

belt line was moved up somewhat after the order was issued 

in order to facilitate the clean up, and that clean up was 

achieved by shovelling the accumulations onto the belt so 

that they could be removed from the mine (Tr. 27-28). 

Mr. Cunningham confirmed that belt conveyors which are 

not used to transport personnel may be examined at any time 

during the shift, and need not be examined either before the 

shift or "immediately" after the shift is started (Tr. 36-38). 

He stated that he checked the preshift examination books for 

the belt conveyor in question, and found no record that it 

had ever been examined. As a result of this, he issued a 

citation for a violation of section 75.303, for failure to 

examine the belt, or failure to produce evidence that the belt 

had been examined (Tr. 43). 

When asked whether he would issue an imminent danger order 

based on what he observed after Mr. Ferguson's order issued, 

Mr. Cunningham stated that he could not answer that question 

because at the time he observed the conditions the belt was 

not running and that "I never saw nothing that would promote 

a mine fire or explosion at that time" (Tr. 45). 

Mr. Cunningham stated that the accumulations in question 

were in an "air lock" where the conditions would facilitate 

a build up of coal, and he conceded that such accumulations 

resulted from the mining of coal and that constant clean up 

is required to control the accumulations. He confirmed 

that no samples of the accumulations were taken, and they 

were not tested. He also conceded that he and Mr. Ferguson 

made no examinations of the power cables, cable insulation, 

or power boxes to determine whether or not they were in good 

condition or not (Tr. 50-53). 

At the conclusion of the testimony by Mr. Cunningham 

in this case, respondent's representative suggested that 

MSHA had not presented any direct evidence as to the actual 

existence of the cited conditions as observed by Inspector 

Ferguson at the time he issued his citation (Tr. 54). During 

a discussion on the record, I advised the respondent's counsel 

that while it was true that Mr. Ferguson was no longer employed 

by MSHA and did not testify, Mr. Cunningham's first hand 

observations of the cited conditions after the withdrawal 

order was issued established a prima facie case as to the 

existence of the cited accumulations described by Mr. Ferguson 

on the face of his citation (Tr. 55-56). When asked whether 

he had any reason to dispute Mr. Cunningham's testimony in 

this case, respondent's representative replied that Mr. Cunningham 

"was probably one of the more reliable people employed by MSHA" 

(Tr. 56). 

261 
Respondent's representative suggested on the record 

that Mr. Ferguson's departure from his employment with MSHA 

was somehow connected with his relationship with the respondent, 

and the repiesentative stated that Mr. Ferguson "was bitter 

at the Company on different matters," and·suggested that there 

was an "ulterior motive" behind the issuance of the order in 

question (Tr. 58). When asked why the respondent did not 

contest the issuance of the order within the required 

statutory time period, the representative replied "I didn't 

have anything to do with it then" (Tr. 59). The matter 

was then dropped, and respondent's representative proceeded 

to put on a defense. 

Respondent's testimony and evidence 

James E. Wilson, respondent's mine foreman, testified 

that he has 35 years of mining experience and that he was 

aware of the order issued by Inspector Ferguson on May 12, 1982. 

He stated that according to policy the belt line is shut down 

every morning at 6:30 a.m. for servicing, cleaning, or the 

changing of rollers. He described the 600 feet of belt line 

cited by the inspector as an "airlock," and indicated that 

problems occur with float dust in that area. He~described 

the ambient temperature of the mine as 62 degrees, and stated 

that the air velocity in the area was 40,000 cubic feet 

(Tr. 61). Mr. Wilson indicated that he found no hot rollers 

when he went to the area and that the belt line may be 

examined at any time during the shift. He also indicated 

that Inspector Cunningham had been in the area the night before 

the order was issued and that he issued no citations or orders 

(Tr. 62). 

On cross-examination, Mr. Wilson stated that he believed 

the belt was shut down because the mine was operating on 

10-hour shifts, and that it is down for four hours from the 

time the previous shift ended. After maintenance, the belt 

would start up again at approximately 7:30 a.m. (Tr. 65). He 

confirmed that on the day the order issued, he went underground 

at 9:00 a.m., but that between the time of his arrival at 

the mine that day and the time he went underground he personally 

did not know whether the belt was running or not (Tr. 67). 

In response to further questions, Mr. Wilson confirmed 

that after the order was issued he observed the conditions at 

the cited area, and while he saw some float coal dust at 

least an inch deep where men were shovelling, he did not see 

any loose coal. He then stated that he walked the entire 

cited belt area where he did observe coal accumulations, but 

did not see "a dangerous amount of accumulations" (Tr. 68). 

262 
He stated that to the best of his recollection the belt 

began running at 10:00 a.m. and that no coal was loading from 

the beginning of that shift until 10:00 a.m. (Tr. 71). 

Gregory R. Farrell, testified that on May 12, 1982, he 

was the third shift mine foreman, and that the belt was not 

running because some rollers had to be "cut out from under a 

bridge" (Tr. 72). The belt is normally running, but on that 

day it was not. He confirmed that he was in the middle of 

the 600 foot area cited by Mr. Ferguson when he was there, 

and that the belt was not running. Mr. Farrell also stated 

that he recalled 15 people working in the area to abate the 

cited conditions (Tr. 74). 

On cross-examination, Mr. Farrell stated the cited belt 

was down from 6:30 a.m. to 11:00 a.m., because Mr. Ferguson's 

order was issued at 9:00 a.m., and the belt never started up 

(Tr. 76). He reiterated that the belt was down from 6:30 a.m. 

until the cited conditions were abated at approximately 11:45 a.m. 

(Tr. 76). He stated that maintenance work on the belt began 

at 6:30 a.m., and that the work consisted of changing rollers. 

The work was not completed at the time the order issued (Tr. 79). 

In response to further questions, Mr. Farrell stated 

that the reason it took so long to clean up is that Mr. Ferguson 

wanted materials such as wooden timbers, metal rollers, and 

"anything lying around" cleaned up and taken out of the area 

(Tr. 85). Mr. Farrell conceded that there were accumulations 

of coal present, but he disputed the depths noted by the 

inspector, and he described them as "normal'' for the mine 

area in question (Tr. 84). Mr. Farrell confirmed that he 

made no measurements of the accumulations (Tr. 85). 

Randy Byrum testified that on May 12, 1982, he was employed 

at the mine as a belt mechanic. He began work at 8:00 a.m. 

that day and at that time the belt in question was not running. 

He performed maintenance on the belt, and that work included 

the "cutting out" of a belt roller at a conveyor ''bridge" 

area by means of a torch, and at this time the belt power 

was disconnected by an outside mechanic to insure that his 

work could be done in a safe manner. He stated that it 

took him approximately 45 minutes to an hour to complete 

his work and that two other mechanics were also performing 

some maintenance on the belt. He was sure that the belt was 

not running at 9:00 a.m. that day (Tr. 87-89). 

On cross-examination, Mr. Byrum stated that he was sure 

that his belt maintenance work was completed by 9:30 a.m., 

and he indicated that he did not see Inspector Ferguson that 

day because Mr. Ferguson would have traveled the belt through 

another route (Tr. 89-91). 

263 
Lillian J. McNary testified that on May 12, 1982, she 

was working in the cited conveyor belt area shovelling and 

rock dusting the belt header. She began work at 7:00 a.m. 

that morning. She checked the belt header area and the air 

lock and she used a water hose located at the belt to wet 

the belt line area down. She was present when Inspector 

Ferguson was there and had started watering the area down 

while he was there (Tr. 95-97). 

On cross-examination, Ms. McNary confirmed that her 

usual duties are to clean the cited belt, as well as another 

belt and that she starts at the air lock location. She 

stated that she had been cleaning the cited belt area for 

approximately two hours before Inspector Ferguson arrived 

at the scene. She confirmed that the float coal dust cited 

by Mr. Ferguson was present, and she described the belt as 

"dirty" (Tr. 97-100). 

David Sutton, testified that he is the mine safety 

director and that on May 12, 1982 he started work at 6:00 a.m. 

He rode into the mine with Inspectors Ferguson and Cunningham 

sometime between 8:30 and 9:00 a.m. He was with Mr. Cunningham 

while he was conducting his inspection, and was informed 

by Mr. Ferguson that he had issued a closure order on the 

belt. Mr. Sutton confirmed that approximately 15 or 20 

minutes after he was told that a closure order had been issued 

he went to the area and personally observed the float coal 

dust. He stated that the belt was not running, and that 

he heard several miners asking why the belt was down (Tr. 101-104). 

Findings and Conclusions 

Fact of Violation 

Respondent here is charged with a violation of mandatory 

safety standard section 30 CFR 75.400, which states as follows: 

Coal dust, including float coal 

dust deposited on rock-dusted surfaces, 

loose coal, and other combustible materials, shall be cleaned uo and not be 

permitted to accumulate in ~ctive 

workings, or on electric equipment 

therein. 

Although the inspector who issued the citation in question 

was no longer employed by MSHA at the tine of the hearing 

and did not testify, Inspector Cunningham, who was present and 

viewed the cited conditions ~hortly after the violaiion was 

264 
issued, did testify as to what he observed. In addition, 

respondent's mine foreman, shift foreman, and clean-up 

person all. confir~ed the presence of loose coal and float 

coal dust in the cited area. Although one witness may have 

taken issue with whether or not the accumulations were 

"dangerous," the fact is that the respondent has not rebutted 

the fact that the cited conditions did in fact exist as 

stated in the citation. The detailed testimony provided 

by Ins9ector Cunningham, including his measurements and 

observations, are unrebutted and amply support the violation. 

I conclude and find that the petitioner has established 

the fact of violation by a preponderance of the credible 

evidence adduced in this case. I also find and conclude 

that the extent of the accumulations supports a finding 

that the cited coal accumulations in question were not the 

result of any "instantaneous spillage," nor can I conclude 

that the respondent has established that it was in the process 

of correcting the conditions when the inspector arrived on 

the scene. To the contrary, I conclude and find that the 

extensive nature of the cited conditions supports a conclusion 

that they were permitted to accumulate, and existed at least 

one prior shift. Accordingly, the violation IS AFFIRMED. 

Gravity 

Although it is clear to me that the question as to 

whether or not the cited accumulations constituted an 

"im.'Tiinent danger" is not an issue in this civil penalty case, 

and that the validity of the Section 107(a) Order is not per 

se an issue, petitioner's counsel candidly conceded during--

oral arguCTent that it was altogether possible that Inspector 

Ferguson issued the order to insure that the condition which 

he observed were attended to promptly, and that he acted 

to insure that the cited belt conveyor in question would not 

be placed into operation until such time as the cited coal 

accumulations were cleaned up and removed fro~ the mine 

(Tr. 92-93). 

In view of the fact that Inspector Ferguson did not 

testify in this case, petitioner's counsel further candidly 

conceded that the question as to whether or not the conveyor 

belt in question was running or not running at the time the 

order was issued is only critical insofar as the degree of 

gravity is concerned (Tr. 93). In this regard, counsel conceded 

that Inspector Cunningham did not observe the belt running at 

the time the violation was issued, and he stated that "at no 

time through testimony did we assert that the belt was running" 

(Tr. 94). He also conceded that any suggestion that the belt 

in question was in fact "running in float coal dust" has not 

been established as a fact through any credible testimony (Tr. 94). 

265 
On the basis of all of the credible evidence and testimony 

adduced in this case, I conclude that the petitioner has not 

established as a matter of fact that the conveyor belt in 

question was running in float coal dust at the precise time 

the inspector viewed the conditions. How~ver, given the 

extensive accumulations of coal dust and float coal dust 

which was present in the cited areas, I conclude and find 

that the violation was serious. 

With regard to the inspector's finding that the cited 

violation was "significant and substantial," I take note of the 

following interpretation placed on that term by the Co:runission 

in Cement Division, National Gypsum Co., 3 FMSHRC 822 (April•l981), 

aff'd in Secretary of Labor v. Consolidation Coal Company, 

decided January 13, 1984, WEVA 80-116-R, etc., affirming a 

prior holding by a Corrunission Judge, 4 FMSHRC 747, April 1982: 

(A] violation is of such a nature as could 

significantly and substantially contribute 

to the cause and effect of a mine safety 

or health hazard if, based upon the particular 

facts surrounding the violation, there exists 

a reasonable likelihood that the hazard contributed to will result in an injury or illness 

of a reasonably serious nature. 

In its most recent holding in Consolidation Coal Company, 

WEVA 30-116-R, etc., January 13, 1984, the Commission stated as 

follows at pg. 4, slip opinion: 

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 by the violation; (3) a reasonable 

likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. Mathies Coal Co., 

FMSHRC Docket No. PENN 82-3-R, etc., slip op. 

at 3-4 (January 6, 1984). 

On the facts of the case at hand, it seems clear to me 

that the respondent has not rebutted the fact that the accumulations 

of coal and coal dust, including float coal dust, were present 

26H 
in the areas cited by the inspector. The respondent's 

defense focused on the assertion that the belt was not 

running, and a rather feeble attempt to establish that clean-up 

procedures ·were being followed at the time of the inspection. 

In addition, at least one or more of respondent's witnesses 

were of the opinion that the accumulations found by the inspector 

were "not dangerous.'' These defenses are rejected. 

It seems clear to me that the cited accumulations were 

present, and that the areas cited were not adequately rockdusted. Due to the extensive nature of the accululations, 

both as to quantity, as well as the rather extensive 600-foot 

areas where th~y were present, I conclude and find that they 

did in fact present a reasonable likelihood that had 

production continued, the belt would have started up, and an 

ignition could have occurred from the belt rollers which 

obviously would have been turning in the accumulations. I 

believe it was reasonable that a fire or ignition would 

have resulted. Consequently, I find that the cited coal 

accumulations presented a real hazard which would have 

significantly contribute to a major cause of danger and 

hazard to the miners working on the section. Accordingly, 

the inspector's finding of a significant and substantial 

violation IS AFFIRMED, and respondent's arguments to the 

contrary ARE REJECTED. 

Negligence 

In this case, while there is testimony from the clean-up 

person McNary that she was in the process of watering down 

some of the area cited by Inspector Ferguson when he first 

arrived on the section, and that she had cleaned up some of 

the accumulations before he arrived, Inspector Cunningham 

testified that he examined the preshift examination books 

and found no entries or evidence that the cited area had been 

examined as required by section 75.303. Taking into account 

the extensive accumulations which were cited, I believe 

it is reasonable to conclude that had closer attention been 

given to promptly clean up the accumulations, the violation 

would not have occurred. While it may be true that the belt 

in question may have been down for some maintenance at 

the start of the shift, I still believe that respondent 

failed to take reasonable care to insure that all of the 

accumulations found by the inspector were cleaned up and 

the area rock-dusted. Under the circumstances, I find that 

the violation resulted from ordinary negligence on the part 

of the respondent. 

267 
History of Prior Violations 

The record here shows that for the period June 22, 1981 

to May 11, 1982, respondent had eight prior citations for 

violations of section 75.400. Petitioner's counsel agreed 

that given the fact that there is no evidence as to the 

specific circumstances connected with these prior citations, 

respondent's history of prior violations for purposes of any 

civil penalty assessment does not appear to be "particularly 

bad" (Tr. 116). Accordingly, for an operation of its size, I 

cannot conclude that any civil penalty assessed by me in this 

case should be increased because of respondent's history of 

noncompliance. 

Size of Business and Effect of Civil Penalty of the Respondent's 

Ability to Remain in Business. 

The record in this case establishes that at the time 

the citation issued, the annual coal production at the mine 

in question was approximately 400,000 tons (Tr. 116). 

While it may be argued that Pyro Mining Company is a large 

mine operator, the Pride Mine was a relatively small or 

medium-sized mining operation. In any event, I cannot conclude 

that a reasonable civil penalty assessment in this case will 

adversely affect the respondent's ability to continue in 

business. Further, in assessing a civil penalty in this case, 

I have considered the respondent's history of prior violations 

as well as the size of its mining operations. 

Good Faith Compliance 

The respondent promptly cleaned up and removed the cited 

accumulations from the mine after the order issued. Accordingly, 

I find that abatement was achieved by respondent's ordinary 

good faith compliance efforts. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of Section llO(i) 

of the Act, I conclude and find that the following civil penalty 

assessment is appropriate for the citation which has been 

affirmed: 

Citation No. Date 30 CFR Section Assessment 

1133821 5/21/82 75.400 $975 

268 
ORDER 

Respondent IS ORDERED to pay the civil penalty assessed 

by me in this case within thirty (30) days of the date of 

this decision and order, and upon receipt of payment by the 

petitioner, this matter is dismissed . 

• K~r~ Distribution: 

Darryl A. Stewart, Esq., U.S. Department of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

William Craft, Assistant Director of Safety, Pyre Mining 

Company, P.O. Box 267, Sturgis, KY 42459 (Certified Mail) 

/slk 

269 

' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 71984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

DECISIONS 

Docket No. KENT 83-186 

A.C. No. 15-10339-03514 

No. 11 Mine 

Docket No. KENT 83-187 

A.C. No. 15-10815-03510 

Wheatcroft Mine 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

William Craft, Assistant Director of Safety, 

Pyro Mining Company, Sturgis, Kentucky, for 

Respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to Section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. 820(a), seeking civil penalty 

assessments for five alleged violations of mandatory health 

standard 30 CFR 70.220. 

Respondent filed timely contests taking issue with the 

citations and pursuant to notice hearings were convened in 

Evansville, Indiana, on November 2, 1983, and the parties 

appeared and participated fully therein. The parties waived 

the filing of post-hearing written arguments and made them 

orally on the record during the course of the hearing. 

Issues 

The issues presented in these proceedings are (1) whether 

respondent has violated the provisions of the Act and 

implementing mandatory standards as alleged in the proposals 

270 
for assessment of civil penalties filed in the proceedings, 

and, if so, (2) the appropriate civil penalties that should 

be assessed against the respondent for the alleged violations 

based upon the criteria set forth in section llO(i) of the 

Act. Additional issues raised by the parties at the hearing 

are discussed and disposed of in the course of my decisions. 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the 

following criteria: (1) the operator's history of previous 

violations, (2) the appropriateness of such penalty to the 

size of the business of the operator, (3) whether the operator 

was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, 

and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification 

of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. 

2. Section llO(a) of the Act, 30 U.S.C. § 820(a). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Discussion 

KENT 83-186 

This proceeding concerns two section 104(a) citations 

served on the respondent on november 16, 1982, for violations 

of mandatory health standard 30 CFR 70.220. · 

Citation No. 2075605 describes the cited condition or 

practice as follows: 

The operator submitted the attached status 

change form, dated 10-18-82, showing rnrnu 011-1 

nonproducing effective 10-18-82. Production 

records show rnrnu 011-0 operated approximately 

67 production shifts in 40 days during the 

Sep.-Oct. 1982 cycle with an average production 

of over 650 tons per shift. Included during 

this period were at least 9 production shifts 

on Oct. 26, 27, 28, 29, and 30, 1982. Also 

records show rnrnu 011-1 has operated at least 

15 production shifts in 9 days during Nov. 1982 

with an average production of over 600 tons per 

shift. The attached computer print-out dated 

11-8-82 shows no respirable dust samples were 

submitted for the Sep.-Oct. 1982 cycle. 

Responsibility of Torn Hughes Dust Tech. 

271 
Citation No. 2075606 describes the cited condition or 

practice as follows: 

The operator submitted the attached status change 

form, dated 10-18-82, showing rrimu 012-0 nonproducing effective 10-18-82. Production records 

show mmu 012-0 operated approximately 23 production 

shifts in 23 days during the Sep.-Oct. 1982 cycle 

with an average production of over 600 tons per 

shift. Included during this period were at least 

9 production shifts on Oct. 20, 22, 23, 26, 28, 

29, and 31, 1982. Also records show mmu 012-0 

has operated at least 5 production shifts in 3 days 

during Nov. 1982 with an average production of 

over 630 tons per shift. Responsibility of Tom Eughes. 

KENT 83-187 

This proceeding concerns three section 104(a) citations 

served on the respondent on November 16, 1982, for violations 

of mandatory health standard 30 CFR 70.220. 

Citation No. 2075602, describes the cited condition or 

practice as follows: 

The operator submitted the attached status change 

form dated 10-19-82, showing mmu 003-0 in 

abandoned status effective 9-1-82. Production 

records show mmu 003-0 operated approximately 18 

production shifts in 11 days during the Sep.-

Oct. 1982 cycle, with an average production of 

over 700 tons per shift. The attached computer 

printout dated 11-8-82, shows no respirable dust 

samples were submitted for this cycle. Records 

show citations for exceeding the dust standard were 

issued for mmu 003-0 no less than three times within 

the past year. Responsibility of Dennis Travis 

Dust Tech. 

Citation No. 2075603 describes the cited condition or 

practice as follows: 

The operator submitted the attached status 

change form, dated 10-25-82, showing mmu 005-0 in 

nonproducing status effective 9-1-82. The status 

form also states the unit is spare, nonproducing, 

and has not run five production shifts during the 

sampling cycle. Production records show rnmu 

005-0 operated approximately 73 production shifts 

in 40 days during the Sep.-Oct. 1982 cycle with 

an average production of over 600 tons per shift. 

272 
The attached computer' printout, dated 11-8-82 

shows no respirable dust samples were submitted 

for this cycle. Records show citations for 

exceeding the dust standard were issued for 

mmu 005-0 no less than two times within the past 

year. Responsibility of Dennis Travis Dust Tech. 

Citation No. 2075604 describes the cited condition or 

practice as follows: 

The operator submitted the attached status change 

form, dated 10-19-82, showing mmu 006-0 abandoned 

effective 9-1-82. Production records show mmu 

006-0 operated approximately 21 production shifts 

in 13 days during the Sep.-Oct. 1982 cycle with 

an average production of over 750 tons per shift. 

the attached computer printout, dated 11-8-82, 

shows no respirable dust samples were submitted 

for this cycle. Records show at least one 

citation for exceeding the dust standard was 

issued for mmu 006-0 within the past year. 

Responsibility of Dennis Travis, Dust Tech. 

Testimony and evidence. KENT 83-187. 

MSHA Inspector Arthur L. Ridley, testified as to his 

background and experience, and he stated that section 70.220 

of the mandatory standard requires that certain changes on 

t~2 status of certain coal producing and sampling units be 

reported to MSHA within three days of the time the change occurs 

He stated that changes of producing units to nonproducing 

or temporary nonproducing, or abandoned areas must be reported. 

He identified exhibit P-1 as a status change form executed 

by respondent's mine technician Dennis Travis showing that 

the mechanized mining unit at the Wheatcroft Mine, No. 003 

was placed in an abandoned status effective September 1, 1982, 

and that it was filled out and signed by Mr. Travis on 

October 19, 1983 (Tr. 17-20). 

Mr. Ridley explained that a "mechanized mining unit" 

in this case consists of a certain amount of equipment used 

for coal production, such as a cutting machine, a loading 

machine, and shuttle cars, all of which are used in one set 

of rooms for coal production purposes. The exhibit in question 

is a form supplied by MSHA, and section 70.220 requires 

that it be filled out by an operator and filed with MSHA. 

The form in question came to his off ice as a routine matter 

and he has previously examined the original copy on file 

in his off ice. He saw no form previous to the one filed in 

this case. He also confirmed that exhibit P-1, page one, is 

a copy of Citation No. 2075602 issued by MSHA Inspector 

273 
Thomas M. Lyle, and he explained that such a citation would 

be issued after a review of the status change form to ascertain 

whether it was timely filed (Tr. 24). 

Mr. Ridley stated that the original citation issued by 

Mr. Lyle contained no negligence findings on the face of the 

form, but that he (Ridley) modified the citation on January 7, 1983, 

to include a negligence finding. He stated that he made this finding 

after reviewing the status form and finding that a month and 

a half had gone by since the unit in question was reported 

abandoned, and he believed that the respondent was negligent 

in not submitting the form sooner (Tr. 25). 

On cross-examination, Mr. Ridley confirmed that MSHA's 

regulations do not require a mine operator to file a daily 

coal production report for each coal producing unit (Tr. 29). 

He also confirmed that while it is not a common practice for 

MSHA's health staff to delve into company production records, 

it has been done in the past, but infrequently (Tr. 30). 

He also confirmed that an inspector is instructed to make 

any negligence and gravity findings by filling out the 

appropriate places on the citation form at the time he issues 

the citation (Tr. 31). He conceded that his modification 

of the citation by filling out the negligence portion of the 

citation form issued by Inspector Lyle 52 days after the initial 

service of the citation on the respondent in this case "was 

a long period of time" (Tr. 32). Mr. Ridley also confirmed 

t~~t his supervisor Charles E. Dukes instructed him to modify 

the citation to show a "high degree of negligence" (Tr. 35). 

Mr. Ridley stated further that had he issued the original 

citation, he would have made the same negligence finding 

(Tr. 3 6) . 

Mr. Ridley explained that under MSHA's dust sampling 

procedures, an operator must take five valid dust samples 

within each two month period (Tr. 37). He agreed that if the 

respondent sampled during the September-October sample cycle 

and then abandoned the unit on September 25, he could legally 

do this since the sample cycle had not run its course (Tr. 40). 

Respondent's testimony and evidence 

Dennis Travis, testified that he was familiar with the 

three citations issued by MSHA Inspector Lyle on November 16, 1982, 

concerning the filing of the mine status change forms in 

question. Mr. Travis confirmed that he was employed as an 

environmental health technician at respondent's Wheatcroft 

Mine. With regard to Citation No. 2075602, Mr. Travis stated 

that mine records indicated that coal was produced on the 

274 
unit in question during the first 10 days of September, but 

not after that date. When asked to explain the circumstances 

surrounding the filing of the form in question, he res.ponded 

as follows (Tr. 56-57): 

Well, coming back to the 18th of October I 

realized that this production unit, 003-0 was 

not going to be running any longer and I knew 

that it had run a few days in the month of 

September which is the first month of the bimonthly sampling cycle. At that time I knew 

that there would have to be some samples taken 

to comply with the respirable dust law which 

requires us to submit five accurate samples 

during a bi-monthly period. I also knew that 

it was impossible to do that because the equipment had been moved out of that area. At that 

point, to keep from either receiving a violation 

stating that I did not send in accurate 

respirable dust samples and to try to find 

out exactly what needed to be done at this point 

because of the abandonment of the area, I called 

the MSHA Off ice in Madisonville to talk to the 

health specialist, the desk specialist supervisor 

which was Mr. Dukes. I felt that Mr. Dukes would 

be the one to answer my questions since he was 

the supervisor and -- So I spoke to him about 

the matter, told him what the situation was, and 

I had a few days in the first part of the sampling 

cycle that had produced coal on that unit but 

yet the unit wouldn't be producing any longer; 

and asked him, at that point, what needed to be 

done. 

I knew that a status change form should be 

submitted, I felt like it should. And I asked 

him at that point if that's what I should do. 

And he informed me, and advised me to send in a 

status change form abandoning the section and 

dating it at the beginning of the bi-monthly 

sampling cycle to avoid any confusion. And 

abandoning it at that point. 

In response to further questions, Mr. Travis confirmed 

that he submitted the form in question for Unit 003-0 on 

October 19, 1982, but that the effective date of the status 

change was September 1. No form was submitted during the 

period September 1 through October 19, 1982, and when asked 

why he did not comply with the three-day reporting requirement 

of section 70~220, he responded as follows (Tr. 61-62). 

275 
A. I wasn't wantin~ to avoid taking samples. 

If the unit had been in production the last two 

weeks of this month the samples would have been 

taken, I was advised by the MSHA Supervisor, 

Mr. Dukes, to date it at that particular time. 

If I had dated it three days prior to the 19th of 

October which would've been 10/16 --

Q. Uh-hm. 

A. -- then I could have been and probably would 

have been cited for failure to submit samples 

during that bi-monthly sampling cycle even though 

the unit was down and abandoned, and the status 

change submitted at the proper time. 

Q. Okay. If I understand your testimony the unit 

was not down during the period. 

A. During the first eleven days, that's correct. 

Q. So if it was producing during the first eleven 

days, withdrawing of course, do you understand 

the bi-monthly cycle of respirable dust requirements 

to dictate that if you produce coal at all during 

the two month period you have to submit the samples. 

A. No, sir. I do not. 

Q. What do you understand that to require? 

A. It has to be filed four shifts, four production 

shifts, to be required to submit samples during 

that time. 

Q. At any time during that period of time. 

A. That's correct. 

Q. Did you produce any five shifts? 

A. Yes, sir. 

Q. During that time? 

A. Yes, sir. 

Q. And did you submit any respirable dust samples? 

A. No, sir. 

276 
Mr. Travis confirmed that,~ining unit 003-3 was permanently 

abandoned on October 17 or 18, 1982, and that from September 11, 

1982, until it was abaondoned it was in a "technically 

temporarily abandoned" status. Although the unit was not 

producing coal during this time, the equipment was still there, 

the area was being ventilated, and Mr. Travis characterized 

the unit as a "spare" to be used "as needed" (Tr. 63). 

Respondent's counsel asserted that all of the remaining 

citations at issue in these proceedings concern the same 

factual setting (Tr. 86). MSHA's counsel confirmed that 

Citation No. 2075603, exhibit P-3, concerns a mine status 

change form submitted by Mr. Travis on October 25, 1982, and 

the form shows that the 005-0 mining unit in question was 

"nonproducing" effective September 1, 1982. MSHA counsel 

took the position that the form should have been filed by 

September 4, 1982, and he also asserted that Mr. Ridley 

modified this citation, and that if called to testify he 

would confirm that he received the same instructions to mark 

if "high negligence," and that the reason he did so was 

because of the time lapse from September 1 to October 25, 1982 

(Tr. 8 7-8 9) . 

Respondent's counsel confirmed that the 005-0 unit 

was in fact nonproducing on September 1, 1982, and that it 

was in the same status as the previously cited unit. He 

explained that the mine was being abandoned in order to start 

a new mine, and the mining units in question were being moved 

a~0und while renovations and overcasts were being constructed 

(Tr. 89). He conceded that the notation on the citations 

that a search of company records reflected that there were 

73 production shifts during a forty-day period during 

September and October 1982 "were probably right" (Tr. 90). 

He also confirmed that the 005-0 mining unit consisted of 

five pieces of equipment (shuttle car, cutting machine, 

loading machine, reel, and roof bolter), and that this unit 

was assigned to the cited mine location to produce coal (Tr. 91). 

MSHA's counsel identified exhibit P-4 as a copy of 

Citation No. 2075604, issued by Inspector Lyle on November 16, 

1982. The citation stat~s that the required MSHA change 

form was dated October 19, 1982, indicating that mining unit 

006-0 was abandoned effective September 1, 1982. The form 

submitted by Mr. Travis identifies the "unit" as "designated 

occupation code 036," which is for the "high risk" continuous 

miner operator (Tr. 115-116). Respondent's counsel confirmed 

that the section where the miner had been operated was abandoned, 

and the miner machine was moved someplace eise (Tr. 117). 

Respondent's counsel also indicated that if called to testify, 

Mr. Travis would explain the circumstances as follows 

(Tr. 117-119): 

277 
JUDGE KOUTRAS: So you abandoned the 006-0 

section where this miner was operating? 

MR. CRAFT: Yes, sir. 

JUDGE KOUTRAS: And that's a change in the 

status of the mine, isn't it? 

MR. CRAFT: Yes, sir. 

JUDGE KOUTRAS: It is also a change in the 

status of that particular mining machine, is 

it not? 

MR. CRAFT: Yes, sir. 

JUDGE KOUTRAS: It was moved someplace else? 

MR. CRAFT: Yes, sir. 

JUDGE KOUTRAS: And on both of those changes 

in status with both the mine where the coal was 

being mined to when it was abandoned and the 

continuous miner being moved someplace else, that 

miner wasn't abandoned, it was simply rerouted 

someplace else. That's also a change in status 

isn't it? 

MR. CRAFT: Yes, sir. 

JUDGE KOUTRAS: Both of those circumstances 

have to be reported on the 70.220, do they not? 

MR. CRAFT: According to law. 

JUDGE KOUTRAS: Okay. Now, let's say you've got 

this one. Is it the same type of a thing? 

MR. CRAFT: Exactly. If you call Mr. Travis 

back to the stand he will tell you exactly 

what he told you before. 

JUDGE KOUTRAS: Is that Mr. Travis didn't know 

that 006-0 section was abandoned, they were 

not mining coal, he didn't know that the continuous 

mining machine was being moved someplace else. 

MR. CRAFT: Mr. Travis --

JUDGE KOUTRAS: When he finally learned that 

he picked up the phone and called MSHA. Is that 

what he's testifying to? 

278 
MR. CRAFT: Mr. Travis will tell you that 

the status while we were starting these two 

mines and abandoning these two mines we swapped 

equipment around like a yo-yo. 

JUDGE KOUTRAS: He did that. 

MR. CRAFT: He would do exactly like you said. 

When he learned of it he would call MSHA, that's 

exactly what he did. 

JUDGE KOUTRAS: On this particular citation, is 

this the case? 

MR. CRAFT: Yes, sir. 

JUDGE KOUTRAS: He didn't know that this continuous 

mining machine was being moved out. 

MR. CRAFT: He didn't know when. They only ran, 

I'm sure you have, they ran the first 13 days of 

September, they didn't run anymore. He didn't 

know that they wouldn't be running until management told him we're moving it out, abandon the 

section. We're moving it and it won't be back. 

JUDGE KOUTRAS: And you didn't know then you 

were going to move the 006-0. 

MR. CRAFT: He wouldn't have any way of knowing. 

The health specialist doesn't manage the coal 

mines. He works, he superintends the mines. 

JUDGE KOUTRAS: Well, maybe you ought to give 

the responsibility of filling out these forms 

to somebody else other than Mr. Travis. 

Testimony and evidence. KENT 83-186. 

MSHA's counsel identified exhibits P-5 and P-6 as copies 

of Citations 2075605 and 2075606, and copies of the MSHA 

mine status change forms in support of the citations. The 

parties agreed that Inspector Ridley modified these citations 

to indicate a "high degree of negligence," and that if called 

to testify he would confirm that Inspector Lyle made no such 

negligence findings, and that Mr. Ridley modified the citations 

on instructions by his supervisor Mr. Dukes (Tr. 140-142). 

279-
Exhibit P-7 is a computer print-out of the history of 

prior citations for respondent's No. 11 Mine, and by agreement 

of the parties it was made a part of the record (Tr. 142). 

MSHA's counsel agreed that his case in this docket was being 

submitted as a "documentary case," and the parties made the 

following arguments in support of their case (Tr. 143-147): 

MR. STEWART: Your Honor, the theory is that 

the Pyro Mining Company, No. 11 mine, failed to 

submit a status change subsequent to the ones 

that are associated with citation 205 which 

indicates that the mine was abandoned on, I 

believe, on October 18th; and with respect to 

citation 606 showing that the mine was abandoned, 

that the mining unit was abandoned on October 18th. 

In fact it recites that coal was produced subsequent 

to those days on numerous shifts, and we should've 

been notified that it was not in a producing status. 

JUDGE KOUTRAS: Okay. Mr. Craft, what say you 

about these two citations? 

MR. CRAFT: Basically, your Honor, when they 

were abandoned, they were abandoned. They weren't 

producing 18, 19, 20, 21, 22; and the fact that 

the negligence wasn't checked till 52 days later. 

And that they were terminated five minutes, the 

one in question was terminated, written at 9:10 

and terminated at 9:20. 

JUDGE KOUTRAS: And the other one was written at 

9:30 and terminated at 9:45. 

MR. CRAFT: That's right, your Honor. 

JUDGE KOUTRAS: And again I take it that Mr. Stewart 

can you explain why the time frames are so short 

here? Is it that once the citation was served the 

operator submitted the report. It says on here, 

correct status change form was placed in the back 

and production status was filed. Is that 

Now wait a minute -- Will be submitted in the shifts. 

MR. STEWART: Will be submitted. Yes. 

JUDGE KOUTRAS: Have the reports been submitted, 

do you know? 

MR. STEWART: To my mind they have been. 

JUDGE KOUTRAS: Okay. And do you dispute the 

fact that these units were in production as noted 

on the condition of practice here, Mr. Stewart, 

Mr. Craft. 

280 
MR. CRAFT: Your Honor, I'd like to clarify 

one point. On these terminations, he wrote 

the citation on 11/16/82 on 605. Right? 

JUDGE KOUTRAS: On what? Yes, okay. 

MR. CRAFT: On his termination he says, "the 

correct status change form placing .~MU 011 back 

in the producing status 11/15." If we would've 

submitted that form on 11/15, the citation 

shouldn't have been written on 11/16. He wrote 

the citation on 11/16 and he terminated it on 

the same. We submitted in on 11/15. That 

would've been a case where he could've cited 

us for as being late. 

MR. STEWART: Your Honor, there is no provision 

for being late. The status says that he didn't 

submit it within three days of the change of 

status. The face of the citations indicates 

that coal was being produced --

MR. CRAFT: But, your Honor --

MR. STEWART: two weeks prior to November 15th. 

MR. CRAFT: The problem is, your Honor, that is 

he submitted the status change on 11/15, why were 

we cited on 11/16? 

MR. STEWART: Your Honor, it's the same argument 

that he proves in the subsequent proceeding. That 

the status change was submitted on October 19th 

and he went and wasn't cited till November something. 

I don't think that that goes to whether there was 

a violation or not. 

MR. CRAFT: When Mr. Ridley modified it for high 

negligence he should've modified the termination 

point. 

JUDGE KOUTRAS: Okay. But do you dispute the fact 

that these units were in fact in production on 

the dates stated on the face of these citations? 

MR. CRAFT: I don't dispute the facts that they 

were in production. I contend that they were 

stand-by units and we were acting under instructions 

from MSHA. 

281 

I,_ 
JUDGE KOUTRAS: On ii:istructions from MSHA to 

do what? 

MR. CRAFT: To submit the form, you know, 

because of the stand-by units and then put it 

in that status until we got it plumb out and 

then abandon it permanently which we did later. 

JUDGE KOUTRAS: Okay. Anything further? Do 

you wish to present any evidence on these? 

MR. CRAFT: No, sir. 

JUDGE KOUTRAS: On these citations. Do you 

have anything else Mr. Stewart? 

MR. STEWART: No, your Honor. 

Findings and Conclusions 

Fact of Violations 

Section 70.220 states in pertinent part as follows: 

(a) If there is a change in the operational 

status that affects the respirable dust sampling 

requirements of this part, the operator shall 

report the change in operational status of the 

mine, mechanized mining unit, or designated 

area to the MSHA District Off ice or to any 

other MSHA District Off ice designated by the 

District Manager. Status changes shall be 

reported in writing within 3 working days 

after the status change has occurred. 

(Emphasis added) . 

Section 70.220(b) defines each specific "operational 

status" which is required to be reported for (1) the mine, 

(2) the mechanized mining unit, or (3) the designated area. 

These general categories are further reduced to define 

whether they are "producing," "nonproducing," or "abandoned." 

Each of the five citations in these proceedings charge 

the respondent with failure to timely report the status of 

certain designated mechanized mining uni ts ( "mmu's'') . The 

citations were issued by MSHA Inspector Thomas M. Lyle, 

and at the ti~e of the hearings in these cases he was unavailable 

for testimony because he was on disability sick leave. The 

information on which Mr. Lyle based his citations was furnished 

by MSHA Inspector Robert Smith. Mr. Smith was not present 

at the hearings because ~e was attending an MSHA training class 

at Beckley, West Virginia. 

282 
In each instance noted above, Inspector Lyle issued 

his citations because the status change forms which were 

in fact filed by the respondent's representative on 

October 18, ·19, and 25, 1982, reported that the mechanized 

mining units in questions were either "nonproducing 11 or 

"abandoned" when in fact MSHA had reason to believe they 

were operational and producing coal. MSHA's support for 

its assertion that the units were producing coal came from 

a search and review of certain company production records 

apparently volunteered to Inspector Smith, as well as certain 

MSHA records indicating that dust samples were not filed 

for the units in question, or that the respondent was out 

of compliance during certain sampling cycles. In short, 

MSHA's position seems to be that (1) the mechanized units 

reported as nonproducing or abandoned were in fact producing, 

and (2) the respondent here has filed erroneous reports. 

Respondent's defense to the violations is based on 

its assertions that the cited mining units in question were 

not technically in production, but were somehow "temporarily 

abandoned" or on "standby" to be used periodically when 

the need arose. Respondent advanced the argument that the 

term "nonproducing'' means the same as "abandoned," and that 

it did not report the status changes in question because it 

did not know for sure whether any particular unit would 

be permanently abandoned or simply idled while other mine 

work was being done (Tr. 63, 65). 

Respondent's dust technician Dennis Travis, the 

individual who filed the reports in question, as well as 

respondent's trial representative William Craft, conceded 

that the failure to file the required changes within the threeday regulatory period when the sections in question were 

in fact in production constituted violations of section 

70. 22 0 (Tr. 60-66; 92-95; 106-107; 117-119) . 

From the record in this case, I am convinced that the 

respondent contested the citations because it believed 

that MSHA's enforcement office acted arbitrarily when it 

subjected the citations to the "special assessments" 

procedures. Respondent's testimony in its defense suggests 

that Mr. Travis may have been misled into believing that 

the status reports could be filed when he filed them, and 

that contrary to MSHA's position, Mr. Travis acted reasonably 

and in good faith. However, these are mitigating circumstances, 

and when taken in conjunction with other mitigating circumstances 

as discussed below, may be considered by me in the assessment 

of civil penalties for the violations. However, it seems 

clear that these mitigating circumstances may not serve 

as an absolute defense to the citations, nor may they serve 

as a basis for outright dismissal of the citations. 

283 
After careful review and consideration of all of the 

credible testimony and evidence adduced in these proceedings, 

I conclude and find that the petitioner has established by 

a preponderance of the evidence that the respondent violated 

the provisions of mandatory standard 30 CFR 70.220, by failing 

to accurately report the fact that the status of the cited 

mechanized mining units had changed. Failure to report such 

changes within the three-day period provided by the regulatory 

standard constitutes a violation. Accordingly, the five 

citations in question are all AFFIRMED. 

History of Prior Violations 

The history of prior paid assessments for the respondent's 

No. 11 Mine is reflected in the computer print-out, exhibit P-7 

(KENT 83-186). The mine history for respondent's \Vheatcroft 

Mine is shown in exhibit P-2 (KENT 83-187). For the periods 

April 7 and June 18, 1981, through November 15, 1982, neither 

mine had ever been cited for failure to comply with the 

reporting requirements found in section 70.220, and Inspector 

Ridley confirmed that this is in fact the case (Tr. 128-129). 

The computer print-outs reflect that the No. 11 Mine had 

12 prior citations for violations of sections 70.207(a) 

or 208(a), the standards dealing with bimonthly sampling of 

mechanized mining units and certain designated areas. With 

the exception of one $60 assessment, the rest were "single 

penalty'' $20 assessments. The Wheatcroft Mine was cited for 

three violations of section 70.207(a), and one violation of 

section 70.208(a), and all of these were "single penalty" 

$20 assessments. 

In addition to the above-mentioned citations, the computer 

print-out reflects ten total prior citations at both mines 

for violations of the respirable dust standards found in 

section 70.100. However, since no evidence was adduced as 

to the facts and circumstances surrounding any of these prior 

dust citations, I have no way of evaluating whether the mines 

in question have a dust problem, or whether or not the respondent 

has failed to attend to these conditions. However, I do 

note the fact that the 15 dust citations noted above were 

among a total of 273 citations issued during the period shown 

on the print-outs. Taken at face value, and considering 

the size of both mining operations, I cannot conclude that 

respondent's prior compliance record is such as to warrant 

any additional increases in the civil penalties which I 

have assessed for the citations in questions. Further, the 

petitioner has advanced no credible argunents or presented 

any evidence to establish anything to the contrary. 

284 
Gravity 

Although Inspector Lyle did not consider any of the 

violations to be "significant or substantial," and the special 

assessment officer found that the gravity of each violation 

was "nonserious," the "narrative findings" supporting the 

initial assessments not only took into accound the sub~ission 

of "erroneous status change reports," but specifically took 

into account "the failure of the operator to take the dust 

samples required during periods of active mining. 11 Because 

of this asserted "failure," MSHA's assessment officer concluded 

that during the period of active mining "excessively dusty 

conditions were allowed to go undetected" and that this in 

turn "could have allowed the miners to be continuously 

exposed to excessive concentrations of respirable dust." 

While it is true some of the citations make reference 

to the fact that the respondent did not submit dust samples 

for several sampling cycles during the production shifts 

in question, and that several mining units had been cited 

for being out of compliance during the year preceding the 

citations in questions, petitioner presented no credible 

testimony to establish or support any conclusion that 

"excessively dusty conditions were allowed to go undetected." 

Further, the inspector who issued the citations made some 

rather low gravity findings on the face of all of the citations, 

and since he did not testify, I reject the petitioner's 

reliance on speculative second-guessing by its assessment 

c+=fice as stated in the "narrative findings." 

It seems clear to me that the reporting requirements of 

section 70.220, are intended to provide MSHA with "tracking 

information" so as to insure compliance with the applicable 

dust standards found in Part 70 of its regulations. Since 

the use and location of mining equipment at any given time 

in the mining environment are critical in determining the 

potential respirable dust levels and exposures for certain 

critical occupations, MSHA has to be able to track the 

movement and use of such equipnent in order to determine 

whether its dust standards are being complied with. However, 

in the instant cases there is no credible testimony or 

evidence to establish that the failure to accurately report 

the changes required by the cited standard in fact had a serious 

impact on miners. Accordingly, I have no basis for finding 

or concluding that the gravity of the violations is such as 

to warrant any additional increases in the penalties assessed 

by me for the citations. 

However, given the rationale for requiring such reports, 

I do find that the citations were serious. 

285 
Negligence 

During the course of arguments during the hearing, 

petitioner's counsel suggested that the respondent may have 

placed itself in a position of reporting certain status 

changes well after the three-day reporting deadline because 

it did not want to continue taking certain dust samples during 

the required sample cycle. In short, counsel implied that 

the respondent "took the lesser of two evils" because it 

was attempting to avoid a dust sampling cycle which may 

have shown the mines to be out of compliance. Respondent's 

representative vigorously denied any such suggestion. 

After scrutiny of the record in this case, I find no 

credible testimony or evidence to establish that the respondent 

was attempting to circumvent or avoid the respirable dust 

requirements found in Part 70 of MSHA's regulations. Further, 

if the petitioner believed this was the case, it was incumbent 

on counsel to produce the witnesses to support such a proposition. 

Since it did not, I have ignored any such suggestions. 

In each of the citations originally issued by Inspector 

Lyle, he made no negligence findings on the face of the 

citations. That is, he did not check any of the boxes 

provided in item 20 of the citation form. The boxes contain 

five degrees of negligence ranging from "none'' to "reckless 

disregard." The record here establishes that the citations 

w<=>re subsequently modified 52 days later to reflect a 11 high 11 

degree of negligence, and as a result of that the citations 

were "specially assessed" by MSHA's assessment office, with 

the resulting civil penaltx monetary assessment of $300 for 

each citation, totalling $1500. 

Inspector Ridley testified that he modified the citations 

issued by Mr. Lyle on January 7, 1983, some 52 days after 

they were issued, and he did so at the specific direction 

of supervising MSHA Inspector Charles Dukes. Mr. Ridley 

stated that Mr. Dukes instructed him to modify the citations 

to show a "high degree of negligence." When asked why Mr. Dukes 

did not issue the modifications himself, no explanation was 

forthcoming, and Mr. Ridley confirmed that the modifications 

were mailed to the respondent. I find Mr. Ridley's assertion 

that he would have made an independent judgment that the 

respondent exhibited a high degree of negligence to be selfserving, and they are rejected. 

Respondent argued that the manner in which the citations 

were modified in these proceedings was unfair and arbitrary 

since they were issued some 52 days after the citations were 

286 
issued. Further, respondent asserted that Mr. Ridley's 

modifications indicating that the respondent's negligence 

was high were not based on Mr. Ridley's personal evaluation 

and that Mr.· Ridley simply carried out a direct order from 

his supervisor to amend and modify the citations. As a 

result of this, respondent asserted that all of the citations 

were "specially assessed." 

MSHA's Inspector Manual Guidelines requires an inspector 

to complete the appropriate "Inspector's Statement" portion 

of the citation form to be completed as soon as possible 

during the same day when the violation is cited. The instructions 

advise that the inspector should fill in the portion of the 

statement which relates to gravity and negligence while the 

facts are fresh in his mind. The instructions also state 

that failure to adequately document the Inspector's statement 

will result in assessments that are inaccurate, either too 

high or too low, and thus ineffective. 

Based on all of the testimony and evidence presented at 

the hearings in these cases it is my opinion that the statement 

made in MSHA's Narrative Findings for a Special Assessment 

that "the proposed penalty reflects the results of an 

objective and fair appraisal of all the facts presented" 

is simply not so. The sequence of events leading to the 

issuance of the citations leaves much to be desired. One 

inspector issued the citations based on record searches made 

by a second inspector. A third inspector modifies the citations 

based on direct orders from a fourth inspector who happens 

to be his direct supervisor. Further, there is no rational 

explanation as to why the first inspector made no negligence 

findings as required by MSHA's Inspector's Manual Guidelines 

(exhibit R-1), nor is there any explanation as to why Mr. Dukes 

did not modify the citations himself. The record reflects 

that he is an authorized inspector and has the authority 

to issue citations. 

During the course of oral arguments in this case, 

respondent's representative suggested that Supervisory Inspector 

Dukes' role in the, modification of the citations, as well as 

the instructions given to Mr. Travis as to when he should file 

the reports which resulted in the citations, was somehow out 

of retaliation for some personal grudge which Mr. Dukes 

purportedly harbored toward the respondent (Tr. 133-138). 

Respondent's representative was reminded from the bench 

that I view such accusations as serious matters, and that 

any suggestion that any MSHA official may have acted improperly 

should be directed to that agency. 

287 
In view of the foregoing, and on the basis of all of 

the credible testimony of record in these proceedings, I 

conclude that the violations resulted from the respondent's 

failure to take reasonable care to insure that the status 

forms in question were timely filed. While the record 

suggests that Mr. Travis may have acted in good faith and 

may have been misled or mistaken as to what. was required 

of him, I am not convinced that mine management was totally 

oblivious as to the requirements of the regulations. I1 find 

that the citations all resulted from ordinary negligence by 

the respondent, and this is reflected in the civil penalties 

which I have assessed for the violations. 

Good Faith Compliance 

The citations issued by Inspector Lyle reflect that 

abatement and compliance was achieved the same day the citations 

issued, and that this was done by the respondent filing "up 

to date" status change forms to accurately reflect the status 

of the mining units in question. Accordingly, I find that the 

violations were rapidly abated prior to the time fixed by 

Inspector Lyle, and this is reflected in the penalties assessed 

by me for the violations. 

Size of Business and Effect of Civil Penalties on the Respondent's 

Ability to Continue in Business. 

Aside from some testimony that certain sections of the 

ffi~ne in question may have had a daily production of 700 tons, 

and that MSHA's "narrative statement" in support of the 

proposed assessments makes some nebulous references to the 

size of the mine and Pyro Mining Company, there is no direct 

testimony or evidence in this case as the coal production or 

size of respondent's Wheatcroft Mine. However, based on 

testimony presented in another proceeding where these parties 

and counsel were present (Docket KENT 83-101, heard November 2, 

1933, in Evansville, Indiana), I conclude and find that the 

respondent is a fairly large mine operator and that the penalties 

assessed by me in these proceedings will not adversely affect 

its ability to continue in business. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of Section llO(i) 

of the Act, I conclude and find that the following civil penalty 

assessments are appropriate for the citations which have 

been affirmed: 

288 
Docket No. KENT 83-186 

Citation No. Date 

2075605 11/16/82 

2075606 11/16/82 

Docket No. KENT 83-187 

Citation No. Date 

2075602 11/16/82 

2075603 11/16/82 

2075604 11/16/82 

30 CFR 

70.220 

70.220 

30 CFR 

70.220 

70.220 

70.220 

ORDER 

Section 

section 

Assessment 

$75 

$75 

Assessment 

$75 

$75 

$75 

Respondent IS ORDERED to pay the civil penalties 

assessed above in the amounts shown for each of the citations, 

and payment is to be made to the petitioner within thirty (30) 

days of the date of these decisions. Upon receipt of payment, 

these proceedings are dismissed. 

Distribution: 

r e . Koutras 

{)~ dministrative Law Judge 

Darryl A. Stewart, Esq., U.S. Department of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

William Craft, Assistant Director of Safety, Pyro Mining 

Company, P.O. Box 267, Sturgis, KY 42459 (Certified Mail) 

/slk 

28S 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINIST~ATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD.MINISTRATION (MSHA) , 

Petitioner 

BROAS MINING COMPANY, 

Respondent 

FEB 71984 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-245 

A.C. No. 15-11601-03504 

No. 5 Surface 

DECISION 

Before: Judge Kennedy 

The operator having failed to show cause why its 

failure to respond to the pretrial order in this matter 

should not be deemed a default, it is found said dereliction 

is a default that authorizes entry of a summary order 

assessing the proposed penalty as a final order of the 

Commission. 29 C.F.R. 2700.63. 

The premises considered, therefore, it is ORDERED 

tha~ the operator pay a penalty of $206.00 for the violation 

charged. It is FURTHER ORDERED that the operator pay the 

penalty assessed, $206.00, on or before Friday, February 17, 

1984 and that subject to payment the captioned matter be 

DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law Judge 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Herman W. Lester, Esq., Combs and Lester, P.S.C., 207 

Caroline Avenue, Pikeville, KY 41501 (Certified Mail) 

/ejp 

290 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB ?i984 

UNITED STATES STEEL CORP., 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

DECISION 

Docket No. WEVA 83-160-R 

Citation No. 2132552; 3/16/83 

Gary No. 50 Mine 

Appearances: Louise Q. Symons, Esq., United States Steel 

Corporation, Pittsburgh, Pennsylvania, for 

Contestant; 

Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a Notice of Contest filed by 

the contestant against the respondent pursuant to Section 105(d) 

of the Federal Mine Safety and Health Act of 1977, challenging 

a section 104(a) citation issued by an MSHA inspector on 

March 16, 1983, citing the contestant with an alleged violation 

of mandatory standard 30 CFR 75.301. 

The respondent filed a timely answer asserting that the 

citation was properly issued, and pursuant to notice, a hearing 

was convened in Beckley, West Virginia, on October 5, 1983, 

and the parties appeared and participated fully therein. 

The parties filed post-hearing briefs, and the arguments 

presented therein have been carefully considered by me in 

the course of this decision. 

The Section 104(a) Citation No. 2132552, which is the 

subject of this proceeding, was issued by an MSHA inspector 

291 
on March 16, 1983. The citation alleges a violation of 

mandatory standard 30 CFR 75.301, and the condition or practice 

alleged by the inspector to be a violation of that standard 

states as follows: 

Based on the results of laboratory analysis 

of samples taken on 2/8/83 and 1/27/83 at the 

No. 1 A-Panel Bleeder Tap (Back Side) the volume 

per centum of carbon dioxide was 0.65 (2/9/83) and 

0.72 (1/27/83) which is above the allowed limit 

of 0.5. 

30 CFR 75.301 states in pertinent part as follows: 

All active workings shall be ventilated 

by a current of air containing not less than 

19.5 volume per centum of oxygen, not more 

than 0.5 volume per centum of carbon dioxide, 

and no harmful quantities of other noxious 

or poisonous gases; and the volume and velocity 

of the current of air shall be sufficient to 

dilute, render harmless, and to carry away, 

flarmnable, explosive, noxious, and harmful 

gases, and dust, and smoke and explosive fumes. 

* * * 

Issues 

The critical question presented is whether or not the 

cited condition or practice constitutes a violation of mandatory 

standard section 75.301. Included as part of any determination 

of that question is whether or not the violation and/or the 

sampling made by the inspector to support his citation occurred 

in "active workings'' as stated in section 75.301. Additional. 

issues raised by the parties are identified and discussed in 

the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 

95-164, 30 u.s.c. § 801 et sea. 

2. Commission Rules, 29 CFR 2700.1 et seq. 

Testimony and Evidence Adduced by Respondent MSHA 

MSHA Inspector Melvin C. Harper, testified as to his 

background and training and he confirmed that he issued 

the citation in question. He stated that he took the bottle 

292 
sample approximately one foot to two feet outby from the 

regulator "at midstream." By "midstream," he explained that 

he placed his bottle sampling device halfway down the 

regulator and ''straight out from it" for a distance of one 

to two feet. He described the regulator as a cinderblock 

stopping with a metal door regulator in it (Tr. 51-53). 

Mr. Harper stated that on the day of his inspection he 

was part of an MSHA group ventilation saturation inspection, 

and he described the procedures he followed in taking his 

air sample. He took one sample on January 27, 1983, the 

results of which indicated .72 per centum of carbon dioxide, 

and he was accompanied by Cecil Berge, a U.S. Steel safety 

inspector. Mr. Harper could recall no protest from Mr. Berge 

as to where the sample was taken (Tr. 56). 

·Mr. Harper stated that he considered the location where 

he took his sample as being within "active workings," and 

when asked why, he replied "From all training and instructions 

I've had, the active workings begin at the outby side of the 

bleeder tap." He also confirmed that the air sample he took 

was a sample of air coming through the regulator at the 

bleeder evaluation point before it mixed with any other air. 

He estimated the distance from the air split where he took 

his sample to the split of air where it mixed with the air 

in the entry as 25 to 30 feet (Tr. 57). 

Mr. Harper stated that he was familiar with the approved 

mine ventilation plan "to a certain extent," and he stated 

that the location where he took his sample is indicated on 

the mine map as an "evaluation point" or "BEP" (exhibit G-2, 

Tr. 58-59). He explained the three arrows on the nap as 

two open entries with no regulators, and the third arrow 

as the regulator where he took his sample. He confirmed 

that he took samples at the other two locations and that they 

were in compliance (Tr. 60). 

Mr. Harper stated that the regulator location where he 

took the sample was "the location to the gob itself." He 

placed the regulator approximately thirty feet from the crosscut 

that parallels the gob line (Tr. 60). 

Mr. Harper testified that after he mailed his air sample 

to MSHA's Mt. Hope District Office for analysis he heard 

nothing further until March 16, 1983, when he received a telephone 

call from his supervisor Jimmy Humphrey who instructed him 

to issue the citation in question. Since that time he has 

not been back to the mine to take any other samples at the 

bleeder evaluation point in question (Tr. 62). 

293 
On cross-examination, Mr. Harper stated that carbon dioxide 

is not an explosive gas, and it was his understanding that 

up to two percent methane was permitted to be present at the 

location where he took his sample before there would be any 

methane violation (Tr. 62-63). He could not state whether 

anyone from MSHA had the results of his air samples within 

a week or two after he took them on January 27, 1983 (Tr. 65). 

He confirmed that he held his sampler at arm's length away 

from his body for a distance of approximately three feet, 

and he was standing sideways with neither his face or his 

back to the regulator (Tr. 66). 

Mr. Harpe~ defined "return air" as active air leaving 

the last working place and dumping into the main air course. 

He considers a "bleeder" to be air coming out of a gob area that 

has been worked out. He also indicated that he accepts the 

ventilation plan's location of the bleeder evaluation 

(Tr. 67). 

Mr. Harper reviewed the last sentence of mandatory 

safety standard criteria section 75.316-2(e) (2) which states 

"Such systems should extend from active pillar line of such 

gob to the intersection of that bleeder split with any other 

split of air, and shall not include active workings." He 

was asked whether the area in which he took his sample 

fits the area described by the referenced sentence. He answered 

"no," and said "I believe that right at that regulator point 

is the split, the separation between the air coming off the 

gob then entering into the rest of the return" (Tr. 68). 

When asked whether the area where he took his air samples 

was part of the bleeder system that extended from the active 

pillar line of such gob to the intersection o{ that bleeder 

split with any other split of air Mr. Harper again answered 

"no." He said "I think the bleeder is from the regulator 

back. Once it comes to there, it enters -- that is the 

immediate bleeder coming off that gob area" (Tr. 69). The 

parties stipulated that the area where the samples were taken 

was "in the crosscut, some point between the crosscut and 

the regulator, because the two splits would join. I don't 

know that we could say on any given day where that mixing 

point is" (Tr. 70). 

Mr. Harper estimated that from where he took his sample, 

it was some thirty feet to where the air coming from the gob 

mixed with the air in the return (Tr. 71). He confirmed 

that the bleeder check points shown on the mine map are those 

submitted and finally approved by MSHA, and he confirmed 

that he learned through hearsay that mine management has 

indicated to MSHA that bleeder check-points are not the 

proper place to take the air samples required by section 

7 5. 301 (Tr. 71) . 

294 
Mr. Harper stated that section 75.305 requires the fire 

boss to travel weekly to the area where he took his air 

samples for the purpose of conducting his weekly examinations 

required by that section (Tr. 72). However, section 75.305 

does not require the taking of any bottle air samples (Tr. 76). 

Mr. Harper could not recall the size of the opening in 

the regulator at the location where he took his sample, but 

he did indicate that "the doors were pretty well all the 

way open," and that the opening would be three to six feet. 

He could not state exactly how much air was coming through 

the regulator from the gob, and he has been unable to locate 

his notes (TrL 103). He did not take an air reading in the 

return entry (Tr. 104). 

MSHA Inspector Jackson L. Snyder, testified that he is 

assigned to the district ventilation group and that in that 

capacity he reviews the ventilation plans submitted by operators 

and evaluates their effectiveness (Tr. 108). Mr. Snyder 

confirmed that he was at the mine in question on February 9, 1983, 

and took a bottle sample of air similar to the one taken 

by Inspector Harper. He stated that he took his sample at 

the same bleeder check point where Mr. Harper took his. 

He took it approximately one foot outby the regulator, downstream, 

and at arm's length (Tr. 110). 

Mr. Snyder stated that the air he sampled was air from 

the regulator and he did not believe that the air which he 

sampled was mixing with other air in the entry. He considered 

the sampling location to be in active workings because "it 

is required, by the ventilation plan, that the bleeder point 

be at this location. And it is also required that this 

person go to this location once a week to evaluate that 

part of the gob" (Tr. 110). 

Mr. Snyder stated that men travel to the bleeder check 

points once a week to take air samples with bottles, evaluate 

the direction of the air flow, as well as the quality of 

the air and the presence of any methane or gases. While 

there is no requirement to take bottle samples, U.S. Steel 

has chosen to use this method to insure conformance with their 

own ventilation plan (Tr. 111). 

Mr. Snyder confirmed that he was at the mine to evaluate 

the gob area as part of his ventilation survey and that the 

volume of air in the entry outby the bleeder evaluation 

point was 43,000 cubic feet, and the amount of air coming 

off the gob was approximately 3900 (Tr. 113). The amount 

of air present when the citation was abated was 8,000 cubic 

feet (Tr. 114) . 

295 
On cross-examination, Mr. Snyder stated that U.S. Steel 

safety inspector Earl Stone was with him when he took his 

sample on February 9, 1983. The opening in the regulator 

was 40 square feet (Tr. 115). He took.no air readings in 

the intersection where the air from the regulator mixed 

with the return air (Tr. 116). However, he approximated 

the air movement there as 15,000, and he did not believe 

that there was any mixture of return and bleeder air at the 

point where he took his bottle sample (Tr. 117). 

Mr. Snyder stated that any bleeder entries which are 

part of the approved mine ventilation plan would be bleeder 

entries in conformance with section 75.316 (Tr. 119). He 

indicated that he had no conversations with mine management 

as to where the bleeder check points should be before the 

plan was approved, and he does not know what was originally 

proposed by mine management in this regard (Tr. 120). 

Mr. Snyder stated that he "supposed" he received the 

results of his air sample within a week and that it took 

him until March 16 to issue the citation because he ran across 

it while he was preparing his report on the mine ventilation 

survey (Tr. 145). When asked whether it was true that within 

his district there is a lot of controversy as to whether 

section 75.301 applies to bleeder check points in bleeder 

entries, he replied "at a certain time, yes, there was" 

(Tr. 145). When asked whether it is still true that there 

are certain inspectors in his district who do not believe 

that section 75.301 applies to bleeder check points and a 

bleeder entry, he answered "I don't know that." He believes 

that it does apply (Tr. 146). 

Mr. Snyder stated that when his air sample indicated 

noncompliance he asked Mr. Harper to take care of issuing 

the citation (Tr. 148). Mr. Snyder confirmed that he was 

aware of MSHA's policy letter, exhibit G-3, at the time the 

citation issued, but he did not know whether Mr. Harper was 

aware of it (Tr. 149). 

. .Paul J. Componation, MSHA Division of Safety, Arlington, 

Virginia te~tif ied as t~ his background and experience, 

and h7 7o~f irme~ th~t his present duties include assisting 

the division chief in matters concerning ventilation 

(Tr. 156-159). He commented as to the importance of measuring 

bleeder air, and he indicated that the ''BCP" or bleeder 

che~k point.locat~on shown on the mine map is the point where 

undiluted air coming from the bleeder is sampled and that is 

what MSHA is trying to achieve (Tr. 164). 

296 
Mr. Componation was asked about his "concerns" with 

respect to the question of interpretation of "active workings 

at a bleeder evaluation point," and he responded as follows 

(Tr. 168-169) : 

A. My concern -- I have no concerns with 

it. I feel that if a man has to travel there, 

it has to be safe for hiM to travel. I don't 

only feel that it's 301 and the C02, as we 

have in this case here, I think he's responsible 

to see that the roof is supported, that the 

area is adequately ventilated, and that it's 

safe for whoever goes up there to evaluate 

that, for whatever they're evaluating; whether 

it be for the roof, whether it be for anything 

that's in there, not necessarily methane. He 

is evaluating the effectiveness of that system 

to determine whether the gob, per se, is being 

ventilated accurately. 

And he measures the quantities of air, he checks 

the roof, he checks for whatever may be. He 

may be checking for C02; he may be checking for 

CO, as we do in many, many mines, where we have 

spontaneous combustion and so forth; or he may 

be checking for any number of gases that could 

exist in coal mines. But he had to, also, make 

sure that it's safe, as I say, from roof support 

and everything else. 

Asked whether the bleeder evaluation point is an alternative to inspecting the bleeders, Mr. Componation responded 

as follows (Tr. 169-170): 

Q. Mr. Componation, is the bleeder evaluation 

point an alternative to inspecting the bleeders? 

A. Only if the bleeder becomes unsafe for reasons 

beyond the control of the operator. The operator, 

under two hundred, is responsible to support 

the top throughout the coal mines. He has to 

make a reasonable -- or make a diligent effort to 

maintain the bleeders, to support them, to be 

able to travel them. And, as I say, there are 

circumstances that occur in every coal mine in 

certain areas where it becomes difficult, maybe 

impossible, maybe he has it cribbed and maybe 

the ribs are sloughing in, or Maybe it's of a 

nature that breaks around. Those conditions 

develop; that recognizes that could develop, and 

allows them to evaluate at the point -- to the 

point where it is safe to travel. And, as I say, 

297 
following legislative history, that is 

not, in my opinion, for all times. That is 

until such time as that area can be safely 

mined out and then sealed. Or if anytime it 

becomes apparent that the ventilation is 

inadequate, for whatever reason, it doesn't 

only have to be methane. It can be for any 

reason. If it's ineffectively ventilated, 

then the area has to be sealed. 

When asked why MSHA cannot agree to placing a bleeder 

evaluation point 100 feet outby where it was located in this 

case, even after 2300 or 43,000 CFM's of air was sweeping 

through that point, he responded as follows (Tr. 172): 

A. Because I could have any amount of any 

explosive, noxious, or poisonous gases 

accumulating just in by the point where I'm 

measuring, diluting it as it comes out. And 

I could have a condition exist that would be an 

extreme hazard to the men in the coal mine. 

When asked whether the issues concerning "samples taken 

in active workings and whether it has to be in compliance 

with 301," has been discussed with industry and MSHA personnel, 

Mr. Componation responded as follows (Tr. 173-174): 

A. Yes. We have discussed this many times 

in staff meetings. We've discussed it in 

meetings with BCOA, the national coal 

association, various coal operators associations. We have discussed this with them. 

We have never had adverse response. 

Q. Are you aware of a division of opinion 

at the district manager level in MSHA on this 

question? 

A. Not in the sense that it's strictly a 

difference of opinion, but anytime you put 

twelve people together, some have different 

thoughts on things. But we have never had 

anything to say that we had a strong difference 

of opinion. 

Q. Is there some reason why this letter which 

was sent to Mr. Krese by Mr. LaMonica, 

Exhibit 3, in the surruner of '81, has not been 

issued as an MSHA policy document? 

298 
A. The reason it wasn't issued as an ~SHA 

policy document is because we've had no 

questions or no problems with it. And I don't 

think it was issued as a -- strictly a problem, 

even in district four. Often times in discussions 

with management, and even among -- we get many 

of the same with personnel within the agency; 

where people have ideas and they express them, 

and in order to come to one uniform interpretation, you may say, or just to affirm something, 

we'll put those out. 

And it's not uncommon to respond to our district 

people. We have responded to many coal operators 

without saying it's a policy and issue those to 

every one. We address the question to the 

particular individual because it's not a question 

to other people. 

On cross-examination, Mr. Componation confirmed that he 

drafted exhibit G-3, and when asked to reconcile section 

75.316(e) (2) and the interpretation stated in the letter, 

he responded as follows (Tr. 176-177): 

A. I interpret that active working to refer 

to the active workings from which the air is 

coming; the pillar line at the outby side of 

the gob. I interpret that to say that the air 

that flows across the active area, flows across 

the gob and then into the bleeders. And my 

interpretation that the bleeders are active 

so long as they have to be traveled. And we 

do, as a matter of -- I don't say it's policy 

-- but we do as matter of it being active when 

bleeders are traveled; we collect samples in the 

bleeders and we do enforce the same regulation 

that we enforce at the ventilation point. 

Q. Mr. Componation, is there anywhere in the 

regulations where bleeders are defined as active 

workings? 

A. There are very few places where any particular 

entry is defined as an active working. Active 

workings are defined as any place where men work 

or travel, regardless of whether you call it a 

bleeder, whether you call it a track entry, whether 

you call it a return entry, or an intake entry. 

If the man works and travels, it's active. 

299 
Q. Mr. Componation, how do you define what 

a bleeder entry is? 

A. The bleeder entry is a special air course, 

by design, to carry the products of gob areas 

away from the active area, which is a pillar 

lines outby, through the bleeder system and 

into the return airways and to the ventilation 

system, to the surface. 

Q. How can a bleeder entry carry gases away 

from the active workings, if they are active 

workings? 

A. Away is a relative term. 

Q. Relative to what? 

A. To where you are taking it from. When you 

talk about away, you're talking away from the 

active area. 

Mr. Cornponation stated that the reason air readings 

are taken at a bleeder evaluation point is to determine if 

the gob is effectively ventilated. If it is, he indicated 

that it would be in compliance with the requirements of the 

regulations (Tr. 188). In response to further questions, he 

testified as follows (Tr. 198-200): 

Q. Mr. Cornponation, if you made the evaluation 

after the bleeder air was diluted, why would 

it then be hazardous? 

A. I didn't say it would be hazardous. It 

wouldn't tell me what is in the bleeder area. 

It wouldn't tell what's coming through the 

bleeder entries off the gob. It would tell me 

Q. Why --

A. -- what's corning from other areas also. 

Q. Why is it important to know what's corning 

f rorn the gob? 

A. Because I could have a condition existing 

in the gob area that is very hazardous and bring 

that out and dilute it, and not recognize it, 

and the hazard exists. But, I don't know it. 

300 
Q. So, you agree that it's in everybody's 

interest to take a reading of the undiluted 

bleeder air? 

A. I -- I don't like the way you asked the 

question. I don't know what everyone's interest 

is. 

Q. Well, don't you believe 

A. I'm hoping it's safety. And if it is 

safety, then it is important. 

JUDGE KOUTRAS: Isn't that what the inspectors 

did in this case? They took a reading of the 

undiluted air? Isn't that what they did? 

MS. SYMONS: Yes. 

JUDGE KOUTRAS: Okay. 

BY MS. SYMONS: 

Q. Mr. Componation, isn't it true that, 

according to your theory, any time anyone takes 

that reading, it makes it into active workings? 

A. That isn't my theory. That is a 301 -- or 

the definition of active workings says: where 

they have to work or travel. I didn't make that 

definition. 

Respondent MSHA's Arguments 

In its post-hearing brief, MSHA asserts that the key 

issue in this case is the interpretation of the words "active 

workings," and whether the air which leaves a bleeder evaluation 

point must comply with the air quality requirements of 30 CFR 

75.301 at the location such air leaves the gob and enters a 

return (Tr. 94, 219-223). 

In support of its case, MSHA cites the definition of 

"active workings" found at 30 CFR 75.2 (g) (4), as follows: 

'Active workings' means any place in a coal 

mine where miners are normally required 

to work or travel; 

301 
MSHA also cites the defin±'tion of "active workings" as 

found in the Dictionary of Mining, Mineral, and Related Terms, 

U.S. Department of Interior, Bureau of Mines, 1969, at page ll, 

as follows: 

'Active workings.' All places in a mine that 

are ventilated and inspected regularly [U.S. 

Bureau of Mines Federal Mine Safety Code-Bituminous 

Coal and Lignite Mines, Pt. 1 Underground Mines, 

October 8, 1953.] 

In support of its argument with respect to the application 

of the words "active workings" to an entry inspected only 

regularly, but otherwise not used in the active extraction of 

coal, MSHA cites a 1972 decision of the former Interior Board 

of Mine Operations Appeals, Mid-Continent Coal and Coke Company, 

1 IBmA 250, decided December 29, 1972, where the Board stated 

as follows at 1 IBMA 257: 

Since the operator is charged with the 

duty of regular inspection of high-voltage 

cable, it can be inferred that a miner or 

miners normally work and travel in this 

entry. The Board concludes that the entry 

is subject to the requirements of Section 75.400 

of the Regulations [Section 304(a) of the 

Act] because it does constitute an 'active 

working.' Even thOUgh it may be that 9nly one 

miner is required to regularly inspect the 

entry, an accumulation of coal dust is a 

potential hazard to him, and clean up procedures 

are therefore warranted. * * * (Emphasis 

added.) 

In further support of its position in this case, MSHA cites 

a decision by former Commission Judge John F. Cook, in 

Christopher Coal Company, MORG 76-8-P, decided on October 18, 1976, 

slip opinion at page 10, aff 'd by the Commission on October 25, 

1978, IBMA 77-7, first unnumbered volume ~arch 1979. Judge Cook 

upheld a violation of mandatory standard section 75.329, which 

regulates methane in bleeder entries and returns, and supported 

MSHA's position that the air sample was properly taken at 

a location after leaving a pillared area and prior to entering 

another split of air. Judge Cook stated as follows at page 10 

of his decision: 

It is clear that the test must be made before 

the bleeder air actually leaves the bleeder 

split of air and joins with the main return 

split of air. ~o interpret the regulation 

any other way would make it meaningless since 

the test, under the operator's theory, would 

302 
only indicate what the methane content was 

in the main return after a mixture took place. 

The regulation clearly was designed to ascertain 

what methane content would be entering the main 

return split of air. 

Conceding the fact that the Christopher decision involved 

a standard dealing with methane in bleeder entries and returns, 

whereas the cited section 75.301 in the instant case deals 

with carbon dioxide in active workings, MSHA nonetheless 

argues that the air sample is used for both purposes and that 

the logic advanced to support the location of the Christopher 

samples likewise is applicable in this case. 

MSHA points out that the citation issued in this case 

noted that on two occasions when samples were taken in January 

and February that the carbon dioxide levels were above .5 percent. The citation required that the carbon dioxide levels 

be lowered to below .5 percent, which was achieved when 

U.S. Steel increased the quality of ventilation through the 

pillared area from around 1200 cfm (Tr. 102) to around 8,000 

cfm (Tr. 114, 118-191). 

MSHA submits that the location involved is always considered 

to be active workings as long as "miners are normally required 

to work or travel'' to it. Consequently, even when a miner 

is not present at a location in the mine, the fact that a 

m;ner must at some point work or travel to the location makes 

that location active workings 24 hours a day, 365 days a 

year (Tr. 209-211). It does not shift back and forth between 

active and inactive just because a niner is not always 

present. The fact that he must work or travel to the location 

mandates its active status. 

MSHA further asserts that it is clearly important to 

evaluate the effectiveness of a mine's bleeder system, and 

that regulatory standard section 75.316-2(f) (2), requires 

that bleeder entries which cannot be traveled must be evaluated. 

MSHA makes the point that the issuance of the citation in 

this case is based on MSHA's position that the air leaving 

the gob area must be in compliance with section 75.301, 

at the point where it enters the return because the regulator 

at the bleeder evaluation point is the line separating the 

untravelable gob area and the traveled return area of the mine. 

MSHA concludes that the fact that miners are required to work 

in the area mandates that the air quality requirements of 

section 75.301 are applicable. 

MSHA maintains that the contestant's reliance on the 

language found in Section 75.316-2(e) (2), that bleeder systems 

303 
shall not include active workings, is not well taken. In 

support of its conclusion, MSHA relies on the testimony 

of Mr. Componation (Tr. 176), as well as its argument that 

the intent of the words "active workings" at the end of said 

regulation relates to the fact that bleeder air systems are 

not to cross active working sections or faces on their way 

to the return after leaving the active end of a pillar line, 

and that it was never intended to deprive the miner who must 

evaluate the bleeder of the protection provided by 30 CFR 

75.301. 

MSHA concludes its argument by asserting that its 

interpretation of the law must be followed, and that the cases 

cited at page 7 of its brief support its broad application 

of the term "active workings" as found in sections 75.2(g) (4) 

and 75.301, and that any narrow or limited construction as 

argued by the contestant should be eschewed. MSHA submits 

that the citation in question was properly issued and that 

section 75.301 is applicable to the air quality allowed at 

a bleeder evaluation point. 

Contestant's Arguments 

In its post-hearing brief, the contestant argues that 

notwithstanding the definition of ''active workings" found in 

30 CFR 75.2(g) (4), in view of the language found in 30 CFR 

75.316-2(e) (2), which seemingly excludes a "bleeder systems" 

from "active workings," a regulator in a bleeder entry 25 to 

30 feet from the intersection where the air mixes cannot be 

considered "active workings." 

In support of its argument, the contestant points out 

that under section 75.316-2, the whole purpose of having 

bleeder entries is to continuously move air-methane mixtures 

from the gob, away from active workings, and to deliver such 

mixtures to the return air courses. Contestant suggests that 

there is no way this may be accomplished if section 75.301 

is applied to the bleeder entry because there is no way the 

air-methane mixture can move from the active workings to the 

return air courses unless it goes down the bleeder entry. 

In response to MSHA's argument that section 75.316-2(f) (1) 

deals only with roof control in bleeder entries, contestant 

asserts that roof control is never mentioned. In response 

to MSHA's concern that the oxygen level decreases as the level 

of carbon dioxide increases, contestant points out that the 

fore~an or f ireboss checking the area has a flame safety lamp 

which would detect a low oxygen level, and that the plain 

304 
language of section 75.316-2(f) (2) indicates that it can deem 

the area unsafe for examination for any reason and take other 

steps to .measure the effectiveness of the movement of air from 

one area to another. The contestant points out further that 

there is no other regulation which allows an operator to 

declare an area unsafe to travel, and that the bleeder entry 

is also the only area of a coal mine where methane is allowed 

to be at 2.0%. 

On the facts of this case, the contestant contends that 

the only reason the bleeder evaluation point is at the regulator 

is because MSHA "forced the company to put it at this location." 

Contestant asserts that if one wants to sample the air as 

it comes off the gob, the bleeder evaluation point is the 

logical place to take the reading before that air has a 

chance to mix with return air. Contestant also points out 

that there is no requirement in the Act that air from the gob 

be measured or sampled at the bleeder evaluation point other 

than what MSHA has imposed through the ventilation plan, 

and that there is no question that the f ireboss could take 

the methane reading at the intersection. 

Contestant suggests that the only point in having the 

bleeder evaluation point at the regulator is that someone has 

to walk it, and this fact makes that location an "active working" 

under MSHA's theory. Contestant suggests further that there 

are two ways to handle the problem. One way is to move the 

bleeder evaluation point to the intersection where the air 

mixes with the return, and contestant concedes that this will 

not give as accurate a reading of the air-methane mixture from 

the gob. A second way is to assume that MSHA meant what it 

said when it specifically stated that the bleeder entry is 

the area where air moves from the active pillar line to the 

intersection with the return and it not active workings. 

Contestant emphasizes the fact that pursuant to Section 75.316-2(f), 

MSHA expected travel in this inactive area of the mine, and 

contestant suggests that the second method is the more logical 

solution and meets the needs of the parties as well as preserving 

the safety of the miners. 

Finally, contestant asserts that MSHA should not be 

permitted to ignore the definition of "bleeders" as defined 

in its own regulations. As for MSHA's suggestion that it seal 

the gob, contestant states that this argument totally ignores 

the fact that MSHA has no authority to request a gob be sealed 

unless methane or explosive gases are a problem (30 CFR 75.329 

er. seq.). Contestant states that carbon dioxide is not an explosive gas. Since a bleeder entry is specifically defined as 

an area that is not in active workings, contestant concludes 

that section 75.301 does not apply and that the citation should 

be vacated. 

305 
Findings and Conclusions 

Fact of Violation 

The contestant in this case is charged with a violation 

of mandatory standard Section 75.301, for an alleged failure 

to maintain the carbon dioxide level at the cited bleeder 

location at or below the level stated in that standard. 

The cited standard does not specifically address the air 

quality required to be maintained in bleeder entries. It 

simply requires that all active workings be ventilated in 

such a manner as to prevent "not more than 0.5 volume per 

centum of carbon dioxide." 

MSHA's position in this case is that the quality of 

air passing through bleeder areas and leaving a bleeder 

evaluation point must comply with the requirements of 

section 75.301. In order to reach this conclusion, MSHA 

must establish that the cited bleeder entry and evaluation 

point in question is in fact part of the "active workings" 

of the mine. In support of its theory of this case, MSHA 

relies on the interpretation of the term "active workings" 

found in the definitions section of its regulations, namely 

section 75.2(g) (4), and a prior decision by former Commission 

Judge Cook in Christopher Coal Company, supra, interpreting 

mandatory section 75.329. 

It seems clear to me that the intent of section 75.301, is 

to insure that active workings of the mine are properly 

ventilated by air currents which do not contain oxygen and 

carbon dioxide levels outside of the parameters fixed by 

that standard. Further, the standard is also intended to 

insure sufficient air volume and velocity to dispel flammable, 

explosive, noxious, and harmful levels of gas, dust, or fumes. 

In the instant proceedings, the contestant's assertion that 

carbon dioxide is not a harmful, explosive, or hazardous 

gas is not rebutted by MSHA. Further, section 75.301-2, 

specifically excludes carbon dioxide from the TLV method of 

determining harmful concentrations of noxious gases. Section 

75.301-5, does not list carbon dioxide among other explosive 

gases required to be controlled. The problem is that the 

regulatory scheme encompassed by section 75.301, and the 

criteria subsections which follow, does not mention bleeder 

entries or bleeder systems. That subject is covered by 

sections 75.329 and 75.316-2(e) through (i). 

Mandatory standard section 75.320, requires that bleeder 

entries or systems used to ventilate wholly or partially 

extracted and abandoned pillar areas be ventilated or sealed. 

306 
If ventilated, the standard requires that such ventilation 

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." 

Similar language is found in section 75.316-2(e) (1), which 

specifically defines "bleeder entries" in pertinent part 

as "special aircourses . . designed to continuously move 

air-methane mixtures from the gob, away from active workings 

and deliver such mixtures to the mine return aircourses." 

On the facts of the instant case, MSHA's reliance on 

the Christopher Coal Company case in support of the citation 

is rejected. The requirements for controlling and disipating 

methane in bleeder areas as encompassed by section 75.329, 

are different from the requirements found in cited section 

75.301, which addresses carbon dioxide, and I conclude that 

the two standards are mutually exclusive. MSHA's attempts 

to use them interchangeably are rejected. It seems to me 

that if MSHA wishes to promulgate a mandatory standard 

requiring the quality of air in bleeders to be maintained 

at the same levels and requirements as air in "active workings" 

as specifically covered by other mandatory standards, it 

should amend its regulations to clearly and directly state 

this proposition, rather than attempting to "boot strap" 

its enforcement by reliance on theories which simply do not 

make sense. 

MSHA's reliance on the definition of "active workings" 

to support the citation issued in this case is likewise 

rejected. Contestant's arguments in support of its conclusion 

that when read together with the other standards found in 

Part 75, a bleeder entry is not active workings is a sound 

and logical interpretation/and application of the cited 

standard in case. As correctly pointed out by the Contestant 

here, the specific purpose of bleeders is to provide a system 

and means for removing the air which is used to ventilate 

gob areas from the mine. Testing that air at the the regulator 

before it has an opportunity to mix with return air seems 

logical. However, the fact that an examiner must travel there 

once a week, or more frequently, to take methane readings, 

thereby placing that particular location in "active workings" 

in accordance with the definition of that term, may not serve 

as a basis for MSHA reading something into the requirements 

of section 75.301 which is not there. 

Although Inspectors Harper and Snyder both indicated 

that Section 75.305, requires a fire boss weekly examination 

307 
of the area where their air samples were taken, they conceded 

that this section does not require the fire boss to take 

such samples. This seems rather strange to me. On the one 

hand, MSHA takes the position that requiring the fire boss 

to travel to that area at least once a week places him in 

"active workings" by definition. Once the fire boss is there, 

he is not required to take any air samples to determine the 

air quality in those areas covered by this section. Inspector 

Snyder reasoned that the mine ventilation plan requires this 

weekly examination. This supports the contestant's assertion 

that MSHA's insistance that its plan include this provision 

has in effect placed the fire boss in "active workings," 

thereby supporting MSHA's desire that the bleeder air conform 

with the requirements of section 75.301. 

Inspector Snyder conceded that the question of whether 

section 75.301 applies to bleeder entries or bleeder check 

points has been a matter "of controversy" among his fellow 

inspectors at the MSHA district level. Even though he 

denied any knowledge of the fact that some inspectors do 

not believe that section 75.301 applies to such areas, 

it seems to me that such doubts should be resolved so as 

to insure even-handed enforcement. However, in this case, 

since the contestant raised the issue, it was incumbent on 

the contestant to establish this assertion through some credible 

testimony or evidence. Simply raising the issue will not 

suffice. Since the contestant has not done this, I have given 

this little weight. However, I have not totally discounted 

Inspector's Snyder's statement that there may well be a difference 

of opinion or "controversy" among MSHA's enforcement staff. 

Although not directly stating so, MSHA's experienced 

ventilation specialist Paul Componation alluded to the fact 

that the application of section 75.301 to bleeder evaluation 

point has been a topic of concern to MSHA as well as the 

industry, and he implied that there may be "different thoughts 

on things" (Tr. 174). When asked why a ~1emorandum dated September 14, 

1981, from MSHA's Acting Administrator Joseph A. Lamonica 

to District Manager James E. Krese (exhibit G-3), addressing 

the quality of air of air samples collected at bleeder evaluation 

points, has not been issued as a general MSHA policy document, 

Mr. Componation responded that "we've had no questions or 

problems with it" (Tr. 174). 

The memorandum ref erred to above quotes the partial 

language of section 75.301, the definition of "active workings" 

found in section 75.2(g) (4), the partial language found in 

section 75.316-2(f) (3), stating the requirements of weekly 

examinations of bleeder systems where it is unsafe to travel 

a bleeder entry, and concludes as follows: 

308 
A bleeder evaluation point is an area of 

a mine where a certified person, a miner, is 

required to examine and conduct tests weekly. 

The bleeder evaluation point is an active 

area of the mine. A citation shall be issued 

when sample results at a bleeder evaluation 

point are not in conformance with the statutory 

provisions of Section 75.301, 30 CFR 75. 

(Emphasis added.) 

I take note of the fact that the memorandum characterizes 

a bleeder evaluation point as an "active area of the mine." 

That term is not further defined. It seems to me that to 

obviate confusion, and to preclude controversies of the kind 

generated by the instant proceedings, MSHA should either 

publish such memorandums universally, promulgate an amended 

clear standard, or clarify precisely what it has in mind. 

In view of the foregoing findings and conclusions, I 

conclude and find that MSHA has failed to establish by a 

preponderance and of any credible evidence or testimony that 

the contestant violated the provisions of cited section 75.301, 

when it assertedly failed to maintain the carbon dioxide level 

at less than 0.5 in the cited location where the inspector 

made his air readings. Accordingly, Citation No. 2132552 

IS VACATED, and the contest IS GRANTED. 

~.cfK~ Administrative Law Judge 

Distribution: 

Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant St., 

Rm. 5180, Pittsburgh, PA 15230 (Certified Mail) 

Edward Fitch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

/slk 

309 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINIST~ATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

i=.-.,-.. 0 ~984 f f:ti ~ I 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Docket No. PENN 83-95 

A.C. No. 36-00970-03515 

Maple Creek No. 1 Mine 

DECISION 

Appearances: 

Before: 

David A. Pennington, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This case involves three citations alleging violations of 

mandatory safety standards. Pursuant to notice, it was heard 

in Washington, Pennsylvania, on November 29, 1983. William R. 

Brown testified on behalf of Petitioner; Joseph D. Ritz and 

Ira W. Seaton, Jr. testified on behalf of Respondent. Both 

parties have filed posthearing briefs. Based on the entire 

record and considering the contentions of the parties, I make 

the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Respondent 

was the owner and operator of an underground coal mine in 

Washington County, Pennsylvania, known as the Maple Creek No. 1 

Mine. 

2. Respondent is a large operator. 

3. The assessment of eivil penalties in this proceeding 

will not affect Respondent's ability to continue in business. 

310 
4. In the 2-year period preceding the issuance of the 

citations involved herein, there were 484 assessed and paid 

violations at the subject mine, 430 of which were designated as 

significant and substantial. This history of prior violations 

is not such that penalties otherwise appropriate should be 

increased because of it. 

5. In the case of each citation involved herein, the 

violation was abated promptly and in good faith. 

6. The intake air escapeway in the 1 Main 8 Flat section 

was not examined between October 10, 1982 and October 20, 1982. 

This escapeway was the primary escapeway for two sections. 

Citation No. 2011054 was issued on October 20, 1982, under 

section 104(d) (1) of the Act, charging a violation of 30 C.F.R. 

§ 75.1704 caused by the unwarrantable failure of Respondent to 

comply with the standard. The violation was designated as 

significant and substantial. 

7. Respondent's failure to examine the escapeway was caused 

by a mixup in assignments when the person who would normally make 

the examination was assigned to other tasks. 

8. 

of falls 

others. 

duced on 

The roof in the escapeway was good. There is no history 

in the area. The floor was wet in some places, dry in 

There were no falls or blockages. Coal was being prothe day the citation was issued. 

9. Citation No. 2014004 was issued November 3, 1982, 

charging a significant and substantial violation of 30 C.F.R. 

§ 75.517 because in the 7 Flat 5 Room section of the subject 

mine, there were exposed bare power wires in the trailing cable 

of the continuous mining machine. The case was submitted on the 

basis of the following stipulations (Findings of Fact Nos. 10 

through 16) • 

10. All current-carrying conductors on the trailing cable 

were fully insulated. 

11. The trailing cable carries 440 volts of power to the 

continuous mining machine. 

12. Under Pennsylvania state law the cable must be checked 

before the machine is energized. 

13. The cut in the cable was approximately 2 to 4 inches 

long. It had been taped but the tape was frayed. 

14. At the time the citation was issued, the condition did 

not present a hazard to miners. 

3 11 ..;&.. ,.,,. 
15. The cable has phase to phase and phase to ground protection as well as a ground fault system. 

16. The condition was cited "pursuant to MSHA's policy 

that the Inspector should assume that the condition will not be 

corrected." 

17. On November 16, 1982, in the 8 Flat, 56 Room of the 

subject mine, the roof bolters failed to check the torque on 

the roof bolts after they were installed. Citation No. 2014007 

was issued alleging a significant and substantial violation of 

30 C.F.R. § 75.200. 

18. The approved roof control plan required that the roof 

bolter check the torque with a torque wrench on the first bolt 

installed in the first row, and thereafter check the torque on 

10 percent of the bolts. 

19. Resin roof bolts were used in the area. They are 

installed by drilling a hole in the roof, inserting resin tubes 

into the hole and inserting a resin rod into the tube. The rod 

~s then spun for 20 to 25 seconds to permit the resin and 

catalyst to mix and harden. The resin "laminates'' the roof, 

that is, it binds the strata in the roof together. 

20. By checking the torque on the bolts, the bolter can 

determine whether the resin is hardening properly. Torquing 

with a torque wrench is the only safe and effective way to 

determine whether the resin is hardening. 

21. The roof bolters did not believe that torquing was 

necessary in the case of resin bolts, and the foreman agreed 

with them. However, the foreman was not aware that the bolts 

were not being torqued. 

ISSUES 

1. Whether the violations cited were of such nature as 

could significantly and substantially contribute to the cause 

and effect of mine safety or health hazards? 

2. What are the appropriate penalties for the violations? 

CONCLUSIONS OF LAW 

1. The failure to examine the intake air escapeway 

described in Finding of Fact No. 6 was a violation of the 

mandatory standard contained in 30 C.F.R. § 75.1704-2(c). 

312 
DISCUSSION 

The citation in question charged a violation of 30 C.F.R. 

§ 75.1704, which is the statutory standard requiring that escapeways be provided and maintained. Respondent argues that since 

the citation charged a violation of 30 C.F.R. § 75.1704 and not 

of 30 C.F.R § 75.1704-2, it should be dismissed. To accept this 

argument is to exalt form over substance. There was no doubt, 

there is no doubt as to the nature of the violation charged. 

And there is no doubt that the violation occurred. 

2. The violation referred to above was caused by Respondent's 

unwarrantable failure to comply with the standard. 

DISCUSSION 

The meaning of the term unwarrantable failure has not, so 

far as I am aware, been discussed in any Commission decision. 

The Board of Mine Operations Appeals in Zeigler Coal Company, 

7 IBMA 280 (1975), analyzing the term in the light of the legislative history, stated that a violation is caused by unwarrantable failure if the operator "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." This definition was 

spec~~ically approved by the Senate Committee which reported out 

S. 717 which became in large measure the Federal Mine Safety and 

Health Act of 1977. "The Committee approved the recent decision 

of the Board of Mine Operations Appeals in Zeigler Coal Co. which 

liberalized the interpretation of the term 'unwarrantable 

failure."' S. Rep. 95-181, 95th Cong., 1st Sess., at 32 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources,-g5th Cong., 2nd Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 620 (1978). The 

term unwarrantable failure is thus equated with negligence, rather 

than recklessness, and I conclude that Respondent was negligent in 

failing to see that the required examination was performed. 

3. The violation referred to above was of such nature as 

could significantly and substantially contribute to the cause 

and effect of a mine safety or health hazard. 

DISCUSSION 

The issue is whether failure to examine an escapeway in 

accordance with the mandatory safety standards is likely to 

result in serious injuries. It is imperative that escapeways 

be maintained in underground coal mines in a manner that they 

31J 
may be available and usable to escape from hazardous situations. 

The only way to ensure that they are so maintained is to conduct 

regular examinations. The fact that no roof falls or other 

blockages had previously occurred in this area, and that the 

escapeway would likely have been examined in 2 days does not 

address the seriousness of the failure to comply with the examination requirements. Failure to examine escapeways is a practice 

likely to result in serious injuries to miners. 

4. Considering the criteria in section llO(i) of the Act, 

I conclude that an appropriate penalty for this violation is 

$3 00. 

5. The condition described in Finding of Fact No. 9 

constituted a violation of 30 C.F.R. § 75.517 since the wires 

on the trailing cable were not adequately insulated. 

6. Since the parties have agreed that at the time the 

citation was issued it did not present a hazard to miners, I 

conclude that the violation was not significant and substantial, 

nor was it serious. 

7. There are no facts from which I could conclude that the 

violation was the result of Respondent's negligence, and therefore I conclude that it was not. 

8. I conclude that an appropriate penalty for this 

violation is $30. 

9. The condition or practice described in Finding of Fact 

No. 16 constituted a violation of the approved roof control plan 

and therefore of 30 C.F.R. § 75.200. 

10. The violation referred to above was of such a nature as 

could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. 

DISCUSSION 

There is a difference of opinion as to the necessity and 

value of torquing resin bolts. The Federal inspector stated 

that checking the torque with a torque wrench is the only safe 

and adequate way to determine whether the resin is hardening 

properly. Respondent, and apparently its roof bolters, do not 

agree. Since the approved roof control plan, which was prepared 

and submitted for approval by Respondent, requires that resin 

bolts be torqued, I am accepting the opinion of the inspector. 

Failure to determine whether the resin has hardened is likely to 

result in serious injuries to miners. 
11. There is no evidence that Respondent knew of th~ 

practice in question, but I conclude that it should have known 

of it in view of the reaction of the roof bolters to the 

citation. 

12. I conclude that an appropriate penalty for this 

violation is $200. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED 

1. Citation Nos. 2011054, 2014004 and 2014007 are AFFIR~ED, 

but the significant and substantial designation is removed from 

Citation No. 2014004. 

2. Respondent shall within 30 days of the date of this 

decision pay the following civil penalties for each of the 

violation found herein to have occurred: 

Distribution: 

CITATION NO. PENALTY 

2011054 

2014004 

2014007 

Total 

$300 

30 

200 

$530 

tt~-~ .if/ J3i vdt/i1-~fc James A. Broderick 

· Administrative Law Judge 

David A. Pennington, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 G'ateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) 

/fb 

315 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 . FEB 1 /i 1984 

MINERALS EXPLORATION COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. 

DOCKET No. WEST 80-339-RM 

Citation/Order No. 576877; 

dated, 4/29/80 

SECRETARY OF LABOR, 

Docket No. WEST 80-340-RM 

Citation/Order No. 576878; 

MINE SAFETY AND HEALTH dated, 4/29/80 

ADMINISTRATION (MSHA), 

Respondent Sweetwater Uranium Project 

Appearances: 

Before:' 

DECISION 

Anthony D. Weber, Esq., Union Oil Company of 

California, Los Angeles, California, 

for Contestant; 

Robert J. Lesnick, Esq., Office of the Solicitor, 

u. s. Department of Labor, Denver, Colorado, 

for Respondent. 

Judge M'"'rris 

Contestant, Minerals Exploration Company, contests two 

citations issued by the Secretary of Labor on behalf of the Mine 

Safety and Health Administration, (MSHA), under the authority of 

the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et~· 

After notice to the parties a hearing on the merits began on 

October 5, 1982 in Laramie, Wyoming. 

Contestant filed a post trial brief. 

Jurisdiction 

The parties admit jurisdiction (Tr. 3-4). 

Issue 

The issue is whether contestant violated the regulation. 

31G 
summary of the Cases 

MSHA Inspector Merrill Wolford issued citations 576877 and 

576878. These citations are now respectively docketed in WEST 

80-339-RM and WEST 80-340-RM. 

The condition or practice referred to in Citation 576877 

reads as follows: 

Terex Scraper #2401 was being operated with the brake 

retarder disconnected. The control line was plugged 

off. The right rear service brake was worn out rubbing 

metal to metal. Statements by operators and checking 

safety records indicates these defects had been turned 

into the operator and had not been repaired. This 

vehicle is ordered withdrawn from service until repaired. 

The same portion of Citation 576878 reads as follows: 

Terex Scraper #2406 was being operated with the brake 

retarder disconnected. The control line was plugged 

off. The front service brakes were way out of adjustment and the rear brake quick air release did not 

operate properly. Statements by operators and checking 

safety records indicates these defects had been turned 

into the operator and had not been repaired. This 

vehicle is ordered withdrawn from service until repaired. 

Each of the citations alleges that contestant violated Title 

30, Code of Federal Regulations, Section 55.9-3.~/ 

MSHA's EVIDENCE 

The inspector issued these citations on the same day. In 

addition to various unrelated safety problems the scrapers share 

identical conditions: The retarder connector to the transmission 

of each was disconnected (Tr. 47-50, Exhibits Dl, D2). 

The retarders are part of a system to help control and brake 

the scrapers. They reverse the pressure in the transmission; 

this in turn slows down the input shaft in the engine. This then 

slows the revolutions per ~inute of the engine. By reducing 

output shaft the speed_of the Terex is retarded (Tr. 50). 

In addition to the disconnected retarder, the right rear 

service brake of Terex scraper No. 2401 was worn out. It was 

rubbing metal to metal (Tr. 51, 61). The inspector conducted a 

moving as well as static test of the brakes (Tr. 61). He crawled 

under the vehicle to check the worn out lining. 

1/ Mandatory. Powered mobile equipment shall be provided with 

adequate brakes. 

317 
In addition, the brake drum was badly grooved (Tr. 51). 

There were insufficient pads to contact the brake drums. This 

resulted in a lack of brakes on that wheel (Tr. 51). 

The vehicle operator stated that he had reported safety 

defects to the company but nothing had been done (Tr. 51-52). 

After the inspection contestant's maintenance people said they had 

a hairline fracture in the brake drum. (Tr. 51-52). 

The hazard presented here centers on the stopping ability of 

this vehicle (Tr. 52). 

Terex No. 2406 (Citation 576878) had other problems. The 

front service brakes were out of adjustment. The inspector 

inserted paper under the brake drum with the brake depressed. 

Since he was able to remove the paper the inspector considered the 

brakes were not working (Tr. 53, 54). In addition, the quick air 

release did not operate properly (Tr. 53). The hazards in each 

situation were similar (Tr. 55). 

Inspector Wolford didn't recall if he. issued verbal orders 

that the vehicles be removed from service. He wrote the citation 

sometime later (Tr. 57, 58). 

The inspector didn't know if the retarders were part of the 

braking system referred to in any of the SAE standards (Tr. 59). 

Retarders work most effectively when the revolutions per minute 

(RPMs) are at their highest level. Conversely, they are least 

effective at the lowest RPMs (Tr. 60). 

Inspector Wolford, on occasion, will conduct more extensive 

moving braking tests than he did here. But, in view of the 

condition of the brakes, he thought any additional testing would 

be a hazard (Tr. 67). 

Bobby Jacobsen, Edward Johnson, Rocky Anaya, Jerome Connor, 

George Kelly and Kenneth Evans, testified for contestant. 

Bobby Jacobsen, the general maintenance foreman, a person 

with considerable experience, indicated a retarder on a Terex 

scraper bears no relationship to its braking system (Tr. 68-73). 

A retarder on such equipment slows down the revolutions per 

minute. It thereby slows the speed of the engine as well as the 

transmission (Tr. 72). 

Prior to April 29, 1980 the engines of the company's scrapers 

were overheating. Three of the company officials decided to 

disconnect the retarders. As a result there was less of a heating 

problem. Jacobsen has disconnected retarders under the same 

circumstances (Tr. 74, 76). 

318 
On the day of the inspection two Terex operators came into 

the yard. The inspectors said the brakes were out of adjustment. 

Wolford further stated that it constituted a willful violation to 

disconnect the retarders (Tr. 77-78). 

At Wolford's request Jacobsen told him how the retarders 

worked (Tr. 78, 79). 

Jacobsen didn't test the brakes on the scrapers because it 

was close to a shift change; however, Lonnie Johnson tested them. 

Johnson saw no problem. (Tr. 80-82, 96). Jacobsen, who got under 

the vehicle, saw no evidence of metal to metal rubbing on No. 

2401. They'd be looking for lining touching bolts and screws (Tr. 

95). You should not be able to get a piece of paper between a 

brake drum and a shoe (Tr. 97). In Jacobsen's opinion a vehicle 

is capable of having adequate brakes even though one brake does 

not touch its drum (Tr. 97-98). 

The next day Terex representatives, assisted by contestant's 

mechanic, adjusted the brakes. Further, the retarders were 

reconnected (Tr. 80). Jacobsen didn't consider that a brake was 

inadequate even though the brake shoe was worn down to the metal 

(Tr. 8 9) • 

The first SA 18 scrapers and the first Terex scrapers were 

not fitted with retarders; neither were a lot of CATERPILLARS (Tr. 

75, 90). 

If a scraper is moving at a high RPMs rate a proper retarder 

would reduce such RPMs. This, in turn, would slow the vehicle 

(Tr. 91). A retarder cannot totally stop a vehicle, as an 

adequate braking system will do (Tr. 83, 91-92). 

Edward Johnson, operator of scraper No. 2406, was present 

during the 30 to 45 minute inspection. He participated in the 

brake test and answered the inspector's questions (Tr. 140-144). 

Johnson didn't see the inspector measure any distances and he was 

not advised of the results (Tr. 144). Johnson had never operated 

his scraper with the retarder connected but had he known it was 

disconnected he would have reporteq it as an equipment defect (Tr. 

146). He thought the retarders were part of the brake system (Tr. 

14 8) • 

The brakes on the scraper, confirmed by the operator's 

checklist, were "adequate" (Tr. 148, 154, Exhibit 03). When he 

marked the checklist showing the brakes not in proper condition he 

was referring to the retarder system (Tr. 149, Exhibit 03). 

319 
As the inspectors left, the scraper operators were told to 

resume work (Tr. 152). 

Anaya described his scraper's brakes as "good" on flat ground 

(Tr. 131) • 

Jerome Connor, contestant's shift supervisor, indicated the 

inspection of the scrapers took 30 minutes (Tr. 121). The 

vehicles were stopped where they were inspected. The retarders 

were inoperative and there was some problem with the quick release 

air valve on the brakes (Tr. 122, 126). No citations or orders 

were issued when they concluded the inspection of the scrapers. 

Connor first heard about the citations about 4 p.m. This was 

after the scrapers had been returned to work (Tr. 123, 124). 

Connor had tested the brakes several times. Prior to 

Wolford's inspection Connor had received no complaints concerning 

inadequate brakes (Tr. 125). 

Connor told Wolford that the retarders were not the main 

braking system (Tr. 127). 

George Kelly, an employee of Southwest Kenworth, is familiar 

with retarders. Except for some warranty work in 1976, he has had 

·no relationship with contestant. Engine and transmission 

overheating are fairly common equipment problems. Retarders are 

disconnected to alleviate the overheating (Tr. 107-111, 113). 

Kelly recommends retarders be disconnected if the scrapers are on 

level ground (Tr. 111). 

Retarders will not stop a Terex scraper. The retarders, 

useful at higher RPMs, are almost useless at lower RPMs (Tr. 112). 

It retards the engine and the speed of a scraper on steep grades 

(Tr. 114) • 

The Terex brake system consists of an air compressor, four 

air chambers, a foot pedal which operates an air valve and two 

brake shoes on each wheel (Tr. 116). 

If a Terex was moving at 15 miles per hour a retarder could 

reduce its speed ten per cent (Tr. 116). 

Kenneth Evans, contestant's mine superintendent, was 

with heavy equipment as well as retarders (Tr. 100-103). 

retarder's function is to help the engine slow down so it 

overspeed (Tr. 104). 

familiar 

The 

will not 

Retarders have always overheated the 35E units. If used 

correctly the retarders reduce the RPMs (Tr. 106-107). 

320 
Discussion 

The credibility determinations on these citations are mixed. 

Each citation contains a common allegation that the brake 

retarders were disconnected. Therefore, the Secretary asserts the 

Terex equipment lacked adequate brakes. 

On the credibility issues raised concerning the retarders I 

credit contestant's evidence. Its witnesses are Jacobsen, 

Johnson, Connor, Kelly and Evans. With a certain cohesiveness, 

they all confirm the view that the retarders bear no relationship 

to the braking system. George Kelly's testimony was particularily 

persuasive on these issues. He was a disinterested witness with 

consid~rable experience involving Terex scrapers. 

On the other hand, it is apparent that Inspector Wolford was 

unsure of the function of the retarders. This is confirmed by 

his testimony to that effect. Further, the inspector was unsure 

whether the SAE standards include retarders as part of a braking 

system (Tr. 59). 

In short, I conclude that retarders under certain conditions 

will reduce an engines' RPMs and, consequently, they will reduce 

the speed of a vehicle. However, down shifting the transmission 

on an automobile also will reduce its speed but no one considers 

that a transmission is part of a braking system. 

For these reasons the allegations in each citation concerning 

the retarders should be stricken. 

Notwithstanding the foregoing ruling on the retarders, I find 

a violation of the regulation in that the brakes were otherwise 

inadequate. On this issue I credit Inspector Walford's 

testimony. 

Concerning the 2401 scraper: the right rear service brake 

was rubbing metal to metal and worn out (Tr. 51, 61). The drum 

was badly grooved. Insufficient pads resulted in a lack of brakes 

(Tr. 51). Contestant's maintenance people discovered that a brake 

drum had a hairline fracture (Tr. 52). 

Concerning the 2406 scraper: the front service brakes were 

out of adjustment, the quick air release was not operating 

properly; the drums, with the brake depressed, would not grab 

paper inserted next to the pads (Tr. 53, 55). 

Jacobsen's testimony to the contrary is not persuasive. He 

admits he didn't test the brakes. Lonnie Johnson's evidence that 

he saw no problem with the brakes is, at best, hearsay (Tr. 

80-82). 

Jacobsen's testimony is somewhat conflicting when he states 

you should not be able to get a piece of paper between a brake 

321 
drum and a shoe (Tr. 97). But then he contradicts himself when he 

states that a vehicle has adequate brakes even though one brake 

does not touch its drum (Tr. 97-98). on this point I reject 

Jacobsen's testimony. If one of four shoes on a vehicle's brake 

drum do not contact the drum then such brakes are inadequate as a 

matter of law. 

Contestant's witnesses Johnson, Connor and Anaya all confirm 

that Inspector Wolford inspected the scrapers (Tr. 120, 136, 137, 

140-144). 

In its post trial brief (pages 5-8) contestant asserts that 

MSHA is estopped to maintain that the brakes were inadequate 

because of Inspector's Wolford delay in withdrawing the vehic~es. 

I disagree. Estoppel does not generally lie against the 

federal government. King Knob Coal Company, 3 FMSHRC 1417 (1981); 

Burgess Mining and Construction Corporation, 3 FMSHRC 296 (1981). 

MSHA's case does not fail merely because the inspection occurred 

at 11 a.m. and the withdrawal order was not issued until 4 p.m. 

Contestant cited no authority for this position and I find none. 

Contrary to contestant's arguments the weight of the evidence 

supports MSHA. Particularily destructive of contestant's case, as 

to scraper 2406, is the testimony of witness Johnson, the scraper 

operator. On the day before the inspection he had marked the 

operator's daily checklist (Exhibit D3) to indicate that the 

brakes were not in proper operation. His explanation was that he 

was referring to the retarder system (Tr. 149). The witness established no foundation to reach such a conclusion. He had never 

operated any equipment with retarders on it; he didn't know they 

were disconnected on the date of the inspection; further, he 

hadn't been instructed on the retarder's use. (Tr. 145, 146). For 

these reasons I am inclined to believe the brakes were not in 

proper condition. 

For the foregoing reasons the notices of contest filed in 

each case should be dismissed. 

CONCLUSIONS OF LAW 

Based on the entire record and the factual findings made in 

the narrative portions of this decision, the following conclusions 

of law are made: 

1. The Commission has jurisdiction to decide these cases. 

2. The allegations in each citation relating to the retarders on the Terex equipment are stricken. 

322 
3. Contestant violated the remaining factual allegations in 

Citations 576877 and 576878. 

4. The notice of contest in each case should be dismissed. 

ORDER 

Accordingly, it is ORDERED: 

In WEST 80-339-RM and WEST 80-340-RM the notices of contest 

are dismissed. 

~~minist ~M Law Judge 

Distribution: 

Anthony D. Weber, Esq., Union Oil Company of California 

Union Oil Center, Box 7600 

Los Angeles, California 90051 {Certified Mail) 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 {Certified Mail) 

/blc 

323 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 FEB 14 1984 

MINERALS EXPLORATION COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. 

Docket No. WEST 80-338-RM 

Citation/Oeder 576874; 4/28/80 

SECRETARY OF LABOR, Sweetwater Uranium Project 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Appearances: 

Befoce: 

DECISION 

Anthony D. Webec, Esq., Union Oil Company of 

California, Los Angeles, California, 

foe Contestant; 

Robect J. Lesnick, Esq., Office of· the Solicitor, 

u. s. Department of Laboe, Denver, Colorado, 

foe Respondent. 

Judge Morcis 

Contestant, Minerals Exploration Company, (Minerals), contests 

a citation issued by the Seccetacy on behalf of the Mine Safety and 

Health Administration, (MSHA), undec the authority of the Fedecal 

Mine Safety and Health Act, 30 u.s.c. 801 et seq. 

Aftec notice to the pacties a heacing on the mecits was held 

commencing on Octobec 5, 1982 in Lacamie, Wyoming. 

Minerals filed a post tcial bcief. 

Jurisdiction 

At the commencement of the tcial contestant denied jurisdiction 

in WEST 80-338-RM because the case involves a contract issue (Tc. 

3-4) • 

On this issue the evidence shows that contestant had filed the 

legal identity focm cequiced hy the regulations and received an MSHA 

identification numbec (Tc. 16, 17). Contestant also held itself out 

as the opecatoc of the pcopecty (Tc. 17). 

The foregoing facts establish jurisdiction. 

Issue 

The issue is whethec contestant is liable undec the facts. 

324 
Summary of the Evidence 

In this case Minerals contests Citation 576874 issued by MSHA 

pursuant to section 124(a) of the Act. MSHA asserts Minerals violated 

30 C.F.R. 55.4-24(b) _/ 

The parties agree that a Hensel Phelps' pickup truck on this 

worksite was not provided with adequate fire protection. The equipment was therefore in violation of Section 55.4-24(b)(Tr. 7-9). 

But the parties disagree on whether Minerals was the proper 

recipient of the citation. 

MSHA's evidence reflects the following facts: MSHA Inspector 

Merrill Wolford issued the citation to Joe Jenkins, a supervisor of 

Union Oil Company (Tr. 9, 10). The parties in the scenerio: Union Oil 

Company owns Minerals and Kaiser Engineering (Tr. 10). Hensel Phelps 

was a subcontractor for Kaiser Engineering (Tr. 10). 

Inspector Wolford is not sure how Minerals fits into the picture 

but Minerals filed an operator's application with MSHA and received an 

identification number (Tr. 17). A large sign at the gate of the 

worksite states "Union 76, Minerals Exploration Company". The sign 

also contains the MSHA identification number (Tr. 17). 

Inspector Wolford testified that when on an inspection of the 

premises they would go through a gap in the chain link fence to go 

from the Minerals mine area to where Kaiser and Hensel Phelps were 

located in the mill construction area (Tr. 12, 13, 37). 

Wolford had been coming to the worksite on several prior occasions for a year. Jenkins exercised authority over subcontractors 

in handling and abating citations written by Wolford (Tr. 12, 38, 39). 

On one occasion an electrical contractor refused to abate a violative 

condition. After a confrontation between the subcontractor and Kaiser 

ll The standard allegedly violated provides: 

55.4-24 Mandatory. Fire extinguishers and fire suppression 

devices shall be: 

(b) Adequate in mumber and size for the particular fire hazard 

involved. 

325 
Engineering Jenkins ordered the abatement. The subcontractor abated 

(Tr. 39). 

Project Manager Dykers and General Maintenance foreman Jacobson 

testified for Minerals. The evidence reflects the following facts: 

In April 1980 Minerals was the wholly owned subsidiary of Union 

Oil Company (Tr. 18, 19). This combination owned the property and had 

a controlling interest in the ore (Tr. 19-20). 

At the time the citation was issued construction was underway at 

the site. It included a plant, a shop, a mill and related facilities 

(Tr. 19-20). The mill was being erected by Kaiser Engineering, a 

wholly independent contractor (Tr. 20). 

Joe Jenkins was assigned by Union Oil Company to insure that 

Kaiser met the design criteria and material specifications of their 

contra c. t ( Tr • 2 0 , 2 1 ) • 

At the time of the inspection the contractor (Kaiser) had 

essentially completed the maintenance shop and the administration 

building. A fence separated construction activities from the mining 

activities (Tr. 21). 

Dykers, Minerals' project manager, had no control over 

construction at the site (Tr. 22). Nor did Minerals have any control 

over Hensel Phelps, except through Union's corporate management (Tr. 

22). In fact, Minerals protocol and procedure prohibited Dykers from 

dealing directly with Kaiser Engineering or Hensel Phelps (Tr. 22). 

Minerals seven safety representatives had nothing to do with the 

construction at the job site (Tr. 23). Minerals had no operating 

authority, could not issue orders, and could not discuss any item of 

business with construction personnel (Tr. 23, 24). If Minerals' 

safety department found a significant item they would bring it to 

Dykers. He would pass it through corporate channels (Tr. 24). The 

purpose of the independent atMosphere was to insure there would be no 

division of authority or cross purposes (Tr. 24). 

several written Union memoranda issued before and after the 

inspection confirm Dykers' testimony concerning the separation of the 

construction activity from the mining activities (Exhibit MEC 1, 2, 3, 

4) • 

Discussion 

Minerals' post trial brief relies on Phillips uranium Corporation, 4 FMSHRC 549 (1982). Minerals contends that the Secretary's 

issuance of the citation was solely for the Secretary's administrative 

convenience, a procedure condemned by the Commission in Phillips. 

326 
I am not persuaded by Minerals' arguments. The uncontroverted 

evidence cannot be ignored~ This evidence follows: Inspector Wolfo~d 

had been inspecting this worksite for approximately a year before the 

instant citati6n was issued {Tr. 12}. On several prior occasions 

Jenkins, the resident engineer for union, {parent of Miner~ls} 

exercised authority over the subcontractors and on several occasions 

he directed the abatement of Wolford's citations {Tr. 38, 39}. 

Jenkins, according to Wolford, ordered the abatement of the instant 

citation. These activities constituted sufficient control over the 

worksite so as to render Union/Minerals the proper recipient of 

Citation 576874. 

Further, even had the secretary's enforcement policy predated 

this inspection, Minerals would not prevail. Control over abatement 

is one of the factors mentioned in the Secretary's enforc~ment policy 

foe independent Contractors, 45 Fed. Reg. 44,497 (1981}. / When 

inspector Wolford issued the citation he could reasonably-believe, 

based on prior experience, that Minerals personnel were taking charge 

of abatement and that they had some supervision over independent 

contractors complying with safety rules. Further, the violation 

occurred on Minerals' property and the only mine identification number 

available to the inspector for the property was the one upon which the 

citation issued. 

Since it is uncontrovected that the violative condition existed 

it follows that the citation should be affirmed. In sum, the 

independent contractor defense outlined in Phillips is not available 

to contestant. 

For the foregoing reasons I enter the following: 

ORDER 

The notice of contest filed herein is dismissed. 

cis 

~~ 

ative Law Judge 

2/ The guidelines which accompany adoption of the independent 

contractor regulations, now codified at 30 C.F.R. § 45 provide, in 

pertinent part, as follows: 

/blc 

Accordingly, as a general rule, a production operator may be 

properly cited for a violation involving an independent contractor: ••• {4} when the production operator has control over 

the condition that needs abatement. 

327 
Distribution: 

Anthony D •. Weber, Esq., Union Oil Company of California 

Union Oil Center, Box 7600 

Los Angeles, California 90051 (Certified Mail) 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

32B 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

FEB 141984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 81-79-M 

A. C. No. 48-01181-05026 

v. Docket No. WEST 81-81-M 

MINERALS EXPLORATION COMPANY, 

Respondent 

A. C. No. 48-01181-05025 V 

(Consolidated) 

Appearances: 

Before: 

Sweetwater Uranium Project 

DECISION 

Robert J. Lesnick, Esq., Office of the Solicitor, 

u. s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Anthony D. Weber, Esq., Union Oil Company of 

California, Los Angeles, California, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent, Minerals 

Exploration Company, with violating safety regulation promulgated 

under the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et 

~., (the "Act") • 

After notice to the parties, a hearing on the merits began on 

October 5, 1982 in Laramie, Wyoming. 

Respondent filed a post trial brief. 

Issues 

The issues are whether Respondent violated the various safety 

regulations and, if so, what penalties are appropriate. 

jurisdiction 

Respondent admits jurisdiction (Tr. 230). 

329 
WEST Rl-79-M 

Citation 576949 

This citation alleges a violation of1Title 30, Code of 

Federal Regulations, Section 55.9-40(c). _/ 

Summary of the Evidence 

During a lunch break MSHA Inspector Merrill Wolford observed 

two people in a front end loader. The door of the loader was open 

and one person was partly outside of the cab (Tr. 368-372). At 

the time the loader was spreading gravel in a congested area next 

to the main entrance of the administration building (Tr. 371, 372, 

Exhibit P6). 

In the ensuing investigation Jerry Carpenter, a trainee 

supervisor, told the inspector that he had been instructing 

Stanley E. White, a new employee, in the operation of the vehicle 

(Tr. 371). 

A photograph taken by the inspector and the testimony of 

Carpenter and White confirm Inspector Walford's testimony. (Tr. 

372, 379-383, 384-388, Exhibit P-5). 

The cab of this particular loader, equipped with one seat 

belt, is constructed for one person (Tr. 372). In the inspector's 

opinion an inexperienced driver could have caused the other person 

on the vehicle to fall and be crushed under the wheels (Tr. 373). 

Alternative methods of training an employee would have been for 

the instructor to secure himself in the vehicle. In addition, any 

training should have been in a less congested area (Tr. 373). 

Discussion 

Respondent waived any post trial argument in respect to the 

citation (Brief, page 13). Since the uncontroverted evidence 

establishes a violation of Section 55.9-40(c) the citation should 

be affirmed. Cf. Heldenfels Brothers, Inc., 2 FMSHRC 3173, 3174 

(1980). 

Citation 576953 

This citation alleges a violation of Title 30, Code of 

Federal Regulations, Section 55.4-12. 

At the hearing the parties sought to settle this citation by 

ll 55.9-40 Mandatory. Men shall not be transported: 

(c) Outside the cabs and beds of mobile equipment, 

except trains. 

330 
reducing the proposed penalty to $65 from $130. The parties 

further sought to drop the designation that the violation was 

significant and substantial (Tr. 229, 230, Order, October 25, 

198 3). 

In support of his motion petitioner stated that in the 

original assessment the gravity had been overstated (Tr. 229, 

230) • 

For good cause shown the proposed settlement was approved and 

is formalized in this decision. 

Citation 576954 

This citation alleges a violation 2of Title 30, Code of 

Federal Regulations, Section 55.16-5. _/ 

Summary of the Evidence 

MSHA inspector Merrill Wolford wrote this citation when he 

observed that respondent's oxygen and acetylene compressed gas 

cylinders (bottles) had their regulators attached while the 

cylindecs were being transported. The clamp holding the cylinders 

was loose (Tr. 232, 241-242). Photographs of respondent's welding 

truck 2902 were received in evidence (Exhibits P2, P3). 

The inspector found that the bolt holding the clamp could be 

rotated, whereas the holt should have been tight enough to hold 

the clamp (Tr. 234, Exhibits P2, P3). The hazard here arises in 

this fashion: In the event of an accident the holt could knock the 

regulator valves off of the cylinders. This would create a bomb 

(Tr. 234-235). 

Abatement was achieved by tightening the clamp so the 

cylinders could not move (Tr. 242). In addition, the regulators 

should have been removed and the gas cylinders capped (Tr. 243). 

Two types of caps are available commercially for this purpose (Tr. 

244, 245). 

The inspector felt the violation here was of a significant 

and substantial nature because it could lead to an accident 

involving serious in'jury or death (Tr. 245). 

2/ 55.16-5 Mandatory. Compressed and liquid gas cylinders shall 

be secured in a safe manner. 

331 
Bobby Jacobsen, Jerome Connor, and Jerry McDermott testified 

for the respondent: 

In April 1980·, at Inspector Wolford's suggestion, respondent 

turned the cylinders in the truck, installed two vent holes, and 

mounted doors to hold the cylinders (Tr. 254, Exhibits Rl, R2). 

The inspector indicated that with this arrangement, with a steel 

bar further securing the doors on the truck, the cylinders could 

be transported with their gauges on them as long as the cylinders 

were turned off and the hoses were purged of gas (Tr. 255). After 

the changes were made the truck operated in this mode until the 

instant inspection (Tr. 255). 

Due to its frequent use it is necessary to transport this 

equipment in a truck (Tr. 256). Respondent's maintenance foreman 

didn't feel there was any hazard because the cylinders had been 

shut off (Tr. 258). 

It is 12 to 14 inches from the top of the cylinders to the 

top of the compartment holding the cylinders (Tr. 259). 

While checking the equipment Inspector Wolford tried, but 

could not, turn the nut holding the bracket. Witness Connor 

applied a wrench and the nut turned one quarter to one half of a 

'turn (Tr. 262, 265, 272). 

The bracket holding the cylinders is located at the 

midsection of the cylinders (Tr. 262-263). The angle iron bracket 

that fits the cylinders is cut in a horseshoe shape (Tr. 264, 

Exhibit R2). When changing the heavy gas cylinders the company 

welder, McDermott, completely removes the bracket (Tr. 266, 267). 

The bottom of the cylinders are held in place by brackets welded 

to the floor of the truck. These three to four inch brackets are 

curved to fit the bottom of the cylinders and to prevent their 

movement (Tr. 266). Before the gas cylinders will go into the 

well which holds them they must be vertical. The bottom forms a 

tight fit (Tr. 266, 267). 

Discussion 

At the hearing the secretary sought to amend his citation by 

alleging a violation of section 55.16-6 ~ in lieu of Section 

3/ 55.16-6 Mandatory. Valves on compressed gas cylinders shall 

be protected by covers when being transported or stored, and by a 

safe location when the cylinders are in use. 

332 
55.16-5 (Tr. 235-240). The motion to amend was denied as being 

untimely (Tr. 240-241). The Secretary's counsel stated that in 

any event his evidence would establish a violation of both 

sections (Tr. 237). 

As a threshold matter respondent asserts that the Secretary 

is estopped to maintain that any hazard existed. This position 

evolves from the uncontroverted evidence that Inspector Wolford 

was responsible for the design of the cabinet and clamp that 

secured the cylinders (Brief, page 12). 

Respondent's contention is rejected. The doctrine of 

estoppel is generally not applicable against the federal 

government. King Knob Coal Company, 3 FMSHRC 1417 (1981); Burgess 

Mining and Construction Corporation, 3 FMSHRC 296 (1981). 

The doctrine of estoppel does not apply but on the merits of 

the case I find no violation of Section 55.16-5. 

The uncontroverted testimony and photographs Pl, P2, and Rl 

clearly show that the cylinders were secured by the manner in 

which they fit into the truck. They must be vertically straight 

to go into a slot which then forms a tight fit. The clamp at 

mid-point further secures the cylinders. 

A sharp conflict exists in the evidence as to whether the 

bolt holding the clamp was loose (In Exhibit P3 the clamp is 

marked). On this issue I credit the testimony of respondent's 

witnesses Connor and McDermott. They indicated the nut could only 

be tightened about a quarter of a turn after pressure was applied 

with a wrench (Tr. 262, 272). The action by respondent's witness 

in tightening the nut is not controverted by the inspector. 

Based on the. foregoing facts I conclude that the compressed 

gas bottles were secured in a safe manner within the meaning of 

Section 55.16-5. 

Accordingly, no violation occurred and Citation 576954 and 

all proposed penalties should be vacated. 

Citation 336285 

This citation alleges a violatio2 of Title 30, Code of 

Federal Regulations, Section 55.9-2. _! 

4/ 55.9-2 Mandatory. Equipment defects affecting safety shall 

be corrected before the equipment is used. 

333 
The allegations here conce~n: (A), a crack in the rim flanga 

of a haul truck, (B), a bolt missing on an operator's cab, and 

(C), an air leak in a braking reservoir. 

A. 

Concerning the 120 ton Wabco haul truck rim flange: 

MSHA Inspector Martin Kovick observed what he described as a 

radial crack in a rim flange. The crack was approximately 4 1/2 

inches in length. (Tr. 275, 278). If the rim came off it would 

put additional weight on the other tire. Possible blow outs or a 

tipping of the truck could occur (Tr. 275). 

At this mine cracks in the rim flanges of the trucks are 

fairly common. A radial crack, according to Inspector Kovick, is 

one that goes the same direction as the wheel itself. It is the 

same as a circumferential crack (Tr. 283, 284-285). 

The inspector didn't measure the depth of the crack but he 

did measure its length. The inspector generally knew of several 

fatalities that have occurred due to rims flying apart (Tr. 286). 

Bobby Jacobsen and Casey Conway testified for the respondent: 

Witness Jacobsen, the maintenance general foreman, has worked 

with tires for 12 years. He was not present during the inspection 

of the haul truck but the vehicle was sent to the "down line" 

where he inspected it (Tr. 316, 317, 331). 

The four to five inch crack in the flange was a circumferential crack, that is, following the outside line of the wheel 

(Tr. 323, 324). A radial crack is one going across the face, from 

top to bottom (Tr. 324). If a circumferential crack is not broken 

out along its edge it presents no safety problems. (Tr. 324). 

This 51 inch wheel has a four to five and one half inch wide 

flange (Tr. 325). 

When circumferential cracks have occurred in the past it is 

respondent's policy to replace the flange when they break down the 

tire. The only danger in a circumferential crack might be to the 

tire (Tr. 325, 326, 342). Even if a circumferential crack exists 

there isn't any danger as long as the tire is inflated (Tr. 329). 

Jacobsen has never known a tire to loose pressure due to such a 

crack. If a radial crack occurs it will cause the tire to wear 

(Tr. 329-330). If a piece, or a part, of the flange breaks out of 

a radial crack then the tire will wear severely at that spot (Tr. 

330). 

334 
If a flange had a radial crack Jacobsen would probably remove 

it from the truck as soon as possible. This would be particularily true. if the defect was on a front tire (Tr. 331). 

Respondent's practice of changing flanges depends on the size 

of the crack (Tr. 343, 344). Jacobsen agrees that a crack could 

conceivably, if allowed to develop, fail to provide structural 

support to the tire (Tr. 345). 

When respondent's personnel evaluate a crack in a flange they 

look at its length and use a feeler gauge or knife to determine 

its depth (Tr. 350). The cracked flange observed by the inspector 

wasn't "that bad." It was about one sixteenth of an inch. 

Jacobsen would change this particular flange if it was about 16 

inches in length and one quarter of an inch deep. Wabco trucks 

are quite susceptible to cracks in the flanges. 

Casey Conway, respondent's safety supervisor, inquired of 

MOTOR WHEEL, a subsidiary of Goodyear Tire and Rubber Company 

concerning rim flanges (Exhibit R3). The company's correspondence 

indicated that rim flanges are in compression due to tire loads. 

Due to the compression no safety hazards exists from radial or 

circumferential cracks (Exhibit R4). The company further noted 

that a radially cracked flange should be removed and any cracked 

flange should be discarded when the tire is changed (Exhibit R4). 

The general reason for making the change is to prevent damage to 

the tire (Exhibit R4). 

Discussion 

The gravamen of any violation of Section 55.9-2 is whether an 

equipment defect exists and, if it does, whether the defect 

affects safety. Allied Chemical Corporation, 4 FMSHRC 506 (1982). 

In the instant case an equipment defect existed because a rim 

flange would not ordinarily be cracked. 

However, the Secretary's case fails on the issue of whether 

the flange crack affected safety. On this issue I credit 

respondent's expert testimony. Such expertise is considerably 

greater than the inspector's. In addition, the Secretary's case 

is lacking in particulars. Specifically there is no evidence of 

the depth of the flange crack. A mere crack is not shown to have 

affected the safety of this equipment. 

For the foregoing reasons the initial portion of this 

citation, involving the cracked flange, should he vacated. 

335 
B. 

Concerning the bolt missing on the operator's cab: 

According to MSHA Inspector Kovick 4 to 6 bolts hold the cab 

to the frame of the vehicle. One of the bolts, on the upper 

portion, was missing. The inspector felt that a hazard would 

occur if the other bolts became loose or broken. The inspector 

didn't check to see if the cab was welded to the frame (Tr. 280). 

Jacobson and Conway testified for the respondent: 

Jacobsen is familiar with Wabco trucks. The bolt referred to 

by the inspector attaches the cowling which is the sheet metal in 

front of the truck. It does not attach to any part of the cab 

(Tr. 318-320). 

The cab is welded to the deck which is, in turn, bolted to a 

3 x 3 tubular pipe which is bolted to the frame (Tr. 318). When 

Jacobsen looked at the truck the bolt had been replaced (Tr. 317). 

A mechanic had put a nut onto the bolt to tighten down the cowling 

(Tr. 321). 

In discussing the citation Jacobsen told Kovick that he 

couldn't believe what they were talking about (Tr. 318-319). 

Kovick did not reply (Tr. 319). 

In rebuttal Inspector Kovick recalled that the bolt was in 

the back but he didn't remember the side where it was located (Tr. 

3 5 4) • 

Inspector Wolford indicated that respondent previously welded 

the cabs to the frame because of problems caused when the main 

strut supports break through the bolt holes (Tr. 355, 356). 

Probably all of respondent's haul trucks have struts welded to the 

frame (Tr. 356). 

Discussion 

The Secretary's case fails for several reasons. The evidence 

is unconvincing that this single missing bolt in any manner 

affected the safety of the cab. Inspector Kovick testified that 

if other bolts were to become loose or broken a hazard could result (Tr. 276). The section in contest, 59.9-2, requires more 

than the mere possibility that the equipment defect might affect 

safety in the future. 

I further credit respondent's evidence as to the function of 

this bolt. A person charged with the obligation of maintaining 

these vehicles would know whether the bolt connected to the frame 

or the cowling. 

338 
For these reasons the second portion of the citation, 

relating to the nissing bolt, should be vacated. 

c. 

Concerning the air leak: 

Inspector Kovick indicated an air leak existed in the 

reservoir tank located behind the compressor. In his view the air 

leak could contribute to a braking hazard (Tr. 275, 276, 281). 

This condition should be corrected particularily because of the 

weight of the haul trucks (Tr. 276). The witness indicated this 

air reservoir involved the emergency braking system and the leak 

was in one of the lines that connected to the tank (Tr. 281). 

During the inspection a person could hear the leak even though the 

motor was running (Tr. 287). 

Respondent's evidence: 

Foreman Jacobsen heard the air escaping when he walked around 

the back of the truck on the right hand side (Tr. 319). Jacobsen 

told his mechanic to check the pop off valve on the air tank. 

He further instructed him to set the air governor at 155 pounds 

(Tr. 321). They found the air governor was not functioning 

properly so Jacobsen told the mechanic to change it (Tr. 321). 

The reservoir is a storage compartment for air. The governor 

controls the air compressor pump (Tr. 322). If you do not set the 

air governor the compressor is going to continue to pump. This 

was an air leak at the pop off valve. The compressor was pumping 

air into the reservoir at 170 psi and the pop off valve was 

unloading. The air governor was replaced (Tr. 323). 

After being replaced the air governor shut off at the desired 

setting. The pop off had occurred because the governor wasn't 

adjusted properly. The leakage was at the top of the air tank 

(Tr. 332). 

The pop off valve is a relief valve for the air compressor 

system. The valve presents no hazard but, to the contrary, it 

promotes safety. The pop off valve emitted a sound similar to 

leaking air (Tr. 349). 

Discussion 

I credit the expertise of respondent's witness Jacobsen. He 

identified the leaking air sound as the pop off valve. He further 

corrected the situation which did not in any event affect safety. 

337 
Since safety was in no way affected by the condition of the 

pop off valve the third portion of the citation should be 

vacated. 

Citation 576958 

This citation asserts there were 48 missing bolts on 

r8spondent's fuel truck which affected its safety. Accordingly, 

the Secretary claims respondent thereby violated 30 C.F.R. Section 

55.9-2, cited in footnote 4. 

Summary of the Evidence 

MSHA Inspector Merrill Wolford checked respondent's fuel 

truck No. 2901. On the bottom side he found that all 48 bolt~ 

that secure the dispensing units to the truck were loose. The 

bolts attach the dispensing units and they are connected to angle 

iron flanges. Some bolts formed egg shaped holes and some had 

pulled through the plate (Tr. 492-494, Exhibit Pll). The bolts 

are one and to two inches long and the inspector could see a gap 

under a lot of them. In some cases the gap was as much as a half 

inch. Five or seven bolts were missing and there were no washers 

on the bottom side (Tr. 500, 501). 

The units attached to the truck bed contain diesel, fuel, 

hydraulic oil as well as antifreeze (Tr. 494). The inspector felt 

that in the event of a sudden stop or accident the fuel tanks 

could shear off and crush the cab (Tr. 494). 

On February 6, 1980, in a previous inspection, Inspector 

Wolford issued a withdrawal order on this vehicle. One of the 

conditions he found at that time were loose bolts holding the 

dispensing tanks (Tr. 495). 

Respondent's evidence: 

Casey Conway was under the truck when Inspector Wolford made 

his observations. He asserts the inspector merely tested four to 

eight bolts and not all 48 (Tr. 506-508). A diagram prepared by 

respondent's draftsman shows exactly 40 one half inch nut and bolt 

connections (Tr. 503, Exhibit RlO). 

Conway counted the bolts a year after the inspection. In 

addition he didn't know when the diesel dispenser and generator 

had been welded to the bed of the truck (Tr. 506-507, 509). 

Jamieson, the lub truck driver, tightened the loose nuts that 

secured the units. On the left side a dozen were extremely loose 

and others were snug up to the lock washer. Jamieson torqued 

these down anyway (Tr. 510-513). 

338 
While some bolts were very loose others required a quarter of 

a turn, and some no turn at all. Jamieson considered that a bolt 

was tight even if he tightened it down a quarter of a turn (Tr. 

515) . 

Discussion 

I find MSHA's witness Wolford credible. When he was under 

the truck he observed the loose bolts. 

While respondent's witness Conway was under the vehicle with 

Wolford at the time of the original inspection, he concedes he did 

not count the bolts until a year after the inspection. 

Respo~dent's evidence also includes a mechanical drawing. It 

was no doubt offered to show that there were only 40 one half inch 

bolts under the truck bed as per the drawing. Therefore, with 

such evidence, respondent should prevail on this credibility 

issue. 

I put no credence in the drawing. The record fails to 

reflect when it was prepared. The drawing shows that three 

different dispensing units were welded to the truck but Conway 

didn't know when they had been welded. Without such pivitol 

evidence I give zero weight to the drawing. 

Further, I give zero weight to Jamieson's testimony: Jamieson 

considers a tight bolt to be one that will take a quarter of a 

turn (Tr. 515). 

Respondent's post trial brief strenuously argues that 

Wolford's testimony is incredible when contrasted with Conway's 

testimony and the drawing. On the contrary, I credit Walford's 

testimony which clearly shows that "there were 48 bolts I counted 

loose and there are other bolts on the truck. There is a 

compressor and dispensing hose rack on the truck and there are 

other pieces of equipment mounted on that truck" (Tr. 496-497). 

On this basis I conclude there were more than 48 bolts under 

the truck at the time of the accident. Such a direct count of "48 

and more" causes me to reject respondent's contrary evidence. 

For the foregoing reasons citation 576958 should be affirmed. 

339 
Citation 576959 

The citation alleyes a v~0lation of Title 30, Code of Federal 

Regulations, Section 55.5-3. _/ 

Summary of the Evidence 

MSHA Inspector Merrill Wolford observed dust or sand rising 

from the tail of the drill stem when he was 300 to 400 yards away. 

Rocky Anaya, upon observing the inspection party, went around and 

turned the water on at the tank (Tr. 517-521). When the water was 

turned on the dust emissions came under control (Tr. 530). 

When the inspection party reached the scene the dirt coming 

out of the drill hole was damp, but ihe inspector saw no water in 

the hole. The water tank was full, although drillers Anaya and 

Stressler stated they had drilled four holes to a depth of 45 

feet. The holes had a 9 inch diameter (Tr. 517, 518, 521, 522). 

Anaya and Stressler said other inspectors and supervisors had 

told them to drill wet only if they were in rocky ground (Tr. 

518, 519). Neither men were wearing respirators. But there were 

3M respirators in the cab of their vehicle (Tr. 517-518). 

The hazard here is mainly respiratory. Mononucleosis can 

result. The long time effect is life threatening (Tr. 519). 

Joe Drake, Jerry Carpenter and Rocky Anaya testified for 

respondent: 

Drake, the drilling and blasting foreman had instructed the 

workers to use water anytime dust is encountered. Sometimes they 

strike water. In that event there is no need for water as a dust 

control measure (Tr. 527-529). The criteria is not whether the 

ground being drilled is wet or dry but whether the drilling 

produces dust (Tr. 528). 

Rocky Anaya turned on the water when he saw the inspection 

team approaching. He thought he might be cited for not having the 

water turned on. He was then drilling in wet sandy material and 

he didn't need water. When the inspector arrived wet sandy 

material was coming out of the drill hole (Tr. 524-526). 

21 55.5-3 Mandatory. Holes shall be collared and drilled wet, 

or other efficient dust control measures shall be used when 

drilling nonwater-soluble material. Efficient dust control 

measures shall be used when drilling water-soluble materials. 

340 
Discussion 

I find the inspector's testimony to be credible. He observed 

dust, or sand, at the drill stein. He approached and saw that the 

material then coming out was damp. The rest of the offal was 

dry. 

If Anaya was drilling in wet sandy material there was no 

necessity for him to turn on the water when he saw the inspection 

team. He was already following respondent's instructions. I 

accordingly reject respondent's factual defense. 

Respondent's post trial brief asserts that the testimony of 

Inspector Wolford is not credible. This argument arises in 

Walford's testimony that he didn't know whether he was observing 

dust or sand. Further, he didn't know the materials in which 

Minerals was drilling (Tr. 521). In short, respondent asserts 

that Anaya's testimony is unrefuted that the material was sandy 

and wet. Therefore, no violation existed. 

I disagree. When questioned on this point Inspector Wolford 

stated that when he looked at the offal around the edge of the 

h61e "the last little bit right at the top where they had just 

finished the hole was damp, but the rest of it was dry" (Tr. 523). 

Whether the materials were soluble in water or not is not relevant 

in this factual setting. Under either circumstance respondent was 

not using any dust control measure whatsoever. It was therefore 

in violation of the regulation. 

For these reasons Citation 576959 should be affirmed. 

Citation 576960 

This citation alleges that two bolts were missing from th~ 

anchor plate of respondent's 9H Cat in violation of 30 C.F.R. 

55.9-2. 

At the hearing respondent withdrew its notice of contest 

stating that the proposed penalty had been paid (Tr. 391, 392: 

Order, October 27, 1983). 

Pursuant to Commission Rule 29 C.F.R. § 2700.11, the motion 

was granted and it is formalized in this decision. 

Citation 577061 

This citation asserts respondent's 6S ton water truck had 

three defects. These were defective brakes which caused the truck 

to pull, a wobbling tire, and a separation of a tread from a tire. 

341 
In addition, it is alleged that the tire with the separation had 

been removed from service but not tagged out. 

A. 

The initial allegation concerns the brakes which caused the 

truck to pull to the right. This defect violated 30 C.F.R. 

Section 55.9-3. ~ 

Summary of the Evidence 

MSHA Inspector Merrill Wolford observed respondent's water 

truck No. 2901 pulling very hard to the right (Tr. 447, 452). The 

driver could not prevent such movement. The pulling caused by the 

brakes is a severe hazard (Tr. 452, 453). 

Bobby Jacobsen, respondent's foreman, indicated the front 

brakes on the truck had been relined two weeks before the 

inspection (Tr. 456). Different linings had been installed (Tr. 

4 56) • 

Discussion 

Inspector Wolford's testimony is uncontroverted: The water 

truck's brakes caused the vehicle to pull very hard to the right. 

Respondent's evidence confirms the defective condition. 

Respondent's was concerned that the truck might pull so they 

placed a notice on the dash directing drivers not to operate the 

vehicle in excess of 10 miles per hour (Tr. 457; Brief, page 19). 

The evidence clearly establishes that the brakes on the truck 

were not adequate. This establishes a violation of Section 

55.9-3. 

For the above reasons the initial portion of Citation 577061 

should be affirmed. 

B. 

This portion of the citation asserts that the left front 

wheel of the truck was wobbling. This condition violated 30 

C.F.R. Section 55.9-2, cited in footnote 4. 

6/ 55.9-3 Mandatory. Powered mobile equipment shall be provided 

with adequate brakes. 

342 
S11r:1mary of the Evidence 

MSHA Inspector Wolford observed that the left front tire of 

the truck was ~obhling "very badly." He first observed this 

condition when he was 300 to 400 yards away. Upon inspecting it 

first hand he found a lot of play in the steering mechanism; 

further the ball joints were worn (Tr. 447, 448, 452). In the 

inspector's opinion the wobbling was caused by worn out steering 

(Tr. 452). 

The wobbling tire was a severe hazard that could cause a loss 

of control (Tr. 453). 

Respondent's evidence: 

Bobby Jacobsen recognized that the company had experienced 

some problem with the shimmy of the truck (Tr. 455, 457). 

According to Jacobsen wobbling is the same as shimmying. It was a 

three to four inch shimmy (Tr. 458, 459). 

A corn nut used to adjust the steering valve would 

occasionally back out (Tr. 457). Excessive pressure into the 

steering valve would cause the wheel to shimmy (Tr. 457, 458). 

After the inspection Casey Conway inspected the steering arm 

and its configuration. There was nothing found by the visual 

inspection but later they learned there was a left hand steering 

cylinder problem (Tr. 472, 473). Too much pressure in the 

cylinder can cause a shimmy (Tr. 473). 

While Conway saw the vehicle, shimmying as described, the 

vehicle did not demonstrate any lack of control (Tr. 473-474). 

There was nothing found in the steering area having to do with the 

ball joints (Tr. 473-474). 

Discussion 

The inspector's testimony establishes the violation. 

Respondent's evidence confirms it. 

The second portion of Citation 577061 should be affirmed. 

c. 

The third allegation focuses on the allegation that the 

outside tire of the dual tires on the truck had a 15 inch 

separation, was split, and was bulging. The citation then cites 

30 C.F.R. 55.9-2, which is cited in footnote 4. In addition, the 

citation further alleges that the safety department had taken the 

343 
truck out of service. Yet it in alleged the truck was being 

operated ~nd it had not been tagged out, citing 30 C.F.R. 

55.9-73. _/ 

Summary of the Eviden.ce 

Inspector Merrill Wolford observed that the tread on the rear 

dual 2700 x 35 recap tire was separated and bulging (Tr. 447, 448, 

451, Exhibits P7-Pl0). The tread was separated from the tire 

carcass for 15 inches on one side. The separation went through 

toward the other side (Tr. 449). By pushing on the tire he could 

feel a difference between the separation and the rest of the tire 

(Tr. 450). When the truck moved the tire flexed from side to side 

and bulged to the outside (Tr. 450). A possible blowout, with 

resulting loss of control, could occur on this terrain which was 

mostly dirt and rough ground (Tr. 450-451). 

Respondent's evidence: 

Robert Jones, Kenneth Davis, Bobby Jacobsen, and Casey Conway 

testified. Robert Jones, a person with 16 years experience in 

servicing, managing and selling tires, was familiar with the tires 

on a Wabco 65 ton truck (Tr. 392, 393). His primary business is 

tire maintenance and he is familiar with separations that occur on 

the General Tire Company tires used on the Wabco 65 ton water 

truck (Tr. 397, 398, 433, Exhibit R9). 

The carcass, which contains nylon, is the main body of the 

tire. On the outside of the carcass are bead breakers. The face 

of the tire, that is, the whole tread area, are above the bead 

breakers (Tr. 400, 410, Exhibit R9) 

In the operation of the truck heat will cause the nylon cord 

to stretch. When this occurs the rubber tread fails to stretch 

with it. A cracking or separation results (Tr. 400, 401). 

The same carrying capacity exists and no hazard is involved 

at lower speeds. But a hazard could exist with a tread separation 

if the vehicle was on a five to ten mile trip and running in 

excess of 30 or 35 miles per hour (Tr. 401-402). A hazard begins 

21 55.9-73 Mandatory. Defective equipment, removed from service 

as unsafe to operate, shall be tagged to prohibit further use 

until repairs are completed. 
when the tire looses part of th8 rubber and starts to wear through 

the cord body (Tr. 402). 

The carcass of the tire holds all the pressure and all the 

weight of the tire (Tr. 405). There is no greater risk as long as 

the cord body is intact (Tr. 410, 434). "Bird nesting" is where 

the rubber comes apart from the ply which then starts to wear (Tr. 

413) . 

The tread of this tire is 18 to 20 inches. The outside 

circumference of the tire is 20 feet. 

The bulging in the tire is a result of the rubber coming away 

from the cord ply (Tr. 438). If there is cord damage the bulge 

would be more severe. Further, "bird nesting" will occur because 

the ends will start to curl up (Tr. 441). 

Kenneth Davis, respondent's mine superintendent, probed the 

separation on this recap with a screw driver. He was only able to 

insert the screwdriver three to four inches into the separation 

until it hit rubber (Tr. 477, 488, 490). The separation was 10 to 

12 inches from the shoulder of the tire (Tr. 482). 

The water truck wasn't carrying its designated weight. It 

was originally a 65 ton rock truck with a carrying capacity of 

215,000 pounds. Refitted as a water truck it weighs 150,000 

pounds when loaded (Tr. 485). 

In March 1981 respondent arranged a meeting with representatives from General Tire Company and Redburn Tire Company. The 

meeting was for Walford's benefit to discuss tire separations (Tr. 

486, 487). 

Bobby Jacobsen confirmed that if the cord of the tire is not 

breaking down no hazard results from continuing to use a tire with 

a separation of this type (Tr. 461-462). 

Casey Conway accompanied the inspection team and they 

inspected the water truck about 9:30 a.m. The truck was taken to 

the tire shop and parked. No citation was written until there was 

a later inspection that day (Tr. 469-470). 

At 4:30 p.m. that day the truck was driven past Wolford and 

Conway. Wolford stated "he thought we had shut it down" (Tr. 

471). Wolford looked like he was getting angry because respondent 

was operating the vehicle without changing the tire (Tr. 453, 454, 

471, 472). 

Acosta and Wolford discussed whether the tire should have 

been removed from service. There was no question about the 

hazard. (Tr. 475). Wolford referred to the fact that the company 

345 
had agreed to move the dual frorn the outside to the inside. To 

avoid a confrontation the company decided to change the tire from 

the outside to the inside (Tr. 475). 

Discussion 

As already noted, the gravamen of this portion of the 

citation is whether the tire was unsafe. 

On this credibility issue I find in favor of respondent's 

evidence. At the outset I note that Inspector Wolford 

demonstrated no particular expertise concerning tires. On the 

other hand respondent's witness Robert Jones has considerable 

experience in this area of expertise. At the hearing respondent, 

for illustrative purposes, presented a tire similar to the Wabco 

truck tire. The testimony of the witnesses, as outlined in the 

factual statement, causes me to conclude that the recap tire here, 

with its 15 inch tread separation, was not unsafe. 

The third portion of the citation further states that "the 

truck had been observed with the bad tire and the safety 

department had taken it out of service to have the tire rotated 

inside. Yet, this truck was being operated on the evening shift 

and the operator stated it had not been tagged out, mandatory 

standard 55.9-73." 

Since I find that the tire was not defective in such a manner 

as to affect safety I conclude that this portion of the citation 

should be vacated as to the alleged violation of Section 55.9-73. 

For these reasons the third portion of Citation 577061 should 

be vacated. 

Civil Penalties 

The citations, their disposition, and the remaining proposed 

penalties are as follows: 

Citation No. 

576949 

576953 

576954 

336285 

576958 

576959 

576960 

577061A 

5770618 

577061C 

Disposition 

Affirm 

Settled, reduced to 

Vacate 

vacate 

Affirm 

Affirm 

Contest Withdrawn 

Affirm 

Affirm 

Vacate 

346 

Proposed Penalty 

$ 255 

65 

122 

295 

195 

725 

725 
The mandate to assess civil penalties is contained in Section 

110( i), [now 30 u.s.c. 820( i)], of the Act. It provides: 

(i) 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 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. 

Concerning the operator's history of prior violations: 

Respondent was assessed a total of 154 violations between August 

8, 1978 and August 18, 1980 (Exhibit Pl). 

Concerning the appropriateness of the penalty to the size of 

the business of the operator charged: the parties stipulated that 

the size of the operat~r is contained in the notice of assessment 

in each case. In WEST 81-79-M the size of respondent's mine is 

noted to be 273,078 man hours per year (Tr. 3, 230, Notice of 

Assessments). 

Concerning the negligence of the operator: With the exception 

of the lack of bolts to the underside of the truck carrying the 

fuel units all of the situations presented open and obvious 

conditions. The condition of the bolts holding the dispensing 

units could easily have been ascertained during routine 

maintenance. 

Concerning the effect of the penalty on the operator's 

ability to continue in business: The parties stipulated that 

proposed penalties will not affect the business of the operator 

( Tr. 3) • 

Concerning the gravity of the violation: Severe injuries 

could have been caused by any of the violative conditions. I 

consider the gravity to be severe in each instance where the 

violation is affirmed. 

In connection with Citation 577061 A and R respondent's posttrial brief asserts that the proposed penalty is excessive because 

the company posted a notice instructing its drivers not to operate 

the vehicle over 10 miles per hour. True, the notice was posted. 

But a swerving truck and wobbling tire are severe hazards at any 

347 
speed. Further, posting a notice is a totally unacceptable method 

of abating such defects. 

Concerning the good f~ith of the operator in abating the 

violative conditions: To the operator's credit it rapidly abated 

the violative condition. 

Considering all of the statutory criteria and the relevant 

facts I conclude that the proposed penalties, as outlined above, 

should be affirmed. 

WEST 81-81-M 

Citation 337741 

This citation alleges a violation of Title 30, Code of 

Federal Regulations, Section 55.4-12. ~/ 

summary of the Evidence 

When inspecting respondent's lube shop Inspector Merrill 

Wolford found large pools of oil, diesel fuel, grease, and rags 

practically everywhere. This condition was throughout the service 

bays, the pump rooms, the office and the lunch area (Tr. 540-544, 

Exhibits P2-Pl3). 

A commercial absorbent, referred to as floordry, had been 

applied on parts of the floor. In some areas the accumulations 

were one eighth to one quarter of an inch thick (Tr. 560, P-2, 

P-8) . 

The inspector was concerned about a serious fire hazard as 

the accumulations and various materials were flammable and 

combustible (Tr. 541). Ignition sources included electrical 

motors as well as the various vehicles being serviced in the shop. 

Inspector Wolford ordered all six workers withdrawn. However, he 

permitted those in the clean-up crew to remain (Tr. 541, 556). 

Except for the overhead lights he ordered all electrical power 

turned off (Tr. 541, 544). 

If a fire occurred a fatality could occur or the workers 

could be burned (Tr. 544). 

In the previous week the inspector had issued a citation for 

the violation of the same standard in the same area of the lube 

shop (Tr. 544, 545, Exhibit P-14). The violative conditions were 

readily observable (Tr. 546). The earlier citation was abated in 

8/ Mandatory. All flam..mable and combustible waste materials, 

grease, lubricants or flammable liquids shall not be allowed to 

accumulate where they can create a fire hazard. 

348 
three hours. The instant citation was abated in nine to ten hours 

(Tr. 548). 

The accumulations occurred in the shift before the inspection 

(Tr. 548, 549). The oil and grease will fall to the floor during 

the servicing of equipment (Tr. 547-548). 

Respondent's superintendent Martin told the inspector that it 

is customary to clean the shop every day but due to some problem 

the lube area hadn't heen cleaned the day before (Tr. 550). 

Casey Conway, Gary Denault, Jerome Connor and Bobby Jacobsen 

testified for respondent: 

Witness Conway testified as to the flash and ignition points 

of the various lubricants used in the lube bay (Tr. 568, 569). 

The NFPA (National Fire Protection Association) defines a flash 

point as a point at which a liquid contained in a closed 

container, when heated, emits suitable vapors so that when a flame 

is introduced the vapors will burn (Tr. 570, 571). Ignition 

temperature, also measured in a closed container, is that 

temperature of the vapors into which you introduce an ignition 

source and the vapors will thereafter burn independently of the 

ignition source (Tr. 571). 

Respondent's materials have the following flash and ignition 

points: 

Material 

Ethylene glycol 

(antifreeze) 

SAE Oil, 10 weight 

SAE Oil, 30 weight 

SAE Oil, 40 weight 

SAE Combination Oil 

C3 Hydraulic Oil 

Hydraulic Fluids 

Gasoline 

Flash Point 

232°F 

410°F 

451°F 

464°F 

410°F to 451°F 

464°F 

over 4n4° 

around 45°C 

Ignition Point 

752°F 

(Tr. 568-575, 588). 

The doors in the lube bay, unlike a closed container, are 25 

to 30 feet wide and 40 to 45 feet high (Tr. 575). In an open 

environment, and with proper ventilation, vapors will tend to 

dissipate thereby lessening a fire hazard (Tr. 581). Materials 

with high flash points will not tend to have vapors that will 

accumulate with proper ventilation (Tr. 580). 

A flammable material has a flash point of 100 degrees (F), or 

less, at 40 psi. ~ combustible material has a flash point greater 

than 100°(F) at 40 pounds psi. A flammable material has a greater 

349 
burning potential than material that is merely combustible (Tr. 

583, 584). 

The term flammable is used to describe a combustible material 

that ignites easily, burns intensely, or has a rapid rate of flame 

spread (Tr. 586). Paper and oil soaked rags are combustible (Tr. 

587). A cigarette or plain paper would smolder and turn into a 

f 1 ame (Tr. 5 8 8 ) • 

Gary Denault, a mechanic in the lube bay on the day of the 

inspection, indicated the lube bay got "messed up" as it normally 

does during a rush day. There was a "mess" in the pump room (Tr. 

592-593). Denault had spent all day working on the 2301 loader. 

About ten minutes before the end of his shift the oil filter 

sprang a leak and dumped approximately five gallons of 15/40 oil 

on the floor (Tr. 593-594). Denault threw down some floordry and 

trapped the pool of oil. He then sought his supervisor to see if 

he should remain and clean it up. The supervisor had already left 

(Tr. 595, 596). 

Denault might have had some smaller spills from earlier 

trucks. The practice was to clean up any accumulations at the end 

of the shift (Tr. 599). 

William Jamieson, who worked the swing shift, entered the 

lube bay and saw oil on the unswept floor, cardboard boxes, and 

full trash receptacles. These conditions had been caused by the 

day shift (Tr. 603, 604, 606, 607). Johnson went to the safety 

office to report the condition. The inspector arrived at the lube 

bay shortly thereafter (Tr. 604, 605) 

Normally the cleaniness of the lube area would range from 

clean to slightly dirty or messy. It's condition would depend on 

what had transpired on the prior shift (Tr. 604). 

Jerome Connor, respondent's safety superintendent, wasn't 

aware of the condition in the lube until Jamieson reported it to 

him and the MSHA inspectors (Tr! 609, 611). 

As a result of the citation in the previous week strict 

attention had been paid to the area (Tr. 610). 

Bobby Jacobsen, respondent's general maintenance foreman, 

indicated the seven foot high neon lights were spark resistant 

(Tr. 613, 614). 

The tanks for the various lubricants are underground. 

Electrical equipment in the lube bay includes the steam cleaner 

and air compressor. The electric motor is mounted with the steam 

cleaner in a separate room in the lube bay (Tr. 615, 616). 

350 
Respondent, in its post trial hrief, initially contends that 

the spillage and ~ebris was within the "range of risks" for which 

the facility was rlesigned. 

I disagree. No facility is designed to he operated within a 

"range of risks". The evirlence from MSHA witness Wolford was that 

he had never seen anything this bad before; he further described 

in detail the accumulations of oil and grease. I agree that it is 

not anticipated that a lube bay will be a model of cleanliness but 

conversely it is not anticipated, and the regulation prohibits, an 

unsafe accumulation as established by the oral testimony and 

confirmed by the photographs. In short, this facility was beyond 

its range of proper usage. 

Witness Denault said "there was a mess in the pump room" 

(Tr. 592-593). Witness Johnson was so upset he went to the 

company safety officer to report the condition (Tr. 604). Further 

confirming the extent of the accumulations, it is uncontroverted 

that it required eight to nine hours to clean the lube bay. In 

contrast, on the prior citation a week earlier, the cleaning was 

done in three hours. 

Respondent's evidence relating to the flammability and 

combustibility of its oils and lubes, as rated by their flash and 

ignition points fails to establish a defense. The Commission is 

bound to follow the definitions in Title 30, Code of Federal 

Regulations, Section 55.2. These definitions follow: 

"Combustible" means capable of being ignited and 

consumed by fire. "Flammable" means capable of being 

easily ignited and of burning rapidly. 

These definitions easily encompass the factual situation 

presented in the lube shop. 

The Secretary proved a violation of the standard. He is not 

required to prove a risk related to the design and construction of 

the lube shop. Respondent's contention to that effect is without 

merit. 

Respondent finally asserts that it exercised utmost good 

faith in the situation. It cites the testimony of Denault in 

containing the five gallon spill, the testimony of Jamieson in 

reporting the condition, and Connor's testimony that he lacked 

prior knowledge. 

I am not persuaded. True, Denault contained the five gallon 

oil spill. But what of the rest of the accumulations.· From the 

photographs it is apparent the accumulations had not all been a 

sudden occurrence. Jamieson did report the condition but 

supervisors are in and out of the lube bay during the day. 

351 
Connors' lack of prior knowledge fails to establish a defense. 

His testimony that the crews "had been fastidious in keeping it 

clean" (Tr. 609, 610) runs counter to the facts observed by those 

persons who were in the lube shop. 

For these reasons Citation 337741 should be affirmed. 

Civil Penalty 

As previously noted the statutory criteria for assessing 

civil penalties are set forth in 30 u.s.c. § 820(a). The 

operator's prior history indicates it was assessed 59 violations 

in the two years beginning April 29, 1978 (Exhibit Pl). The 

parties stipulated that the size of the operator's mine was 

273,078 man hours per year (Tr. 3, 230, Notice of Assessments). 

The operator was negligent since the grease and oil accumulations 

were obvious and should have been seen by supervisors. In 

addition the operator should have been particularily attentive to 

this problem as the lube bay since it had been cited in the 

previous week for the same condition. The parties stipulated that 

the proposed penalty will not adversely affect respondent's 

ability to continue in business (Tr. 3). 

The gravity of the violation is severe. A misplaced 

smoldering cigarette could cause a fire with the possibility of 

severe consequences. Respondent did not abate this condition 

until the inspector ordered the miners withdrawn from the lube 

bay. 

Considering the statutory criteria, I consider that the 

proposed penalty of $1,250 is appropriate. It should be 

affirmed. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portions of this decision, the following conclusions 

of law are made: 

1. The Commission has jurisdiction to decide these cases. 

WEST 81-79-M 

2. Respondent violated the mandatory standards as alleged in 

Citation Nos. 576949, 576958, 576959, 577061 A, and 577061 R. 

Further, the proposed penalties in the total sum of S2,122 are 

appropriate for such violations and they should be affirmed. 

3. The settlement of Citation 576953 is approved together 

with the amended penalty of $65. The violation as alleged is 

affirmed but it shall not he classified as significant and 

substantial. 

352 
4. ~espondent's motion to withdraw its notice of contest as 

to Citation 576960 is granted. The citation and proposed penalty 

of $195 are affirmed. 

5. Respondent did not violate the mandatory standards as 

alleged· in Citation Nos. 576954, 336285, and 577061 C. Accordingly, said citations and all proposed penalties therefor should 

be vacated. 

WEST 81-81-M 

6. Respondent violated the mandatory standard as alleged in 

Citation 337741. Further, the proposed penalty of $1,250 is 

appropriate and it should be affirmed. 

ORDER 

Accordingly it is ORDERED: 

WEST 81-79-M 

1. That the following citations and the penalties provided 

therefor are affirmed: 

CITATION NO. 

576949 

576958 

576959 

577061A 

5770618 

PENALTY 

$ 255 

122 

295 

725 

7 25 

2. The settlement of Citation 576953 is approved and a 

penalty of $65 is assessed. 

3. Citation 576960 and the proposed penalty of $195 are 

affirmed. 

4. Citations 576954, 336285, and 577061C and all proposed 

penalties therefor are vacated. 

WEST 81-81-M 

5. Citation 337741 and the proposed penalty of $1,250 are 

affirmed. 

6. Unless previously paid, respondent is ordered to pay the 

total sum of $3,632 within 40 days of the date of this order. 

Law Judge 

353 
Distribution: 

Robert J. Lesnick, Esq. 

Off ice of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 (Certified Mail) 

Anthony D. Weber, Esq. 

Union Oil Company of California 

Union Oil Center, Box 7600 

Los Angeles, California 90051 (Certified Mail) 

/blc 

354 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 FEB 1419.84 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 81-319-M 

A.C. No. 48-01181-05032 I 

v. Sweetwater Uranium Project 

MINERALS EXPLORATION COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Robert J. Lesnick, Esq., Office of the Solicitor, 

u. s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Anthony D. Weber, Esq., Union Oil Company of 

California, Los Angeles, California, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent, Minerals 

Exploration Company, with violating a safety regulation promulgated under the Federal Mine Safety and Health Act, 30 u.s.c. 

§ 801 et~., (the "Act"). 

After notice to the parties, a hearing on the merits began on 

October 5, 1982 in Laramie, Wyoming. 

Respondent filed a post trial brief. 

Issues 

The issues are whether respondent violated the safety 

regulation and, if so, what penalty is appropriate. 

Jurisdiction 

Respondent admits jurisdiction (Tr. ?.30). 

355 
Citation 337761 alleges respondent violated Title 30, Code of 

Federal Regulations, Section 55.18-2(a) l/ 

Summary of the Evidence 

MSHA's evidence: Arnold Acosta, respondent's safety director, 

advised MSHA Inspector Martin Kovick that an employee had turned 

over his scraper in the pit area (Tr. 159-162). The men went to 

the site of the accident, a stockpile area. They learned that 

while employee Martinez was dumping his load the rear end of the 

scraper slipped and the scraper turned over (Tr. 162-164). 

Martinez, the injured driver, was to dump his load on top of 

the topsoil pit. A blade was to then smooth it off. 

Photographs showed ruts where the loader slipped over the 

side of the area and they showed where the operator attempted to 

right his vehicle (Tr. 164, Exhibits P2-P5). The 20 foot roadway 

narrowed at its most narrow point to 17 1/2 feet (Tr. 164, 165). 

In the inspector's opinion the accident would probably not 

have occurred if the area had been adequately bermed (Tr. 167). 

Further, a three to one slope would probably have prevented the 

accident (Tr. 167). Possibly the accident would have occurred on 

a two to one slope but not on a four to one slope (Tr. 174). It 

is the company's policy to maintain an angle at three to one but 

half of the employees were not aware of that policy (Tr. 168). 

In the inspector's opinion the slope was too steep for the 

scraper. But the inspector did not measure it, nor did he 

determine the extent of it and he did not know what it was at the 

time of the accident (Tr. 175). 

There was nothing to indicate that the operator had examined 

the work place before the shift (Tr. 169, 176). But the inspector 

didn't recall if he had asked Mr. Day, the supervisor, if he 

performed an inspection (Tr. 177). But Day told the inspector it 

was okay to dump there (Tr. 178). 

Respondent's evidence: David Day, a field shift supervisor, 

and scraper operator Baca testified for the respondent (Tr. 183, 

184, 209). 

1/ 55.18-2 Mandatory. (a) A competent person designated by the 

operator shall examine each working place at least once each shift 

for conditions which may adversely affect safety or health. The 

operator shall promptly initiate appropriate action to correct 

such conditions. 

356 
On October 26 Day assigned Leonard Martinez and Fred Baca to 

strip topsoil in the C3 pit area (Tr. 185). The work shift began 

at 4 o'clock. Day arrived at the topsoil pile about 4:30 p.m. 

The operators had picked up their equipment from the ready line. 

When he arrived at the site the men got into Day's pickup and they 

drove the entire area, locating the limit stakes. They drove to 

the top of the topsoil. At that point Day pointed out a mundy 

area 15 to 20 feet in diameter (Tr. 186, 187). Day asked Baca to 

put two or three loads in the mudpile and for the blade to smooth 

it over to make a good base for the scrapers (Tr. 187). It took 

about 15 minutes for three men to drive the area (Tr. 189). 

During his drive around the area Day pointed out the mudhole but 

he didn't see any hazards affecting safety (Tr. 190). 

Day learned about the rollover around 7:30 p.m., as dusk was 

settling in. He was then enroute to get a portable light for the 

dumping area (Tr. 189, 190). 

Day had been working dirt with heavy equipment for three 

years. Starting at the north end of this stockpile there was very 

little slope at the edges, not less than a 4 1/2 to 5 to 1 angle. 

Proceeding southward the slope was about 5 to 1 (Tr. 191, 192). 

The banked roadway varies from a 6 to 1 slope to a 3 to 1 slope. 

The angle of the slope where the scraper rolled o~er was 5 to 1 or 

between 5 1/2 to 6 to 1 (Tr. 193). 

Day examined the scraper's tracks. In his opinion the front 

end of Martinez's scraper went over the edge. Martinez could then 

have turned his scraper downhill or he could have waited for 

assistance. But he tried to drive back uphill and this caused the 

scraper to slide further downhill (Tr. 197). Martinez was capable 

of operating the scraper safely. He had driven it for a week in 

daylight. Further, he had been trained to operate the scraper. 

(Tr. 19 8) • 

Since the rollover accident the company has a written policy 

that there must be a 3 to 1 slope at the edge of the stockpile 

area (Tr. 199). 

Day will evaluate slopes four to five times during a 

workshift. In reclamation they work 5 to 1 slopes (Tr. 200). 

For various reasons MSHA's photographs do not show the angle 

of repose (Tr. 201-206). 

Baca did not see any hazards at the site. Day instructed the 

operators to dump close to the edge so the blade could widen the 

pile (Tr. 212). The slopes of the topsoil pile varied from 3 to 1 

to 5 to 1 (Tr. 213, 214). 

357 
Baca didn't see the rollover but he saw the scraper lights· 

shining in the air. He also saw Martinez crawling out of the 

overturned. equipment (Tr. 212, 213). 

MSHA's Rebuttal 

This evidence purports to measure the angle of repose from 

the photographs. But Inspector Kovick had never taken angles from 

a photograph. Further, he had not been trained in that regard 

(Tr. 2 2 2) • 

Discussion 

Section 55.18-2 requires, in part, that the operator 

designate a competent person to examine a working place at least 

once each shift for conditions that might adversely affect safety 

or health. MSHA's failed in its burden of proving the initial 

requirement of the regulation. In addition, Day's experience 

establishes his expertise. Further, it is virtually 

uncontroverted that Day made an inspection with operators Baca and 

Martinez at the beginning of the shift. 

The evidenciary thrust of petitioner's case concerning 

adverse safety conditions is twofold: first, it is asserted that 

at the point of the turnover the area was not bermed. Further, it 

is asserted that an excessively sharp slope at the edge of the 

stockpile, (less than an angle of 3 to 1), caused the rollover. 

On the issue of whether the area was adequately bermed I 

conclude that berms were not required. Witnesses Kovick referred 

to a "roadway" as being 20 feet wide. (Tr. 164, 165). Rut on this 

issue I credit Day's testimony that the area where the accident 

occurred was the area where the topsoil was being dumped by the 

scrapers (Tr. 186). In addition, if the factual situation called 

for berms, then MSHA should have cited respondent for violating 

the applicable berm or dumping regulation. 

The additional facet of petitioner's case is that the 

excessively sharp slope caused the rollover. On this point I 

credit respondent's evidence. Witness Day, in charge of the area, 

and inspecting it daily was in a much better position than the 

inspector to testify as to the angle of the slope. I credit Day's 

version that the slope varied at various points between an angle 

of 3 to 1 to an angle of 7 to 1. 

The inspector's contrary conclusion concerning the angle of 

the slope is not persuasive. He didn't measure, didn't determine, 

and didn't know the angle of the slope. 

Further, I reject MSHA's rebuttal evidence. The measurements 

on Exhibits P6 and P7 do not establish the extent of the angle of 

358 
the slope. For one thing there is no permanent or fixed point in 

the photographs than can form a basis to judge the angle. In 

addition, the horizon in both photographs sits at different 

angles. Finally, the inspector lacks training and expertise to 

arrive at any conclusions that would establish an angle pf repose 

by drawing lines on photographs. 

Based on the facts and the conclusions of law stated herein I 

conclude that Citation 337761 should be vacated. 

Accordingly, I enter the following: 

ORDER 

Citation 337761 and all proposed penalties therefor are 

vacated • 

Distribution: 

ohn 

. 

J.· -~ 

~ 

Adminis~~~: Law Judge 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor 

1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294 (Certified Mail) 

Anthony D. Weber, Esq., TJnion Oil Company of California 

Union Oil Center, Box 7600 

Los Angeles, California 90051 (Certified Mail) 

/blc 

359 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 151984 

KENNETH D. PITTMAN, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 82-334-D 

v .• 

MSHA Case No. HOPE CD-82-25 

CONSOLIDATION COAL COMPANY, 

Respondent Rowland No. 3 Mine 

Appearances: 

Before: 

DECISION 

F. Alfred Sines, Jr., Esq., Anderson, Sines 

& Haslam, L.C., Beckley, West Virginia, for 

Complainant; 

Robert M. Vukas, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Steffey 

Pursuant to an order consolidating issues and providing 

for hearing issued December 22, 1982, an 8-day hearing in the 

above-entitled proceeding was held on February 1 through February 4, 1983, and April 5 through April 8, 1983, in Beckley, 

West Virginia, under section 105 (c) (3), 30 U.S.C. § 815 (c) (3), 

of the Federal Mine Safety and Health Act of 1977. The complaint was filed on July 29, 1982, as amended on September 27, 

1982, by Kenneth D. Pittman alleging that he was unlawfully 

discharged by Consolidation Coal Company on January 18, 1982, 

in violation of section 105(c) (1) of the Act. The complaint 

was filed under section 105(c) (3) of the Act after complainant 

had received a letter from the Mine Safety and Health Administration advising him that MHSA's investigation of his complaint 

had resulted in a finding that no violation of section 105(c) 

(1) of the Act had occurred. 

Complainant filed his initial brief on June 20, 1983, and 

respondent filed its brief on August 18, 1983. Complainant 

filed a reply brief on September 20, 1983. In addition to the 

usual credibility determinations which have to be made in most 

discrimination proceedings, respondent's brief poses the following issues: (1) Did complainant engage in any protected 

activities prior to his discharge? (2) If complainant did engage in any protected activities, did those activities contribute in any way to complainant's discharge? (3) Assuming, 

arguendo, that complainant did engage in protected activities, 

did Consolidation Coal Company (Consol) have a legitimate business reason for discharging him for matters which are not protected under the Act? (4) As a matter of policy, would a disobedience of the mining laws be encouraged, if it were to be 

360 
found that complainant engaged in a protected activity when 

he knowingly carried out an unlawful order given to him by the 

mine foreman? 

On the basis of credibility determinations hereinafter 

made, I find that complainant's discharge was not motivated by 

any protected activities and that complainant was discharged 

for legitimate business reasons. It is unnecessary for me to 

consider the fourth issue raised in Consol's brief because the 

facts do not support a finding that Consol's management ordered 

complainant to produce coal in violation of the mandatory 

health and safety standards. 

Findings of Fact 

Based upon the demeanor of the witnesses and the reliable, 

credible evidence, the following findings of fact are made: 

1. Complainant, Kenneth D. Pittman, began working for 

coal companies in February 1970 (Tr. 13). He received acertificate as a certified mine foreman on April 13, 1976, and 

began working for respondent, Consolidation Coal Company, on 

May 15, 1976, as an assistant section foreman (Exh. 3; Tr. 19; 

24). He received a promotion to section foreman in August 1976 

and continued working in that capacity until he was discharged 

on Monday, January 18, 1982, for producing coal without establishing and maintaining adequate ventilation in the working 

section or, in the words used in his personnel file, for "unsafe work performance" (Tr. 54). 

2. The events leading up to Pittman's discharge began to 

occur on Friday, January 15, 1982. On that day, Pittman 

started producing coal in five entries which were to be developed to the right of a pillared-out area in the 3B Section 

of Consol's Rowland No. 3 Mine (Exh. 21; Tr. 76). Pittman 

recognized at the beginning of his day shift that an inadequate 

volume of air was available on his section because the blades 

in his anemometer would not turn when he tried to obtain an air 

reading for the No. 1 entry which he was planning to cut into 

the new producing area (Tr. 87). He believed that some air was 

leaking around the temporary curtains which had been placed across the entries leading into the pillared-out area and he 

also believed that some air was going back down the track entry 

outby the prospective new producing area (Tr. 89; Exh. 21). 

3. Pittman called the mine foreman, Fred Thomas, on the 

phone and advised him that he was unable to obtain any air in 

the new area and that he believed the air was primarily bleeding into the pillared-out area and was passing through the gob 

to the outside of the mine through some holes or "punchouts" 

which had been made to the surf ace for the express purpose of 

preventing a build up of noxious gases in the pillared-out 

area (Tr. 90). Thomas asked Pittman about the condition of 

his curtains and Pittman told Thomas that he had already hung 

3fl1 
double curtains along the pillar line. Thomas replied that 

Pittman had put his curtains in the wrong place because they 

should have been placed about one break outby the pillar line, 

but Pittman advised Thomas that he had already installed them 

on the gob line or pillared-out area and that he believed he 

needed seven permanent stoppings made of cinder blocks to prevent air from leaking into the gob area (Tr. 1800). Thomas replied that he believed Pittman only needed four permanent stoppings (Tr. 91). 

4. Pittman claims that Thomas told him to go ahead and 

produce coal as well as he could and that he would immediately 

send in some blocks for construction of permanent stoppings 

(Tr. 101). Pittman said that the dust on the section was so 

bad that if you stood on the right side of the continuous-mining 

machine, you "couldn't see anything" (Tr. 101). Although the 

men on Pittman's crew complained about excessive dust, they produced 109 shuttle cars of coal before quitting time at 3:30 p.m. 

(Tr. 102-103). The miners produced coal in the extremely dusty 

atmosphere because they understood that Pittman might get fired 

if he had refused to produce coal in accordance with Thomas' 

alleged instructions for Pittman to produce coal as well as he 

could until the cinder blocks requested by Pittman could be 

sent to the 3B Section (Tr. 125; 467; 929; 980; 1121; 1138). 

5. The day following the production of coal without adequate ventilation was Saturday, January 16, 1982. Saturday is 

used for maintenance work rather than production of coal. Pittman was the only section foreman who was scheduled to work on 

January 16, 1982 (Tr. 110). Six miners were assigned by Thomas 

to assist Pittman in advancing the conveyor belt on 3C Section 

where Pittman did not normally work (Tr. 110-113; 115). Although some supplies were taken to Pittman's 3B Section on Saturday (Tr. 848), those supplies did not include the cinder 

blocks which Thomas had allegedly promised to send to Pittman's 

section on the previous day (Tr. 116). Thomas did not have 

the cinder blocks delivered to the 3B Section because he believed that the available men should be used for the purpose 

of replacing some trailing cables on equipment in the 3A Section (Tr. 848; 1810). 

6. The next day on which Pittman worked was Monday, January 18, 1982. Pittman claims that he reported for work about 

7:30 a.m. and inquired of miners who had worked on the midnight 

to-8 a~m. shift whether any cinder blocks had been taken to the 

3B Section during that shift and received a negative reply. 

Pittman claims that he talked to Thomas about the urgent need 

of construction of permanent stoppings along the pillared-out 

area in 3B Section and tha~ Thomas promised to send into the 

mine the cinder blocks needed for construction of permanent 

stoppings. Pittman alleges that when he arrived on his section 

on Monday, he had the usual Monday safety meeting, found that 

362 
he had "no" air, and again called Thomas, as he had on Friday, 

and told him that he had no air and that the men were ~efusing 

to work without air (Tr. 121-122). Thomas again allegedly 

told Pittman to get the men to work and that Jerry Toney, the 

belt foreman, was in the process of bringing in blocks to build 

the stoppings (Tr. 123). Pittman passed on to his crew Thomas's 

alleged request that they work and they again agreed to work 

without adequate ventilation because they knew that Thomas had 

threatened several times to discharge Pittman (Tr. 125; 199). 

7. Jerry Toney subsequently arrived on the 3B Section 

with two flatcars loaded with cinder blocks as well as two supply men to unload the blocks and three miners to stack the 

blocks in the places where Thomas had ordered the construction 

of permanent stoppings (Tr. 1697). Pittman asked Jerry Toney 

if he needed any of Pittman's crew to help in constructing the 

stoppings and Toney replied that he only needed Pittman's unitrak or scoop operator for the purpose of hauling the blocks 

to the respective locations where the stoppings were to be constructed (Tr. 126; 1699). Although Pittman claims that Toney 

instructed him to produce coal while the stoppings were being 

constructed, Toney claims that no such question regarding the 

production of coal arose because Pittman's crew was already 

producing coal at the time he arrived on Pittman's 3B Section 

(Tr. 126; 1011; 1700). Taney's version of that conflicting 

testimony is accepted as correct because the dispatcher's report shows that Pittman reported that production had begun at 

8:42 a.m. and that Toney did not arrive on the 3B Section until 9:51 a.rn. (Exh. C). Taney's crew was able to stack the 

blocks as fast as the unitrak operator delivered them at the 

respective stopping sites so that the stacking of all of the 

permanent stoppings had been completed by 1 p.m. (Tr. 1042; 

1701). 

8. When Pittman called out his midday production report 

on Monday, the mine foreman, Thomas, answered the phone and advised Pittman that the mine superintendent, Norman Blankenship, 

and a newly hired mine engineer, Kent Wright, would be visiting his 3B Section that afternoon and Pittman replied that 

"Everything looks good to me" (Tr. 1890). Jerry Toney left 

the 3B Section about 1 p.m. to check on a newly installed belt 

conveyor in the 3C Section and encountered Blankenship, Thomas, 

and Wright in that section (Tr. 1702-1703). Toney soon thereafter returned to the 3B Section and advised Pittman that his 

superiors were on their way to visit his 3B Section (Exh. C). 

Pittman told Toney that "Everything's okay" (Tr. 1704). 

9. About 2 p.m., Blankenship, Thomas, and Wright arrived 

on the 3B Section and Blankenship very soon thereafter found 

the operator of the continuous-mining machine producing coal 

under such dusty conditions that Blankenship could hardly see 

the lights on the machine (Exh. C; Tr. 2006). Blankenship 

') ~ •.) 

u 00 
immediately ordered the operator to back the continuous miner 

out of the entry until ventilation could be restored (Tr. 154; 

1893). When Pittman asked Blankenship what was happening, 

Blankenship asked Pittman to obtain an air reading and Pittman 

replied that he could not do so because .he had lost his watch 

(Tr. 2006). Blankenship went to the main intake entry for the 

3B Section and obtained an air velocity of 26,000 cubic feet 

per minute (cfm) which he knew was sufficient to provide the 

required 9,000 cfm at the last open crosscut as well as the required 3,000 cfm at each working face (Tr. 1706; 2007). Blankenship also found that some pieces of belting being used as a 

stopping at the No. 2 entry inby the tailpiece had space between 

the pieces of belt so that a considerable amount of air was 

leaking down the conveyor belt entry and Thomas and Jerry Toney 

found that a check curtain in the No. 3 entry was torn and only 

partially hung so that air was escaping into that entry (Tr. 

1705; 1897; 2008). After curtains were placed over the belting 

in the No. 2 entry and additional curtains were hung in the No. 

3 entry, Blankenship and Thomas obtained an air velocity of 

16,500 cfm in the intake of the area where Pittman had been producing coal and a velocity of 13,400 cfm in the last open break 

of the area where Pittman had been producing coal (Tr. 1707; 

1898; 2009). 

10. Blankenship then asked Pittman to take a reading behind the curtain in the entry where the continuous miner had 

been operating and told him to resume production of coal if 

everything was all right (Tr. 2009-2010). A period of only 15 

minutes elapsed between the time Blankenship found inadequate 

air and the time when production was resumed (Tr. 1710; 1897; 

2009) . Blankenship watched the continuous-mining machine run 

long enough to satisfy him that the ventilation problem no 

longer existed (Tr. 2010). The operator of the continuousmining machine, Basile Green, testified that the dusty conditions under which he had been working all day were eliminated 

after Blankenship stopped production and worked on the ventilation system (Tr. 1120; 1136). 

11. After Blankenship, Thomas, and Wright had returned 

to the surface of the mine on Monday, Blankenship checked the 

fireboss books and found that Dennis McConnell, the section 

foreman who worked on the evening, or 4 p.m.-to-midnight shift, 

on Friday, January 15, 1982, had reported air velocities of 

9,100 cfm for both the intake and last open break (Exh. 18, 

p. 55; Tr. 1648) and that Pittman had reported 9,000 cfm for 

the intake and no entry was made for the last open break (Exh. 

18, p. 53; Tr. 108). McConnell had, by then, already reported 

for work on Monday so that Blankenship was able to ask him in 

person whether he had just written that figure in the book or 

had ictually obtained it. McConnell assured Blankenship that 

he had actually obtained the velocities shown in the book and 

3G4 
also advised Blankenship that the shift foreman, George Taylor, 

had been on the 3B Section on Friday and had also taken an air 

reading. Blankenship asked Taylor what velocity he had obtained and he stated that he had obtained a velocity of 10,000 

cfm at the last open break. Blankenship noted that no entries 

in the book, including those reported by Pittman, had been less 

than the required velocity of 9,000 cfm (Tr. 2011-2012). 

Blankenship then ordered Thomas and Pittman to report to his 

office as soon as Pittman had come out of the mine at the end 

of his shift (Tr. 2013). 

12. After Pittman and Thomas had reported to him, Blankenship advised Pittman that the operator of the continuous-mining 

machine and his helper had told him when he stopped them from 

mining that they had complained to Pittman about the dust at 

the beginning of the shift and that Pittman had asked them to 

run the miner because Jerry Toney was coming to the section to 

construct permanent stoppings so as to provide the air velocity 

they needed (Tr. 2014). Blankenship said that Pittman stated 

that Thomas knew he was producing coal without adequate ventilation. Thomas's reply to that allegation was that Pittman was 

telling a "damn lie" (Tr. 2015). Blankenship stated that he believed Thomas was telling the truth because he had already had 

Pittman lie to him on previous occasions and that he knew that 

Thomas was aware of his feelings pertaining to safety and that 

he did not believe Thomas would have taken him to the 3B Section 

if he had known in advance that Pittman was operating without 

adequate ventilation (Tr. 2020). Blankenship reminded Pittman 

of the times when he had warned Pittman about producing coal in 

violation of the roof-control plan and about having suspended 

Pittman for 5 days without pay for a second violation of his 

instructions as to the construction of cribs before making a 

pushout in a pillaring operation (Tr. 2013). 

13. Blankenship was called out of his office during his 

discussion with Pittman. He talked with Thomas in the hall at 

that time and asked Thomas to give Pittman an opportunity to 

resign so that no record of a discharge would show in his personnel file. When Blankenship returned to the office, Thomas 

advised him that Pittman would not quit. Therefore, Blankenship discharged Pittman as of that day, January 18, 1982 (Tr. 

2019). 

The findings of fact set forth above support a conclusion 

that Consol's management discharged Pittman for knowingly operating his section without adequate ventilation in violation 

of Federal regulations and Consol's ventilation system, methane, 

and dust control plan (Exh. 19). The preponderance of the evidence, as hereinafter explained, supports a finding that Pitt- . 

man's discharge did not involve a violation of section 105(c) (1) 

of the Act. 
Consideration of Parties' Arguments 

Overview of Parties' Briefs 

Pittman's initial brief argues in Part I (pp. 8-18) that 

Pittman made safety complaints to the mine foreman about a 

lack of adequate ventilation on his section and that those 

complaints were protected activity under section 105(c) (1) of 

the Act which provides as follows: 

(c) (1) No person shall discharge or in any 

manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory 

rights of any miner, representative of miners or 

applicant for employment in any .coal or other 

mine subject to the Act because such miner, representative of miners or applicant for employment 

has filed or made a complaint under or related to 

this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in a coal or other mine, or because such 

miner, representative of miners or applicant for 

employment is the subject of medical evaluations 

and potential transfer under a standard published 

pursuant to section 101 or because such miner, 

representative of miners or applicant for employment has instituted or caused to be instituted 

any proceeding under or related to this Act or 

has testified or is about to testify in any such 

proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

Pittman's initial brief contends in Part II (pp. 19-30) that 

the motivation for Pittman's discharge was his having annoyed 

the mine foreman by making complaints about inadequate ventilation on his section on Friday and Monday and by having 

urged the mine foreman on Saturday to send cinder blocks to 

his section so that permanent stoppings could be constructed. 

Pittman's brief has a Part III (pp. 31-37) which does not 

begin with a subject-matter heading, but that portion seems 

to be devoted to an argument that Pittman's discharge involved 

disparate treatment. Part~IV (pp. 38-40) concludes that 

366 
Pittman would not have been discharged if it had not been for 

his reporting of inadequate ventilation to the mine foreman. !/ 

Consol's brief (Part I, p. 1) states correctly that Pittman was discharged for knowingly having operated his section 

on Monday without adequate ventilation. Pittman's excuse for 

having violated an important health and safety regulation was 

that the mine foreman had asked him to produce coal until such 

time as cinder blocks could be brought into the mine for construction of permanent stoppings. 

Part II (pp. 1-2) of Consol's brief lists the issues which 

I have already noted in the second paragraph of this decision. 

Part III (pp. 2-8) of Consol's brief is entitled "Testimonial 

Facts" and provides an accurate summary of the record. Part IV 

(pp. 9-34) of Consol's brief discusses all of the issues raised 

in this proceeding and contends that Pittman was not discharged 

for having engaged in any activity protected under the Act. 

Consol argues that Pittman was treated no differently from 

other employees who have been discharged or otherwise disciplined. Consol's brief shows that the documentary evidence 

introduced in this proceeding was produced before Pittman was 

discharged and that the preshift books show that Pittman deliberately falsified the records in an attempt to support his 

claim that he could not obtain an adequate amount of air on 

his section on January 15 and 18, 1982, without having permanent 

stoppings constructed, that the credibility of all of the UMWA 

employees who testified in Pittman's behalf was largely destroyed by their inconsistent testimony and by the fact that 

one of Pittman's witnesses, Randy Workman, testified with great 

vividness and detail about facts which occurred at the mine on 

January 15, 1982, although Workman did not actually report for 

work on that day. Part V (p. 35) of Consol's brief is a conclusion asserting correctly that Pittman's complaint should be 

dismissed for failure to show that his discharge involved a 

violation of section 105(c) (1) of the Act. 

1) Pittman's initial brief contains a number of factual errors. 

For example, on page 4 of the brief, it is stated that Pittman 

worked for Consol for 4 years and 11 months, but on page 41, it 

is stated that he worked for Consol for 5 years and 10 months. 

Pittman worked for Consol from May 15, 1976, to January 18, 

1982, or 5 years, 8 months, and 3 days. On page 6 of Pittman's 

initial brief, three different miners are given job classifications different from those which they had when they were working 

under Pittman's supervision. The errors result from failure to 

distinguish the jobs which the persons held at the time they 

testified in 1983 from the jobs they were performing when they 

were working under Pittman's supervision. Pages 36 and 37 of 

the brief repeat the same arguments made on pages 35 and 36. 

367 
Part I (pp. 1-2) of Pittman's reply brief claims that 

Consol's safety record at the Rowland No. 3 Mine may be based 

on misleading statements in accident reports. Part II (pp. 2-

5) addresses the issue of credibility by arguing that company 

or managerial employees have more reason to testify falsely 

than UMWA or wage employees because UMWA employees are protected from discrimination by their Wage Agreement, whereas 

managerial employees are vulnerable to discharge and denial of 

promotional advancement if they should testify in support of 

an employee who has been discharged. Part III (pp. 5-6) of 

Pittman's reply brief argues that Pittman is not the only employee Consol or an affiliate has discharged for "just following orders", citing Judge Fauver's decision in Roger D. Anderson 

v. Itmann Coal Co., 4 FMSHRC 963 (1982). Part IV (pp. 6-16) 

of Pittman's reply brief argues that Consol's motivation for 

discharging Pittman was its obsession with achieving production 

as cheaply as possible at the expense of slighting safety considerations. Pittman's reply brief does not even attempt to 

answer the precise credibility issues discussed in Consol's 

brief. 

The Parties' Burden of Proof in Discrimination Cases 

The test for determining whether a complainant has shown 

a violation of section 105(c) (1) of the Act was given by the 

Commission in Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1980), rev'd on other grounds sub nom., Consolidation Coal Co. 

v. Ray Marshall, 663 F.2d 1211 (3d Cir. 1981). Some of the 

Commission's language pertaining to the burden of proof was 

temporarily reversed in Wayne Boich d/b/a w. B. Coal Co. v. 

F. M. S. H. R. C., 704 F.2d 275 (6th Cir. 1983), but thereafter the court vacated its decision reported at 704 F.2d 275, 

except for its rulings as to back-pay issues, in Wayne Boich 

d/b/a W. B. Coal Co. v. F. M. S. H. R. C., 719 F.2d 194, 

Sixth Circuit No. 81-3186, October 14, 1983, leaving intact 

the Commission's rationale regarding the requirements for 

proving a violation of section 105(c) (1) of the Act. The 

test set forth by the Commission in Pasula reads as follows 

(2 FMSHRC at 2799-2800): 

We hold that the complainant has established 

a prima f acie case of a violation of section 105 

(c} (1) if a preponderance of the evidence proves 

(1) that he engaged in a protected activity, and 

(2) that the adverse action was motivated in any 

part by the protected activity. On these issues, 

the complainant must bear the ultimate burden of 

persuasion. The employer may affirmatively defend, 

however, by proving by a preponderance of all the 

evidence that, although part of his motive was 

unlawful, (1) he was also motivated by the miner's 

368 
unprotected activities, and (2) that he would have 

taken adverse action against the miner in any event 

for the unprotected activities alone. On these 

issues, the employer must bear the. ultimate burden 

of persuasion. It is not sufficient for the employer to show that the miner deserved to have been 

fired for engaging in the unprotected activity; if 

the unprotected conduct did not originally concern 

the employer enough to have resulted in the same 

adverse action, we will not consider it. The employer must show that he did in fact consider the 

employee deserving of discipline for engaging in 

the unprotected activity alone and that he would 

have disciplined him in any event. [Emphasis in 

original.] 

Pittman's Discharge Was Not Motivated By Pittman's Protected 

Activity 

As indicated in Finding No. 3, supra, Pittman called 

Thomas, the mine foreman, on Friday, January 15, 1982, to report that he did not have any air on the section. The discussion which ensued shows that Thomas inquired about the condition of Pittman's temporary stoppings and suggested to Pittman 

that he had erected them in the wrong places, but Pittman defended his placement of the curtains and contended that his 

lack of adequate ventilation would be eliminated only if permanent stoppings were installed along the gob line or the · 

pillared-out area from which they had withdrawn on the previous day, January 14. Thomas agreed to send in cinder blocks 

for construction of permanent stoppings along the gob line, 

but Pittman claims that Thomas told him to produce coal until 

such time as the permanent stoppings could be constructed 

(Exh. 21). 

As indicated in Finding No. 4, supra, Pittman's crew produced 109 shuttle cars of coal on Friday despite the dusty 

conditions which prevailed. The miners produced coal without 

adequate ventilation because they understood that Pittman had 

been threatened with discharge by Thomas and they did not want 

to endanger Pittman's job by refusing to work until adequate 

ventilation had been established. Although Pittman worked on 

Saturday, January 16, 1982, which was a nonproducing day, he 

worked on an extension of the conveyor belt· in 3C Section and 

no cinder blocks were sent to his 3B Section on Saturday (Finding No. 5, supra). 

On Monday, January 18, 1982, Pittman again failed to find 

an adequate velocity of air on his section and again called 

Thomas and advised him that he did not have any air on the section and again Pittman claims that Thomas asked him to produce 

369 
coal until such time as Jerry Toney could bring in cinder blocks 

and construct permanent stoppings on the section. Pittman 

thereafter, as he had on the previous Friday, told his men that 

Thomas wanted him to produce coal until the stoppings could be 

built and the men again produced coal with the realization that 

Pittman's job would be jeopardized if they declined to run coal 

until adequate ventilation could be provided (Finding No. 6, 

supra) . 

Pittman's initial brief (pp. 19-30) argues that Pittman's 

calls to Thomas concerning ventilation were safety complaints 

which irritated Thomas so much that Thomas said nothing in 

Pittman's defense when the mine superintendent, Blankenship, 

inspected the 3B Section on Monday and discharged Pittman after 

finding him to be producing coal without adequate ventilation 

(Finding Nos. 9-13), supra). 

There can hardly be any argument but that a section foreman's report to the mine foreman of inadequate ventilation is 

an act which is protected under section lOS(c) (1) of the Act, 

but under the Pasula test, supra, Pittman is obligated to prove 

that his discharge "* * * was motivated in any part by the protected activity." Even if everything Pittman alleged in this 

proceeding were true, neither Thomas nor Blankenship would have 

had any reason for discharging Pittman for calling Thomas on 

Friday and Monday to report that he had inadequate ventilation 

on his section. Thomas, of course, did not discharge Pittman, 

but if he had, Pittman~s reporting of inadequate ventilation 

would not have been an irritant to Thomas because Exhibits A 

and C show that Pittman produced at least an average amount of 

coal on both Friday (109 shuttle cars) and Monday (100 shuttle 

cars). Pittman's production was greater than that achieved by 

3C Section on both days and greater than 3A Section on Friday. 

On Monday, the 3A Section did outproduce Pittman's 3B Section 

by 11 shuttle cars. 

Both of Pittman's briefs argue extensively (Initial, pp. 

19-30, and Reply, pp. 6-8) that Thomas was so production 

oriented, that he would have been greatly upset with Pittman 

for calling him on two successive production days to advise 

him that there was "no'' air on the section. Since Thomas obtained a very satisfactory run of coal from Pittman's section 

on both days, Pittman's claim that his calls about a lack of 

air on his section annoyed Thomas so much that Thomas wanted 

to see him discharged is not supported by the preponderance of 

the evidence. Thomas did not send the cinder blocks which 

Pittman requested until Monday. Since Pittman's calls did not 

cause Thomas to take action toward constructing permanent stoppings any sooner than he had planned to do so, there is nothing 

in the record to show that Pittman's having reported inadequate 

ventilation to Thomas on Friday and Monday would have been such 

an annoyance to Thomas that he would have been motivated by 

370 
those calls to discharge Pittman for that reason. Therefore, 

for the reasons given above and for the reasons hereinafter 

given, I r_ej ect Pittman's claim that his discharge was motivated by Pittman's protected activity of having reported inadequate ventilation to Thomas on Friday and Monday. 

I have noted that the parties' briefs refer repeatedly to 

certain incidents which occurred during Pittman's 5 years and 

8 months of employment by Consol. In order to facilitate the 

parties' review of my decision, and the Commission's review if 

a petition for discretionary review is subsequently granted, I 

am setting forth below a Table of Contents to assist the parties 

in finding the place in my decision where I have indicated my 

findings with respect to various factual and legal arguments 

made by the parties. 

TABLE OF CONTENTS 

Pittman's Testimony Must Be Given a Very 

Low Credibility Rating .............••....... 13 

Pittman's Unsupported Claim of Having Erected 

and Rechecked Temporary Stoppings ...•..•.••. 13 

Pittman's Erroneous Claim that Permanent 

Stoppings Were Required .....•....•.........• 19 

Pittman's Falsifying of the Preshift-Onshiftand-Daily Report ...•.....•••......••........ 21 

Pittman's Claim that Air Measurement at Last 

Open Break Cannot Be as Great as Intake 

Air Measurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 

Pittman's Work Record Prior to his Discharge 

on January 18, 1982 ....•.•.••.....•..••.••.• 26 

Performance Ratings ..•.•.•.••..•.•..•••.. 26 

Pay Increases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 

Excessive Preworking Sessions Concluded 

with Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 

Pittman's +nsistence upon Doing Classified 

Work and Riding with a UMWA Employee •.. 29 

Pittman's Foot Injury and Consol's 

Report of No Lost Time ....•.•..•..•...• 30 

Pittman's Taking of a Day Off to Attend 

Church Service .••.•.......•••.••...•••• 32 

Pittman's Roof-Control Violations ••.••... 33 

Pittman's Claim that he was Ordered to 

Produce Coal without Adequate Ventilation .•• 35 

Pittman's Lack of a Watch for Purpose of 

Taking Air Measurements ••.•••••.••••••..•.•• 36 

The Alleged Conspiracy •..••..•..•••••••••..... 37 

Pittman's Allegations as to Disparate 

Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 

371 
Pittman's Allegations Regarding Thomas, 

the Mine Foreman .....•....•..•..••.•.••...• 41 

Thomas' s Illness . . . . . . . . . . . . . . .. . . . . . . . . . 41 

Thomas's Credibility ......•..• ~ ......... 42 

Thomas's Alleged Production Goals and 

Cover-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 

Cases Cited in Pittman's Reply Brief Do Not 

Apply to Facts in this Proceeding .........• 45 

Pittman's Testimony Must Be Given a Very Low Credibility Rating 

Consol's brief (pp. 23-34) pointed out so many credibility 

defects in Pittman's testimony, that Pittman's reply brief did 

not even attempt to rebut Consol's specific arguments. All 

that Pittman's reply brief (pp. 2-5) could use as a rebuttal 

argument was that the company or managerial employees who testified on behalf of Consol are more likely to perjure themselves than the UMWA employees who testified on behalf of Pittman because UMWA employees are protected from discriminatory 

action by their Wage Agreement, whereas managerial or salaried 

employees are completely at the mercy of Consol if they fail 

to support Consol's position in a discrimination proceeding. 

There is no doubt some validity in Pittman's argument that 

managerial employees are likely to be motivated toward supporting their employers and I always take that tendency into consideration in evaluating their testimony. On the other hand, 

UMWA employees are prone to support each other, especially when 

the discipline handed out to a section foreman, as in this case, 

spills over onto the UMWA employees who were working for the 

section foreman who is disciplined. Inasmuch as Blankenship 

criticized the operator of the continuous-mining machine for 

running without adequate ventilation, he also had a reason for 

supporting Pittman's claim that the only reason they were run~ 

ning without adequate ventilation was that Thomas had asked 

Pittman to get them to run coal despite a lack of adequate 

ventilation (Tr. 1154). 

Credibility of witnesses, however, is a matter which a 

judge learns to perceive on the basis of their demeanor while 

testifying and on the basis of the pattern of inconsistent 

testimony which accrues in a lengthy hearing such as the one 

in this proceeding. I shall hereinafter demonstrate by specific references to the record why I believe that nearly all the 

allegations made by Pittman in this proceeding must be rejected 

in their entirety as being outright fabrications made in a 

desperate effort to regain the job which he lost by reason of 

incompetence or indifference or both. 

Pittman's Unsupported Claim of Having Erected and Rechecked 

Temporary Stoppings 

Pittman testified that he had his crew erect double curtains as temporary stoppings along the pillared-out area on 

372 
Friday, January 15, 1982, and also had them install temporary 

stoppings in the original area of development of the 3B Section 

to prevent air from going down the track or belt entry (Exh. 21; 

Tr. 82-87). After the work on stoppings had been completed, 

Pittman claims that he tried to take an intake air reading in 

the No. 1 entry of the new places which they were going to start 

driving to the right of the pillared-out area, but Pittman 

claims that his anemometer would not even turn (Tr. 88). He 

then called Thomas, the mine foreman, and told him that he could 

get no air on his section. Thomas advised Pittman to go hang 

some curtains, but Pittman replied that he had already hung the 

curtains and still could not obtain air for his section. Pittman then told Thomas that he would not be able to ventilate the 

new producing area until seven permanent stoppings had been constructed (Tr. 93-100). Pittman claims that Thomas subsequently 

asked him to produce coal until the stoppings could be constructed and he did so (Tr. 100-101). 

On Monday, January 18, 1982, Pittman again could obtain no 

air reading and called Thomas to advise him that he had no air 

and that the men were refusing to work until an adequate amount 

of ventilation could be provided. Pittman claims that Thomas 

again asked him to get the men to produce coal until cinder 

blocks could be delivered to the 3B Section and permanent stoppings could be built. The men again produced coal without having adequate ventilation (Tr. 123-125). 

Despite Pittman's claim during his direct testimony that 

he had his men erect double curtains along the gob area and 

inby the belt, he was unable on cross-examination to state how 

many curtains were already up or how many he hung even though 

he also claimed that he "* * * went over them myself and proceeded to tighten them all up and do everything to them" (Tr. 

323). Pittman tried to excuse his failure to obtain an adequate 

amount of air by saying that he did not have authority to ask 

that supplies be brought in (Tr. 369), but he had testified 

previously that he had requested 15 curtains to be brought in 

on January 14 and that he had received them on January 15 and 

had used them to install double curtains along the gob line 

(Tr. 82). Moreover, Pittman testified that "* * * I required 

a stopping to be erected across the belt entry because of the 

loss of such a high amount of air being lost going back down 

across the overcast and the belt" (Tr. 279). Subsequently, 

Pittman stated that the cinder blocks had been delivered for 

construction of his "required" stopping, but that the stopping 

was never actually built and, if it had been, it would have 

stopped the bleeding of air down the belt entry to the track 

(Tr. 412) . -

Pittman even~ually testified that he did not know how many 

curtains he erected. along the gob line, that he had two men 

working on them and that they did not work together and that he 

373 
did not know what his men had done. When he was reminded that 

he had said the curtains were nailed to wood, he said that a 

wooden piece is attached to a roof bolt in each entry during 

initial development in case a stopping is needed at a later 

time in any entry and that all stoppings are nailed to that 

piece of wood (Tr. 440-442). Although Pittman had originally 

claimed that he had his men hang double curtains along the gob 

line, Pittman eventually testified that he could not say for 

certain that he or his men had erected any stoppings or whether 

they had merely tried to tighten curtains which already existed 

along the gob line (Tr. 443). 

I agreed with Pittman that it might be reasonable for him 

not to know for certain what his men had done (Tr. 443), but 

it later turned out that when the men on his crew testified, 

they did not know what they had done either. Danny Blevins, 

the roof-bolting machine helper, testified only that he and the 

operator of the roof bolter "* * * tightened up the air coming 

up there to the working place there" (Tr. 448). 

Darrell MacDaniel, the helper to the operator of the 

continuous-mining machine, testified that he thought the evening shift had hung some curtains and that he and the operator 

of the continuous miner hung some curtains. He first stated 

that none of the curtains were nailed at the bottom and admitted 

that failure to secure the curtains at the bottom would allow 

air to leak under the bottoms of the curtains (Tr. 883). Thereafter, he supplemented his testimony by stating that they had 

done all they could with the curtains "* * * unless you might 

have put something heavy on [the bottoms of the curtains] . I 

don't know. There was timbers and stuff, but I don't know if 

that would have helped or not" (Tr. 890) . 

Theodore Robert Milam, the mechanic on Pittman's 3B Section, testified that on Friday, January 15, 1982, "everybody" 

helped hang curtains along the pillared-out area and that they 

"put crib blocks and timbers on the bottom of them to keep them 

from blowing out, and this was done" (Tr. 904). Milam first 

testified on cross-examination that every member of Pittman's 

crew helped hang the six double-check curtains along the pillar 

line, but then stated that the evening shift had already hung 

the curtains before Pittman's crew arrived on the 3B Section on 

Friday morning. Milam also confirmed on cross-examination that 

they had used crib blocks and timbers at the bottoms of the curtains (Tr. 921). Milam further stated that if MacDaniel stated 

that the curtains were not nailed to timbers or fly boards at 

the bottom, MacDaniel was "incorre~t" (Tr. 925). Despite Milam's 

assertion that MacDaniel was incorrect about how the curtains 

were secured at the bottom,__ he said that he "probably didn't" 

see all six of the curtains and that he could not say for certain how many curtains he had personally examined (Tr. 922). 

374 
Lawrence Simms, the unitrak or scoop operator, was a good 

friend of Pittman's and Pittman rode back and forth to work 

with Simms (Tr. 983; 1002). He testified that he knew there 

were double~check line curtains along the pillared-out area 

"because I hung them" (Tr. 986). On cross-examination Simms 

first stated that he did not "* * * know how many I actually 

hung, but I do know I went over there and tightened up the curtains" (Tr. 1003). Shortly thereafter, however, he said that 

he personally had hung "* * * three, four, maybe five or six" 

(Tr. 1004). Simms first testified that the curtains were secured at the bottoms with "* * * half-headers or crib blocks or 

something" (Tr. 1005), but then testified that he actually could 

not say how many were secured at the bottom (Tr. 1006). 

Pittman's attorney called Andrew E. Fox as a witness to 

support Pittman's contentions. Fox is a consulting mining engineer with a master's degree from Virginia Polytechnic Institute (Tr. 1049-1050). Fox is also a certified mine foreman and 

has had experience as a section foreman, mine foreman, and mine 

superintendent (Tr. 1053-1054). He was shown a map or diagram 

of Rowland No. 3 Mine and he testified that properly hung line 

curtains along the pillared-out area should have been sufficient 

to have directed an adequate amount of air to the new area which 

Pittman began to drive on Friday, January 15, 1982 (Tr. 1085). 

He also stated that if air was leaking under the bottoms of the 

curtains, they had not been properly constructed (Tr. 1086). 

He further said that it was the responsibility of the section 

foreman to make certain that the curtains were properly constructed (Tr. 1087). 

Basile Eugene Green was normally the helper for the operator of the continuous-mining machine, but the regular operator 

had been sent to work in 3C Section and Green was the operator 

of the continuous miner on Friday and Monday, January 15 and 

18, 1982 (Tr. 1125). Green testified that he believed that 

Simms had hung the curtains along the pillared-out area and 

that he went over and tightened the curtains. He believed they 

were nailed to half-headers, cribs, and timbers, but he said 

"I'm not for sure" * 1* *because "I went through there after 

that was done" (Tr. 1128) •. Although he said that "We went all 

the way across and tightened them up," he said that he personally tightened "Maybe one or two" (Tr. 1129). Green's testimony about what he did to the curtains was so of ten accompanied 

by words like "I believe" (Tr. 1128; 1143), "to the best of my 

knowledge" (Tr. 1129), and "I'm not for sure" (Tr. 1128), that 

one cannot make findings of fact based on such equivocal and 

doubtful-sounding statements. 

Carlos Williams, Jr., was the operator of the roof-bolting 

machine (Tr. 1193). He testified that he helped tighten the 

curtains along the pillared-out area on Friday, January 15, 

375 
1982, but he said that tightening the curtains did not improve 

ventilation any (Tr. 1195). Williams testified that he and 

Blevins, his helper, just tightened up six curtains which had 

already been constructed across the pillared-out area. He 

could not say for sure how many they worked on but he "guessed" 

that they worked on all six of them (Tr. 1207). While other 

witnesses had said that the curtains were nailed into timbers 

along the sides, Williams testified that the sides of the curtains were nailed into the coal itself. When pressed as to 

whether there were any timbers along the sides of the curtains, 

Williams said that he did not remember (Tr. 1210). Williams 

said that they nailed the curtains to timbers or crib blocks 

at the bottoms if they needed it and then he said that all of 

them were nailed at the bottom so far as he could remember (Tr. 

1210). Williams' credibility was further eroded by the fact 

that he claimed to have been able to know for certain that the 

mine superintendent, Blankenship, walked behind his roof-bolting 

machine on Monday, January 18, 1982 (Tr. 1219). He said that 

he recognized Blankenship because his roof-bolting machine has 

"lights all around" it and he could identify Blankenship by his 

white hat (Tr. 1220). When Blankenship testified, he brought 

his black hat into the hearing room and stated that he had had 

that same black hat for the 18 years during which he has been 

working in coal mines (Tr. 2010-2011). 

Kevin Harvey was a shuttle car operator on the 3B Section 

on Monday, January 18, 1982 (Tr. 1222). He claims to have 

heard Pittman call the mine foreman, Thomas, to state that they 

lacked sufficient air and that they were going to need blocks 

to get adequate ventilation (Tr. 1224). After Pittman had 

called Thomas, Harvey said that he went across the pillared-out 

area and checked the curtains, but they were fairly tight and 

there was not much more they could do to them (Tr. 1226). 

After production was stopped by Blankenship on Monday, Harvey 

believes that he checked the curtains in the Nos. 5 and 6 entries along the pillared-out area, but he could not say who 

helped him check the curtains and he could not say whether or 

not he helped place plastic curtains over the unplastered cinder block stoppings which Toney and his three helpers had 

stacked before production was stopped by Blankenship (Tr. 1235). 

Randy Dale Workman was a shuttle car operator (Tr. 1158) 

and he testified that he recalled working on both Friday and 

Monday, January 15 and 18, 1982 (Tr. 1159). He testified that 

he and the other shuttle car operator went to the Nos. 1 and 

2 entries and checked the curtains at the pillared-out area. 

They then returned to the face area and wondered where everybody else was and then went back to the pillared-out area and 

checked the curtains in the No. 3 entry. Workman recalled 

vividly that some of the curtains were "* * * flying loose, 

some hanging down, some had to be hung back, some had to have 

stuff put on the bottom of them to hold them down so the air 

376 
wouldn't blow them away" (Tr. 1161). He testified that they 

then ran coal all day Friday under very dusty conditions (Tr. 

1162). 

When Workman arrived on the section on Monday, he believed 

that nothing had been done to improve ventilation because there 

was no more air on Monday than there had been on Friday (Tr. 

1166). On cross-examination, Workman stated that he was just 

as certain about what had happened on Friday as he was about 

what had happened on Monday (Tr. 1172). At that point in his 

cross-examination, Consol's attorney introduced documentary 

evidence (Exhs. T, U, and V) showing unequivocally that Workman 

had been absent from work on Friday, January 15, 1982 (Tr. 1173) 

Pittman's counsel subsequently stated that Pittman had checked 

his records and that Pittman's records also showed that Workman 

was not present on Friday (Tr. 1287). 

After Consol's counsel had introduced evidence showing 

that Workman was absent, he asked the following question and 

received the following answer from Workman (Tr. 1178-1179): 

Q Let me ask you this question, Mr. Workman. 

* * * [W]ould the reason you're recalling all these 

events on Friday be because you and the other members of the crew got together on what testimony 

you'd be offering on the events of Friday and Saturday and on Monday? 

A It could possibly -- like you said, it 

could have happened on Monday. 

Pittman's counsel thereafter introduced as Exhibit 23 a 

statement which Workman had given to an MSHA investigator on 

March 31, 1982, before Pittman's counsel was retained to represent Pittman in this proceeding. Exhibit 23 shows that 

Workman erroneously represented in a statement given just 2-

1/2 months after Pittman's discharge that he recalled working 

on Friday, January 15, 1982 (Tr. 1179). 

The detailed review above of the testimony of both Pittman 

and his crew supports a conclusion that Pittman and his crew 

performed, at most, a cursory examination of the curtains along 

the pillared-out area. The fact that they could not state for 

certain which curtains they purported to have built or examined 

shows that Pittman and his crew simply concluded that the reason for their failure to have an adequate air velocity on their 

section was based on Pittman's mistaken conclusion that only 

the construction of cinder-block permanent stoppings would provide an adequate amount of air for the new area which Pittman 

began to drive on .Friday, January 15, 1982. 

377 
Pittman's Erroneous Claim that Permanent Stoppings Were Required 

Pittman's entire case hangs on his claim that it was impossible to obtain an adequate air velocity on his 3B Section 

until permanent stoppings could be constructed of cinder blocks. 

He does not deny that he knowingly produced coal on both Friday 

and Saturday without having an adequate amount of air to carry 

the dust from the working faces. The only defense he has for 

deliberately violating the mandatory health and safety standards is that he called Thomas, the mine foreman, and told him 

that he had "no" air and asked Thomas to send in cinder blocks 

for constructing permanent stoppings. As I have shown above,· 

he did not really make a concerted effort to provide air by 

using the curtains which had already been hung. He stated that 

he knew that some of the air was escaping down the belt entry 

to the track, but he did not tighten the curtains inby the belt 

entry for the purpose of preventing the loss of air down the 

track (Tr. 279). The scoop operator, Simms, testified that 

even after permanent stoppings had been constructed and plastered subsequent to Pittman's discharge, there was still an air 

problem because "* * * evidently it [air] was coming back down 

toward the power box and the belt entry" (Tr. 1017). Consequently, even if permanent stoppings had been constructed before Pittman began driving the new places to the right of the 

pillared-out area, construction of those permanent stoppings 

would not have solved the ventilation problem on Pittman's 3B 

Section because the air was being lost down the belt or track 

entry rather than being sucked into the pillared-out area as 

Pittman claimed. 

The plain facts were correctly stated by Blankenship, th~ 

mine superintendent, when he explained that all but one of the 

temporary stoppings which existed on Friday, when Pittman 

started asking Thomas to send in cinder blocks, had already 

been constructed while the miners were pulling pillars. Therefore, on Friday, January 15, 1982, when Pittman's crew began 

to drive the new entries to the right of the pillared-out area, 

only one additional temporary stopping needed to be hung and 

that was in the area next to the half block of the No. 5 pillar which had been left standing in the pillared-out area when 

the miners withdrew from that area to start the new entries to 

the right of the pillared-out area (Exh. 21; Tr. 1992). 

Simms also testified that he had constructed a stopping 

out of conveyor belting in the No. 2 entry just inby the belt 

tailpiece and that he had done so in order that he could run 

the scoop through the stopping made of belting without tearing down the stopping (Tr. 992). When Blankenship shut down 

production on Monday, afte~ finding Pittman's crew running 

coal with inadequate ventilation, he, the mine foreman (Thomas), 

and the belt foreman (Jerry Toney) only had to put curtains 

over the widely spaced belting in the No. 2 entry and hang additional curtains in the No. 3 entry just inby the tailpiece 

378 
in order to restore a proper amount of ventilation to the working faces (Tr. 156; 1705-1706; 1897; 2008-2009). There.can be 

no doubt but that a proper amount of ventilation was provided 

in a period 0£ about 15 minutes because Blankenship's and 

Thomas's testimony to that effect is supported by the testimony 

of the operator of the continuous miner who said that the dusty 

conditions under which he had been cutting coal up to about 2 

p.m. on Monday ceased to exist after Blankenship stopped production and worked on the ventilation system (Tr. 1120). 

It should also be noted that all of the permanent stoppings 

which Pittman wanted constructed had been dry stacked, but not 

plastered, at the time Blankenship found Pittman's crew producing coal without adequate ventilation (Tr. 1042; 1701). Although the permanent stoppings had not been plastered, the 

testimony of the scoop operator, cited above, shows that even 

after the permanent stoppings had been properly plastered, all 

the section foremen still had to maintain a constant vigil over 

all parts of their ventilation system to keep air from leaking 

down the track. It is clear that the reason Pittman lacked an 

adequate amount of air for ventilating his section was the result of his own negligence in failing to make certain that the 

temporary stoppings inby the tailpiece were properly secured 

to prevent air from leaking down the belt entry to the track. 

The claim in Pittman's initial (pp. 19-37) and reply (pp. 

6-16) briefs that Thomas was sol~ly responsible for the lack 

of ventilation on Pittman's section is incorrect. Fox, Pittman's own expert witness, testified that it was the responsibility of the section foreman to see that his section was operating with adequate ventilation and that it was his responsibility to maintain all the curtains and other ventilating 

devices in every part of his section so as to assure that his 

crew would be working in a safe and healthful environment (Tr. 

1087-1088). Pittman's claim that he was not responsible for 

any part of the ventilation system except that on the working 

section or the portion inby the tailpiece was largely refuted 

by the testimony of ,Thomas Anderson, an operator of a continuous miner, who was called by Pittman as a rebuttal witness. 

Anderson testified that he and Pittman walked into the mine 

instead of riding the mantrip and that Pittman wrote his initials in the belt entry to show that he was firebossing the 

belt (Tr. 2236). Moreover, Pittman's preshift examinations 

for both Friday and Monday show entries to the effect that the 

"[t]rack [was] safe for travel" (Exh. 18, pp. 53 and 65). It 

is true, as hereinafter explained, that Pittman claims McConnell 

put entries in the fireboss book which he did not give to 

McConnell, but the fireboss book has numerous other entries 

which are attributable to Pittman, without any alleged connivance by McConnell, and he makes the comment that the track 

was safe to travel in most of his reports. Those fireboss 

entries and Anderson's testimony are rather conclusive proof 

379 
that Pittman recognized, prior to his disclaimers of responsibility made in this proceeding, that he was responsible for all 

parts of the ventilation system on the 3B Section. His disclaimer of responsibility is also refuted by his assertion that 

he "required" the construction of a stopping across the belt 

entry outby the tailpiece (Tr. 279). 

The preponderance of the evidence supports a finding that 

Pittman was incorrect in claiming that he could not obtain a 

proper amount of air to ventilate his section because of the 

mine foreman's failure to send in cinder blocks for construction 

of permanent stoppings on Friday or Monday as soon as Pittman 

requested them. 

Pittman's Falsifying of the Preshift-Onshift-and-Daily Report 

Pittman's claim that he did not have an adequate amount of 

air to ventilate his section on Friday and Monday, January 15 

and 18, 19R2, was rather effectively destroyed by the entries 

in the preshift-onshift-and-daily report book, or fireboss book, 

which is Exhibit 18 in this proceeding. The book shows that 

even though Pittman claimed not to have the required velocity 

of 9,000 cubic feet per minute of air at the last open break 

and the required velocity of 3,000 cubic feet per minute at the 

working faces, he had called out a preshift report to another 

section foreman, Dennis McConnell, on Friday to the effect that 

he had a volume of 9,000 cfm at the intake and that on Monday 

he reported to McConnell that he had an intake velocity of 

13,780 cfm and a last-open-break velocity of 9,600 cfm (Exh. 18, 

pp. 53 and 65). Although Pittman signed the book on each of 

those dates to show that he had made the preshif t report entered 

on pages 53 and 65 of the book, he testified that he had reported "no" air to McConnell and that McConnell had said he had 

to have an entry for the book and that McConnell had written in 

the book the volumes just given above (Tr. 106; 159) even 

though Pittman had given McConnell no figures whatsoever (Tr. 

106; 159). Pittman's excuse for having signed the entries made 

by McConnell was that he thought of his family and the economic 

conditions which prevailed at the time and went ahead and signed 

the book for fear he would be fired for failing to sign (Tr. 

166). Pittman also testified that he made an onshift report on 

page 52 of the fireboss book without showing a lack of ventilation and that he signed the pages on which McConnell had 

entered erroneous air velocities because Thomas, the mine foreman, had instructed him never to show a ventilation violation 

in the fireboss book. According to Pittman, Thomas gave the 

aforesaid order because Warren Sharpenberg, a mine official, 

always read the f ireboss books and objected to seeing any entries in the book pertaining to ventilation violations because 

such entries meant a reduction in the volumes of coal which 

would have been produced if the violations had not occurred 

380 
(Tr. 211; 214-215; 341; 344). Pittman additionally tried to 

justify his signing for air velocities which he had never reported by contending that Thomas was so anxious to have him 

report to Blankenship's office after he came out of the mine 

on January 18, the day of his discharge, that he did not have 

time even to read the air velocities which McConnell had voluntarily entered on page 65 of the fireboss book. Pittman 

claimed that he did not even know what velocities McConnell 

had entered in the book until his counsel in this proceeding 

obtained a copy of the f ireboss book through discovery procedures (Tr. 228). 

The excuse given by Pittman for deliberately and knowingly 

falsifying the fireboss book will not withstand close analysis 

for at least five reasons. First, his claim that Thomas had 

ordered him not to show ventilation violations in the f ireboss 

book is not consistent with his admission on cross-examination 

that there were at least three pages of the f ireboss book which 

fail to show any air readings at all (Tr. 229). Failure to 

show any air readings at all would be the same as showing violations of the ventilation standards which, in turn, would have 

raised the ire of Sharpenberg, and would have been contrary to 

Thomas's alleged instructions that no ventilation violations 

be shown in the fireboss book. 

Second, since Pittman had achieved at least an average 

amount of production on both Friday and Monday, January 15 and 

18, his reporting of a lack of adequate ventilation would not 

have upset Sharpenberg because the ventilation violation had 

no adverse effect on production. Third, his claim that Thomas 

rushed him so much on Monday that he did not have time to examine page 65 of the fireboss book before signing it is completely refuted by the fact that he took time to make an entry 

on page 65 in his own handwriting stating "Talked with pin crew 

on roof and rib control from 8:40 to 8:50". That entry is 

exactly 2-1/2 inches below the air velocity entries made by 

McConnell on the basis of Pittman's preshift report. It is 

inconceivable that Pittman would have been so rushed on Monday 

that he could not take time to read the air velocity volumes 

written by McConnell and yet had time to write a report to the 

effect that he had talked to the "pin crew" about roof and rib 

control. 

Fourth, Pittman could explain the fact that McConnell, 

the evening-shift section foreman, and Stover and Wriston, two 

UMWA firebosses, obtained air velocities of at least 9,000 cfm 

on the same days on which he claimed there was "no air" by saying that they had entered fallacious velocities in the fireboss 

book because they were afraid they would lose their jobs if 

they had made truthful entries of air velocities (Tr. 230). 

That contention is contrary to the main argument in Pittman's 

reply brief (pp. 2-5) pertaining to credibility because I am 

381 
there asked to rule that UMWA witnesses are more likely to be 

telling the truth than managerial employees, who are at the 

mercy of Consol, as compared with UMWA employees who are protected by the provisions in their Wage Agreement. Assuming 

that McConnell is in the category of managerial employees 

whose statements cannot be believed, Stover and Wriston, who 

made the other entries in the book showing air velocities of 

at least 9,000 cfm, are both UMWA employees and have no reason 

to be afraid of telling the truth if their credibility is to 

be judged by the criterion expressed in Pittman's brief. Yet 

both of those UMWA firebosses testified under oath that they 

had actually obtained the readings of 9,000 cfm or more on the 

days when Pittman claimed there was "no air" on the 3B Section 

(Tr. 1405-1407; 1434). There may be times when a complainant 

in a discrimination proceeding is the only witness who is telling the truth, but the circumstances in this case do not support a finding that Pittman's claims of "no air" on Friday and 

Monday are to be accepted rather than the readings of three 

other mine examiners who obtained readings of from 9,000 to 

9,800 cfm on the same days that Pittman claims there was "no 

air" on the section. 

Fifth, Pittman's claim that he never did get an adequate 

amount of air on Monday is contrary to the statements he made 

in his complaint filed with MSHA and in a statement given to 

MSHA's investigator after he had filed his complaint with MSHA 

(Exhs. F and Q). In his statement to the MSHA investigator, 

he stated that Blankenship stopped production on Monday, that 

his men placed plastic curtains over the cinder block permanent 

stoppings which Toney and his men had stacked and "[w]e got the 

air we needed and started to run again" (Exh. F, p. 14). In 

his complaint filed with MSHA, he stated that "I stopped the 

miner and they finished the stoppings and got air to the working face" (Exh. Q). When asked about the aforesaid inconsistencies between his testimony in this proceeding and his statement made to MSHA's investigator, Pittman stated that he did 

not mean for those statements to be interpreted as an agreement on his part that he thought there was an adequate amount 

of air after Blankenship stopped production and worked on improving ventilation (Tr. 302-303). Assuming, arguendo, as 

Pittman contends in his reply brief that managerial witnesses 

cannot be believed, Green, the UMWA continuous-miner operator, 

testified that the dust problem which he had encountered during th.e shift on Monday was eliminated after Blankenship had 

production stopped until improvements could be made in the 

ventilation system (Tr. 1120). 

For the reasons given above, I find that Pittman's acts 

of signing entries in the fireboss book which he claims were 

false is just another reason to doubt the truthfulness of his 

contentions in this proceeding. Pittman stated during cross382 
examination that he knew that he could have voided the entries 

in the fireboss book with which he disagreed and could have 

written a new page on which he could have made truthful and 

accurate statements (Tr. 211). If, as Pittman claims, he did 

not have time on Monday, the day of his discharge, to look at 

the air velocities on page 65 of the fireboss book before he 

signed that page to show agreement with the entries, or if he 

signed because he feared he would be discharged if he made corrected entries, there was certainly nothing to keep him from 

going back after his discharge on Monday and voiding page 65 so 

that he could enter truthful air velocities on a corrected page. 

Pittman's Claim that Air Measurement at Last Open Break Cannot 

Be as Great as Intake Air Measurement 

One of the reasons given by Pittman for his assertion that 

McConnell had made a false entry in the f ireboss book when he 

reported an air velocity of 9,100 cfm for both the intake and 

return measurements was that there is no logical way to explain 

how air can travel the 300-foot distance from the intake to the 

return without losing even 1 cubic foot per minute in velocity. 

Pittman compared the velocity in the air at the intake with the 

velocity at the return with the difference in air velocity which 

one experiences if he stands 2 feet from an electric fan as 

compared with standing 30 feet from the same fan (Tr. 222-223). 

Assuming that Pittman's argument is valid, his criticism would 

not have applied to the readings of the two UMWA preshift examiners because Wriston obtained an intake reading of 9,800 

cfm and a return reading of 9,000 cfm and Stover obtained an 

intake reading of 9,700 cfm and a return reading of 9,000 cfm 

(Tr. 226). 

At the end of the first day of testimony, Consol's counsel 

notified Pittman and his counsel that he would ask Pittman 

questions the next day about some f ireboss entries showing that 

Pittman himself had reported on several occasions intake readings which were lower than the return readings (Tr. 233). The 

next day, as promised, Consol's counsel introduced, as Exhibits 

I through F, preshift reports showing that Pittman and other 

mine examiners had obtained intake readings which were up to 

2,500 cfm lower at the intake than they were at the return 

(Tr. 241-248). Five of the preshift reports (Exhs. I, K, L, 

M, and N) show that Pittman reported larger return air measurements than intake measurements in the first 2 weeks of October 

1981. 

Pittman conceded that he had testified on the previous 

day that all readings showing an equal or greater air measurement for the return than for the intake were falsifications, 

but he said that his testimony to that effect applied only to 

the conditions which existed in the 3B Section on Friday and 

383 
Monday, January 15 and 18, 1982, prior to the time that permanent stoppings were constructed (Tr. 249). Pittman then said 

that he could explain why his return readings in October 1981 

were greater than the intake. His explanation was that in 

October 1981 the 3B Section was being developed in the area 

which is shown in red on Exhibit 21 in this proceeding. At 

that time, according to Pittman, the air corning into the 3B 

Section was going so completely to some punchouts at the outcrop of the mine, that it was necessary to place stoppings 

over the punchouts to restrict the flow of air through the 

punchouts so that air could be directed to the working faces 

(Tr. 251). Pittman further explained that in October 1981 

there were permanent stoppings between the Nos. 4 and 5 entries which forced air to go to the working faces and pass along the last open crosscut so as to bring about a higher 

reading at the return than at the intake of the entries then 

being mined (Tr. 261-270). Pittman also claimed that in October 1981 they had three sets of check curtains across the belt 

and that they were working about six or seven breaks away from 

the belt so that the air was forced along the permanent stoppings to the working faces (Tr. 274-275). 

Pittman's efforts to explain why he was properly reporting truthful return readings higher than the intake readings 

in October 1981 but that McConnell had to be reporting false 

readings in 1982 if he reported return readings equal to or 

greater than the intake readings were not convincing because 

one of his own crew members (Simms) testified that even after 

the permanent stoppings requested by Pittman were constructed 

in the 3B Section, air continued to leak down the belt and 

track entry so that the section foremen had to maintain a constant vigil over check curtains inby the tailpiece to prevent 

air from leaking down the belt entry instead of going to the 

working faces (Tr. 1017). On January 18, 1982, when Blankenship, the mine superintendent, caught Pittman producing coal 

without adequate ventilation, it was necessary only to rehang 

or adjust two check curtains near the tailpiece to provide an 

adequate volume of air to the working section, as I have explained on page 19, supra. It is obvious that Pittman was 

continually failing to assure that the check curtains inby the 

tailpiece were properly hung during his shift, whereas McConnell was maintaining proper check curtains near the tailpiece 

when he was supervising the 3B Section. That difference between the Pittman's and McConnell's method of operating the 

section would account for the fact that McConnell obtained 

adequate ventilation for operating the 3B Section, whereas 

Pittman could not do so. The foregoing assertion is supported 

by the fact that Pittman's own explanation as to why accurate 

return readings larger than intake readings could be obtained 

in October 1981, but could not be obtained on January 15 and 

18, 1982, included an assertion that the check curtains at the 

belt had to be maintained in 1981 to direct air to the working 

faces (Tr. 272). 

384 
Seven witnesses called by Consol disagreed with Pittman's 

claim (Tr. 224) that it would have been impossible on January 15, 1982, for McConnell to have obtained a return air reading which was the same as the intake reading (Tr. 1340-1341; 

1409; 1436-1437; 1598-1599; 1652; 1956; 1997). Blankenship, 

for example, testified that he could see no reason why air 

which was leaking outby the Nos. 2 and 3 check curtains and 

going down the belt entry could not also leak back across and 

get into the return in sufficient quantity to affect the air 

reading obtained in the return entry (Tr. 1997). 

Based on the discussion above, I find that Pittman failed 

to prove that there is no logical explanation for the fact that 

McConnell obtained a reading in the return on January 15, 1982, 

which was the same as the reading he reported for the intake 

entry (Exh. 18, p. 55). 

Pittman's Work Record Prior to his Discharge on January 18, 1982 

Performance Ratings 

Pittman's initial brief (pp. 3-4) refers to some of Pittman's early performance ratings after he became a section foreman for the purpose of showing that Pittman was considered by 

Consol's management to be an outstanding section foreman. The 

review of Pittman's work record, hereinafter given, shows that 

Consol's management, in the beginning, expected Pittman to 

develop into a competent and dependable section foreman, but 

his performance of his position as section foreman deteriorated 

for about 2 years preceding his discharge on January 18, 1982. 

Pittman began working for Consol on May 15, 1976, as an 

assistant section foreman (Tr. 24). He was promoted to section 

foreman in August 1976 (Tr. 27; 31). His first performance 

rating was given on February 11, 1977, and ranked him as 16th 

in ability in a list of 20 section foremen. The rating also 

considered his ability in such factors as quality of work, 

quantity of work, job knowledge, cooperation, dependability, 

relations with employees, attitude, attendance, leadership, 

and initiative. Five adjectival ratings are used to describe 

an employee's ability with respect to the aforesaid factors. 

They are outstanding, above average, average, below average, 

and marginal. Pittman was given an average rating as to all 

factors except "quality of work" as to which he was rated as 

below average. The rater's comments were: "Production 

oriented--his relationship with his employees prevents him 

from getting dead work done. May be promotable in time. 

Still learning his present job" (Exh. 10; Tr. 33). Pittman 

testified that he did not understand why the rater mentioned 

his inability to· get "dead work" done because he says he was 

as able to get dead work done as any other section foreman 

(Tr. 35). He also said that no supervisor had mentioned to 

him anything about his inability to get dead work done (Tr. 36). 

385 
Pittman's second performance rating is dated January 16, 

1978. It rates him as 13th from the top in a list of 20 section foremen and rates him as average in all categories of the 

factors given above. The rater's comments were that Pittman 

"[i]s improving; has good attitude. Needs more experience; 

tries hard" [Punctuation added.] (Exh. 11). Pittman's third 

performance rating is dated January 18, 1978. It rates him as 

12th in a list of 24 section foremen and gives him a rating of 

above average in quantity of work, job knowledge, and relations with employees, below average in dependability and initiative, and average in all other factors. The rater's comments 

were that Pittman "is a young, competent foreman. He seems to 

know his job and his employees well. He can be hard headed at 

times, sometimes needing guidance and motivation" (Exh. 12; 

Tr. 38) . 

Pittman's fourth performance rating is dated January 29, 

1979, and rates him as eighth in a list of 17 section foremen. 

He is given an above average rating in the factors of quantity 

of work, cooperation, dependability, and relations with employees and average in all other factors. The rater's comments 

were that Pittman "is a good section foreman. He gets along 

well with his people and creates no problems as an employee" 

(Exh. 13; Tr. 40). Pittman's fifth performance rating is' dated 

January 22, 1980. Apparently Consol discontinued its practice 

of giving its section foremen an overall ranking because the 

rating consists of only one sheet evaluating the employees in 

the factors given above in one of the five adjectival ratings 

also given above. The fifth rating gives Pittman an above 

average rating in the factors of quality of work, quantity of 

work, cooperation, dependability, relations with employees, 

and initiative, and average in the other four factors. The 

only comment made by the rater was that Pittman is a "very 

good section foreman" (Exh. 14; Tr. 41). 

Pittman's sixth performance rating is dated February 1981 

and rates Pittman as above average in quantity of work, job 

knowledge, cooperation, dependability, leadership, and average 

in all other factors. The rater's comments are that "Mr. Pittman is a young foreman who doesn't always give a maximum effort. 

Sometimes it seems as if he is afraid of making people mad by 

telling them what to do. He is very mild mannered" (Exh. 15; 

Tr. 42). Pittman's last performance rating was written only 

15 day~ before his discharge. It is dated January 3, 1982, 

and rates him as above average in job knowledge, below average 

in attitude, attendance, and leadership, and average in all 

other factors. Also, whereas in all other performance ratings, 

Pittman had been rated as average in promotability, he is rated 

as poor in promotability in-the sixth performance rating. The 

rater's comments are that "Mr. Pittman could be a very good 

foreman, but lacks initiative to improve on job performance. 

His attendance has to be watched very close" (Exh. 15A; Tr. 44). 

386 
Pittman's seventh and final performance rating is dated 

January 29, 1982, and was written after he had been discharged 

on January 18, 1982. It is written on an evaluation fo~m which 

seems to be designed for use in making a final evaluation of 

an employee who has been discharged. The form provides for an 

overall rating of above average, average, or poor. Pittman was 

given an overall rating of poor. The form rates employees as 

either satisfactory or unsatisfactory. Pittman was given a 

satisfactory rating as to being safety minded and having ability 

to learn and was given an unsatisfactory as to all other factors 

hereinbefore discussed. He was given a rating as to initiative 

of below average, and the rater checked a block showing that he 

would not rehire Pittman. The rater's comments are: "[h]ad 

problems getting him to work regular. Suspended 5 days for violation of roof control plan and discharged for ventilation 

problems" (Exh. 16; Tr. 46). 

My detailed review of Pittman's performance ratings shows 

that when he began working as a section foreman, he was considered to have a potential for becoming an outstanding employee, 

but it is quite obvious that the supervisory personnel at the 

Rowland No. 3 Mine became increasingly critical of Pittman's 

abilities as a section foreman. Pittman reached the zenith of 

his performance when he was rated in January 1980. The next 

two ratings for 1981 and 1982 show that his supervisors were 

becoming doubtful of his abilities to function as a competent 

section foreman. I shall hereinafter review various events 

which occurred during the 5 years and 8 months of his tenure 

as a section foreman. Those occurrences show that Pittman was 

less than a model employee and provide enlightenment for the 

fact that his performance ratings became increasingly critical 

of his abilities during the last 2 years of his employment. 

Pay Increases 

Pittman's initial brief (p. 5) states that Consol gave 

Pittman pay increases each year that he worked for Consol. It 

is a fact, however, that Pittman's merit increases were slightly 

less than the average increase received by the other section 

foremen for the last 2 years of his employment (Exh. AA). 

Therefore, Pittman's merit increases do seem to have been 

slightly less than the average· merit increase during the 2 

years when his performance ratings indicated that his superiors 

were becoming more critical of his abilities than they had been 

during the first 3 years of his employment. Since all of Pittman's performance ratings had classified him as average in promotability up to the one he received 15 days prior to his discharge, it is not surprising that he received the same or nearly the same average increase which the other section foremen 

were getting. The fact that Pittman was receiving average 

salary increases each year can be used as evidence to show that 

Pittman was not discriminated against during the last 2 years 

387 
of his employment as much as it can be used by Pittman in his 

brief for the purpose of arguing that Pittman was a section 

foreman devoid of fault right up to the day of his discharge. 

Excessive Preworking Sessions Concluded with Prayer 

The chief electrician once complained to Thomas, the mine 

foreman, that Pittman had held a prayer meeting on his section 

before going to work which lasted for 1-1/2 hours (Tr. 1781). 

Pittman agreed that he had held conferences with his crew before work, but he said the meetings he had were the safety meetings which were required to be held every Monday and that his 

prayers did not last for more than 1 or 2 minutes. Pittman also 

said that he was warned not to have prayer before work on at 

least two occasions by Thomas, but he said that the men asked 

him why he had stopped having prayer before work and that it 

also bothered his conscience not to have the prayers, so he 

resumed having prayers before work on Mondays after he had held 

the required safety meetings despite Thomas's instructions to 

cease having prayers (Tr. 122; 191; 399-400). 

Pittman's crew members testified that Pittman's prayers 

did not last longer than 3 minutes and that they either did not 

object to the prayers or wanted him to keep having prayer (Tr. 

479; 1153; 1235; 2230). Blankenship, the mine superintendent, 

testified that he instructed Thomas to advise Pittman that a 

short prayer was permissible but that a long prayer meeting was 

forbidden. So far as Blankenship knew, Pittman had stopped 

having long prayer meetings (Tr. 1981-1982). Inasmuch as 

Blankenship is the supervisor who discharged Pittman, I find 

that Pittman's discharge was in no way motivated by the fact 

that Pittman was having a brief prayer on Monday mornings after 

he had finished holding the required safety meetings. That 

conclusion is supported by the fact that Blankenship believed 

that Pittman had stopped having objectionable long prayer meetings prior to the time of his discharge. It hardly needs to 

be pointed out, but there is nothing in section 105(c) (1) of 

the Act which makes prayer a protected activity. 

Pittman's Insistence upon Doing Classified Work and 

Riding with a UMWA Employee 

Thomas also objected to the fact that Pittman performed 

manual labor, or classified work, which is normally done by 

UMWA employees (Tr. 428). Pittman testified that he worked 

right along with his crew and that they did not object to his 

doing so (Tr. 398). Jerry Toney, the belt foreman, stated 

that he had had grievances filed against him when he performed 

work normally done by UMWA employees (TR. 1736-1737). Here, 

again, Pittman was consistently doing work which was contrary 

to his instructions and there is nothing in section 105(c) (1) 

which protects his performance of manual labor. His doing 

388 
manual labor in violation of the mine foreman's instructions 

may be one of the reasons that Blankenship, the mine superintendent, and Thomas became less pleased with his work during 

the last 2 years of his employment. 

Thomas testified that Pittman rode to work with a UMWA 

employee and that he asked Pittman not to do so because he felt 

that Pittman might disseminate to the UMWA crewman (Simms) 

policy matters which were discussed in meetings attended only 

by managerial employees and that he felt that it was preferable 

for the section foremen to avoid fraternizing with UMWA employees (Tr. 1781~1782). Pittman ignored Thomas's instructions not 

to ride with the UMWA employee and he continued to ride with 

him up to the time of his discharge (Tr. 396; 1044). There is 

nothing in the record to show that Pittman's continued riding 

to work with a UMWA employee contributed to Pittman's discharge 

and, even if there were a connection between the discharge and 

Pittman's riding with a UMWA employee, there is nothing in section 105(c) (1) which makes the choice of a person's method of 

getting to work a protected activity under the Act. 

Pittman's Foot Injury and Consol's Report of No Lost Time 

Pittman says that in October 1981 his roof-bolting crew 

had a mechanical problem with the roof-bolting machine. He 

tried to help them repair the machine which was, he agrees, an 

instance when he was doing UMWA work instead of supervisory 

work. The defective component of the roof bolter fell on Pittman's foot so that he had to have it examined by a physician 

(Tr. 201). Blankenship testified that he personally looked at 

Pittman's foot after it was in.jured and that he could see no 

discoloration or break in the skin and no swelling (Tr. 2051). 

Blankenship said that Pittman had requested a week off without 

pay so that he could do some work on his house and that the request had been denied (Tr. 2050). Blankenship felt that Pittman 

had feigned the injury in order to take a week off anyway and 

he insisted that Pittman report to work the next day after the 

injury. Pittman's foot was eventually placed in a walking cast 

and Pittman reported to work nearly every day during his recuperation from the accident, but for a few weeks he did such work 

as calibrate equipment and collect materials needed for a retraining course (Tr. 202-203; 2027). 

Pittman's reply brief (pp. 1-2) argues that Blankenship 

was as guilty of falsifying Consol's report of no lost working 

days as a result of Pittman's foot injury as Pittman was in 

signing the fireboss book when it contained incorrect air measurements. Exhibit 29 is a report of personal injury dated 

October 27, 1981. It indicates that Pittman's foot was injured 

on October 20, 1981, and shows that Pittman returned to his 

permanent job in full capacity although Consol's attorney asked 

questions at the hearing indicating that Consol considered Pittman's work for a short time after the accident to be only 

389 
"light duty work" (Tr. 202). The statement given by Pittman 

to MSHA's investigator indicates that Pittman was required to 

do work in the mine office and check on spare parts, etc., 

while his foot was in a cast and the statement claims that 

Thomas, the mine foreman, required Pittman to return underground 

and resume his duties as section foreman on November 23, 1981, 

even though the doctor had recommended that he not return to 

active duty prior to November 30, 1981 (Exh. F, pp. 7-10). 

The physician's report of Pittman's injury shows "locallized 

swelling and tenderness" and states that "X-rays show no definite evidence of fracture" (Exh. G). The doctor's report also 

reveals that a walking cast was placed on Pittman's foot from 

November 2 to November 20, 1981, and indicates that the doctor 

did not intend to refer him back to work until November 30, 

1981 (Exh. G). 

As to the claim in Pittman's reply brief (pp. 1-2) that 

Blankenship falsified the report of injury (Exh. 29) just to 

keep from reporting lost time as a result of an injury--a report which might have impaired Consol's good safety record at 

the No. 3 Mine--it can hardly be said that Blankenship misrepresented the facts as he believed them to be with respect to 

Pittman's foot injury because Blankenship sincerely believed 

that Pittman was feigning the injury and insisted that Pittman 

report for work the next day after the accident despite the 

fact that Pittman's foot was eventually placed in a walking 

cast. Blankenship also defended his reporting that Pittman returned to his permanent job in full capacity by claiming that 

Consol did not have anyone for assignment to preparing materials for retraining classes and that if he had not asked Pittman to do that type of work, he would have had to ask a person 

doing some other permanent job to do that work on an interim 

basis (Tr. 2027). 

Pittman's claim of discrimination with respect to his foot 

injury is a very appealing one because the physician's reports 

do show that Pittman's foot was placed in a walking cast and 

that the physician recommended that Pittman not work for several weeks. Despite the physician's instructions, Blankenship 

agrees that he insisted that Pittman come to work throughout 

the recuperative period. In discrimination cases, it is generally necessary to prove that an employee has been a victim of 

discriminatory treatment by inferences to be drawn from actions 

which. appear to have no real basis for their occurrence apart 

from some unexplained prejudice which can be attributed to 

nothing other than an unlawful animus toward an employee because of actions which are protected under the Act. In this 

proceeding, however, Consol's animus toward Pittman has been 

explained by Consol's evidence showing that Pittman continued 

to act in ways which displeased Consol's management. Pittman 

continued to ride to work with a UMWA employee; Pittman continued to perform manual labor instead of adhering to his 

390 
supervisory duties; and Pittman, as will hereinafter be explained, did other acts which caused management to doubt his 

ability to do.his job conscientiously and safely. 

While I personally might not have considered some of Pittman's acts as being censurable, I can at least understand why 

Consol's management issued the instructions he was given. None 

of Pittman's censurable conduct consists of activities which 

are protected under section 105(c) (1) of the Act. The record 

in this proceeding does not show that Pittman has ever engaged 

in any safety-related acts other than his having called Thomas, 

the mine foreman, on January 15 and 18, 1982, for the purpose 

of advising Thomas that he had no air on his section. As has 

been demonstrated above, Pittman's claims that he had no air on 

his section was the result of his own failure to erect curtains 

inby the tailpiece to keep the air which was undeniably on the 

section from leaking down the belt and track entry instead of 

being directed to the working faces. Therefore, management's 

animus toward Pittman, if any, cannot be shown to relate to 

activities which are protected under the Act and it is not 

possible for me to find that management's alleged animus toward him was the result of anything other than his insistence 

on doing unprotected acts his way instead of the way management wanted them done. 

Pittman's Taking of a Day Off to Attend Church Service 

On one occasion, Thomas, the mine foreman, was absent 

when Pittman wanted to request a day off to attend a special 

church service. He or his shift foreman asked Larry Hull, 

the superintendent who preceded Blankenship in that position, 

for the day off. Hull testified that he denied the request 

because of a shortage of personnel (Tr. 1461), whereas Pittman 

claims that Hull granted the request (Tr. 196). In any event, 

Pittman did not report for work on the day he had requested to 

be absent. Pittman claims that Thomas became upset when Pittman failed to show up for work and called Pittman at home on 

Saturday to order him to report to Hull's office on Monday before going into the' mine because he might be fired for taking 

the day off (Exh. F, p. 4). 

The shift foreman, Rudy Toney, testified that Pittman had 

asked for a day off and that he had checked with Hull about 

the request and Hull had denied the request, but Pittman took 

the day off anyway. Toney stated that Pittman then called him 

on Saturday and asked him to intercede with Hull because Pittman was afraid that he might be fired for having taken the day 

off. Toney then called Hull and asked Hull if he planned to 

discharge Pittman for taking the day off and Hull stated that 

he was going to discuss the matter with Thomas and decide the 

question on Monday (Tr. 1302-1303). Thomas testified that he 

asked Hull not to discharge Pittman because he felt that discharge would have been excessively harsh in that instance (Tr. 

1780). 

391 
The credibility of the witnesses here should be decided 

in Consol's favor. Hull testified that when they were discussing Pittman's having taken the day off on Monday Pittman 

explained that he had been working on his house and that when 

his wife reminded him that it was time to go to work, he just 

decided that he would not go to work (Tr. 1462). It is doubtful that Hull, if he were fabricating a story, would conjure 

up a conversation with Pittman's wife if that had not been 

mentioned by Pittman himself in an effort to explain his taking 

of a day off after his request to be absent had been denied. 

Pittman's .claim that Thomas called him on Saturday to tell 

him he would probably be fired is not convincing because Thomas 

was consulted about the matter only after Rudy Toney had called 

Hull in response to Pittman's phone call indicating that.he was 

expecting to be discharged for taking the day off. It is unlikely that Thomas would have called Pittman on Saturday to 

warn him he might be discharged on Monday and then recommend to 

Hull that Pittman not be discharged, especially since Toney had 

testified that Hull had indicated to him that his decision with 

respect to discharging Pittman would be made after he had consulted with Thomas on the following Monday. Finally, if Hull 

had actually granted Pittman's request for a day off, there 

would have been no reason for him to deny that he had ever 

granted that request or tell Toney that he would have to consult with Thomas before determining whether Pittman should be 

discharged for taking a day off from work. 

The outcome of Pittman's having taken the day off indicates that Consol's management was at least reasonable on one 

occasion in doing no more than warn him that no further taking 

of days off without permission would be tolerated. 

Pittman's Roof-Control Violations 

Blankenship testified that Pittman had failed to follow 

the roof-control plan on at least three occasions. The first 

time occurred when Pittman was near an outcrop in the mine. 

When outcrops are being approached, the roof-control plan requires that additional support be set in the form of one row 

of posts and establishment of a 16-foot roadwav. Pittman had 

set the required row of posts but he had set them against the 

rib and the roadway was 18 to 19 feet wide. The row of posts 

is needed to warn the miners as to whether the road is becoming unstable and if the posts are set against the rib, as 

Pittman had set them, they do not perform the function of providing a warning of unstable roof when cutting toward an outcrop (Tr. 1982). 

Pittman's second violation of the roof-control olan occurred when the continuous-mining machine was covered up by a 

massive roof fall. When Blankenship inspected the site of 

392 
the roof fall, he found that a large solid rock had fallen on 

the left side of the continuous miner in such a way that he 

could see along the right side of the miner almost to the cutting head and Blankenship did not find any timbers at all 

along the side of the miner, whereas the roof-control plan 

requires the setting of a double row of timbers along both 

sides of the miner. Additionally, the roadway outby the miner 

is required to be no more than 14 feet wide, but Pittman's 

roadway timbers were more than 14 feet apart. Blankenship 

gave Pittman a verbal warning at that time (Tr. 1964-1965). 

Blankenship testified that occurrence of several roof 

falls on top of the continuous miners caused him to require 

that a crib be set on each side of the miner before a pushout 

was made. About a month after the continuous miner on Pittman's section had been covered up by a roof fall, Blankenship 

inspected Pittman's section and found that he had completed a 

pushout without setting a crib on either side of the miner. 

Also Pittman had set the timbers in the roadway 21 feet apart, 

instead of 14 feet apart, as required by the roof-control plan. 

Blankenship suspended Pittman for 5 days for the third violation of the roof-control plan (Tr. 1966-1967). 

Pittman does not deny that he failed to erect one of the 

cribs which Blankenship had instructed him to set, but he and 

the operator of the continuous miner tried to excuse their 

failure to follow the roof-control plan by arguing that they 

did not have enough crib blocks on the section to construct 

the second crib and they claim that the roof was so unstable 

that there was more danger in the roof falling if they delayed 

the pushout until crib blocks could be obtained for building 

the crib than if they just went ahead with completion of the 

pushout with the cluster of timbers which they had used in 

lieu of the crib (Tr. 48-51; 190-191; 392-393; 2204-2205). 

Pittman also complains that Blankenship would not talk to his 

crew who would have supported his contentions with respect to 

the lack of crib blocks and his use of a cluster of timbers 

in lieu of a crib (Tr. 52). Blankenship stated that he did 

not need to interview Pittman's crew when the physical evidence at the scene of the roof-control violations provided 

him with irrefutable proof that the violations had occurred 

(Tr. 1967). 

There is clearly a lack of merit to Pittman's excuses in 

this instance. There was no obvious reason or explanation for 

Pittman's failure to have on the section the materials required to support the roof (Tr. 2226-2227). Pittman has on 

his section at all times a scoop, or unitrak, as well as a 

scoop operator, to haul supplies from the track unloading 

point to the working section (Tr. 982; 989; 997). Consol has 

a two-man crew whose sole function consists of hauling supplies to the three working sections in the mine (Tr. 844-845; 

393 
1697). Pittman was negligent in failing to have an adequate 

supply of crib blocks on his section. When it is considered 

that root falls still account for a large percentage of the 

fatal accidents which occur in underground coal mines every 

year, Blankenship was certainly justified in refusing to accept 

Pittman's feeble alibis in this instance. 

Pittman's Claim that he was Ordered to Produce Coal without 

Adequate Ventilation 

Pittman's case would have been strengthened if he had had 

any corroboration at all to support his claim that Thomas, the 

mine foreman~ and Jerry Toney, the belt foreman who was in 

charge of constructing permanent stoppings on Pittman's section, ordered him to produce coal with knowledge that Pittman 

did not have adequate ventilation. The two miners (Kincaid 

and Moore) who were on the phone and actually overheard both 

Pittman and Thomas talking only heard Pittman say that he did 

not have adequate ventilation (Tr. 134-135; 806). They also 

heard Thomas advise Pittman about his need to recheck his curtains, but neither of them heard Thomas tell Pittman to go ahead and produce coal without adequate ventilation until permanent stoppings could be constructed (Tr. 137; 811). 

Although Randy Workman did testify that he heard Toney 

order Pittman to produce coal while the permanent stoppings 

were being constructed (Tr. 1165), his credibility was completely destroyed when it was shown that he was absent from 

work on the day during which he had vividly recalled what had 

happened on Pittman's section (Tr. 1177-1179). At least one 

miner (Harvey) on Pittman's section claims to have overheard 

Pittman talking on the phone and heard Pittman tell Thomas 

that he lacked sufficient air, but he only heard Pittman's 

side of the conversation and did not know what Thomas may have 

said to Pittman (Tr. 1224). Moreover, his credibility was impaired by his inability to recall for certain what he had done 

to the ventilation system on January 18, 1982 (Tr. 1226; 1235). 

Pittman contradicted himself so much about what Toney 

said and when he said it, that Pittman's claim that Toney 

ordered him to produce coal cannot be accepted as a truthful 

assertion. Some reasons for the aforesaid conclusion are: 

First, Pittman said that his crew had refused to run coal until they saw Toney come in with cinder blocks to construct 

stoppings, but subsequently Pittman said that he could not recall whether production had been started before or after Toney 

arrived on the section (Tr. 287-288). The dispatcher sheet, 

of course, shows that production started at 8:42 a.m. and that 

Toney did not arrive until 9:51 a.m. (Exh. C). Second, Pittman could not recall whether he had told Toney that he had inadequate air at the time he claims that Toney ordered him to 

394 
produce coal (Tr. 360). If Toney did not know that the section had an inadequate supply of air at the working fac~s, he 

could not possibly have ordered Pittman to produce coal with 

knowledge that Pittman did not have adequate ventilation at 

the faces. Third, Pittman stated that his complaint (Exh. Q) 

filed in this proceeding was incorrect to the extent that it 

states that Toney gave him a choice of having his men help 

construct permanent stoppings or run coal because his testimony in this proceeding to the effect that Toney gave him no 

choice but to run coal is the correct version of what happened 

(Tr. 301). Of course, Toney and Thomas both deny that they 

ever ordered Pittman to produce coal without having adequate 

ventilation (Tr. 1700; 1809). 

The discussion above shows that a preponderance of the 

evidence fails to support Pittman's claim that Thomas and Toney 

ordered him to produce coal with knowledge that he had inadequate ventilation at the working faces. 

Pittman's Lack of a Watch for Purpose of Taking Air Measurements 

Pittman's credibility was rendered an additional blow when 

Blankenship testified that when he found the operator of the 

continuous-mining machine cutting coal on Pittman's section in 

dust so thick that Blankenship could hardly detect the light on 

the machine, he stated that he asked Pittman to take an air 

reading and Pittman replied that he could not take a reading 

because he did not have a watch (Tr. 2006-2007). Thomas, who 

was not present when Pittman told Blankenship that he lacked a 

watch for taking an air reading, subsequently asked Pittman to 

take an air reading and Pittman also told Thomas that he could 

not take an air reading because of a lack of a watch (Tr. 1899). 

After production had been stopped and air had been restored by installing curtains in the Nos. 2 and 3 entries inby 

the belt tailpiece, Blankenship asked Pittman to take an air 

reading and he was able to do so. Only about 15 minutes had 

elapsed between the two requests and Blankenship explained 

Pittman's ability to take an air reading after he had made the 

second request, as compared with the first, by stating that he 

was not surprised by Pittman's ability to comply with the 

second request that he take an air reading because he had not 

believed Pittman when he told him in the first instance that 

he lacked a watch for taking an air reading (Tr. 2010). 

Pittman claimed that he did not recall ever having told 

Blankenship that he had no watch to take an air reading and 

that even if he did not have a watch, he could have borrowed 

a watch from one of the miners (Tr. 305-306). Failure to have 

a watch could only have meant that Pittman could not have 

taken an air reading at any time during the shift. Since Pittman had claimed that he did not have even enough air to turn 

3 ()'"9 \Ju 
his anemometer, it is possible that he could have worked for 

the entire shift without bothering to ask any of his men to 

lend him a watch. Pittman's credibility is further eroded by 

the lack-of-a-watch episode because if he really did not have 

a watch, then he never did make a conscientious effort to determine how much air he had at the main intake entry and follow 

through to determine exactly where he was losing his air, as 

Blankenship did after stopping production, or he really did 

have a watch and just gave his lack of one as an excuse to keep 

f140m having to admit to Blankenship that a proper test for air 

would have shown that he lacked adequate ventilation at the 

working faces. 

The Alleged Conspiracy 

Pittman's initial (p. 36) and reply (pp. 6-15) briefs 

claim that management set Pittman up for discharge by asking 

him to produce coal without adequate ventilation so that he 

could be caught operating in violation of the law and thereby 

provide management with an excuse for discharging him. That 

claim will not survive close scrutiny for a number of reasons. 

First, if Thomas, the mine foreman, had deliberately set Pittman up for discharge, it would appear that the ideal time to 

have done so would have been on Friday, January 15, 1982, when 

Pittman first ran his section with inadequate ventilation. 

Thomas had not at that time had the permanent stoppings constructed and, according to Pittman, knew that Pittman was operating without adequate ventilation. Thomas had planned to have 

cinder blocks taken to Pittman's 3B Section on Saturday and had 

to know that there was a strong possibility that permanent stoppings might become constructed and provide Pittman with an adequate air velocity for the 3B Section by Monday. Thomas knew 

from examining the fireboss book on Monday that the mine exam~· 

iners were getting readings of 9,000 cfm or more at the last 

open break and would have had no reason to expect that Pittman 

would be operating his section on Monday with inadequate ventilation. Therefore, the ideal time to have caught Pittman producing coal with inadequate ventilation would have been on 

Friday. 

The second defect in Pittman's conspiracy theory is that 

on Monday morning Thomas did send in both cinder blocks and 

the crew of miners needed to construct stoppings. Thomas was 

advised on Monday morning that Blankenship was going to visit 

the mine on Monday afternoon. Thomas advised Pittman of that 

fact about noon. Thomas knew that Pittman would be expecting 

both him and Blankenship on Monday afternoon. If Thomas had 

intended to set Pittman up for discharge, it is highly unlikely 

that he would have provided Pittman with advance warning that 

he was coming in with the superintendent to check the conditions on Pittman's section. 

396 
The third defect in Pittman's conspiracy theory is that 

Pittman himself testified that he was notified about noon that 

Blankenship and Thomas would be coming to his section (Tr. 

362) . The record provides no satisfactory explanation of why 

Pittman would have failed to take action to make sure that he 

had adequate ventilation before Blankenship and Thomas arrived. 

The least that Pittman would have been expected to do upon receiving the advance warning about the inspection would have 

been to remind Thomas that he was producing coal without adequate ventilation as Thomas had asked him to do and inquire 

about the wisdom of his continuing to produce coal without adequate ventilation at a time when Blankenship would be visiting 

the section. Pittman claims that he did not close down in 

order to obtain adequate ventilation because he already knew 

that both Blankenship and Thomas had a low opinion of his abilities as section foreman and that they would have been as likely 

to fire him for shutting down production long enough to establish ventilation as they would for his continuing to produce 

coal with inadequate ventilation (Tr. 418-419). That contention lacks merit because, according to Pittman's claim, Thomas 

had ordered him to produce coal with inadequate ventilation 

and there is no reason for him to have been reticent about reminding Thomas that he was producing coal without adequate ventilation and asking Thomas if he could stop production until 

the permanent stoppings had been completed, especially in view 

of the fact that construction of the permanent stoppings was 

nearing completion by the time Pittman received advance notice 

of Blankenship's and Thomas's arrival on the section. 

The fourth defect in Pittman's conspiracy contention is 

that effectuating the conspiracy would have had to be dependent 

upon Thomas's having the cooperation of several persons who did 

not work on Pittman's shift. The reason for the aforesaid 

statement is that all persons who examined the 3B Section on 

Friday and Monday obtained an air reading of 9,000 cubic feet 

or more at the last open break. Those mine examiners were 

McConnell, the section foreman who was in charge of the crew 

which produced coal in Pittman's 3B Section on the 4 p.m.-tomidnight shift on Friday, and the UMWA firebosses (Stover and 

Wriston) who examined the mine on Saturday, Sunday, and Monday. 

In order for the alleged conspiracy to be carried out, the 

cooperation of McConnell, Stover, and Wriston would have had 

to have been obtained because Pittman claims that those individuals were falsifying the air measurements of at least 9,000 

cfm which they were entering in the fireboss book (Exh. 18, 

pp. 53-63). If the cooperation of those mine examiners had 

not been obtained, their readings would have been less than 

9,000 cfm, according to Pittman, and would have corroborated 

Pittman's claim that no one could have obtained adequate air 

readings prior to the time that the permanent stoppings were 

constructed. It is highly unlikely that McConnell's, Stover's, 

397 
and Wriston's cooperation in making false entries in the fireboss book could bave been obtained without at least one of 

them having _made inconsistent statements which would have cast 

doubt on their credibility. Yet all three of them provided 

some of the most convincing statements which were made in this 

proceeding. 

The fifth defect in Pittman's conspiracy theory may be 

based on the testimony of Blankenship, the mine superintendent, 

who testified that he did not decide to visit the Rowland No. 3 

Mine until Monday morning. He said he did not think there was 

any merit to Pittman's conspiracy claim because Thomas knew his 

feelings about mine safety and health and that Thomas would 

never have knowingly taken him on a section producing coal with 

inadequate ventilation. Blankenship stated that if he had ever 

been convinced that Thomas and Jerry Toney had anything whatsoever to do with Pittman's having produced coal without adequate 

ventilation, he would have discharged all three of them (Tr. 

2017; 2020). 

For the reasons given above, Pittman's claim that his discharge was based on a conspiracy by Thomas to have him produce 

coal without adequate ventilation, so that he could be caught 

operating his section in violation of the law, must be rejected. 

Pittman's Allegations as to Disparate Treatment 

Pittman's initial brief (pp. 35; 39-40) argues that his 

discharge showed disparate treatment because discipline at the 

No. 3 Mine was "uneven, whimsical, and discriminatory" and that 

no one else had been discharged for admitting that he had produced coal with inadequate ventilation. Consol's counsel submitted extensive evidence showing that Blankenship, the superintendent, did not tolerate safety violations, absenteeism, or 

irresponsible conduct (Tr. 1463; 1961). Blankenship, for example, suspended Bill Blevins, a section foreman, for 5 days 

for irregular work and discharged him for ventilation violations 

and failing to establish centerlines on his section (Tr. 949; 

1325; 1342; 1466; 1793; 1968). Blevins was discharged just 

3-1/2 months before Pittman's termination occurred (Tr. 815; 

1326; 1795; 1969). The day of Blevins' discharge, Thomas referred to Blevins' discharge and warned Pittman that he would 

receive the same treatment if his performance did not improve 

(Tr. 299-300; 1794). 

Blankenship and Thomas provided other examples of persons 

who have been disciplined at the No. 3 Mine. Keith Hartzog, a 

maintenance foreman, was given a 5-day suspension for a safety 

violation (Tr. 1797; 1969)~ Allen Powers, Jr., a section foreman, was given a 5-day suspension for a safety violation (Tr. 

1970; 1797). Sidney Federoff was discharged for coming to work 

398 
intoxicated (Tr. 1970). Mark Fink was required to forfeit a 

1-week vacation because of absenteeism and was discharged for 

lying about .the taking of an emergency medical technician test 

and for having a bad attitude in general (Tr. 1971-1972). 

Elbert Young, a UMWA roof-bolting machine operator, was suspended for 5 days over a safety violation (Tr. 1973-1974; 1798-

1799). Alexander Williams, Oakley Gore, and Jerry Williams, 

UMWA employees, were all suspended for 17 or 18 days for carrying smoking materials into the mine (Tr. 1974}. 

Additionally, it should be noted that Blankenship was 

going to discipline Pittman's continuous-mining machine crew 

on January 18, 1982, the day of Pittman's discharge, when he 

caught them cutting coal without adequate ventilation, but 

they were saved from disciplinary action because they told 

Blankenship that they had complained to Pittman about the lack 

of ventilation and he had asked them to operate the miner despite the lack of sufficient ventilation (Tr. 233; 1135; 2002). 

Although Blankenship did not discipline the miner crew at that 

time, he warned them that if he caught them in a similar situation at a subsequent time, they would be disciplined (Tr. 

1137 i 2001}. 

Pittman tried to show that two other section foremen, 

Delp and Grabosky, were not disciplined despite the fact that 

citations were issued by an MSHA inspector when he caught them 

operating without the required volume of air at the working 

face (Exhs. 24, 25 & 27). Both Blankenship and Thomas defended 

the failure to discharge Delp and Grabosky by pointing out that 

each violation has to be evaluated on its own merits and they 

correctly noted that neither Delp or Grabosky had run their 

sections for a long period of time, as Pittman had, with knowledge that there was inadequate air on the section (Tr. 1938; 

2000). It was also noted by Thomas that· a: different~ re~ponse 

was called for based upon an employee's past record. There 

was no showing that Delp or Grabosky had records comparable to 

Pittman's poor record. The only section foreman with a record 

comparable to Pitt~an's was Blevins and he, like Pittman, had 

been warned of possible discharge for prior offenses and he, 

like Pittman, had been suspended for 5 days before he was discharged. Blankenship discussed Pittman '.s prior record with 

him on the day of his discharge and his prior record was a 

factor in Blankenship's decision to discharge him (Tr. 188; 

1902-1903; 2013}. 

The preponderance of the evidence, therefore, shows that 

Pittman did not receive disparate treatment when he was discharged for producing coal without adequate ventilation. 

399 
Pittman's Allegations Regarding Thomas, the Mine Foreman 

Large parts of Pittman's initial brief (pp. 19-30) and 

reply brief (pp. 6-15) consist of an attempt to show that 

Thomas, the mine foreman, was incompet~nt, lacked credibility, 

and refused to defend Pittman when Blankenship, the mine superintendent, caught Pittman operating his section without adequate ventilation because Thomas knew he would have been discharged along with Pittman if he had admitted that he knew 

Pittman was operating the 3B Section without adequate ventilation. I have already shown under the 17 headings hereinbefore 

given that Pittman failed to prove a prima facie case of di~­

crimination because, while he did show that he had engaged in 

the protected activity of reporting to Thomas that he lacked 

an adequate velocity of air on his section, he failed to prove 

that his discharge was in any way motivated by the fact that 

he had reported inadequate ventilation and had asked Thomas to 

send cinder blocks to the section for construction of permanent 

stoppings. Therefore, I do not feel that I am obligated to 

enter upon an extended discussion of Thomas's alleged shortcomings because, even if Thomas were as poor a foreman as Pittman's briefs contend he was, the preponderance of the evidence 

would still support a finding that Pittman failed to prove that 

his discharge was motivated by Pittman's protected activity of 

having reported to Thomas on January 15 and 18, 1982, that he 

did not have adequate ventilation on his 3B Section. Nevertheless, the review of the evidence, hereinafter given, shows 

that Thomas was not the incompetent foreman which Pittman's 

brief claims he was. 

Thomas's Illness 

It is a fact that Thomas was in poor health in 1981 and 

1982, that he had undergone a triple heart bypass operation 

shortly after Pittman's discharge on January 18, 1982, that he 

had been on an extended period of sick leave up to the time of 

the hearing in this proceeding, and that he had decided to retire, effective June 1, 1983 (Tr. 1776-1777). It is also true 

that he may have relied extensively on Jerry Toney, the belt 

foreman, for obtaining detailed information about the conditions in the mine during 1981 and 1982 (Tr. 1693; 1751; 1907). 

It is likewise true that Jerry Toney was made acting mine foreman in April 1982 when Thomas was forced to take extended sick 

leave for heart surgery (Tr. 1693). Pittman did not succeed, 

however, in demonstrating that Thomas never went underground 

to examine conditions in person. The dispatcher (Roger Toney) 

testified that Thomas went underground with Blankenship about 

once each week and that Thomas always accompanied MSHA inspectors when they made their frequent inspections of the mine (Tr. 

2188; 2190). 

400 
Thomas had had 42 years of experience as a mine foreman 

and had worked at least 11 years for Consol (Tr. 1777-1778). 

As a senior employee, he would have been entitled to take an 

extended period of sick leave before determining whether his 

health would force him to retire. Therefore, I reject Pittman's claim that Consol kept Thomas on sick leave at full salary until his testimony in this proceeding had been given just 

to assure that his testimony would be wholly in support of 

Consol's position in this proceeding. 

Thomas's Credibility 

Thomas worked on Saturday, January 16, 1982. The next day 

was Sunday and the mine was idle. Both parties stipulated on 

the record that Thomas was not required, since the mine was 

idle on Sunday, to make a preshift examination on Saturday (Tr. 

1430; 1887), but he did fill out a page in the fireboss book 

indicating that he had patrolled the 3B Section, that he had 

seen no violations, that he believed the air velocity was sufficient, and that he thought the section was safe to mine (Exh. 

18, p. 59). Thomas explained that he did not take an air reading because he was not obligated to make a formal preshift examination before an idle shift and that he had deliberately 

not gone to the face areas of the 3B Section (Tr. 1915-1916). 

He also stated that he walked into the mine instead of riding 

a track vehicle, because he wanted to examine some sections of 

the track which might need to be repaired (Tr. 1886-1887). The 

walk to the 3B Section is a round-trip distance of about 1 mile 

and it takes less time to walk in than it does to ride because 

of the difference in route which can be taken by a person on 

foot as compared with a vehicle traveling on the track (Tr. 

1919; 2229). The dispatcher who testified on Pittman's behalf 

did not work on Saturday when Thomas walked into the .mine and 

therefore could not testify as to whether Thomas walked into 

the mine or not (Tr. 2191). 

Thomas seemed to be somewhat embarrassed when crossexamined about not having made an actual air measurement 

even though he was not required to do so in view of the fact 

that the mine was idle on the succeeding shift (Exh. 18, p. 

60). Nevertheless, Pittman's brief failed to demonstrate by 

a preponderance of the evidence that Thomas falsified his 

entries in the fireboss book or violated any regulations. 

Therefore, I disagree with Pittman that Thomas's credibility 

was adversely affected by his fireboss entries associated 

with his having "patrolled" the 3B Section on January 16, 

1982. 

Thomas's Alleged Production Goals and Cover-Up 

Pittman's efforts to detract from his own shortcomings 

by emphasizing Thomas's deficiencies are not persuasive. 

401 
Pittman claims that his constant complaints of a lack of ventilation on Friday, Saturday~ and Monday, January 15, 16, and 

18, 1982, were a tremendous irritant to Thomas because Thomas 

was so anxious to maintain a record of high production from 

the No. 3 Mine that he could not give Pittman's complaints the 

attention that they deserved because precious production time 

would have been lost and coal output would have declined. It 

is further argued that since Thomas had ordered Pittman to go 

ahead and produce coal without adequate ventilation so as to 

achieve high production goals, Thomas could not run the risk 

of admitting to Blankenship that he knew Pittman was producing 

coal without adequate ventilation because such an admission ' 

might well have resulted in his own discharge as well as 

Pittman's. 

The aforesaid arguments are not convincing for a number 

of reasons. First, the comments in Pittman's 1977 performance 

rating state that management considered Pittman to be "production oriented" (Exh. 10; Tr. 34). Sin,ce -6ne would assume that 

all management personnel are production oriented, it is surprising that Pittman's supervisor would have bothered to note 

that Pittman was production oriented unless he had observed 

that Pittman had an unusual proclivity for achieving high production. Additionally, one of the shift foremen, Rudy Toney, 

testified that Pittman was known to be a foreman with a good 

production record and that he had recommended that Pittman not 

be fired for taking a day off without obtaining advance permission because he believed that Pittman's good production record 

justified his being given another chance (Tr. 1304). Since 

Pittman already had a reputation for achieving high rates of 

production, it is unlikely that Blankenship would have been 

unduly critical of Pittman if his production had been down a 

little below average because he had had to spend more time 

than usual on January 15 and 18, 1982, in establishing adequate ventilation on his section. 

A second reason for rejecting Pittman's arguments about 

Thomas's obsession with production is that, even with the inadequate ventilation which undeniably existed during Pittman's 

entire shift on Friday, January 15, and up to about 2 p.m. on 

Monday, January 18, Pittman's section produced 109 shuttle 

cars of coal on Friday and 100 shuttle cars on Monday (Exhs. 

A and C; Tr. 832-833). Production of 100 shuttle cars is consider.ed to be a normal producing day (Tr. 341; 353; 885; 1655). 

Yet Pittman said that it was so dusty that the roof bolters 

had to stop working from time to time just to allow the dust 

to abate and that would have retarded normal production activities (Tr. 411). As I have hereinbefore demonstrated on page 

20, supra, it should not have taken Pittman more than 15 minutes to find and correct the cause of his inadequate air supply 

at the working faces, if he had been the competent section 
foreman which he claimed to be. If Pittman had spent the short 

time needed to obtain the required amount of air on his section, the _miners would not have had to shut equipment down from 

time to time just to allow the dust to abate and Pittman's production for Friday and Monday would probably have been even 

greater than the 109 and 100 shuttle cars, respectively, which 

he did achieve with inadequate ventilation. 

The foregoing conclusions are supported by the fact that 

McConnell, the section foreman on the 4-p.m.-to-midnight shift 

was able to obtain a required air velocity on his shift which 

followed Pittman's shift (Exh. 18, p. 55). The only explanation that Pittman could give for the fact that McConnell had 

obtained adequate ventilation, while Pittman could not, was 

that McConnell had entered a false air measurement in the fireboss book because he, like Pittman, was afraid that he would 

be discharged if he had reported the true inadequate reading 

which Pittman is certain he actually obtained. I have already 

demonstrated under the heading of "Pittman's Falsifying of the 

Preshift-Onshift and Daily Report", supra, pages 21-24, that 

the preponderance of the evidence does not support Pittman's 

claim that everyone but Pittman was lying about the actual air 

readings which they were obtaining on the 3B Section. 

For the reasons given above, I find that the preponderance 

of the evidence shows that Thomas, despite his ill health in 

1982, was performing his duties as a mine foreman in a reasonably satisfactory manner and that he gave convincing explanations for the priorities he gave to the types of work which 

were done on Friday, Saturday, and Monday, January 15, 16, and 

18, 1982. For example, since it has been shown above, pages 

19-21, that temporary curtains along the pillared-out area were 

adequate for pr9viding adequate ventilation on the 3B Section 

on both Friday and Monday, Thomas properly directed Pettry and 

MacDaniel (Tr. 849; 879) to go to the 3A Section and install 

new trailing cables on shuttle cars rather than haul cinder 

blocks to Pittman's 3B Section. That change in plans on Saturday was justifieq because defective trailing cables may result in electrocution (Tr. 1797; 1810-1811), whereas, according to the f ireboss book and the testimony of at least three 

witnesses, the temporary stoppings already in existence in 

the 3B Section were providing at least 9,000 cfm of air at 

the last open break (Exh. 18, pp. 55-57; Tr. 1405; 1434; 

1648). 

Therefore, Pittman's claims that Thomas subordinated all 

safety regulations which might have interfered with his goal 

of high coal production and that Thomas's ill health made him 

so sensitive to Pittman's complaints about inadequate ventilation and requests for cinder-block stoppings that he wanted to 

discharge Pittman for having annoyed him with such safety considerations on Friday, Saturday, and Monday, must be rejected 

as not being supported by the preponderance of the evidence. 

403 
Cases Cited in Pittman's Reply Brief Do Not Apply to Facts 

in this Proceeding 

Pittman's reply brief (p. 5) argues that Pittman was discharged because he had merely followed his supervisor's instructions and that the complainant in Judge Fauver's decision 

in Roger D. Anderson v. Itmann Coal Co., 4 FMSHRC 963 (1982), 

was discharged for the same reason and was ordered to be reinstated by Judge Fauver. In the Anderson case, a preshift examination had not been performed during the 8-hour period preceding Anderson's shift which began at 4 p.m. on a Sunday. An 

MSHA inspector wrote an unwarratable failure order because 

Anderson admitted that he knew a preshift examination had not 

been made during the preceding shift, but that he understood 

that the Federal regulations and Itmann's policy required the 

making of only one preshift examination every 24 hours on 

weekends. Anderson was discharged because of his admissions 

to the inspector. Judge Fauver held that Anderson's replies 

to the inspector's questions were a protected activity under 

the Act and that it was a violation of section 105(c) (1) of 

the Act for Itmann to discharge Anderson for that protected 

activity. 

In this proceeding, as I have shown on pages 19-26 and 

35-36, supra, Pittman was discharged because he knowingly 

operated his section without having adequate ventilation and 

the preponderance of the evidence fails to support Pittman's 

claim that Thomas, the mine foreman, had ordered him to operate his section without having adequate ventilation. In the 

Anderson case, it was shown that Itmann's policy was to require only one preshift examination during each 24-hour period 

on weekends' and Anderson was discharged for admitting that he 

knew that no preshift examination had been made during the ., 

preceding 8-hour period and for stating that it was Itmann's 

policy to require only one preshift examination during each 

24-hour period. The Anderson case is inapplicable to the 

facts in this proceeding because Pittman failed to prove that 

it was Thomas's or Consol's policy to order section foremen 

to produce coal without adequate ventilation. 

Pittman's reply brief (pp. 10 and 15) also argues that 

Blankenship, the mine superintendent, failed to· make an adequate investigation before discharging Pittman, and that if 

he had made an adequate investigation, he would have found 

that both Thomas and Toney had ordered Pittman to produce coal 

without adequate ventilation and would have found it necessary 

to discharge them also because Pittman was merely carrying out 

their instructions when he operated without adequate ventilation on both Friday and Monday. Pittman states that Judge 

Fauver found that Itmann had not made an adequate investigation before discharging Anderson in the Anderson case, supra, 

and that I had made a similar finding in my decision issued 

404 
December 21, 1977, in Bernard Lyle Cline v. Itmann Coal Co., 

Docket No. HOPE 76-364. 

In this proceeding Blankenship, the mine superintendent, 

discharged Pittman after personally finding Pittman to be producing coal without adequate ventilation. He personally took 

the air readings showing that adequate ventilation did not 

exist and he personally participated in restoring ventilation 

within a period of 15 minutes, as I have already shown above 

on page 19. Moreover, Blankenship personally checked with the 

other section foreman, McConnell, and a shift foreman, Taylor, 

about their entries in the fireboss book and established that 

they had actually obtained air measurements as great or greater 

than those which he found in the fireboss book (Tr. 2006-2013). 

Therefore, it cannot be successfully argued in this case that 

Blankenship failed to make an adequate investigation before 

discharging Pittman. For the foregoing reasons, Pittman's reliance on the Anderson and Cline cases is misplaced and his 

arguments based on those cases must be rejected. 

For the reasons hereinbefore given, I find that Pittman 

failed to prove that his protected activity of reporting inadequate ventilation on his 3B Section was in any way a 

motivating factor in his discharge and that Pittman also 

failed to prove that either the mine foreman or the belt 

foreman had given him an order to produce coal with knowledge 

that he had inadequate ventilation on his section. Inasmuch 

as his discharge was in no way motivated by his having participated in an activity protected under section 105(c) (1) of the 

Act, Pittman's complaint should be dismissed, as hereinafter 

ordered. 

WHEREFORE, it is ordered: 

The complaint filed by Kenneth D. Pittman in Docket No. 

WEVA 82-334-D is dismissed for failure to prove that a violation of section 105(c) (1) of the Federal Mine Safety and Health 

Act of 1977 occurred. · 

Richard ~G.~7:/f c. stef fey ~ Administrative Law Judge 

Distribution: 

F. Alfred Sines, Esq., Anderson, Sines & Haslam, L.C., P.O. 

Drawer 1459, Beckley, WV 25801 (Certified Mail) 

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

405 

yh 
FEDERAL M1NE SAFETY AND HEALTH REVIE\" COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 16 1984 

KENNETH A. WIGGINS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No: WEVA 82-300-D 

HOPE CD 82-3.2 

Keystone No. 1 Mine 

EASTERN ASSOCIATED COAL CO., 

Respondent 

DECISION GRANTING BACK PAY AND OTHER RELIEF 

Appearances: 

Before: 

William B. Talty, Esq., Talty and Carroll, 

112 Central Avenue, Tazewell, Virginia, 

for the Claimant 

Mark C. Russell, Esq., Jackson, Kelly, Holt 

and O'Farrell, P.O. Box 553, Charleston, 

West Virginia, for the Respondent 

Judge Moore 

The parties have prepared and agreed to a Final Order 

which disposes of all of the back pay, attorney's fees 

and other relief issues. I have signed the Final Order, 

a copy of which is attached, and directed the parties to 

comply therewith. 

Distribution: 

~e<)J;~~, Charles c. Moore, Jr., 

Administrative Law Judge 

William B. Talty, Esq., Talty and Carroll, 112 Central 

Avenue, Tazewell, Virginia 24651 (Certified Mail) 

Mark c. Russell, Esq., Jackson, Kelly, Holt and O'Farrell, 

P.O. Box 553, Charleston, West Virginia 25322 (Certified Mail) 

Larry Blalock, Esq., Jackson, Kelly, Holt and O'Farrell, 

P.O. Box 553, Charleston, West Virginia 25322 (Certified Mail) 

Mr. Kenneth A. Wiggins, Bex 114, Maybeury, West Virginia 24861 

(Certified Mail) 

ATTACHMENT 

/db 406 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

KENNETH A. WIGGINS, 

COMPLAINANT, 

VS: 

DISCRIMINATION PROCEEDING 

Docket No: WEVA 82-300-D 

HOPE CD 82-32 

EASTERN ASSOCIATED 

COAL CORP., Keystone No. 1 Mine 

RESPONDENT. 

FINAL ORDER 

This proceeding came on for the entry of this Final Order 

upon the hearing on the merits held May 24-25, 1983; the Decision 

on the Merits dated September 6, 1983; the Interim Order dated 

October 19, 1983; the Order of November 4, 1983, amending the 

aforesaid Interim Order; the hearing to determine relief held 

November 22, 1983; the decision granting back pay and other 

benefits dated December 19, 1983, and the Supplemental Order 

dated January 23, 1984. Upon consideration of all of which it 

is Adjudged and Ordered as follows: 

1. The findings of fact and conclusions of law contained 

in the aforesaid decisions of September 6, 1983 and December 19, 

1983 are hereby incorporated herein by reference, the same as 

if the same were fully set forth herein; 

2. The complaint of the complainant made out in his charge 

is hereby sustained; 

3. The respondent shall pay to the complainant all salary 

and benefits, including overtime and vacation pay, which he would 

have earned between March 26, 1982, the date of complainant's 

407 
discharge by respondent, until Autust 30, 1982, the date on 

which this Judge determined the complainant would have been 

laid off by the respondent regardless of any discrimination 

under the Act. The parties have stipulated that the aforesaid 

amount is $19,965.00, with the addition of certain expenses 

incurred by the complainant which the parties have stipulated 

the complainant is entitled. 

4. The respondent may withhold from the aforesaid sum 

the sum of $3,492.00 which the parties have stipulated is the 

amount of unemployment insurance received by the complainant 

during the period commencing March 26, 1982 through August 30, 

1982. The aforesaid sum withheld by the respondent is to be 

paid by the respondent to the West Virginia Department of 

Employment Secruity to reimburse said Department for its payment 

of unemployment compensation insurance to the complainant during 

the aforesaid period. 

5. The respondent shall remove from its records any and 

all mention of the notice of improper action dated March 26, 1982, 

and given to the complainant by Jackie Jackson, and of the events 

of April 8, 1982 pertaining to the discharge of the complainant 

by the.respondent. The respondent is further ordered to refrain 

from any reference to either of the above events in response to 

any inquiries made to respondent by prospective employers of 

complainant. 

6. Respondent shall pay to counsel for the complainant 

the sum of $9,000.00, which sum the parties have stipulated is 

a fair and reasonable award of attorney's fees, at a rate of 

$75.00 per hour for 120 hours expended, and an additional sum 

408 
of $608.23 for expenses incurred by counsel for complainant 

for transcrirts, travel and long-distance telephone tolls. 

Administrative Law Judge 

Inspected: 

Counsel for Complainant 

Larry W. 

Jackson, 

arles M. Gage 

t & O'Farrell 

Counsel for Respondent 

' 409 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BOBBY J. HOLT, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 171984 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. SE 83-49-DM 

SOUTHERN STONE COMPANY, 

Respondent 

MSHA Case No. 83-33 

Appearances: 

Before: 

DECISION 

Margaret Y. Brown, Esq., Auburn, Alabama, for 

Complainant; 

Hoyt w. Hill, Esq., Walker, Hill, Adams, Umbach, 

Herndon, & Dean, Opelika, Alabama, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from his job as 

repairman for Respondent because of activity protected under the 

Federal Mine Safety and Health Act (Act). Respondent contends 

that he was fired for reasons unconnected with occupational 

safety. Pursuant to notice, the case was heard in Opelika, 

Alabama, on January 17 and 18, 1984. A. L. Lazemby, Jr., 

Dennis Lamar Lazemby, Bill Harris, Lisa Walsh Shivers, Henry Lee 

Peoples, Ocie Thomas Chamblee, Lawrence W. McRae, Eunice Marshall, 

Janette Holt, Samuel B. Holt and Bobby Holt testified on behalf 

of Complainant; Cary Torbert, Kenneth E. Roberson, Jack McAnally 

and George Cooper testified on behalf of Respondent. Both parties 

have filed posthearing briefs. Based upon the entire record and 

considering the contentions of the parties, I make the following 

decision. 

FINDINGS OF FACT 

Complainant has worked for Respondent Southern Stone and 

its predecessor, with some breaks in employment, beginning in 

1969. He quit in 1974 while working in the hopper because of 

the absence of any effective means to prevent trucks from rolling 

back into the hopper and endangering the workers. He returned to 

work for Respondent in 1979. 

410 
Sometime in 1980, Complainant and his wife assisted a 

co-worker, Willie Calloway, in contacting MSHA after Calloway had 

been fired, allegedly for refusing to work on the roof during a 

rainstorm. 

In approximately November, 1982, Complainant discussed with 

some of his co-workers the company policy concerning wearing hard 

toed shoes op the job. The Plant Superintendent, Mr. Cooper, had 

informed Complainant that hard toed shoes were required. 

Complainant noticed, however, that some men, including supervisors, did not always wear them. He called the Birmingham 

Off ice of MSHA and asked what the law required concerning safety 

shoes. The MSHA spokesman informed him that all employees except 

truck drivers were supposed to wear hard toed shoes. 

Thereafter Cooper called Complainant into his off ice and 

asked whether Complainant called MSHA about hard toed shoes. 

Complainant admitted that he had. Cooper told Complainant not to 

call MSHA again, "that [he] worked for Southern Stone, [and not] 

for Mining Safety and Eealth." MSHA did not investigate nor did 

it contact Respondent regarding this call by Complainant. 

On June 1, 1980, Complainant broke his right hand in a fight 

unconnected with his work. He underwent three operations on the 

hand and missed considerable time from work. On one occasion he 

was "written up" by Cooper for taking time off to see a doctor. 

When he heard that Cooper threatened to fire him, he saw a lawyer 

concerning his job rights. 

On ~~ay 4, 1981, Complainant suffered an occupational injury 

when a chute door fell on him. He continued on the job the 

remainder of the shift. The next day he was examined by a 

physician at a hospital emergency room, and stayed off work for 

one shift. After he returned, Cooper asked him to have the record 

changed so that the injury would not be shown as coming under 

Workers' Compensation. In return, Complainant was to receive "pay 

in hours." Subsequently Complainant filed a Workers' Compensation 

claim which is still pending. 

On September 3, 1982, Complainant injured his finger while 

loading scrap at work. The resultant medical bills and lost time 

were paid under Workers' Compensation. 

Complainant and his wife both complained to Mr. Cooper about 

employees ''riding the clock," that is being clocked in, but not 

being at work. After the complaints, the practice "sort of 

slacked off." Complainant also testified that at some unspecified 

time, some employees engaged in drinking, horseplay, stealing and 

gambling on the job. He stated that the foreman participated in 

these activities. 

411 
In the latter part of 1982, Respondent was negotiating with 

a firm in Southern Alabama to supply it with a large order of 

construction .stone. In an effort to cut delivery costs, it 

requested the County Commissioners of Lee and Macon counties to 

designate the route from Respondent's Plant as a truck route, 

thus reducing the haulage distance to the customer. The requests 

were granted, and the contract entered into. Certain residents 

of the two counties, whose property abutted the highway, protested 

the decision and sought a reversal of it. Among the protesters 

were Complainant and his wife. Complainant's wife had been run 

off the road on one occasion by one of the trucks hauling Respondent's stone. Complainant believed the use of the road by the 

trucks was dangerous, and there is evidence that the trucks 

caused considerable damage to the road. Superintendent Cooper was 

aware that Complainant was involved in the protest. He called a 

meeting and explained to Complainant and other employees that the 

truck route was of great importance to the company. 

The leader of the protest movement was A. L. Lazemby, a 

farmer whose land was close to the road in question, and who used 

the road in connection with the operation of his farm. On 

February 24, 1983, Lazemby blocked the highway with his truck 

until requested to remove it by the sheriff's office. On the 

following day, February 25, Lazemby again blocked the road. 

Complainant knew of the protest and was at the scene when the 

road was blocked on February 25. He did not participate in the 

blocking of the road. The news media were present, and pictures 

of the protest appeared in the newspapers and on television. 

Complainant's picture was included since he was present. Cooper 

observed Complainant's presence, and assumed that he was part of 

the protest movement. When Cooper returned to the plant he 

called Mr. Kenneth Roberson, Vice President of Respondent, and 

told him about the roadblock, and that Complainant was seen among 

the protesters. Cooper asked what should be done about 

Complainant. Roberson, after discussing the matter with the 

Legal Department, decided to terminate Complainant. He dictated 

a memorandum to Cooper to deliver to Complainant. 

On February 25, 1983, Complainant was given a notice of 

termination for "conduct unbecoming a Southern Stone Employee." 

The conduct was described as being seen "in a group of people 

that were blocking an approved route for trucks leaving Southern 

Stone Plant." 

Roberson was not aware of Complainant's employment history 

prior to February 24 and 25, 1983, which are recited herein. 

412 
ISSUES 

1. Was Complainant's discharge motivated in any part by 

conduct protected under the Act? 

2. If so, did Respondent establish that he would have 

discharged Complainant for unprotected activities alone? 

, 

3. If Complainant's discharge was in violation of the Act, 

what relief is he entitled to? 

CONCLUSIONS OF LAW 

To establish a prima f acie case of discrimination under the 

Act, Complainant must show that he was engaged in activity 

protected by the Act, and that his discharge was motivated in 

any part by the protected activity. Secretary/Pasula v. 

Consolidation Coal Company, 2 FMSHRC 2786 (1980), rev'd on other 

grounds sub nom. Consolidation Coal Company v. Marshall-,-663 

F.2d 121"1"(3rd Cir. 1981); Secretary/Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (1981); Secretary/Bush v. Union Carbide 

Corporation, 5 FMSHRC 993 (1983). 

PROTECTED ACTIVITY 

Complainant's call to MSHA asking about hard toe shoe 

requirements was activity protected under the Act. Respondent 

was clearly unhappy about the call and in effect directed 

Complainant not to make such calls thereafter. Assisting a 

fellow worker in making a complaint to MSHA is protected 

activity, but there is no evidence that Respondent was aware of 

Complainant's efforts on behalf of Willie Calloway. 

Complaints to management about other employees "riding the 

clock" could be protected insofar as they allege that this 

practice jeopardized the safety of Complainant or the other 

workers. Although the evidence does not directly show that the 

complaints were related to safety, I can infer that they were, 

and conclude that they constituted protected activity. The 

testimony concerning drinking and horseplay on the job does not 

show that any complaints or work refusal grew out of these 

activities. Therefore, activity protected under the Act was not 

shown in connection therewith. Complainant's allegations that 

he was disciplined for taking time off following his non work 

connected hand injury, and that Respondent threatened to fire 

him, do not allege activity protected under the Act. No contention that this discipline or threat were related to work safety 

was made by Complainant. 

413 
The allegations concerning Complainant's job related 

injuries in May, 1981, and September, 1982, do not contain any 

contention that occupational safety was involved. The alleged 

direction to change the hospital records to falsely show a 

non-job related injury may allege a violation of the State 

Workers' Compensation Law. It does not describe activity 

protected under the Mine Safety Act. 

A consiaerable part of the evidence in this case, and of 

Respondent's posthearing brief is devoted to Complainant's 

participation in the citizens protest against the use of a roa~ 

as a truck route. The relationship of this protest to safety 

goes only to the matter of highway safety, and there is no contention and no evidence that it related in any way to occupational safety at Respondent's Plant. Whatever the nature and 

extent of Complainant's involvement in the protest, it did not 

constitute activity protected under the Act. 

MOTIVATION FOR DISCHARGE 

The precipitating factor in the decision to discharge 

Complainant was his participation in the truck route protest, 

or rather Respondent's perception of his participation in the 

protest. I have previously concluded that this was not protected activity. The present status of the employment at will 

doctrine in American law is an interesting question, but not 

one that I am called upon to answer in this proceeding. 

Whether the discharge of an employee for exercising First 

Amendment rights of free speech and political protest is against 

public policy is also a question not before me. See Note, 

Protecting at Will Employees Against Wrongful Discharge: The 

Duty To Terminate Only In Good Faith, 93 Harv. L. Rev. 1816 

(1980). 

The decision to discharge Complainant was made by 

Kenneth E. Roberson, after he was informed by Cooper of 

Complainant's truck route protest activities. Roberson was not 

aware of Complainant's call to MSHA concerning the hard toe shoe 

incident in November, 1982. Although Cooper was aware of that 

incident, the evidence does not establish that it was a factor 

in the decision to discharge Complainant. Nor is there any 

evidence that the complaints' of employees riding the clock 

played any part in the discharge. For these reasons, I conclude 

that Complainant has failed to make a prima f acie case of discrimination under the Act. Further, even if it were shown that 

protected activity was a motivating factor, the evidence is 

overwhelming that Respondent would have discharged Complainant 

for unprotected activity (the truck route protest) alone. 

Therefore, no violation of section lOS(c) of the Act has been 

established. 
ORDER 

Based upon the above findings of fact and conclusions of 

law, the complaint and this proceeding are DISMISSED for failure 

to establish a violation of section 105(c) of the Act. 

Distribution: 

f / Cl.AA~5 Af.9y-vJt{~ e I:_ J James A. Broderick 

Administrative Law Judge 

Margaret Y. Brown, Esq., 214 North College Street, Auburn, AL 

36830 (Certified ~ail) 

Holt w. Hill, Esq., Walker, Hill, Adams, Umbach, Herndon & Dean, 

P.O. Box 2069, O~elika, AL 36803 (Certified Mail) 

/fb 

4lr -.u 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 2 31994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND H~ALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MICH COAL COMPANY, 

Respondent 

DECISION 

Before: Judge Kennedy 

Docket No. CENT 83-4 

A.C. No. 13-01855-03501 

No. 6 Mine 

This matter is before me on (1) the regional solicitor's 

motion to withdraw his petition for assessment of a civil 

penalty pursuant to Rule 11, (2) Juege Merlin's order denying 

the motion and directing the submission of information to 

support the compromise, (3) Judge Merlin's order to the 

regional solicitor to show cause for ignoring his order to 

submit information, (4) Judge Merlin's order assigning the 

matter to this trial judge, (5) the regional solicitor's 

request for reconsideration of Judge Merlin's order together 

with information in support of the motion to withdraw, 

(6) this trial judge's order to the parties to brief the 

jurisdictional issue and to furnish additional information 

to enable the judge to determine the gravity of the violation 

and the adequacy of the $20 penalty proposed for the offense 

charged, (7) the operator's response thereto, and (8) a notice 

of appearance by Michael McCord on behalf of the Secretary 

together with (a) a motion to suspend compliance with my order 

and (b) a motion requesting certification to the Commission of 

the Secretary's claim that a motion to withdraw a petition for 

assessment of a civil penalty at any stage of a penalty 

proceeding does not require formal judicial approval by the 

trial judge or the Commission because there is no longer a 

dispute between the parties subject to the Commission's 

jurisdiction. This latter issue goes far beyond any question 

I had heretofore imagined was presented by the regional 

solicitor's motion. For this reason alone, I would have 

denied the request for certification. 

41U 
I deem this record a particularly inappropriate vehicle 

for decision of the question posed by Mr. McCord. I am also 

at a loss to understand why the Secretary sought to avoid a 

decision by· the trial judge by filing a simultaneous request 

for interlocutory appeal with the Commission. At the time 

this request was filed I had not received a response to my 

order and had neither denied or granted the regional solicitor's 

pending motion to withdraw. If I grant the motion, any appeal 

would appear to be moot. Unless, of course, the Secretary can 

prevail on the Commission to issue an advisory decision on the 

basis of the Secretary's ex parte briefing on the matter. I 

do not believe the Commission's rules provide for such a 

decision and certainly not under the guise of an interlocutory 

appeal from a nonexistent dispute. 

In any event, after this matter was assigned I determined 

the record was still deficient with respect to several of the 

statutory criteria, including prior violations, size of the 

operator and its true financial condition. I also determined 

that before I ruled on the regional solicitor's claim that 

under the circumstances presented "section llO(i) and llO(k) 

of the Act do not apply" to Rule 11 motions "because the 

Secretary has not sought an assessment to which section llO(i) 

would apply nor has he in any manner settled, compromised, 

or mitigated a penalty so as to cause section llO(k) to be 

invoked," I would await the solicitor's response in a related 

matte~ Pyro Mining Company. 

Interestingly enough, Mr. Mascolino's response in Pyro 

was at variance with both that of the regional solicitor and 

Mr. McCord. At this point, it is important to note that in 

this case (Mich Coal), the motion is to withdraw a petition 

for assessment or-a-penalty whereas in the Pyro case the 

motion is to dismiss the operator's "Request for Hearing with 

Review Commission" the so-called green card which is the 

operator's first pleading and notice of intent to contest 

the penalty proposed. In Pyro, the operator recanted his 

notice of contest almost immediately after he filed it by 

paying the amount of the penalty proposed, $20. Mr. Mascolino 

on behalf of the solicitor urged that this type of case be 

treated differently from a case like Mich Coal in which both 

the operator and the Secretary seeks to opt out after the 

Secretary's proposal for penalty has been filed with the 

Commission. Mr. Mascolino argued that: 

The issue is not whether the Commission's jurisdiction technically attaches when the contest card is 

received. The issue is whether the operator who 

417 
promptly disavows that course should be permitted 

to do so without the examination which would be 

involved if the case were to be tried or payment 

submitted after a petition had been filed and issue 

joined. (Emphasis supplied.) Statement in Support 

of Motion to Dismiss filed February 7, 1984. 

Mr. Mascolino seems to recognize that once a petition for 

assessment of a civil penalty has been filed the Commission 

and the trial judge have exclusive jurisdiction to approve 

dismissal under Rule 11 or a settlement under Rule 30. But, 

Mr. Mascolino argues, where the petition for proposal of a 

penalty has not been filed the Commission's jurisdiction is 

so tenuous or "technical" the parties should not have to 

justify what is tantamount to a voluntary nonsuit. 

Before ruling on either of these matters, I would have 

preferred to consolidate them for briefing and oral argument 

so that I could have a record for the public and the Commission 

setting forth all the nuances of law and permutations of fact 

that are involved. Because of Mr. McCord's attempt at a 

preemptive strike that may no longer be a viable option. At 

a minimum the three solicitors involved seem to want answers 

to the following questions: 

1. Should the Commission allow voluntary 

dismissals or nonsuits where an operator 

"promptly" after filing a notice of contest 

tenders payment in full of the penalty proposed by MSHA? (Mr. Mascolino's position). 

2. Should the Commission require its judges 

to grant motions to withdraw proposals for 

penalties filed by the Secretary before 

an answer has been filed without any 

record support other than a showing that 

payment has been made? (Regional Solicitor's 

position). 

3. Should the Commission require its judges 

to grant motions to withdraw the Secretary's 

proposals for penalty at any stage of a 

penalty proceeding, i.e., at any time prior 

to issuance of the judge's final decision 

without satisfying the judge that such a 

disposition is appropriate and in accord 

with the purposes and policy of the Act? 

(Mr. McCord's position). 

418 
Each of these questions and variations thereon must be 

answered in the light of the Congressional purpose embodied 

in sections 105(d), llO(i} and llO(k) of the Act as well 

as Commission Rules 10, 11, 26, 29(b) and 30. While for 

reasons previously and hereinafter indicated, I find it 

inappropriate and unnecessary to decide any of the foregoing 

questions definitively, I find most shocking the proposition 

advanced by Mr. McCord on behalf of the Secretary. For if 

I understand it correctly Mr. McCord is moving boldly, if 

somewhat recklessly, to usurp the authority and power 

conferred on the Commission by section llO(i) and llO(k) of 

the Act. 1/ Tpese provisions as well as the entire legislative history of the Act are redolent with expressions of 

Co~gressional distrust of MSHA's ability to retain its 

professional objectivity and commitment to vigorous enforcement when confronted with industry blandishments. Secretary 

v. Parmalou Bros., Inc., Dkt. No. WILK 79-4-PM et al, decided 

February 13, 1979. 

The plain language of the Commission's Rules and section 

llO(i) and (k) of the Act convincingly establish that the 

Presiding Judge and not MSHA or the solicitor is charged 

with responsibility for deciding whether to approve a Rule 11 

1/ Because of the importance of the questions raised to the 

proper administration and vigorous enforcement of the Mine 

Safety Law, and the Secretary's desire to rush the Commission 

to judgement, I have undertaken to set forth my preliminary 

views of this long festering dispute. I regret that due to 

the desire of the Commission's staff to take jurisdiction 

of these questions away from me, I have not had the time 

for the mature deliberation and research I think they 

deserve. Nor has the solicitor, Mr. McCord, helped by 

churlishly refusing to brief the matter for me--preferring 

instead the route of an ex parte interlocutory appeal to 

the Commission. While the bypass tactic may strike some as 

clever, I find it ethically distasteful. I trust the 

Commission will find equally distasteful the prospect of 

being asked to render prematurely an ex parte-decision on 

so sensitive a matter. Indeed, I feer-the matter is of 

sufficient importance that it should be decided only after 

all affected interests are afforded an opportunity to be 

heard. This, of course, is not the first time the commonality 

of interest between the solicitor and the operators has been 

conjoined in an attempt to stampede the trial judge and the 

Commission over a volatile policy issue. As I have said, I 

do not bel1eve the Commission should entertain the Secretary's 

request for an interlocutG~~eal but if it does it will 

have something beside a totally ex parte record to consider. 

419 
motion to withdraw or a Rule 30 motion for settlement. 2/ 

In fact, Rule 11 specifically provides that while a party 

may withdraw a pleading at any stage of the proceeding, it 

may do so only with the "approval of tne Commission or the 

Judge." Judicial approval certainly connotes something more 

than a mere ministerial act. The Commission should not 

become party to a procedure, however innocuous on its face, 

that may result in subversion of the Congressional policy 

of full, true and public disclosure of the basis upon which 

penalty cases are compromised, settled, withdrawn or 

dismissed. 

As Judge Merlin so trenchently observed: 

The Act makes very clear that penalty 

proceedings before the Commission are de novo. 

The Commission itself recently recognized that 

it is not bound by penalty assessment regulations adopted by the Secretary but rather that 

in a proceeding before the Commission the amount 

of the penalty to be assessed is a de novo determination based upon the six statutory criteria 

specified in section llO(i) of the Act and the 

information relevant thereto developed in the 

course of the adjudicative proceeding. Sellersburg 

Stone Company, 5 FMSHRC 287 (1983). Indeed, if 

this were not so, the Commission would be nothing 

but a rubber stamp for the Secretary. 

Order of July 15, 1983. 

I am aware that the Solicitor's Office at the direction 

of the Assistant Secretary has adopted a policy of filing 

Rule 11 motions in lieu of motions to approve settlement 

2/ On September 29, 1980, former Chief Administrative Law 

Judge Broderick wrote the Assistant Solicitor, Arlington, 

Virginia that: "It is the position of the Review Commission 

that its jurisdiction attaches when a notice of contest is 

filed in our docket office. This is true whether the cases 

involve a quick change of heart by the operator or a mistake 

or a late payment. They can only be closed by a Commission 

Order." Section 105(d) and Commission Rule 26 both require 

notices of contest to be docketed "immediately" with the 

Commission. The solicitors, or at least some of them, now 

concede jurisdiction attaches when the notice of contest is 

filed but all of them seek a ministerial order of dismissal 

if, upon the advice of his own counsel or that of the 

solicitor, the operator decides MSHA really made him an 

offer he can't refuse. 

420 
in an effort to implement the "cooperative," some might even 

say "lax," enforcement policy of the single penalty assessment procedure. See 30 C.F.R. 100.4. But as I have said 

elsewhere, prosecutorial discretion does not extend to 

nullifying the Act. There are limits on the power of MSHA 

and the solicitor to thwart the will of Congress. One of 

them is this Commission. 

The solicitor is compelled to seek approval of Rule 11 

and Rule 30 motions because the Commission following the 

will of Congress has so decreed. Congress, in its wisdom, 

changed the law in 1977 to require approval of all "compromises" 

of penalty cases. This embraces both "mitigations" and 

"settlements." A motion to withdraw a penalty petition in 

lieu of an adjudication by the Commission is certainly a 

compromise of the litigation and if it involves acceptance of 

a $20 penalty that MSHA improvidently, erroneously or 

intentionally assessed for a significant and substantial 

violation it is both a mitiqation and a settlement that 

should receive the strictest judicial scrutiny. 

The legislative history of section llO(k) of the Act 

shows Congress felt the public interest in vigorous enforcement is best served when the process by which penalties are 

assessed is carried out in public, "where miners and their 

representatives, as well as the Congress and other interested 

parties, can fully observe the process." S. Rpt. 95-181, 

95th Cong., 1st Sess. 44-45 (1977). As the Senate Report 

continued, "the Committee intends to assure that the abuses 

involved in the unwarranted lowering of penalties as a 

result of off-the-record negotiations are avoided. It is 

intended that the Commission and the Courts will assure 

that the public interest is adequately protected before 

approval of any reduction in penalties." Id. 

I cannot believe the Commission is going to surrender 

its statutory enforcement authority by ordering its judges 

to rubber stamp motions to dismiss or withdraw. If it does, 

I am confident there will be a public outcry if the purpose 

or effect of such action is to grant the solicitor authority 

denied MSHA by the Congress in 1977. 

The suggestion that the Commission did just this in 

Mettiki Coal Corporation, 3 FMSHRC 2277 (1980) is clearly 

erroneous. The plain meaning of Mettiki is that regardless 

of how a motion is labelled, i.e., either as a motion to 

dismiss or withdraw (under Rule 11) or a motion to approve 

settlement (under Rule 30) if the record in support of the 

421 
motion "indicates that full payment of the [penalty initially] 

sought by the Secretary is a satisfactory and appropriate . 

resolution of [the] controversy" it is an "abuse of discretion" 

for the triai judge to deny the motion. (Emphasis Supplied.) 

It was the "abuse of discretion" issue on which Mettiki 

turned and not on whether the motion was filed under Rule 11 

or Rule 30. Nothing in Mettiki shows a disposition to 

strip the Commission and its judges of jurisdiction and 

authority to evaluate either type of motion in accordance 

with the statutory criteria set forth in section llO(i), 

llO(k) or the purposes and policy of the Act. See, Co-Op 

Mining, 2 MSHC 106 (1980). Just as it would be unfair to 

assess a penalty where no violation occurred it would be a 

travesty to allow the assessment of a $20 penalty for an 

egregious violation simply because an overworked or overly 

sympathetic solicitor calls the operator's attention to the 

fact that it would be better to pay the penalty than to 

subject the matter to the scrutiny of a judge charged with 

responsibility for seeing that there is a full and true 

disclosure of the facts. Compare, Bethlehem Mines, Inc., 

6 FMSHRC , Jan. 13, 1984. 

Turning to the merits of the instant motion, I find 

the information furnished considered as a whole is sufficient 

to support dismissal of this matter because the failure to 

take a single respirable dust sample posed no significant 

health hazard and was more the result of oversight than 

negligence. Further, there is no evidence that the violation 

was part of a pattern or practice of culpable neglect or 

knowing failure to comply with the mandatory respirable 

dust standard violated. 

Based on an independent evaluation and de nova review 

of the circumstances, therefore, I find the compromise of 

this matter is in accord with the purposes and policy of the 

Act. 

Accordingly, it is ORDERED that the motion be, and hereby 

is, GRANTED; the captioned matter DISMISSED; and all other 

pending motions, including the request for certification for 

interlocutory appeal, DENIED. 

Joseph Kennedy 

Administrative Law 

422 
Distribution: 

Michael A. McCord, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Mr. Dale .Mich, Mich Coal Company, P.O. Box 168, Oskaloosa, 

IA 52577 (Certified Mail) 

/ejp 

423 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 fEB 2 3 1984 

MONTEREY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MONTEREY COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. LAKE 83-68-R 

Citation No. 2200849; 4/28/83 

Monterey No. 1 Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 83-52 

A.C. No. 11-00726-03522 

Docket No. LAKE 83-61 

A.C. No. 11-00726-03524 

Docket No. LAKE 83-67 

A.C. No. 11-00726-03527 

Docket No. LAKE 83-78 

A.C. No. 11-00726-03529 

Docket No. LAKE 83-87 

A.C. No. 11-00726-03532 

Docket No. LAKE 83-94 

A.C. No. 11-00726-03533 

Docket No. LAKE 84-17 

A.C. No. 11-00726-03539 

Monterey No. 1 Mine 

DECISIONS 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

Petitioner; 

Carla K. Ryhal, Esq., Monterey Coal Company, Houston, 

Texas, for Respondent. 

Before: Judge Koutras 

424 
Statement of the Proceedings 

All of these cases were heard in St. Louis, Missouri, 

on October 25, 1983. Dockets LAKE 83-68-R and LAKE 83-87, 

were consolidated for hearing and decision, and the 

remaining civil penalty cases were heard after the conclusion 

of that hearing. The cases concern civil penalty proposals 

filed by the petitioner against the respondent pursuant to 

Section llO(a) of the Federal Mine Safety and Health Act of 

1977, seeking civil penalty assessments for certain alleged 

violations of mandatory standards promulgated pursuant to 

the Act. The parties were afforded an opportunity to file 

post-hearing proposed findings and conclusions, and the 

arguments presented therein have been considered by me in 

the course of these decisions. 

Issues 

Consolidated Dockets LAKE 83-68-R and LAKE 83-87, concern 

a citation served on Monterey Coal Company for an alleged 

violation of mandatory safety standard 30 CFR 75.1403-5(g). 

Although the inspector found that that the violation was 

not "significant and substantial," and MSHA assessed it as 

a "single penalty assessment" of $20, ~onterey Coal Company 

contested the violation on the ground that the cited standard 

applies only to belt conveyors used in the transportation of 

men and materials, and not to conveyors used to transport 

coal. Since Monterey contends that its underground belt 

conveyors are used only to transport coal, it believes that 

MSHA's reliance on this standard to support its citations is 

improper. 

Dockets LAKE 83-94, LAKE 83-67, and LAKE 83-78, all 

involve citations issued for alleged violations of Section 

75.1403-5(g), three of which were "non S&S" $20 single 

penalty assessments. One citation (Docket LAKE 83-78), 

Citation No. 2199892, is a "significant and substantial" 

violation which was assessed at $241. 

Dockets LAKE 83-52 and LAKE 83-61, concern "significant 

and substantial" violatioris issued by the inspector for 

violations of mandatory safety standards 30 CFR 75.316, 

and Monterey Coal Company takes issue with the inspector's 

special findings. 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the 

following criteria: (1) the operator's history of previous 

violations, (2) the appropriateness of such penalty to the 

size of the business of the operator, (3) whether the operator 

425 
was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting 

to achieve rapid compliance after notification of the violation.· 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 U.S.C. § 801 et seq. 

2. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Stipulations 

The parties stipulated that the respondent owns and 

operates Mine No. 1, that it is subject to the Act, and that 

the Commission has jurisdiction in these proceedings. In 

addition, the parties stipulated as to the issuance of the 

following safeguard notice which served as the basis for 

the citations alleging a violation of mandatory safety standard 

3 0 CF R 7 5 . 14 0 3 - 5 ( g) : 

On September 4, 1975, Notice to Provide 

Safeguards No. 1 WHW was issued by an authorized 

representative of the Secretary to Monterey as 

operator of the Mine ("Notice"). The Notice 

provided that 'Notice is hereby given that the 

undersigned authorized representative of the 

Secretary of the Interior upon making an 

inspection of this mine on September 4, 1975, 

directs you to provide the following specific 

safeguard(s)--24 inch clear travel ways along 

all belt conveyors each side--pursuant to 

Sec. 75.1403, Subpart C, of the Regulations 

promulgated under authority of Section 101 of 

the Federal Coal Mine Health and Safety Act of 

1969 (P.L. 91-173). I 

Under the heading "Specific Recommended 

Safeguards" the Notice alleged that 'A clear 

travel way at least 24 inches wide on each 

side of the main north belt-conveyor was not 

provided at the following locations. Between 

cross cuts Nos. 21 and 23 (coal and rock), between cross cuts Nos. 93 and 94 (Rib), and 

between cross cuts Nos. 108 and 109 (coal, 

Rock, and Rib) . ' 

A clear travel way at least 24 inches 

wide shall be provided on both sides of all 

belt conveyors installed after March 30, 1970. 

426 
Where roof supports are installed within 

24 inches of a belt conveyor, a clear 

travel way at least 24 inches wide shall 

be· provided on the side of such support 

farthest from the conveyor. 

The parties stipulated that MSHA Inspector Jesse B. Melvin 

issued the following citations pursuant to Section 104(a) of 

the Act: 

Docket No. LAKE 83-78 

On April 13, 1983, Inspector Melvin conducted an inspection 

at the Mine and issued Citation No. 2199892. The Citation 

cites a significant and substantial violation of 30 C.F.R. 

75.1403-5(g) and, under the heading "Condition or Practice," 

alleges that "A clear travelway of at least 24 inches wide 

was not· provided along the 4th Main East belt conveyor on 

the South Side starting at 99 cross-cut and extending inby 

to cross-cut No. 125, I.D. 000-0. Belt was rubbing coal at 

99, 100, 101, 102 and 112 cross-cuts, and belt rubbing frame 

for rope at 99 cross-cut and it was warm. A clear travelway 

of 24 inches wide along both sides of the belt is required 

by a notice to provide Safeguards No. 1 WHW, dated September 4, 

1975." 

Docket No. LAKE 83-67 

On April 14, 1983, Inspector Melvin conducted an 

inspection at the Mine and issued Citation No. 2199897. The 

citation cites a violation of 30 C.F.R. 75.1403-5(g) and, 

under the heading "Condition or Practice," alleges that "A 

clear travelway at least 24 inches wide was not provided 

along the South Side of the 4th Main East belt conveyor entry 

starting at cross-cut No. 33 and extending inby to 10th 

North track switch. I.D. 000-0 . . . . A clear travelway 

of 24 inches along both sides of the belt is required by a 

notice to provide Safeguards No. 1 WHW, dated 9-4-75." 

On April 19, 1983, Inspector Melvin conducted an 

inspection at the Mine and issued Citation No. 2199899. The 

citation cites a violation of 30 C.F.R. 75.1403-5(g) and, 

under the heading "Condition or Practice," alleges that "A 

clear travelway at least 24 inches wide was not provided along 

the 3rd Main East belt entry on the South side from the head 

roller [sic] of No. 1 belt drive inby to the tail rollor [sic]. 

A clear travelway of 24 inches wide along both sides of the 

belt is required by a notice to provide Safeguards No. 1 WHW, 

dated 9-4-75." 

427 
Docket Nos. LAKE 83-68-R and LAKE 83-87 

On April 28, 1983, Inspector Melvin conducted an inspection 

at the Mine·and issued Citation No. 2200849. The citation 

cites a violation of 30 C.F.R. 75.1403-5(g) and, under the 

heading "Condition or Practice," alleges that "A clear travelway at least 24 inches wide was not provided along both sides 

of the Main North coal conveyor belt starting at the No. 1 belt 

drive unit and extending inby to head rollor [sic] of the 

3rd East belt unit approximately 205 cross-cuts. A clear 

travelway of 24 inches wide along both sides of the belt is 

required by a notice to provide Safeguards No. 1 WHW, dated 

9-4-75." 

Docket No. LAKE 83-94 

On June 21, 1983, Inspector Melvin conducted an inspection 

at the Mine and issued Citation No. 2202728. The citation 

cites a violation of 30 C.F.R. 75.1403-5(g) and, under the 

heading "Condition or Practice," alleges that "A clear travelway at least 24 inches wide was not provided along the East 

side of the Main North belt conveyor starting at 236 crosscut inby to 4 East belt head rollor [sic] approximately 40 

cross-cuts. The following material was along the east side 

of the belt. Large rock, coal, roof bolts and roof blocks, 

concrete block and roof bolt plates. I.D. 000-0 .... A 

clear travelway of 24 inches wide along both sides of the 

belt is required by a notice to provide Safeguard No. 1 WHW, 

dated 9-4-75." 

Docket No. LAKE 83-52 

On December 28, 1982, Inspector Melvin conducted an 

inspection at the mine and issued Citation No. 2036802, 

purportedly pursuant to Section 104(a) of the Act. The 

citation cites a significant and substantial violation of 

30 C.F.R. 75.316 and, under the heading "Condition or Practice," 

alleges that "the dust control plan for this mine was not being 

followed in the No. 3 entry where the continuous mining machine 

was loading coal in 3 South off 1 East Unit I.D. 007 in that 

the exhaust tubing was 22 feet outby the face. The plan states 

that the exhaust tubing [is] to be maintained within 10 feet 

of the face as the face is advanced." 

Docket No. LAKE 83-61 

On February 3, 1983, Federal Coal Mine Inspector 

Harold Gully, a duly authorized representative of the Secretary, 

conducted an inspection at the Mine. During the inspection, 

the inspector issued Citation No. 2063916, purp?rtedly pursuant 

428 
to Section 104(a) of the Act. The citation cites a significant 

and substantial violation of 30 C.F.R. 75.316 and, under the 

heading "Condition or Practice," alleges that "the section and 

face ventilation system was not followed in the 4 North off 

3 Main East in that the quantity of air in. the 18-inch tubing 

(390 feet from fan) in No. 3 entry to crosscut right, when 

coal was being cut with a continuous miner, was only 1900 CFM 

when measured with a magnehelic and Pitot tube . The 

section and face ventilation system Page 4 states ' . . in 

situations where an excess of 370 feet of tubing occurs and 

then the minimum quantity shall be 5000 CFM in the working 

faces where coal is being mined.'" 

Discussion 

The parties presented the following testimony in Dockets 

LAKE 83-68-R, LAKE 83-67, LAKE 83-78, LAKE 83-87, and LAKE 83-94: 

MSHA's Testimony 

MSHA Inspector Jesse B. Melvin testified as to his background and experience. He confirmed that safeguard notice 

1 WHWwas issued on September 4, 1975, by Inspector Willis Wrachford 

and Mr. Melvin explained the procedure for issuing such a safeguard and the application of the safeguard once it is issued 

(Tr. 8-10). He stated that the safeguard notice was issued 

pursuant to section 75.1403-5(g), which requires that clear 

travelways at least 24 inches wide should be provided on both 

sides of all belt conveyors installed after March 30, 1970 

(Tr. 11). 

Inspector Melvin stated that except for one citation 

issued in Docket LAKE 83-78, all of the other citations were 

"non-S&S," and that in those instances he made no negligence, 

gravity, or good faith findings on the face of the citations 

because those were his instructions by his district off ice 

(Tr. 17). He explained his "S&S" finding on the one citation 

as follows (Tr. 18): 

THE WITNESS: In the body of the citation, it 

will say that it was also an accumulations [sic] 

of coal and that the coal was up to the bottom of 

the belt. It will also tell you in there that the 

belt was rubbing the framework stands that 

developed, ropes and rollers it was attached to, 

and it was worn, which could set off the coal dust. 

The loose coal and coal dust in the citation 

extended into the 24-inch walkway is why it was 

all combined into one. 

429 
In my opinion, when they cleaned the walkway up the 24 inches, they would also clean this 

up. That is why that S&S was S&S, that is 

·why it was marked in negligence in the gravity. 

In explaining Citation No. 2200849, April 28, 1983, and 

Citation No. 2199899, April 19, 1983, which simply state that 

clear travelways of at least 24 inches were not provided along 

both sides of certain conveyor belts, Inspector Melvin explained 

that portions of the walkways concerned him because roof falls 

had occurred which obstructed the travelways (Tr. 29-31). 

He conceded that if the walkways contained tripping hazards, 

had coal accumulations present, or presented hazards at 

unguarded belt roller or pinch point locations, he could have 

issued citations citing the specific mandatory standards which 

apply to those situations rather than relying on the safeguard 

notice (Tr. 32-36). 

Mr. Melvin testified that the cited conveyor belts 

were in active workings and they were required to be examined. 

He also indicated that belt examiners are required to walk 

the belts, and that they usually travel the "best side" of 

the belts. However, if the travelways are obstructed by rock 

falls or coal accumulations, the belt examiners will not 

inspect those sides of the belt because they do not have ready 

access to the areas (Tr. 37-41). 

Inspector Melvin confirmed that all of the cited belt 

conveyors are used only to transport coal and that none of 

them are designated as mantrips. He also confirmed that the 

hazards that the citations address concern people who happen 

to be walking along the travelways. He identified these 

individuals as three belt examiners who walk the belts daily, 

and two individuals who take care of the head rollers (Tr. 49-

50) • 

On cross-examination, Inspector Melvin stated that mine 

personnel continuously shovel at the belt conveyor head or 

dumping point (Tr. 58). He confirmed that there is no requirement 

that belt examiners walk both sides of the belt (Tr. 59). 

With regard to the on~ "S&S" citation, Mr. Melvin explained 

his rationale as follows (Tr. 68-69): 

Q. My last questions had to do with significant and substantial. I am still not entirely 

clear. Was the coal accunulation actually 

extending on to the walkway? 

430 
A. The 24-inch walkway is included for where 

they start out is from the belt roller--from the 

ropes, the steel ropes that holds the belt conveyor 

out 24 inches. The accumulations of the coal 

was partially into the 24 inches from the belt. 

I wouldn't say it was all the way out to the rim 

or I wouldn't say it was away onto the other side. 

If I had of, I would have put it in my citation. 

Q. Now, to the extent that it only extended from 

the ropes onto the walkway, that by itself, 

without .the accumulation under the belt, would 

you have cited that significant and substantial? 

A. If it had been just from the ropes into the 

walkway, no, ma'am, if it hadn't had the hot rollers 

there or the hot--

Q. So your primary concern was the danger of fire? 

A. Yes, ma'am. If it had been into the walkway 

itself, it would have been non-S&S, it would have 

been just the possibility of a person going by 

there, stumbling, tripping, causing an injury to 

his body in some form. 

Q. Earlier on, you mentioned figures from eight 

to thirty people who were exposed to the danger 

exhibited in this significant and substantial 

violation. Those thirty people that you mentioned 

are primarily people who would have been in danger 

because of a fire or explosion? 

A. Yes, ma'am. 

Q. It would not have been 30 people who would have 

been endangered by walking that walkway? 

A. No, !TI,a' am, it was possibly two people. It 

would only be about two people that would be down 

through that walkway. Like I said, it would be 

on each shift, two people on the first shift. If 

possible, the men that was working in that neighborhood, 

if they could have a person working along the belts 

to clean up, he would be on that side. The examiner, 

if he was on that side, it could possibly be him. 

Q. But at the time of the citation, it was probably 

how many people? 

431 
A. At the time of the citation, there was 

three of us. There was me, the company personnel, 

and the union personnel that walked it, that was 

passing by. 

Respondent's Testimony 

Dick Mottershaw, respondent's safety coordinator, testified 

that in 1975 he was the safety supervisor at the No. 1 Mine. 

He explained the circumstances surrounding the issuance of the 

safeguard notice as follows (Tr. 71-73): 

The notice was issued by Willis H. Wrachford 

to Ted Spicher who reported directly to me. 

It was served to Ted. We went into the mine at 

that time and looked at some of the conditions 

that Willis had described. Basically, the 

conditions were that a 42-inch conveyor belt 

was installed in an entry, .in the middle of an 

entry that was 15 feet, six inches wide, which 

is the cutting head of our miner, installed in 

the middle, and some loose walls or ribs as 

we call them in mining had fell into the walkway on the right-hand side or the east side of 

the belt areas on our main north type belts. 

Willis wanted the entire belt cleaned on both 

sides and wanted 24 inches or more clearance 

maintained continually on both sides. We had 

quite a heated discussion over it and did for 

several months afterward. We did abate the 

notice. We only cleaned up one side of the belt 

up to where there would be an accumulation of coal 

and we do clean that up. 

All of our belts are at least 15-feet, six-inch 

wide entry, some are 24's and our height is 

average about seven foot. This is basically 

what happened. 

Q. So we did express our disagreement at the 

time the notice was sent in? 

A. Yes, and we have expressed it since. This 

seems to be an exclusive of maybe two mines in 

Illinois or three. We have the same ideal 

mining whisk, many--basically the same ice and 

the same conveyor belts 50 miles down the road 

have never had that requirement, except from 

the Hillsboro off ice. 

432 
Q. O.K. Now, back to the day that the notice 

was issued. You say there is a 42-inch wide 

conveyor belt in a 16--15-foot, six-inch wide 

entryway. Was it in the middle, to one side? 

Was there any problem with actually having 

24-inch clearance, 24-inch distance between 

the edge of the conveyor belt and let's say, the 

rib? 

A. No, there would have been 24-inch clearance 

on both sides. It would be highly improbable, 

except we had a large pile of roof not to have 

24 inches, 24-inch clearance. When you've got 

seven feet, it doesn't block up and when you've 

got approximately six feet on each side, it 

doesn't block up. 

Now, you may have a rib that slushes down 

and there's tripping and stumbling going on 

there and where you could stumble going over 

some materials; we have had instances of falls 

on belts where the examiner in his examination 

could walk to this point, mark it out, do the 

bad roof timbers, large rocks that couldn't be 

moved, he'd walk to the next cross-cut which 

would be on 75-feet centers and look both ways 

on the belt there, go to the next.one. But 

you can't require a certified examiner to go in 

a place that could present him a hazard. He 

is not required to do that and he does not. 

Q. When the notice was issued, it was primarily 

directed at the fact that although there was a 

travelway on both sides of the belt that there 

was foreign material that was just blocking 

the travelway.itself, it was not requiring us 

to actually cut a travelway? 

A. No. The space, the height, the width is 

there. We have not maintained .a stumblefree 

environment on the opposite of the walkway 

side of the belt. We will perform some work 

there if there is an accumulation of coal that 

we will clean up, but the normal rock falls 

have maybe a piece of heather board that's 

fell out, we don't clean that, because our 

examiners -- the belt being 48 inches wide and 

36 inches wide, surely you can see across that 

far across the belt. 

433 
Mr. Mottershaw did not dispute the fact that on the 

"dirty side" of the belt there is debris that would interfere with 

one easily walking that side (Tr. 74). He stated that he 

was thoroughly familiar with the mine belt system, and he 

indicated that there is no problem in examining the belt 

(Tr. 7 5) . 

In response to further questions, Mr. Mottershaw testified 

as follows (Tr. 76-79): 

JUDGE KOUTRAS: Am I to understand, then, 

that in your view the sole reason for MSHA 

issuing the safeguard notice back in '75 

and Inspector Melvin's issuance of the 

citations in '83 is to attempt, through 

this process, to have both sides of the 

conveyor systera, both travelways maintained 

in a stumble free environment so as to 

facilitate the inspection of both sides of 

the belt, do you feel that is the--

THE WITNESS: I feel that is the only reason, 

because there's no legal reason that the 

examiners need to go up either side. There 

is no reason that they cannot see either side or 

examine either side. It seems to be the quirk 

of the field office, because in the subdistrict, 

I know in the other subdistricts, we have absolutely 

had the same system, the same conveyor belt, 

the same width entries and have never had a 

safeguard in any other area. 

JUDGE KOUTRAS: You mean in some of your other 

mines? 

THE WITNESS: Yes, which are within a 50- or 60-

mile radius. 

JUDGE KOUTRAS: Have you ever asked the district 

manager why is it in this mine they require this 

and in your other mines they don't and if so, 

with what response? 

THE WITNESS: I have not. 

JUDGE KOUTRAS: You haven't asked? 

THE WITNESS: No, sir, I have not. 

434 
JUDGE KOUTRAS: It seems to me you should 

have been asking long ago if you disagreed 

with it in '75 and here we are as of today 

trying to convince me, Judge, look are they 

treating us unfairly here because at the 

other mines they don't require it. 

THE WITNESS: Could I answer that? 

JUDGE KOUTRAS: Sure. 

THE WITNESS: Long ago, when it was issued, I 

didn't have the authority to do that, to call 

a district manager. I did write a strong note 

in 1978 when we received a violation suggesting 

that it was illegal and sent it to the legal 

staff in Houston. 

JUDGE KOUTRAS: Well, aside from the illegalities 

of it, maybe your reluctance to answer was out 

of fear of the response, yes, or no. 

Well, clearly, though, assuming that this belt 

was a designated mantrip, carried men and 

materials, and you obviously wouldn't disagree 

with Inspector Melvin's position here, I mean 

with MSHA's position that both sides of those 

belts should be maintained stumble free, right? 

THE WITNESS: If it was transporting men or 

materials, I would have no problem at all maintaining it. I think you'd be unloading from both 

sides of the belt, both men and materials, and 

I think it would have to be clean, the same as 

our track entry. We maintain clearance on that 

when we transport men and materials. 

JUDGE KOUTRAS: I take it that you are in agreement, at least you subscribe to the proposition 

advanced.by Monterey here as a defense that this 

safeguard notice, Section 75.1403 only applies to 

transportation of men and materials on belts 

and that since you transport only coal, that 

doesn't fall into either of those categories? 

THE WITNESS: I've felt that way since '75. I 

think the intent of Congress was men and materials. 

In response to further questions, Mr. Mottershaw stated 

that the term "materials" as he knows it in his mining 

experience relates to such items as roof bolts, tubing, 

435 
concrete blocks, tracks, roof supports, etc. He also 

indicated that these items are transported by cars on separate 

tracks and are loaded and unloaded manually by hand. In his 

view, the coal which is mined is the "product" and is not 

"material" within the meaning of the cited standard. The coal 

is loaded out of the mine on the belt 6onveyors in question 

and "it goes straight on top of the coal mine" (Tr. 90). 

Dockets LAKE 83-61 and LAKE 83-52 

In Docket No. LAKE 83-61, the respondent conceded that 

the conditions or practices as stated by MSHA Inspector 

Harold Gulley in the citation which he issued are accurate 

and that they do in fact constitute a violation of mandatory 

standard 30 CFR 75.316 (Tr. 3). 

Mr. Gulley was not present at the hearing. Respondent's 

counsel stated that the citation was contested because the 

respondent did not believe that the violation was "significant 

and substantial" (S&S). 

In Docket No. LAKE 83-52, the respondent conceded that 

the conditions and practices cited by the inspector were 

accurate, and that those conditions constituted a violation 

of the cited mandatory standard. Respondent contested the 

citation because it did not believe that the cited conditions 

presented a ''significant and substantial" violation (Tr. 6-7). 

MSHA Inspector Jesse B. Melvin confirmed that he issued 

citation no. 2036802 because he found that coal was being 

mined in the No. 3 entry and the ventilation exhaust tubing 

was 'found to be 22 feet from the face area where the coal 

was being loaded. The approved ventilation plan requires 

that the exhaust tubing will be no greater than 10 feet from., 

the face at any time coal is loaded at the face. 

Mr. Melvin stated that it is important to keep the exhaust 

tubing 10 feet from the face so as to ventilate the face 

and prevent an accumulation of dust, explosive gases and 

methane. He confirmed that he took a methane reading at 

the face and found from one to two-tenths of one percent 

of methane and that this "was not too high." He took his 

reading at the last line of roof supports where the continuous 

miner operator is located, approximately 20-22 feet outby the 

face. He could not test the methane at the face, and he 

estimated from the places which were cut that the ventilation 

tubing which he observed was at that location for approximately 

25 to 30 minutes. He also indicated that he had previously 

cited the respondent for the same condition in other sections 

of the mine (Tr. 8-10). 

436 
Inspector Melvin stated that the mine is considered 

a gassy mine, that methane bleeders can be encountered any 

time, and that proper exhaust ventilation is required to 

dispel such gases. He confirmed that the mine is on a 

"Section 103 five-day spot inspection" cycle because of the 

amount of methane liberated (Tr. 11). ae confirmed that the 

highest concentration of methane that he has detected in 

the mine was "about a half per cent of one" (Tr. 13). 

Mr. Melvin indicated that in the event of a methane 

ignition, the resulting fire would travel in the direction 

of the machine operator who is seated on the right side of 

the machine. Mr. Melvin confirmed that the machine operator 

was loading coal at the time of the inspection. He also 

confirmed that the machine has a methane detector on it and 

that he found nothing wrong with it (Tr. 20). 

Mr. Melvin stated that the presence of respirable 

dust can result in, or contribute to, black lung if allowed 

to continue, and if the ventilation plans are not followed 

(Tr. 22). 

Mr. Melvin stated that the respondent was negligent 

because it was readily observable that the continuous miner 

was approximately 22 feet from the face, and that the ventilation 

tubing was at that same. location and distance from the face 

(Tr. 23). When asked why he believed the violation was 

"significant and substantial," Mr. Melvin responded as follows 

(Tr. 2 3-2 5) : 

THE WITNESS: I believe if the condition 

would continue to exist it would cause a 

serious injury to a person, cause them lost 

time from work, or could be restricted 

duties, or could be permanent disability. 

BY MR. CARMONA: 

Q. In what way? 

A. The significant and substantial is the 

condition continues to exist at this mine, 

or continued to exist around, it could be--

well, it could be a buildup of just about anything you could have. If it continues to 

happen you could have a buildup of methane 

at the mine, you could have the buildup of 

respirable dust. The condition was to 

437 
continue, based on--if the condition 

exists and continues to exist, someone 

will sooner or later be injured from it. 

Q. Did you take into consideration in 

your conclusion that it was significant 

because of the fact that you found the same 

condition before in the same mine, is it? 

A. Yes, sir. I have found it. 

Q. Was this a factor in your conclusion 

or not? 

A. The factor in my conclusion is that any 

time a gassy mine, and they're not following 

the ventilation plan, there's a possibility of 

having an ignition or explosion at the face. 

Q. Suppose you had found this condition only 

once, and you knew that this was the only time 

that it had been found by the Mine Safety 

Administration, would you have rated this as 

significant? 

A. That would be hard to say. If it was the 

first time it ever happened at a mine, you'd 

have to weigh all the evidence. The first time, 

if it's the first time it ever happened at this 

mine, they had never had that before, you'd 

give them the citation--I'm not saying you 

wouldn't, but weighing it down to where you 

would give them an S and S on it, if it was 

the first time and I found methane there I'd 

give it to them. If it was the first time at 

the mine and it was so dusty in there you 

couldn't see the operator I would give it to them. 

You'd have to weigh it for the first time. 

He has violated these plans by not keeping 

his tubing up, but I really don't know if he 

had other things in there it would fall into 

it, but just having the tubing back from the 

face 22 feet and I didn't find no gas and no 

dust, and it's the first time and they weren't 

making a habit of it, I really don't know if I 

would or not. I really couldn't say. 

On cross-examination, Mr. Melvin confirmed that while 

he detected no excessive amounts of methane at the time of 

his inspection, he did not know the amount which may have been 

438 
present at the face. He also conceded that he did not know 

whether any respirable dust which may have been present exceeded 

the allowable limits since he took no dust samples (Tr. 28-29). 

He believed that the ventilation tubing was exhaustin~ some 

of the dust, but by being 22 feet from the face it was half 

as effective as it would be if it were located at the required 

10 feet fron the face (Tr. 31). 

Mr. Melvin stated that when the continuous miner was 

cutting coal at the face the ventilation tubing was probably 

less than 10 feet from the face, but that when the operator 

pulled the machine back he did not extend the ventilation 

tubing from the time he was cutting until he pulled back 

to the 22 foot distance. In ~r. Melvin's opinion, the tubing 

was not within 10 feet of the face for any considerable 

length of time before he arrived on the scene (Tr. 32). He 

then stated that the area was out of conpliance for approximately 

15 to 20 minutes (Tr. 34). He reiterated his concern that 

in the event a nethane bleeder is encountered while the 

mining machine is cutting coal, an ignition could occur 

without warning (Tr. 36). 

In response to further questions, Mr. Melvin confirmed 

that he found nothing wrong with the continuous mining 

machine, and he issued no other violations (Tr. 38). He 

further explained his "S&S'' finding as follows (Tr. 39-44): 

JUDGE KOUTRAS: Now when you find, for 

example. that one of the primary tools for 

maintaining the levels of dust and nethane at 

or below the hazardous level as the exhaust 

tubing, then it goes without saying that in 

all of those similar situations you would find 

all of them S and S, wouldn't you? Any time 

you found a tubing that's 22 feet when it's 

supposed to be 10, you would nore than likely 

find that Significant and Substantial, wouldn't 

you? 

THE WITNESS: No. If he cited the plan--I 

cited his plan for not following his plan there, 

and it was maybe at all times that you cite 

the plan maybe he's not 22 feet out there. 

Maybe it would be--

JUDGE KOUTRAS (interrupting): No, what I'm 

saying is, could you give me a hypothetical 

when you--let's assume you found a ventilation 

tubing that was 22 feet, given the same circumstances as this case, give me an example as to 

how you would consider that to be Non-S and S. 

439 
THE WITNESS: You couldn't if it was out 

there 22 feet. You'd have to run S and S. 

JUDGE KOUTRAS: So what I'm saying is, is 

the fact that you found this tubing 22 feet 

when it should have been 10, without further ado 

you found that to be significant and substantial, 

did you not? 

THE WITNESS: Well, yes and no. You weigh 

the other conditions, but 22 feet out is that 

he's not following his plan, and it's not 

effec.tive when it's that far out. 

* * * * 

JUDGE KOUTRAS: Now what I'm driving at is that 

the factors that you consider in determining 

whether or not a violation is S and S, is it a 

specific circumstance of the situation that you 

are faced with at that tine? 

THE WITNESS: At that time, yes, sir. 

JUDGE KOUTRAS: Or is it the fact that it's in 

your mind, a serious violation of the ventilation 

plan for failure to have the tubing where it's 

supposed to be? 

THE WITNESS: At that time it's not the seriousness of the tubing, it's the seriousness of the 

tubing being back there. 

JUDGE KOUTRAS: Well, the problem here is, though, 

if there's no nethane and there's no dust test, 

and we don't know what the level of dust is. If 

we don't know the levels of dust and we don't 

know if the methane is down, and if the 

situation only existed for 15 minutes, why, 

on those particular facts do you think this is 

significant and substantial? 

* * * * 

THE WITNESS: The way that I see it when I go in 

on the place is if they don't care when I'm on 

the section whether they follow the plan or not, 

are they going to fellow it when you're not 

there? So you've got to weiyh it. If you're 

440 
sitting there watching them, or standing 

there watching or walk up there and watching 

them load coal and they know you're there and 

they don't make no effort, then they are not 

doing it when you're not there. So it will, 

if not corrected, sooner or later, cause an 

effect on a person's life, health. 

JUDGE KOUTRAS: But you have no reason to 

believe that this is the case, though? Just 

like you were telling me about the jumping 

out of the methane monitors? I mean, even 

though you may know that as a former miner, 

and now as a mine inspector, and even though 

you may know that human frailties and people 

being what they are, may not comply when you're 

not there, this could be true of any violation 

you write in a mine, isn't it? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: So theoretically, every citation 

you issue should be S and S, without further ado? 

THE WITNESS: It's what they call a judgment call 

on that, and my feeling at the time I issued the 

citation it was to continue to happen that will 

cause serious illness or permanent injury to the 

person that's in that atmosphere. 

Mr. Melvin was shown a copy of a citation he issued 25 

days after the one at issue in this case (exhibit R-1) , 

and he was asked to explain why he did not mark it "S&S" 

since it involved a similar ventilation violation. He 

explained his reasons, and emphasized that when he observed 

the conditions no coal was being mined and that he had no 

way of proving what had occurred on the previous shift 

(Tr. 54-56). 

Respondent's testimony 

Dick Mottershaw, respondent's safety coordinator, 

testified that the purpose of the ventilation exhaust tubing 

is to remove methane and respirable dust from the mine, and 

he believed that the primary purpose of the tubing is to 

control the dust (Tr. 58). He explained the procedure used 

at the mine to install and maintain the proper ventilation 

tubing distances (Tr. 58-61). 

Mr. Mottershaw conceded that the violation issued by 

Mr. Melvin resulted from the fact that the ventilation 

441 
tubing was not extended forward to the required location at 

the face (Tr. 61). He stated that the actual time that the 

violation existed here was 15 minutes, but that in any case 

the maximum time would have been 30 minutes (Tr. 62). 

Mr. Mottershaw stated that his records reflect that 

the No. 7 unit had been previously cited for excessive 

respirable dust levels. One citation was issued in 1981, and 

one in 1982. Both citations were "non-S&S'' (Tr. 64). He 

also confirmed that in the 12 years he has been at the mine, 

no citations have ever been issued for excessive levels of 

methane (Tr. 64). 

With regard to the citation issued by Inspector Gulley 

in Docket LAKE 83-61, Mr. Mottershaw stated that an air 

reading measurement in the ventilation tubing itself indicated 

over 6,000 cubic feet per minute, which met the required 

air velocity requirements. Unit 11 was previously cited 

on February 3, 1982, and for the year preceding the citation 

issued by Mr. Gulley, no citations were issued for exceeding 

the allowable respirable dust levels (Tr. 68). 

Mr. Mottershaw stated that with regard to both citations 

in question, the water sprays on the continuous miner were 

operating to minimize the dust at the face, and the mine fans 

exhaust approximately 700,000 cubic feet of methane per 

minute. He also stated that the required air currents are 

maintained to insure adequate fresh air in the working places 

(Tr. 7 0) • 

With regard to the air velocity measurement made by 

inspector Gulley in LAKE 83-61, respondent's counsel stated 

that she did not dispute the 1,900 measurement taken by 

the inspector to support his citation. Counsel pointed out 

that 10 to 15 minutes before the inspector arrived, mine 

personnel measured over 5,000, and that the inspector's low 

reading resulted from the fact that rock dust bags were 

pulled into the fan and restricted the air flow. The restricted 

air flow was short-term, and a new reading would have been 

taken during the next coal cycle. Counsel pointed out that 

when the bags were removed from the fan, and the fan moved 

closer to the face, the required air velocity was exceeded 

(Tr. 81-83) . 

Jack Lehmann, General Mine Manager, Monterey No. 1 Mine, 

testif 1ed that regular methane readings are made at the mine 

by the section foreman every two hours during an eight hour 

shift, and the results are recorded in his preshift and 

on-shift books. The machine operators take readings every 

20 minutes, and preshift examiners take readings during their 

examinations (Tr. 84-85). 

442 
Mr. Lehmann stated that according to the mine record 

books, the methane readings for the entire month of 

December 1982, and the entire month of February 1983, for 

the No. 7 and No. 11 units reflected "zero levels of m~thane" 

(Tr. 8 6) . 

In response to further questions, Mr. Lehmann stated 

that water sprays to control the dust are standard equipment 

in all of the respondent's mines. With regard to the citation 

issued on December 28, 1982, for failure to extend the 

ventilation tubing, Mr. Lehmann conceded that the violation 

occurred because of the failure by the equipment operators 

to extend the tubing. With regard to the walkway citations, 

Mr. Lehmann was of the opinion that the cited standard does 

not apply to both sides of the walkways in question. He 

conceded that the walkways where there were falls presented 

a situation where they were not maintained, but that they 

were all cleaned up to abate the citations. He also conceded 

that if the safeguard notice is upheld, respondent would 

be required to insure that both sides of all conveyor walkways 

be cleaned up and maintained in that condition (Tr. 86-89). 

Findings and Conclusions 

LAKE 83-67 - Fact of Violations 

Citation No. 2199897, issued on April 14, 1983, cites 

the failure by the respondent to maintain a clear travelway 

of at least 24 inches wide along the south side of the 4th 

main east belt conveyor entry, beginning at crosscut No. 33 

and extending inby to the 10th north track switch. Inspector 

Melvin's citation does not further explain or specify any 

conditions supporting the conclusion that the travelway was 

not maintained clear for at least 24 inches wide along the 

cited areas. 

Citation No. 2199899, issued on April 19, 1983, cites 

the failure by the respondent to maintain a clear travelway 

of at least 24 inches wide along the 3rd main east belt entry 

on the south side rrom the head roller of the No. 1 belt 

drive inby to the tail roller. Inspector Melvin's citation 

does not further explain or specify any conditions supporting 

the conclusion that the cited travelway was not maintained 

clear for at least 24 inches wide along the cited areas. 

LAKE 83-87 and LAKE 83-68-R - Fact of Violation 

Citation No. 2200849, issued on April 28, 1983, cites 

the failure by the respondent/contestant to maintain a clear 

travelway of at least 24 inches wide along both sides of 

443 
the main north coal conveyor belt starting at the No. 1 belt 

drive unit and extending inby to the head roller of the 3rd 

east belt unit for approximately 205 crosscuts. Inspector 

Melvin's citation does not specify or explain any conditions 

supporting the conclusion that the cited travelway was not 

maintained clear for at least 24 inches wide in the cited 

area. 

When asked to explain the circumstances under which he 

issued Citation No. 2200849, Inspector Melvin replied ''there 

was something there that concerned me and portions of it 

was walkways and just portions of it there would be an 

accumulation." He also alluded to certain roof falls which 

had occurred, and which were timbered over or marked out 

by the belt examiners (Tr. 29-30). 

When asked to explain the circumstances under which he 

No. 2299849, Inspector Melvin stated "again they would have 

falls, the roof falls, * * * and I couldn't tell you off 

hand how many crosscuts out there, about halfway down through 

there they have falls" (Tr. 30). He also alluded to some 

bad top, and the fact that when bad is encountered "they are 

supposed to either cross over or under that belt" (Tr. 31). 

Inspector Melvin conceded that he failed to detail 

the conditions he observed in his citations, and he agreed 

that this should have been done (Tr. 31). He explained 

that since "company people and union people" travel with 

him on his inspections, he assumes they know what he has 

in mind, and he stated that "we all see this and we don't 

take it offhand that somebody is going to read the citation 

that don't know what we are talking about" (Tr. 31). When 

asked whether or not the respondent knew what the inspector 

was citing, counsel stated "I would imagine a company person, 

walking around with them, was able to determine exactly what 

was disturbing the inspector" (Tr. 32). During a bench colloquy 

regarding the question of specificity of the citations, 

petitioner's counsel stated "well, they understood what it 

was" (Tr. 47). 

Section 104(a) of the Act requires an inspector to issue 

a citation with reasonable promptness when he believes that 

a mine operator has violated the Act, or any mandatory health 

or safety standard promulgated under the Act. The law also 

requires an inspector to state and describe in writing with 

particularity the nature of the violation. I construe this 

statutory language as a condition precedent to any citation, 

and an inspector is obligated to at least specify on the face 

of his citation the specific condition or practice that he 

observes which leads him to believe that a mine operator 

has violated the law. 

444 
In the instant proceedings, insofar as Citation Nos. 

2199897, 2199899, and 2200849 are concerned, Inspector 

Melvin's c~tations do not recite any conditions that would, 

on their face, support the conclusion that the respondent 

failed to maintain clear travelways on both sidesof the 

cited belt conveyor in question. Further, in support of 

these citations, his testimony only generally alludes to 

certain concerns that the travelways were somehow obstructed 

by roof falls or coal accumulations. 

Given the extent of the areas cited by Inspector Melvin, 

it is simply impossible to decipher the particular conditions 

or practices which may apply to each of the citations in 

question. For example, in Citation No. 2200849, while he 

asserts that the respondent failed to maintain a clear travelway 

on both sides of the belt conveyor for a distance of "approximately 

205 crosscuts," there is absolutely no evidence or testimony 

to support such a conclusion. His testimony that there was 

something present "that concerned him," and that "portions 

of his concerns'' dealt with coal accumulations, and "portions" 

dealt with obstructed travelways, is simply insufficient or 

totally lacking as credible evidence to support a citation. 

After careful consideration of the record in this case, 

including close scrutiny of Inspector Melvin's testimony, 

I conclude and find that he has failed to support his 

conclusions that the respondent failed to maintain clear 

travelways of at least 24 inches wide at the cited areas. 

I also conclude and find that Inspector Melvin failed to 

follow the requirements of Section 104(a) of the Act that 

any alleged violative conditions or practices be described 

with particularity. 

While it is true that the citations were abated, and 

that the abatement process itself suggests that the respondent 

may have had knowledge of the conditions or practices which 

concerned the inspector, on the facts here presented, there 

is absolutely no testimony as to what was done to achieve 

abatement. The termination notices simply state that "clear 

travelways were provided." Coupled with the fact that 

Inspector Melvin failed to clearly articulate any conditions 

or practices which led him to believe that the cited travelways 

were not maintained as required by the safeguard notice in 

question, as well as his failure to describe with any semblence 

of particularity the conditions or practices supporting any 

of these citations, I simply have no basis for finding that 

the petitioner has carried its burden of proof in establishing 

the alleged violations. 

445 
Since I am vacating the three citations in question 

in Dockets LAKE 83-67, LAKE 83-87, and LAKE 83-68-R, I 

see no reason to address the question as to whether or not 

section 75.1403-4(g) is applicable to the belt conveyors 

in question. Even if I were to find that it is, I would 

still vacate the citations for the reasons articulated herein. 

In view of the foregoing findings and conclusions, I 

conclude and find that the petitioner has failed to establish 

the fact of violations by a preponderance of any credible 

testimony or evidence with respect to Citation Nos. 2199897, 

2199899, and 2200849. Accordingly, they ARE VACATED. 

Contestant/respondent's contest challenging Citation No. 

2200849 IS GRANTED. 

Findings and Conclusions 

LAKE 83-94 - Fact of Violation 

Citation No. 2202728, issued on June 21, 1983, cites 

the failure by the respondent to maintain a clear travelway 

of at least 24 inches wide along the east side of the main 

north belt conveyor starting at the 236 crosscut inby to 

the No. 4 east belt head roller for approximately 40 crosscuts. 

Inspector Melvin's citation described materials such as 

"large rock, coal, roof bolts, roof blocks, concrete block, 

and roof bolt plates," as being present along the cited 

belt conveyor. Inspector Melvin concluded that the violation 

was not significant and substantial, and he did so because 

he did not believe that the accumulated materials which he 

found to present a tripping hazard posed a real threat of 

a mine fire such as that posed by accumulations of loose 

coal and coal dust rubbing or touching the belt conveyor. 

In short, his theory is that "if they build a 24 inch walkway there, and later put material there, they obstruct the 

people walking there" (Tr. 25). 

LAKE 83-78 - Fact of Violation 

Citation No. 2199892, issued on April 13, 1983, cites 

the failure by the respondent to maintain a clear travelway 

of at least 24 inches wide along the 4th east belt conveyor 

along an area encompassing some five crosscuts. Inspector 

Melvin's citation states that the "belt was rubbing coal" 

at the five crosscut locations, and that at one of the crosscuts 

the belt was "rubbing frame for rope" and that "it was warm." 

Inspector Melvin found that the violation was "significant 

and substantial." In its posthearing brief, at pages 7-8, 

448 
respondent does not dispute the fact that the belt conveyor, 

as well as the belt rope frame, were in fact rubbing or 

touching tne accumulations of coal as described by the 

inspector. As a matter of fact, the respondent stipulated 

that the combination of loose coal and coal dust described 

did in fact reach up to the conveyor belt and the bottom 

belt roller. Further, the respondent stipulated that dry 

loose coal and coal dust ranging in scope from 8 to 10 

inches deep, six to eight feet long, and two to three feet 

wide were in fact present along the cited belt locations, 

and that the cited areas were not rock dusted. 

Given the aforementioned stipulations and ·admissions 

by the respondent, it seems clear to me that had the respondent 

been charged with a violation of mandatory standard section 

75.400, which proscribes such accumulations, I would be 

constrained to find a violation of that section. Further, 

given the fact that respondent stipulated that the belt rope 

frame "was warm," and given the fact that the belt rollers were 

running in coal accumulations which were not rock dusted, I 

would also be constrained to find that the violation was 

"significant and substantial." However, respondent's defense 

is that the cited section 75.1403-5(g), is inapplicable 

because the conveyor belt in question is not one used to 

transport "men and materials," and even if it were used for 

that purpose, the conditions which prevailed did not amount 

to a "significant and substantial" violation. 

Inspector Melvin testified that the accumulations of 

loose coal and coal dust on one side of the belt conveyor 

extended out into the walkway, and he indicated that these 

accumulations should have cleaned up when the walkway 

was cleaned. He confirmed that he considered the violation 

to be "significant and substantial" because the coal 

accumulations under the belt which were touching and rubbing 

the belt framework presen~ed a fire hazard (Tr. 18). He 

conceded that these accumulations should have been cited 

under section 75.400 (Tr. 21). He also alluded to certain 

accumulations on the other side of the belt which were not 

touching the framet and he considered these to present a 

tripping or slipping hazard if one were walking by the belt, 

and he also considered the possibility of someone falling 

into a belt roller if they tripped or slipped over the 

accumulations (Tr. 18). 

When asked to explain the circumstances under which 

he would cite an operator with a violation of section 75.400 

for coal accumulations, and when he would cite the walkway 
standard section 75.1403-5(g), he stated that he could 

cite either or both standards, and the difference lies in 

whether or not the accumulations presented a tripping or 

walking hazard, as opposed to a fire hazard (Tr. 28-29; 

41-42). 

In its defense to this citation, respondent concedes 

that had it been charged with a violation of section 75.400, 

the cited coal accumulations would have violated that 

section, and would in fact have constituted a "significant 

and substantial violation." However, respondent 

argues that it has not been cited with a violation that is 

clearly intended to minimize the hazards of a fire, but rather, 

has been charged with a violation of a standard seemingly 

intended to protect miners from hazardous walking conditions. 

Respondent argues that the petitioner should not 

be permitted to elevate the gravity of a citation to a 

"significant and substantial" status because of the existence 

of a condition or practice which has no relation to the hazard 

addressed by the cited standard. To do otherwise, suggests 

the respondent, would allow the petitioner to penalize 

a mine operator for a condition or practice addressed by a 

standard different from the one actually cited, even if 

the condition or practice did not amount to a violation of 

that standard. Respondent insists that the question of 

"significant and substantial" must be determined in the context 

of the specific standard allegedly violated, as stated in 

the specific notice of violation. 

The parties have stipulated that the safeguard notice 

referred to by Inspector Melvin to support his citations was 

issued on September 4, 1975, by MSHA Inspector Willis H. Wrachford. This Notice to Provide Safeguards No. 1 WHW, states 

as follows: 

Notice is hereby given that the undersigned 

authorized representative of the Secretary of 

the Interior upon making an inspection of this 

mine on September 4, 1975, directs you to provide the following specific safeguard(s)--24 

inch clear travelways along all belt conveyors 

each side--pursuant to Sec. 75.1403, Subpart c, 

of the Regulations promulgated under authority 

of Section 101 of the Federal Coal Mine Health 

and Safety Act of 1969 (P.L. 91-173). 

448 
Under the heading Specific Recommended Safeguards the 

Notice alleged that: 

A clear travelway at least 24 inches 

wide on each side of the main north beltconveyor was not provided at the following 

locations. Between crosscuts Nos. 21 and 23 

(coal and rock), between crosscuts Nos. 93 and 

94 (Rib), and between crosscuts Nos. 108 and 

109 (coal, Rock, and Rib). 

A clear travelway at least 24 inches wide 

shall be provided on both sides of all belt 

conveyors installed after March 30, 1970. 

Where roof supports are installed within 

24 inches of a belt conveyor, a clear travelway at least 24 inches wide shall be provided 

on the side of such support farthest from the 

conveyor. 

Although Inspector Wrachford did not testify in these 

~roceedings, petitioner's counsel was permitted to file his 

affidavit posthearing as part of his proposed findings and 

conclusions, and the affidavit is included as exhibit P-1 

to counsel's brief. In his affidavit, Inspector Wrachford 

states that he issued the safeguard notice after observing 

that a clear travelway at least twenty four inches wide was 

not provided at several locations on the west side of the 

main north belt conveyor at the No. 1 Mine. He also states 

as follows: 

1. I explained to the operator why MSHA 

requires a clear travelway at least twenty 

four inches wide on both sides of all belt 

conveyors. 

2. The operator abated the condition described 

in the above mentioned notice in compliance 

with said notice. 

3. To consummate the abatement the operator 

cleaned one side of the belt to provide a 

clear twenty four inch travelway on that side. 

The other side of the conveyor already had 

a clear twenty four inch travelway at the time 

the notice was issued. 

4. The operator was informed that it was in 

compliance, but no termination form was issued 

because no form existed for that purpose in 

1975. 

449 
30 CFR 75.1403 provides as follows: 

Other safeguards adequate, in the judgment 

of an authorized representative of the Secretary, 

to minimize hazards with respect to transportation of men and materials shall be provided. 

Section 75.1403-1 provides: 

(a) Sections 75.1403-2 through 75.1403-11 

set out the criteria by which an authorized 

representative of the Secretary will be guided 

in requiring other safeguards on a mine-by-mine 

basis under section 75.1403. Other safeguards 

may be required. 

(b) The authorized representative of the 

Secretary shall in writing advise the operator 

of a specific safeguard which is required 

pursuant to section 75.1403 and shall fix a time 

in which the operator shall provide and thereafter maintain such safeguard. If the 

safeguard is not provided within the time fixed 

and if it is not maintained thereafter, a notice 

shall be issued to the operator pursuant to 

section 104 of the Act. 

(c) Nothing in the sections in the section 

75.1403 series in this Subpart 0 precludes the 

issuance of a withdrawal order because of 

imminent danger. 

In support of Citations 2199892 and 2202728, Inspector 

Melvin relied on the previous safeguard notice issued by 

Inspector Wrachford, and also cited a violation of the 

criteria applicable to belt conveyors found in section 75.1403-5(g), 

which states as follows: 

A clear travelway at least 24 inches wide should 

be provided on both sides of all belt conveyors 

installed after March 30, 1970. Where roof 

supports are installed within 24 inches of a belt 

conveyor, a clear travelway at least 24 inches 

wide should be provided on the side of such support 

farthest from the conveyor. 

450 
In its posthearing brief, Monterey argues that Section 

75.1403-5(g), is governed by the introductory provision 

found in Section 75.1403, which clearly limits its apRlicability 

to the transportation of men and materials. Since, according 

to Section 75.1403-l(a}, section 75.1403-5(g) is simply a 

criterion to be used as a guide in implementing section 75.1403, 

Monterey suggests that although section 75.1403-5(g) employs 

the phrase all belt conveyors, its applicability is limited 

to belt conveyors used in the transportation of men and 

materials. 

Monterey asserts that its aforementioned interpretation 

is generally carried out within the subsection found in 

Section 75.1403-5. Subsections (a), (b), (c), (d), and (e) 

refer to belt conveyors that are used to transport persons. 

Subsections (f) and (i) refer to belt conveyors that are 

used to transport supplies and persons. Subsection (h) 

refers to belt conveyors that are not used to transport 

persons. Only subsections (g) and (j) refer to belt conveyors 

without any mention of their use. 

Monterey points out that it is not disputed that 

the belt conveyors in question transport mined coal only, 

and that supplies and personnel are not transported on such 

conveyors. Since coal is not included within the term "men," 

Monterey states that the question becomes whether coal is 

included within the term "materials." Citing a dictionary 

definition of the term "material" as "the substance . . of 

which anything is composed or may be made," Monterey points 

out that section 75.1403-5 does not use the term "materials," 

but uses the word "supplies," indicating that the Secretary, 

too, interprets the word "materials" to mean "supplies." 

Monterey concludes that in a coal mine, coal is a product, 

and is not a material or supply. 

Monterey asserts that there is a legitimate distinction 

between belt conveyors which transport men and materials, 

and those which transport coal only. Personnel must work 

on a regular basis around belt conveyors which transport men 

and materials (e.g'., loading and unloading materials, getting 

on and off the belts themselves, etc.). In contrast, few 

personnel work around belt conveyors which transport coal only, 

and their work consists primarily of inspecting and maintaining 

the belt. The nature of one type of belt conveyor necessitates 

safe and easy means of access along both sides of it, while 

the other type of belt conveyor is satisfactorily served by 

safe and easy access along only one side of it. 

451 
Monterey asserts further that it is evident that the 

Secretary's purpose in ''requiring" 24 inch clear travelways 

along both sides of Monterey's coal-carrying conveyor belts 

is to facilitate walking along both sides of the belt 

(Tr. 49-50), and that his motive in such purpose is to encourage 

examiners to walk down both sides of the belt in their 

examinations (Tr. 57-61). 

Citing mandatory safety standard section 75.303(a), which 

requires preshift examination of the active workings of a coal 

mine, as well as onshift examinations of coal-carrying belt 

conveyors, Monterey points out that the extent of such onshift 

examinations of coal-carrying belt conveyors is not specified 

in the standard, and that it is not mandatory that an examiner 

conducting such an examination walk down both sides of the belt. 

Monterey concludes that for an examiner to perform his 

obligation it is enough that a clear travelway is maintained 

on only one side of the belt, and that if it is the Secretary's 

position that such an examination is inadequate, he should 

adopt, by formal rulemaking, the requirement that examiners 

walk both sides of coal-carrying belt conveyors and that 

operators provide clear travelways on both sides of such 

beltlines. 

Monterey goes on to note that Congress also distinguished 

between man-carrying beltlines and coal-carrying beltlines 

for purposes of examination. Preshift examination is 

required for man-carrying belts, but only onshift examination 

is required for coal-carrying belts. Citing a Commission 

ruling in Secretary of Labor v. Jones & Laughlin Steel Corporation, 

2 MSHC 2201, PENN 81-96-R, July 15, 1983, Monterey asserts 

that the Commission ruled in that case that coal-carrying 

conveyor belts per se are not "active workings." 

Monterey concludes that because coal does not fall 

within the category "men and materials," a coal-carrying 

conveyor belt is not subject to section 75.1403, nor to 

section 75.1403-5(g). In support of this conclusion, Monterey 

asserts that the provisions authorizing the Secretary to require 

additional safeguards on a mine-by-mine basis to minimize 

hazards with respect to transportation of men and materials 

does'~ot authorize the Secretary to require additional safeguards, such as 24 inch clear travelways, with respect to 

belt conveyors which carry coal only. The Secretary's 

authorized representative was without power to issue the 

Notice in question to Monterey; in the absence of such authority, 

the Notice is invalid. Consequently, the citations alleging 

violations of 30 C.F.R. Section 75.1403-5(g) for failure to 

comply with the Notice are also invalid. 

452 
With regard to its right to challenge the application 

of the safeguard notice in question, as well as the legality 

of the citations in question, Monterey states that the fact 

that it may have failed to contest two citations issued 

subsequent to the Wrachford Safeguard Notice in the eight 

years since it was issued does not foreclose its contests 

here, nor does it amount to an admission that the safeguard 

is valid. To conclude otherwise, suggests Monterey, would 

deprive it of its right to due process. 

MSHA takes the position that the term all belt conveyors 

found in criteria subsection 75.1403-5(g), literally applies 

to all belt conveyors, regardless of whether or not they 

were used to transport men and materials or only coal. 

MSHA asserts that the term "materials" should be interpreted 

to include coal, and even though the parties have stipulated 

that the cited belt conveyors in question are not designated 

mantrips for the transportation of mine personnel, and that 

they are used solely to transport the coal which is mined 

out of the mine, they nonetheless must comply with the safeguard, 

as well as the requirements of subsection (g) . 

MSHA asserts that all coal conveyor belts in the mine 

must be provided with travelways 24 inches wide, and that such 

travelways must at all times be maintained "clear" on both 

sides of the belt conveyors. Further, on the facts of these 

cases, and in support of its interpretation, MSHA is of the 

view that both sides of all such conveyor belts must be 

maintained "clear" to insure ready access to both sides of 

the belts by belt examiners, and to preclude accumulations 

of loose coal which may present tripping or fire hazards, and 

to preclude general mine clutter which may present tripping 

and slipping hazards. 

The "safeguard notice" authority found in section 75.1403, 

accords substantial power to an inspector to issue a citation 

on a mine-by-mine basis, for conditions or practices which 

are in effect transformed into mandatory health or safety 

standards by the inspector who may have initially concluded 

that a particular event or set of circumstances constituted 

a situation that required to be addressed in that mine. Since 

the practical result of an inspector's application and enfQ~cement 

of a safeguard notice is to impose a mandatory safety or . 

health requirement on the mine operator, separate and apart 

from any of the published mandatory standards, I believe · 

that careful scrutiny must be given to such notices to insure 

proper notice and even-handed enforcement. In my view, 

indiscriminate or arbitrary use of such notices as "catch-alls " 

with little or no regard as to whether or not the asserted ' 

453 
violative practices or conditions sought to be addressed 

may constitute a violation of other specific standards, 

should not be tolerated. In short, I believe that due process 

requires that such safeguard notice be strictly construed. 

In my view, the citations at issue here are a classic 

example of an inspector relying on a general, broad-based 

safeguard notice to remedy hazardous concerns which could 

have been cited and addressed by specific mandatory safety 

standards. On the facts of these proceedings, faced with 

accumulations of loose coal and coal dust which presented 

alleged fire or tripping hazards, the inspector opted to 

rely on a safeguard notice issued some seven years earlier by 

another inspector to achieve compliance which could have 

directly and effectively been dealt with by citing the specific 

mandatory standards intended to cover those particular 

conditions. 

The Secretary's Inspector's Manual, March 9, 1978 

edition, at pages II-583, states the following policy 

interpretation for an inspector to follow when relying on 

a safeguard notice issued pursuant to section 75.1403: 

These safeguards, in addition to those 

included as criteria in the Federal Register, 

may be considered of sufficient importance 

to be required in accordance with section 

75.1403. 

It must be remembered that these safeguards 

are not mandatory. If an authorized representative of the Secretary determines that a 

transportation hazard exists and the hazard is 

not covered by a mandatory regulation, the 

authorized representative must issue a safeguard notice allowing time to comply before a 

104(a) citation can be issued. Nothing here 

is intended to eliminate the use of a 107(a) 

order when imminent danger exists. 

(Emphasis added) . 

~Sections 75.1403-2 through 75.1403-11 set out the criteria 

by ~Jich an inspector will be guided in requiring other safeguards on a mine-by-mine basis under section 75.1403. Criteria 

75.1403-2, deals with brakes on hoists and elevators used to 

transport materials. Criteria 75.11403-3 deals with drum 

clutches on man-hoists, and hoist ropes and cage construction 

on devices used to transport mine personnel. Criteria 

75.1403-4 deals with automatic elevators, including requirements for an effective communication system. Although the 

criteria do not mention materials or personnel, one can logically 

assume that given the appropriate circumstances, they apply 

to both. 

454 
The criteria found in section 75.1403-5(a) through (f), 

and (h) through (j), all specifically include a reference 

to the transportation of personnel on belt conveyors. 

Subsection (f) provides that after supplies have been transported on belt conveyors, they are to be examined for unsafe 

conditions prior to transporting men on regularly scheduled 

mantrips, and that they are to be clear before men are 

transported. The only specific reference to conveyors that 

do not transport men is found in subsection (h) which requires 

that such belt conveyors be equipped with properly installed 

and accessible stop and start controls installed at intervals 

not to .exceed 1000 feet. 

Subsection (g) of the criteria found in section 75.1403-5, 

require clear travelways at least 24 inches on both sides of 

all conveyor belts installed after March 30, 1970. It also 

contains a provision that "where roof supports are installed 

within 24 inches of a belt conveyor, a clear travelway at least 

24 inches wide should be provided on the side of such support 

farthest from the conveyor." Thus, while the first sentence 

seems to require clear 24 inch wide travelways on both sides 

of all conveyors, the second sentence seemingly contains an 

exception where roof supports are installed within 24 inches 

of a belt conveyor. In such a situation, the second sentence 

seems to require that only the outby side of the belt conveyor 

be provided with a clear 24 inch wide travelway. Given this 

somewhat confusing exception, I would think that in cases 

where it is established that roof supports are present within 

24 inches of a belt conveyor, an operator would only be 

required to maintain one side of the belt as a clear travelway 

of 24 inches in width. It would further appear to me that 

the question as to whether which side of the belt conveyor has 

to be maintained as a clear travelway would depend on the 

location of the roof supports. 

The statutory requirements found in mandatory section 

75.303, for the conduct of preshift examinations includes 

a requirement for examination of 'active roadways, travelway~, 

and belt conveyors on which men are carried, ... and 

accessible falls ... for hazards." This section mandates 

that the examiner examine for such other hazards and violations 

of the mandatory health of safety standards, as an authorized 

representative of the Secretary may from time to time require. 

With regard to the preshift requirements for examination 

of belt conveyors on which coal is carried, section 75.303 

mandates that they be examined after each coal-producing shift 

has begun. This section also mandates that if the examiner 

finds a condition or practice which constitutes a violation of a 

455 
mandatory health or safety standard or any condition which 

is hazardous to persons who may enter or be in such areas, 

he is required to post any hazardous area with a "danger" 

sign, and then proceed to take corrective action. 

The Secretary's Inspector's Manual, edition of March 9, 1978, 

pgs. II-241-242, containing the policy interpretation for 

enforcement of section 75.303, has absolutely no reference 

to a requirement that conveyor belts have 24 inches of clear 

walkways. As a matter of fact, the reference to examination 

of travelways states that "every foot of roof along the entire 

length of the travelway" is not required to be tested. It· 

goes on to state that roof and ribs along travelways "shall 

be examined visually," and "doubtful places" are to be tested 

to assure corrections of hazardous conditions. 

The Secretary's policy inspection guidelines found at 

pgs. II-244 and II-245 with respect to section 75.304 onshift 

examinations for hazardous conditions, while including 

travelways, do not contain any requirements for 24 inch 

clear travelways. However, the policy does require an 

inspector to cite violations of mandatory health or safety 

standards when observed by citing section 75.304, in addition 

to the specific mandatory standard covering the specific hazard. 

Taken as a whole, the statutory, regulatory, and policy 

interpretations which address belt conveyor travelways 

specifically distinguish between belt conveyors which transport 

men and supplies from those which transport only coal. In 

addition to the specific criteria previously discussed, I 

take note of the fact that the criteria dealing with mantrips 

(75.1403-7) specifically address supplies or tools (subsection 

(k)), tools, supplies, and bulky supplies (subsection (m)), 

extraneous materials or supplies (subsection (o)), and that 

the criteria dealing with track haulage, 75.1403-S(b), 

specifically deals with the maintenance of continuous track 

haulage clearances of at least 24 inches from the farthest 

proj e::·t:1ion of normal traffic. Viewed in contest, and taken as 

a whGle, I believe that the clear Congressional intent in 

promulgating the safeguard requirements found in section 75.1403 

was•to.do precisely what that section states, namely to 

minimize hazards with respect to the transportation of men 

and materials other than coal. It occurs to me that had 

Congress had in mind coal, it would have simply included 

the transportation of coal as part of the regulatory language, 

and MSHA would have included this as part of its regulatory 

criteria. Since Congress and MSHA failed to do so, I reject 

any notion that I should include this interpretation as part 

of my findings in this matter. 

456 
On the facts of this case, MSHA seeks to address certain 

perceived tripping and fire hazards which may have resulted 

from the failure by the mine operator to clean up coal 

accumulations resulting from the normal mining process, or 

roof falls, or by the failure by the operator to remove 

general mine materials from the travelways. Given these 

concerns, I believe that it is incumbent on MSHA to either 

promulgate specific standards to address these concerns, or 

to amend its criteria to state precisely what it has in mind. 

Requiring this particular mine operator to maintain 24 inch 

wide clear travelways along both sides all of its belt 

conveyors under the guise of a safeguard notice issued 

eight years ago, with no credible evidentiary support for 

its position is simply unsupportable. 

The citations which are at issue here (2202728 and 

2199892), charge the respondent with a failure to maintain 

a clear travelway on the east side of the cited belt conveyors 

in question. This leads me to conclude that it was altogether 

possible that the south side of the conveyor belts were in 

compliance, and what really concerned Inspector Melvin was the 

fact that failure to maintain the east sides of the belts 

did not comport with the safeguard requirements that both sides 

of the belt conveyor be maintained clear of coal accumulations 

and other debris. However, given the confused testimony 

and evidence presented by MSHA to support its case, I simply 

cannot conclude that MSHA has proven its case. This is 

particularly true when it seems obvious to me that the inspector's 

concerns over accumulations of loose coal and extraneous 

material could have been addressed by specific citations of 

the mandatory requirements dealing with those specific 

hazards. In short, Inspector Melvin should have followed 

MSHA's policy directives to cite the specific mandatory 

standards dealing with coal accumulations and tripping or 

guarding hazards, rather than relying on a safeguard notice 

issued some eight years earlier. 

While one may conclude that the presence of the materials 

described by Inspector Melvin in Citation No. 2202728 

(rocks, roof bolts, concrete blocks, etc.), and Citation No. 

2199892 (loose coal which may have spilled over on to the 

travelway), support a conclusion that the cited travelways 

were not maintained "clear," unless it can be shown that 

these conditions constituted a violation of the cited 

regulations, the citations must be vacated. 

After careful consideration of all of the testimony and 

evidence adduced in these proceedings, including the arguments 

457 
advanced by the parties in support of their respective 

positions, I conclude and find that Monterey has the better 

part of the argument as to the application of section 

75.1403-5(g) to the cited belt conveyors in question. 

Accordingly, I conclude and find that the overall statutory 

and regulatory intent of the cited section is to address 

hazardous conditions connected with belt conveyors which 

transport men and materials other than coal, and that any 

logical interpretation of this section necessarily excludes 

coal as a "material" within the scope of the cited criteria. 

I accept and adopt Monterey's proposed findings and conclusions 

with respect to the interpretation and application of this 

section as my findings and conclusions, and I reject those 

advanced by MSHA. The citations are VACATED. 

Findings and Conclusions 

LAKE 83-52 - Fact of Violation 

In this case, Citation No. 2036802, issued by Inspector 

Melvin on December 28, 1982, charges the respondent with a 

"significant and substantial" violation of mandatory standard 

section 75.316, for failure by the respondent to follow the 

applicable provision of its mine dust control plan. Inspector 

Melvin found that certain exhaust ventilation tubing located 

in an area where a continuous mining machine was loading 

coal was extended 22 feet outby the face. The applicable 

dus~ plan requires such exhaust tubing to be maintained 

within 10 feet of the face as the face is advanced. 

Mandatory safety standard section 75.316, requires a 

mine operator to adopt a suitable mine ventilation and dust 

control plan for its mine. Once approved by MSHA, that plan 

becomes the applicable plan required to be followed until 

such time as it is revised, revoked, or otherwise changed. 

It is clear that a violation of the plan is a violation of 

the requirements of section 75.316. 

The respondent has stipulated to the conditions cited 

by the inspector, including the fact that the continuous 

mining machine was loading coal at the cited location, and 

that the exhaust tubing was approximately 22 feet outby the 

face. Respondent has also stipulated to the applicable dust 

and ventilation provision which requires that such tubing 

be maintained within 10 feet of the face, and in its posthearing 

brief "does not deny that this condition existed in the cited 

section of the mine" (pgs. 2-3, brief). Respondent also admits 

that the violation occurred (pg. 1, brief), and only challenges 

the inspector's "significant and substantial" (S&S) finding. 

458 
In view of the foregoing, I conclude and find that the 

petitioner has established the fact that a violation oj 

section 75.316 occurred, and to this extent the citation 

IS AFFIRMED. 

LAKE 83-61 - Fact of Violation 

In this case, Citation No. 2063916, issued by Inspector Gully, 

charges the respondent with a "significant and substantial" 

violation of mandatory standard section 75.316, for failure 

by the respondent to follow a specific provision of the applicable 

mine ventilation plan in that at the cited location detailed 

in the citation where a continuous miner was cutting coal, the 

amount of measured air was only 1900 CFM. The ventilation 

tubing provided at this location was 390 feet from the fan. 

The applicable plan provision requires a minimum air quantity 

of 5000 CFM where the ventilation tubing is in excess of 370 

feet. 

Mandatory safety standard section 75.316, requires a 

mine operator to adopt a suitable mine ventilation and dust 

control plan for its mine. Once approved by MSHA, that plan 

becomes the applicable plan required to be followed in the mine 

until such time as it is revised, revoked, or otherwise changed. 

It is clear that a violation of the plan is a violation of 

the requirements of section 75.316. 

The respondent has stipulated to the conditions cited 

by the inspector, including the fact that the continuous 

mining machine was cutting coal, that the tubing length was 

390 feet, and that the air measurement made by the inspector 

in support of the citation was in fact 1900 CFM. Respondent 

also stipulated as to the applicable ventilation plan requirements, 

and in its posthearing brief "does not deny that the condition 

existed in the cited section of the mine at the time the citation 

was issued" (pg. 2, brief). Respondent does not deny that 

the violation occurred (pg. 8, brief), and only challenges 

the inspector's "significant and substantial" (S&S) finding. 

In view of the foregoing, I conclude and find that the 

petitioner has established the fact that a violation of section 

75.316 occurred, and to this extent the citation IS AFFIRMED. 

Significant and substantial issue 

During the course of the hearings in these proceedings, 

I raised the issue as to the reviewability of "special findings," 

such as an alleged "significant and substantial" violation, 

459 
in a civil penalty proceeding. In a prior proceeding now 

on review with the Commission, Secretary of Labor v. Black 

Diamond Coal Mining Company, SE 82-48, April 20, 1983, I 

refused to review such findings. In Secretary of Labor v. 

Glen Irvan Corporation, PENN 83-27 and PENN 83-146, November 3, 

1983, I rejected any notion that the Secretary's Part 100 

"single penalty" assessment regulations were binding on a 

Commission Judge. In rejecting a "non-S&S" $20 penalty 

assessment, I considered the facts and circumstances surrounding 

that particular violation de novo, and assessed an increased 

civil penalty on the basis---Of---rny-gravity findings. In short, 

I considered the matter of "S&S" in the context of gravity. 

In its posthearing brief, Monterey cites a plethora 

of precedent cases decided by Commission Judges in which 

special "S&S" findings were reviewed. Counsel states that 

my Black Diamond decision, and a decision by Judge Melick 

in Windsor Power House Coal Company v. Mine Workers, 1 MSHC 

2484, WEVA 79-199-R and WEVA 79-200-R, July 3, 1980, stand 

"in stark contrast" to the other decisions holding that 

special findings may be reviewed within the context of a 

civil penalty contest. I am overwhelmed by this "weight of 

authority," and while I realize that consistency dictates 

that I rule otherwise, I will consider the special findings 

made by Inspector Melvin in these proceedings. 

As I have noted in several prior decisions concerning 

the application of the Commission's holding in Cement Division, 

National Gypsum Co., the issue of reviewability of special 

findings in the context of civil penalty proceedings was not directly 

raised or addressed by the parties in that case. The parties 

apparently assumed that such findings could be reviewed, 

and the Commission itself noted that its interpretation of 

the phrase "significant and substantial" was made "in the 

context of a civil penalty proceeding." It did not specifically 

rule on the issue of reviewability because that issue was 

apparently not specifically articulated on the record. In 

any event, I take note of the following interpretation of 

the term "significant and substantial" made by the Commission 

in Cement Division, National Gypsum Co., 3 FMSHRC 822 

(April 1981), aff'd in Secretary of Labor v. Consolidation 

Coal Company, decided January 13, 1984, WEVA 80-116-R, etc. 

affirming a prior holding by a Commission Judge, 4 FMSHRC 

747, April 1982: 

[A] violation is of such a nature as could 

significantly and substantially contribute to 

the cause and effect of a mine safety or health 

hazard if, based upon the particular facts 

460 
surrounding the violation, there exists 

a reasonable likelihood that the hazard 

contributed to will result in an injury or 

illness of a reasonably serious nature. 

In its most recent holding in Consolidation Coal Company, 

WEVA 80-116-R, etc., January 13, 1984, the Commission stated 

as follows at pg. 4, slip opinion: 

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 by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the 

injury in question will be of a reasonably 

serious nature. Mathies Coal Co., FMSHRC 

Docket No. PENN 82-3-R, etc., slip op. at 3-4 

(January 6, 1984). 

In its posthearing brief, Monterey cites the National Gypsum 

holding that a violation is "significant and substantial" if, 

based upon the particular facts surrounding that violation, 

there exists a reasonable likelihood that the hazard contributed 

to will result in an injury or illness of a reasonably serious 

nature. Relying on this interpretation Monterey asserts that 

the requirement in section 75.316 of a ventilation, methane 

and dust control plan is intended to minimize the risks of 

lung disease such as pneumoconiosis due to prolonged exposure 

to excessive levels of respirable coal dust, and of explosion 

or ignition due to the buildup of methane or other gasses. 

Conceding that there is no question that pneumoconiosis 

or injuries resulting from an explosion would be "of a 

reasonably serious nature," Monterey states that the proximity 

of such injury or illness is the issue here. It concludes 

that in order for a violation of the required plan to be 

significant and substantial, the Secretary must show by the 

particular facts surrounding the violation that it was 

reasonably likely to result in pneumoconiosis or in an 

explosion. 

In support of its conclusion that the violations are not 

"significant and substantial," Monterey asserts that the 

Secretary has failed to satisfy the burden of proof required 

461 
by the National Gypsum holding and has established nothing 

more than the fact that violations of section 75.316 occurred. 

Monterey asserts that the Secretary has not shown that the 

violations of its dust and ventilation plan resulted in any 

excessive level of respirable dust or in any accumulation 

of methane, nor has the Secretary even alleged any other 

facts which might indicate that contraction of pneumoconiosis 

or an explosion was reasonably likely to result from the 

violations. 

Monterey points out that respirable dust and methane 

limits are specifically set in other standards. The limit 

for respirable dust is found in section 70.lOO(a), which 

provides that "each operator shall continuously maintain the 

average concentration of respirable dust in the mine atmosphere 

• at or below 2.0 milligrams of respirable dust per cubic 

meter of air . " The limit for methane is found in 

section 75.316-2, which provides that ''the methane content 

in the air in active workings shall be less than 1.0 volume 

per centum.~ Monterey states that neither of these limits 

was exceeded in the cited areas of the mine at any relevant 

time. 

Monterey suggests that it would be a legal anomaly for 

a violation of ventilation, methane and dust control plans 

required by section 75.316, the purpose of which is to control 

respirable dust and methane levels, to be significant and 

substantial in spite of the fact that the specific limits 

for these substances established by sections 70.lOO(a) and 

75.316-2 were not exceeded. Such a conclusion would totally 

disregard the fact that in adopting said standards the 

stated limits were deemed to be not unsafe, and would be 

tantamount to superseding the formally-adopted safety or 

health standards. 

Monterey cites Judge Melick's decision in Consolidation 

Coal Company v. Secretary of Labor, 2 FMSHRC 1896, August 18, 

1982, in which he ruled that two alleged violations of the 

respirable dust standards found in section 70.lOO(a), 

where a production unit had respirable dust levels of 2.5 

and 2.7 milligrams per cubic meter of air, were not significant 

and substantial. Judge Melick's ruling was based on his 

finding that in the absence of medical or scientific evidence 

correlating exposure of miners to violative respirable dust 

levels of 2.5 and 2.7, he could not conclude that the 

violations were significant and substantial. Monterey asserts 

that with respect to the citations issued by Inspector Melvin, 

there is no evidence that the respirable dust levels in the 

cited areas of the mine at the relevant time ever approached 

~2 
2.5 or 2.7. Further, Monterey states that the Secretary 

has proffered no medical or scientific evidence that the 

exposure of miners to the actual respirable dust level existing 

at the cited areas at the relevant times is correlated to 

pneumoconiosis, which evidence is required by Consolidation 

Coal for a violation to be significant and substantial. 

In addition to its Consolidation Coal arguments, Monterey 

maintains that on the facts of these citations, there are 

other factors to consider in support of its conclusion that 

the violations were not significant and substantial. These 

include the fact that the miners were not, in fact, exposed 

to any hazardous levels of respirable dust or methane. The 

duration of the violation would have been negligible, even 

if the citations had not been issued; normal operating 

procedures would have led to the detection and correction 

of the violations in a short period of time. The number of 

people "exposed" was low. A number of redundant safeguards 

continued to control respirable dust and methane. The mine 

history itself indicates that Monterey has been very successful 

in controlling respirable dust and methane. 

In conclusion, Monterey asserts that the Secretary's 

inferences are too speculative to serve as a basis for a 

finding that the violations in question were significant 

and substantial. As an example of the speculativeness of 

the Inspector's finding that Citation No. 2036802 (LAKE 83-52) 

was significant and substantial, counsel attaches a copy 

of a citation issued three weeks later alleging nearly 

identical facts but not finding the alleged violation to be 

significant and substantial. The citation (exhibit R-1), 

was issued by Inspector Melvin on January 20, 1983, 

No. 2036818, and it charges a violation of section 75.316 

for failure to follow the mine dust control plan. Inspector 

Melvin found that in the cited mine area where a continuous 

mining machine had been loading coal, the ventilation exhaust 

tubing was extended 20 feet outby the face, and that this 

violated the plan requirements that such tubing be maintained 

to within 10 feet of the face. 

Monterey also cites a May 19, 1981, MSHA Policy Memorandum, 

which states that in determining whether a violation is 

significant and substantial, "it is not enough to find that 

an injury or illness is only possible." Monterey then 

concludes its arguments by asserting that it is inescapable 

that the designation of the violations in question as significant 

and substantial is both unsupported by the particular facts 

surrounding the violations and legally erroneous. 

463 
In support of its position on the question of "significant 

and substantial," MSHA relies on the National Gypsum 

Commission decision definition. With regard to the specific 

facts surrounding Citation No. 2036802, MSHA quotes the 

condition described by the inspector on the face of the 

citation, and points out that the parties have stipulated 

to the accuracy of these findings. In this regard, I take 

note of the fact that the citation merely states a conclusion 

that positioning the exhaust tubing 22 feet outby the face 

violated the applicable dust control plan provision which 

requires that such tubing be maintained within 10 feet 

of the face as the face is advanced. 

Turning to the testimony of the inspector in support 

of his conclusion that the violation was "significant and 

substantial," MSHA points to the inspector's testimony, 

supported by a witness for Monterey (Mottershaw), that the 

purpose of maintaining the tubing within 10 feet of the face 

is to keep respirable dust away from the face and to remove 

methane gas. The inspector stated that locating the tubing 

22 feet from the face is not half as effective as is maintained 

within the required 10 feet, and he believed that the tubing 

remained at the 22 feet distance for approximately 20 minutes. 

The inspector also stated that he was told by certain miners 

that the tubing is initially placed where the cutting of coal 

is begun, and that it is not extended until the cutting is 

finished. However, since he believed these statements to 

be hearsay, he discounted issuing a ''willful" citation, but 

believed they were truthful because none of the miners made 

any effort to place the tubing in the proper position even 

though they knew he was inspecting the area. 

MSHA suggests that the inspector's belief that not moving 

the tubing in question was the usual procedure at the mine was 

also based on his testimony that he had issued other citations 

in the past at the mine for the same violations. Although 

he stated that he had previously cited the same conditions 

in other sections of the mine ''more than once," no additional 

evidence or testimony was forthcoming to support this assertion. 

However, as part of his posthearing arguments, MSHA's counsel 

cites 18 prior violations of section 75.316 from January 8, 1981 

to November 16, 1982, as reflected in the history of prior 

violations attached to the stipulations, to support a conclusion 

that Monterey has not been greatly concerned with the enforcement 

of its ventilation and methane plans. 

In response to Monterey's assertion through testimony 

of its witnesses that the mine has water equipment and other 

464 
equipment to control the dust; that the continuous miner 

has a device that stops that machine when the level of 

methane is high; and, that the level of methane was low 

at the time of the inspection, MSHA's counsel points out 

that this equipment is standard equipment found in every mine 

and is not a substitute for the proper placement of the exhaust 

tubing near the face. Counsel concludes that Monterey creates 

a dangerous situation when it decides to relax enforcement 

of its dust and methane plans because it is confident that 

the methane level is low and that some devices in the mine 

are going to control the respirable dust, methane, and other 

gases. 

MSHA points out further that the mine was on a five-day 

section 103(i) spot inspection cycle the time the citation 

issued, and that this was because it was liberating extremely 

high quantities of methane or other explosive gases in excess 

of one million cubic feet during a 24-hour period. Although 

a witness for the Monterey testified that at the time of the 

hearing the inspections had been changed to 1-day spot 

inspections, counsel argues that to assume that an ignition 

is not going to happen because the methane level is low at 

a particular moment is to rely on a false sense of security. 

Counsel maintains that it is a fact that in a mine that liberates 

an excess of one million cubic feet of methane in a 24-hour 

period the methane level can go up at any time, significantly 

increasing the likelihood of an ignition and resulting in serious 

injuries or death. 

MSHA asserts that the facts in this case prove that 

the methane levels could have increased due to improper 

positioning of the exhaust tubing, and that excessive amounts 

of respirable dust could have increased because of this 

condition. MSHA suggests that it is a well known fact that 

serious injuries or death could result in case of a fire or 

explosion caused as a consequence of high levels of methane, 

and that pneumoconiosis can be caused by exposure to respirable 

dust. MSHA concludes that while it has no burden to prove 

the existence of an imminent danger situation, this would have 

been the case if at the time of the inspection the methane 

level had reached the explosion level and the device to detect 

that gas had not been in operation. 

MSHA suggests that the facts presented at the hearing 

clearly prove that an injury or an illness of a reasonable 

serious nature could have resulted as a consequence of the 

hazard presented by the condition described in this citation, 

and that this meets one of the tests required to prove the 

existence of a significant and substantial condition. The 

other test to prove the existence of the significant and 

465 
substantial element in a violation is to show that a reasonable 

likelihood exists that the injury or illness in question would, 

occur. MSHA concedes that we are dealing here with a 

probability factor, but states that the test does not require 

an absolute certainty that the injury or illness must occur. 

In addition to the evidentiary support for its position, 

MSHA relies on the past history of violations at the mine and 

question and considers that history as an important factor 

in the evaluation of the probability of an accident. MSHA 

maintains that it is reasonable to assume that the probability 

of an accident is increased by the increase of the exposure. 

of the miners to a specific condition, and that the exposure 

is increased by the number of violations involving that same 

condition that occurs in a particular mine. Recognizing that 

the definition of significant and substantial requires that 

the likelihood of an accident be based on the particular facts 

surrounding the violation, MSHA's position is that the history 

of violations of a specific standard is a fact which surrounds 

the violation of such standard, and that this fact cannot be 

separated from the violation when an evaluation is made to 

determine the likelihood of an accident as a result of said 

violation. 

In support of the "S&S" finding made by Inspector Gulley 

with respect to Citation No. 2063916, MSHA relies on his 

posthearing affidavit, which in pertinent part states as 

follows: 

I determined that the cited condition was 

of a significant and substantial nature because 

a reasonable likelihood existed that injuries 

of a reasonably serious nature would have occurred 

as a result of said condition for the following 

reasons. 

{a) The methane level was 0.2% 15 feet outby the face on the right side and 0.3% on the 

left side. However, it could have been higher 

at the face where I did not measi.i're it because 

the roof was unsupported. 

(b) Monterey Mine No. 1 liberated more than 

one million cubic feet of methane or other 

explosive gases during a 24-hour period as of 

February 3, 1983. 

(c) Monterey Mine No. 1 was under a five 

day spot inspection under Section 103(i) of the 

Act as of February 3, 1983. 

46G 
(d) The methane level could have built 

up at the face at any time causing an ignition 

and resulting in burns on the body and face 

of the two operators of the continuous miner~ 

(e) The injuries produced by a gas ignition 

could have resulted in lost work days or 

restricted duty. 

(f) The amount of air found at the time of 

the inspection was 1900 cubic feet per minute 

where 5000 cubic feet oer minute was required 

by the operator's ventilation plan. This lack of 

air contributed to the increase in methane gas 

and respirable dust and increased the exposure 

of miners to the hazards caused by high methane 

levels and respirable dust. 

(g) I was informed by the operator that the 

air quantity had been measured before the inspection 

and found to be adequate. However, I found that 

the air had been measured,with an anemometer 

and that the miner who measured it was not familiar 

with air measuring procedures. 

(h) Based on the history of many prior violations by the operator of 30 CFR 75.316, I considered 

that the likelihood of an accident caused by an 

increase in the methane level as a result of poor 

enforcement of the operator's ventilation plan 

was augmented. 

MSHA points out that Monterey's witness Mottershaw 

testified that the decreased airflow measured by Inspector Gulley 

was the result of a rock dust bag being sucked into the tubing, 

thereby interrupting the airflow~ and that empty rock dust 

bags are used to repair and patch ventilation leaks in the 

tubing. Coupled with the history of prior violations, MSHA 

suggests that this practice of using rock dust bags to repair 

ventilation leaks 'establishes poor enforcement of the mine 

ventilation and dust control plans. MSHA points out that 

no one knows how long the rock dust bag may have interrupted 

the ventilation, and that the 1900 cubic feet of air found 

by Inspector Gulley was not a minor decrease, particularly 

where the required 5000 cubic feet is only a minimum requirement. 

Coupled with the prior history of poor enforcement of section 

75.316, MSHA concludes that a reasonable likelihood existed 

that an injury or illness of a reasonable serious nature would 

have resulted as consequence of the condition cited. 

467 
Monterey's history of prior violations is in the form 

of computer print-outs attached as Exhibit B to MSHA's posthearing arguments. The print-out detailing Monterey's prior 

history for the period December 28, 1982 to June 21, 1983, 

lists five citations for violations of section 75.316. Two 

of the listed violations are the ones contested in these 

proceedings. The three remaining ones concern violations issued 

on January 20, February 1, and April 19, 1983. In each instance, 

the print-out reflects that Monterey paid the "single penalty" 

assessment of $20 for each of the violations. I take note 

of the fact that these "single penalty" assessments are based 

on findings that they are "non-S&S" violations. 

A second computer print-out, also identifled as Exhibit B, 

covers the period December 28, 1980 through December 27, 1982. 

It lists 18 prior violations of section 75.316, and the penalty 

assessments range from a low of $20 to a high of $275. 

Three of the citations were "single penalty assessments" of 

$20 each, and according to the computer "codes," the remaining 

penalty assessments were "regular assessments," as distinguished 

from assessments related to injuries, fatalities, or unwarrantable 

failures. Further, all of the citations were section 104(a) 

citations, and did not involve withdrawal orders or imminent 

dangers. Taken as a whole, the computer print-outs reflect 

that for a period spanning December 28, 1980 through June 21, 1983, 

Monterey was assessed for 21 violations of section 75.316, 

six of which were $20 "single penalty" "non-S&S" assessments. 

Absent any testimony or documentation as to the specific 

conditions or practices which prompted the prior citations, I 

cannot conclude that they involved ~he same conditions cited 

in these proceedings. Given the fact that section 75.316 

is a general standard requiring a mine operator to adopt a 

ventilation system, and methane and dust control plans approyed 

by the Secretary, unless MSHA produces the specific citationi, 

as well as the particular plan provisions which may have been 

applicable at the time these prior citations were issued, 

I cannot conclude that they involved a failure by Monterey 

to follow the plan provisions dealing with ventilation tubing 

or the maintenance of air velocity at the level at issue in 

these cases. 

On the facts of these proceedings, MSHA's reliance on 

the history of prior violations to support a conclusion 

that Monterey has somehow engaged in a practice of deliberately 

flaunting its own dust and ventilation plans is rejected. 

Given a two and half year period of 21 violations of section 

75.316 violations, six of which were "non-S&S" violations, 

and given the fact that Monterey is a large mine operator, I 

468 
cannot conclude that MSHA's conclusions are supportable. 

This is particularly true where MSHA has produced absolutely 

no facts to indicate precisely what the conditions or practices 

cited in these prior violations were all about. As an example, 

I cite Monterey's reference to Inspector Melvin issuing a 

subsequent ''non-S&S" citation for precisely the same conditions 

for which he now claims constitute a significant and substantial 

violation. 

In my view, if it can be established that a mine operator 

has a practice of deliberately flaunting the law, this should 

be addressed by the issuance of closure orders or the institution 

of criminal proceedings. The issuance of inconsistent and 

unexplained section 104(a) citations, some of which are ''S&S," 

and some of which are not, all based on identical factual situations, 

simply does not make sense. Further, reliance on unevaluated 

prior histories of violations, with no documentatio~ also do 

not make sense. 

If MSHA is of the view that past history violations, as 

well as information of asserted practices which may suggest 

a lack of attention to dust and ventilation plans, may support 

a theory of "significant and substantial" violations, it is 

incumbent on MSHA to support those conclusions by credible 

evidence, rather than by speculative unsupported theories. 

As an example, I cite Inspector Melvin's testimony that certain 

miners told him that as a matter of routine or practice, the 

exhaust tubings are not advanced to within 10 feet of the 

face as mining advancing. Where are the miners to support 

this conclusion? I also cite MSHA's reliance on computer 

print-outs, with absolutely no testimony or evidence to 

indicate the particular facts or circumstances which prompted 

those citations. 

Turning to the record evidence to support MSHA's assertion 

that Citation No. 2036802 was significant and substantial, I 

take note of the fact that Inspector Melvin testified that his 

methane readings taken 20 to 22 feet from the face at the time 

the citation issued ranged from .1 to .2, and that these were 

"not high" (Tr. 8). He also indicated that while readings 

of .5 may have caused him concern, gas is generally not 

detected at the face in the mine (Tr. 11). He conceded that 

even though the mine is classified as a "gassy mine," and 

even though methane may be encountered when the coal is actually 

cut, he has not detected methane levels in excess of the 

prohibited standards (Tr. 12-13). Further, he did not rebut 

the testimony of Monterey's witness Mottershaw that in all 

the years he has worked at the mine, the mine had never 

been cited for excessive levels of methane, and he conceded 

that at the time he issued the citation, he detected 

469 
no excessive methane (Tr. 26). Nor did the inspector rebut the 

testimony of mine manager Lehmann that his examination 

of the preshift examiner's books for the cited mine unit 

for the entire month of December 1982, reflected "zero 

methane readings" (Tr. 85). 

With respect to the methane monitor on the cutting 

machine in question, Inspector Melvin stated that he found 

nothing wrong with it, and his concern was with the possible 

build-up of methane (Tr. 20,22). He candidly stated that 

he made his "S&S" finding on the ground that "if it continues 

to happen you could have a build-up of methane" and "sooner or 

later someone will be injured" (Tr. 24). He also expressed 

reservations about finding an "S&S" violation for such a 

condition "if it were the first time" (Tr. 26). He also 

confirmed that he found nothing wrong with the cutting machine, 

and issued no other violations (Tr. 38), and that at the most, 

the ventilation tubing would have been at the 22 foot location 

for no more than 20 minutes. 

With regard to the question as to whether the respirable 

dust levels in the mining unit which he cited exceeded the 

permissible levels, Inspector Melvin testified that he could 

not state what those levels were, and that he did not take 

any samples, nor did he check any sample results which may 

have been taken by Monterey (Tr. 28). Further, even 'though 

Monterey's history of prior citations, as reflected by the 

computer print-outs, reflect prior citations for violations 

of the respirable dust requirements of section 70.lOO(a), 

no testimony or evidence was forthcoming as to any of the 

details of those violations. 

In view of the foregoing findings and conclusions, I 

cannot conclude that MSHA has established that the violation 

in question was significant and substantial. Given the short 

duration that the exhaust tubing was 22 feet from the face, 

as well as the fact that the low level of methane and the 

condition of the methane monitor and machine were in compliance 

with other applicable standards, a finding of significant 

and substantial is unsupportable. Accordingly, that portion 

of the citation alleging a significant and substantial violation 

IS VACATED. 

With regard to Citation No~ 2063916, I conclude and 

find that MSHA has established that it was a "significant 

and substantial" violation. I agree with MSHA's arguments 

that the interruption to the ventilation flow resulted in 

a significant decrease in the amount of air required to be 

maintained where coal was being cut. This marked decrease 

in air presented a substantial hazard to the miners working 

470 
in the cited area, particularly where the facts here show 

that the interruption to ventilation was caused by a rock 

dust bag used to make repairs to the ventilation tubing. 

Given the fact that the ventilation tubing was 390 feet 

from the fan, the practice of using such.rock bags to make 

such repairs presented a reasonable likelihood that ventilation 

would be interrupted at those points where such bags were used, 

and that if sucked into the tubing, it would go undetected. 

The practice of repairing the tubing by the use of empty 

rock dust bags was established by Monterey's own witness, 

and he apparently was aware of the fact that miners would 

often make repairs in this manner. While I recognize that 

the methane readings found by Inspector Gulley outby the face 

were low, and that he took none at the immediate face, the 

fact is that the violation occurred while coal was being 

cut, and the interrupted ventilation caused by the practice 

of using rock bags to make repairs to the tubing, 

presented a significant and substantial hazard to miners. 

Accordingly, the inspector's finding in this regard IS AFFIRMED. 

Size of Business and Effect of Civil Penalties on the Respondent's 

Ability to Continue in Business. 

The parties have stipuLated that Monterey is a large 

mine operator and that the payment of the assessed civil 

penalties will not adversely affect its ability to remain 

in business. I adopt these stipulations as my findings and 

conclusions. 

History of Prior Violations 

Monterey's history of prior violations has been previously 

discussed. Aside from MSHA's failure to present any specific 

information concerning prior violations of section 75.316, MSHA 

presents no arguments dealing with Monterey's overall compliance 

history, and whether or not that history warrants any additional 

increases in the penalties to be assessed in these proceedings. 

I note that MSHA's computerized print-out for the two-year 

period of 1980-1982, reflects approximately 347 violations, 

and that for the prior 1982-1983, the print-out reflects 

98 violations, all issued at the No. 1 Mine. I have considered 

this information in assessing the penalties in these proceedings. 

However, I believe it is incumbent on MSHA to establish any 

correlation between an operator's past track record and an 

increase in civil penalties on the basis of that record. MSHA's 

continued practice and reliance on unevaluated computer 

print-outs, with no further supporting arguments, should be 

reexamined if the Secretary seriously expects any increased 

civil penalties on the basis of continued noncompliance. 

471 
Good Faith Compliance 

The parties have stipulated that Monterey demonstrated 

good fait~ in abating the conditions cited in Citations 

2036802 and 2063916, and I adopt this stipulation as my 

finding and conclusion as to these citations. 

Gravity 

I conclude and find that Citations 2036802 and 2063916, 

were both serious violations. Although the exhaust tubing 

violation was found to be "non-S&S," and while it was 

unlikely that an accident would have occurred within the 

relatively short period that the tubing was 22 feet from 

the face, these are factors which go to the degree of the 

severity of the situation, and may not serve to establish 

that the violation was nonserious. In short, I find that 

while Citation 2036802 did not involve a significant and 

substantial violation, noncompliance with the cited standard 

was serious. 

With regard to Citation 2063916, I conclude and find 

that this was a serious violation in that the air present 

where the machine was cutting coal was substantially reduced 

due to the interrupted air flow in the ventilation tubing. 

Such an occurrence could easily reoccur and go undetected 

because using rock dust bags to make repairs on the tubing 

could easily result in the bags being sucked into the tubing 

without anyone knowing it. 

Negligence 

Citation No. 2036802 

Monterey concedes that it violated the applicable dust 

and ventilation provision which prompted the inspector to 

issue the citation in question. A mine operator is presumed 

to know the contents of his own plans, and the facts in this 

case establish that Monterey knew or should have known of 

the conditions cited by the inspector. Accordingly, I conclude 

and find that the violation resulted from a high degree of 

negligence and this is reflected in the civil penalty assessed 

by me for this violation. As an aside, had MSHA produced any 

credible testimony that the miners made it a practice not 

to advance the ventilation tubing as required by the plan, 

I would find gross negligence and would have increased the 

penalty assessment substantially. 

472 
Citation No. 2063916 

In this case, Monterey concedes that the use of empty 

rock dust bags for makeshift repairs to ventilation tubing 

is often done by the workmen on the section. Mr. Mottershaw's 

testimony indicates that rock dust bags, rather than plastic 

material manufactured for the specific purpose of making 

such repairs, are routinely used by miners. Monterey's 

counsel stated during the hearing that "its probably not a 

one time only occurrence." Under the circumstances, I 

conclude and find that this violation resulted from gross 

negligence. Routinely making such repairs with empty rock 

dust bags rather .than the materials specifically manufactured 

for such purposes indicates to me that Monterey in this 

instance failed to exercise the slightest degree of care. 

While it is altogether possible that mine management was 

unaware of this practice, I cannot conclude here that this 

is the case. Mr. Mottershaw is the company safety coordinator, 

and his testimony indicates prior knowledge of this practice. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of Section llO(i) 

of the Act, I conclude and find that the following civil penalty 

assessments are appropriate for the citations which have 

been affirmed: 

Docket LAKE 83-52 

Citation No. Date 30 CFR Section Assessment 

2036802 12/28/82 75.316 $300 

Docket LAKE 83-61 

Citation No. Date 30 CFR Section Assessment 

2063916 2/3/83 75.316 $850 

ORDER 

Respondent Monterey Coal Company IS ORDERED to pay the 

penalties assessed by me, as shown above, within thirty (30) 

days of the date of these decisions and Order, and upon receipt 

of payment by MSHA, the cases are dismissed. 

Findings and Conclusions 

Docket No. LAKE 84-17 

This case involves a ''non-S&S" Section 104(a) Citation 

No. 2319281, issued by MSHA Inspector George J. Cerutti 

473 
on August 9, 1983. The citation charges respondent Monterey 

Coal Company with a violation of 30 CFR 75.1403-5(g), and 

the inspector cited the September 4, 1975, Safeguard Notice 

issued by Inspector Wrachford. The "condition or practice" 

cited is as follows: 

A clear travelway at least 24 inches 

wide wasn't provided along the Main North 

Belt Conveyor on the east side of the belt 

at the following location of Rock and Clay 

at these crosscuts. 198 to 202, 194-193, 

192-193, 190-191, 188-189, 186-180, 177-

178, 176-175, 171-170, 165-164, 161, 160, 

158-159, 156-157, 154-153, 154-153 [sic], 

151-150, 148-149, 147-146, 151-150 [sic], 

148-149 [sic], 146-147, 140-139, 130-131, 

112-109, 110-108, 107-106--west side 99-100, 

93-94, 90. 

Respondent's motion to consolidate this case with the 

preceding cases concerning basically the same factual and 

legal 'issues was granted by me by Order issued on January 3, 

1984. Respondent does not dispute the conditions or practices 

described by the inspector, waived its right to a hearing, 

and agreed that all prior stipulations and agreements concerning 

the preceding dockets are equally applicable in this case. 

Further, respondent advances the same legal defenses in this 

case as it did in the prior cases, and I assume that MSHA's 

position would also be the consistent with its arguments in 

the prior cases. 

ORDER 

My findings and conclusions with respect to the 

interpretation of section 75.1403-5(g), as well as the 

application of that standard and the safeguard notice to 

the belt conveyor walkways in question in the prior dockets 

are equally applicable in this case. Accordingly, they are 

incorporated herein by reference as my findings and conclusions 

in this case. Under the circumstances, Citation No. 2319281 

IS VACATED. 

~-q~i£~ Administrative Law Judge 

Distribution: 

Miguel Carmona, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 S. Dearborn St., 8th Fl., Chicago, IL 60604 

(Certified Mail) 

Carla K. Ryhal, Esq., Monterey Coal Co., Box 2180, Houston, TX 

77001 (Certified Mail) 

/slk 474 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 24, 1984 

HELVETIA COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. 

Docket No. PENN 83-229-R 

Citation No. 2111785; 8/5/83 

SECRETARY OF LABOR, Lucerne No. 8 Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

Appearances: 

Before: 

DECISION 

Jerome H. Simonds, Esq., Freedman, Levy, 

Kroll & Simonds, Washington, D.C. and 

William M. Darr, Esq., Indiana, 

Pennsylvania, for Contestant; 

Catherine Oliver Murphy, Esq., Office of 

the Solicitor, U. S. Department of Labor, 

Philadelphia, Pennsylvania, for Respondent. 

Judge Merlin 

This case is a notice of contest originally filed by 

Helvetia Coal Company for review of a citation dated August 5, 

1983, issued by an inspector of the Mine Safety and Health 

Administration (hereafter ref erred to as MSHA) under section 

104(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 814(a), alleging a violation of 30 C.F.R. § 75.200, 

incident to a roof fall which killed a miner. The citation 

was vacated on September 12, 1983. Pursuant to a motion to 

withdraw filed by t~e operator on September 20, 1983, I 

dismissed the case on October 5, 1983. 

On October 26, 1983, the citation was modified to 

restore the original citation and change it to one issued 

under section 104 (d} (1) of the Act, 30 U.S.C. 814 (d) (1). 

The operator again filed a notice of contest. The Solicitor 

filed an answer asserting the citation was properly issued 

under section 104(d) (1). By Notice of Hearing dated 

Decembe~ 6, 1983, I set the case for hearing on February 1, 

1984, and directed the filing of prehearing statements. 

Both parties filed such prehearing statements. 

475 
Thereafter on January 26, 1984, the Solicitor advised 

me by telephone that MSHA again had decided to vacate the 

citation. Because MSHA's actions were so unusual I directed 

both parties to appear at the hearing as scheduled. At the 

hearing the Solicitor submitted a notice dated January 30, 

1984, vacating the section 104(d) (1) citation. In addition, 

five MSHA officials testified. The operator appeared but 

submitted no evidence. 

30 C.F.R. § 75.200, which appears in the Act as section 

302(a), 30 u.s.c. § 862(a) provides as follows: 

Each operator shall undertake to carry 

out on a continuing basis a program to improve 

the roof control system of each coal mine and 

the means and measures to accomplish such 

system. The roof and ribs of all active 

underground roadways, travelways, and working 

places shall be supported or otherwise controlled adequately to protect persons from 

falls of the roof or ribs. A roof control 

plan and revisions thereof suitable to the 

roof conditions and mining system of each 

coal mine and approved by the Secretary shall 

be adopted and set out in printed form on or 

before May 29, 1970. The plan shall show the 

type of support and spacing approved by the 

Secretary. Such plan shall be reviewed 

periodically, at least every 6 months by the 

Secretary, taking into consideration any 

falls of roof or ribs or inadequacy of 

support of roof or ribs. No person shall 

proceed beyond the last permanent support 

unless adequate temporary support is provided 

or unless such temporary support is not 

required under the approved roof control plan 

and the absence of such support will not pose 

a hazard to the miners. A copy of the plan 

shall be furnished to the Secretary or his 

authorized representative and shall be 

available to the miners and their represen ta ti ves. 

478 
Citation No. 2111785 dated August 5, 1983, describes 

the violative condition or practice as follows: 

The roof in the working place of the No. 

3 entry of 2 Left South Mains 017 working 

section was not being adequately supported or 

otherwise controlled to protect the miners 

under the supervision of Steve Lenosky, 

Section Foreman, in that additional safety 

precautions were not taken to assure the 

safety of the miners after a bad roof condition was observed by the Section Foreman 

who had related the conditions to the roof 

bolting crew. The roof in the affected area 

fell while only a minimum amount of temporary 

support was being installed. This violation 

was revealed during a fatal roof fall accident 

investigation. 

The order of vacation dated September 12, 1983, states: 

September 12, 1983 at 1:50 p.m. As a 

result of a manager's conference held on 9-8-83, 

new information was presented by the operator 

and UMWA Local 3548 committeemen, a violation 

did not exist. The citation No. 2111785 

issued on 8-5-83 is hereby vacated. 

The order of modification dated October 26, 1983, 

states: 

104(a) Citation No. 2111785 issued 

8/5/83 for a violation of 75.200 and vacated 

9/12/83 is modified to restore the original 

citation, change type of action to a 104(d) (1) 

citation, negligence from low to moderate. 

The modification is a result of additional 

information received after the manager's 

conference and as a result of a re-evaluation 

of the condition. The citation had been 

previously terminated on 8/5/83. 

477 
The order of vacation dated January 30, 1984, states: 

104(a) Citation No. 2111785 issued on 

8-5-~3 for a violation of Section 75.200 

vacated on 9-12-83 as a result of a Health 

and Safety conference and later modified on 

10-26-83 to reinstate the violation as a 

104(d) (1) citation is vacated because of 

confusion and facts surrounding this citation. 

An Accident Report dated September 8, 1983, signed by 

MSHA inspectors Donald J. Klemick and Michael Bondra recites 

that a roof fall accident occurred on August 2, 1983, at 

approximately 10:30 p.m. resulting in multiple injuries to 

Frank F. Sorbin, a roof bolter helper and causing his death 

on August 4, 1983. According to the report mining was going 

on in the belt entry. The coal seam was 4 feet high but 

because this was the belt entry, an extra 2 feet of top rock 

was being taken down. On the prior shift, however, the left 

side of the place had been mined to a height of 7 feet so 

that when mining continued at the proper 6 foot height a 

brow of one foot was created. Coal was mined on the right 

side for 20 feet and then 3 or 4 temporary supports were 

installed. The continuous miner then moved to the left side 

mining coal and top rock, and 3 posts were installed. The 

roof was chipping near the brow in the center of the place 

so the miner moved back to the right, knocked out the posts 

and cut down more top. After 10 feet of top rock had been 

cut down, additional chipping was scaled down with the head 

of the miner. A cutter (crack) appeared after two or three 

shuttle cars of rock had been cut down from the right side. 

The section foreman cautioned the men to be careful and to 

install roof jacks on both sides of the cutter. After some 

jacks were installed, the rock fell on Mr. Sorbin. The 

Accident Report states in its opening paragraph that the 

rock fell as Mr. Sorbin was preparing to install a temporary 

roof support, but in paragraph 8 of the Discussion and 

Evaluation, the report states that it was not established 

what Mr. Sorbin was doing at the time of the accident. The 

report concludes that the roof was not supported or controlled adequately to protect miners from a roof fall, that 

the accident occurred because management failed to have a 

roof supported adequately after a known bad roof condition 

was observedr and that failure to maintain a uniform roof 

horizon at the working face may have been a contributing 

factor. 

478 
Although, as already noted, the citation had been 

vacated on September 12, 1983, the operator through 

Mr. Edward J. Onuscheck, Vice President - Safety and Training, 

wrote Mr. William R. Devett, the MSHA sub-district manager, 

on September 20, 1983, objecting to various statements in 

the report. Mr. Devett responded by· letter dated October 28, 

1983, agreeing to certain changes, but concluding that there 

was a lack of additional supports where needed adjacent to 

the cutter and that the placement of temporary supports was 

near the minimum. As appears above, two days previously on 

October 26, the citation was reinstated as a section 104(d) (1) 

citation. 

At the hearing several witnesses testified to explain 

the various actions MSHA had taken. Harry Thompson, a 

supervisory coal mine safety and health inspector with 

responsibility for the subject mine, testified that on the 

morning of August 3, 1983, he accompanied Michael Bondra, 

one of the inspectors under his supervision, on the continuation of a regular inspection they were conducting at 

the mine (Tr. 16). Mr. Thompson stated that at 9 a.m. he 

and Mr. Bondra looked at the area and that Mr. Bondra 

measured the distances between roof supports in the subject 

area, but according to Mr. Thompson they were not on an 

investigation (Tr. 17, 23-24). Neither he nor Mr. Bondra 

talked to anyone who had been at the scene at the time of 

the accident and at that time he did not know when the 

foreman became aware of the cutter (Tr. 23, 27, 32, 37). He 

also stated he did not know any of the circumstances surrounding the accident such as when the cutter appeared (Tr. 

35). He and Mr. Bondra did not evaluate the situation 

beyond taking the measurements. Mr. Thompson was of the 

opinion that when the accident occurred the operator was in 

the process of setting temporary supports, although he spoke 

to no one who was there and although other witnesses indicated that no one knew for sure what the decedent was doing 

when he was killed (Tr. 35-37, 39-40, 70-72, 158-159). 

Despite the fact that his knowledge of what happened on the 

prior night was limited in the manner he described, 

Mr. Thompson expressed the view at the hearing that there 

was no violation because the roof was supported adequately 

and the requirements of the plan were met (Tr. 26, 31, 33, 

39). Moreover, Mr. Thompson told company officials on the 

morning of August 3 that there had been no violation at the 

time of the fall (Tr. 20-21, 42). 

47n 
Note must also be taken of Mr. Thompson's telephone 

call at 3 p.m. on August 3, to Mr. Lenyo, the acting subdistrict manager. Mr. Thompson told Mr. Lenyo there were no 

violations ~nd he told him about the cutter, but not about 

the brow (Tr. 21-22, 24-25, 26-28, 160) .. Mr. Thompson also 

advised Mr. Lenyo that the decedent was setting temporary 

supports when he was killed although as pointed out above, 

Mr. Thompson did not speak to anyone who was there at the 

time and others thought there was no way to tell what the 

decedent was doing (Tr. 35-36, 70, 148, 158-159). 

Finally, Mr. Lenyo testified that he spoke to Mr. Thompson 

at 2 a.m. on August 3, before Mr. Thompson went to the mine 

at which time they both agreed it would be good if they knew 

exactly what happened there in case something should develop 

(Tr. 147-148). This earlier call renders untenable Mr. Thompson's 

assertion that he was just on a regular inspection and not 

conducting an investigation. In his testimony Mr. Thompson 

did not mention the 2 a.m. phone call. 

Mr. Bondra, the MSHA inspector who visited the area 

with Mr. Thompson on August 3, testified that he took 

measurements and saw no violation (Tr. 44-45, 57-58). He 

also told everyone concerned at the mine that he was there 

as a regular inspector and was not on an investigation (Tr. 

44). Mr. Bondra was of the opinion that the roof had been 

adequately supported and that additional supports would not 

have helped (Tr. 58, 62, 69-70). He believed roof conditions 

were good although a brow and cutter were present (Tr. 73). 

Mr. Bondra stated the brow might or might not have contributed to the instability of the roof (Tr. 86). He further 

admitted that it would have been better to set additional 

supports as soon as the cutter was seen and that reducing 

the distance between supports is good practice, under circumstances such as were present here (Tr. 74, 79-80). 

After the decedent died, Mr. Bondra was appointed to 

the 3-man investigation team (Tr. 46-47). The investigation 

began on August 4 (Tr. 47). After the investigation was 

completed, a 104(a) citation was issued on August 5 (Tr. 

48). Mr. Bondra stated that he did not believe a citation 

should have been issued although the other team members 

thought it should (Tr. 60). The citation was issued by 

480 
Mr. Rine, another member of the team (Tr. 50, 151-152). 

However, Mr. Bondra signed the Accident Report dated 

September _8, 1983, which as set forth above, blamed the 

operator for not supporting the roof adequately after a 

known bad roof was observed and for failing to maintain a 

uniform roof horizon (Tr. 61). 

Moreover, on the same date as the Accident Report, a 

manager's conference was held at the request of the operator 

to discuss the validity of the citation issued on August 5, 

1983. Mr. Robert Nelson, a supervisory coal mine inspector 

in the Indiana, Pennsylvania Field Office, the same office 

as Mr. Thompson, was assigned by the District Manager one or 

two days previously to handle the conference (Tr. 92-93). 

As set forth above, the supervisory inspection of the subject 

mine was Mr. Thompson's responsibility (Tr. 16, 137). 

Mr. Nelson had the same duties with respect to other mines 

covered by the office (Tr. 137). At the conference Mr. Nelson 

was told by company and union people that the operator was 

in the process of starting to correct the situation by 

setting temporary supports (Tr. 97-98, 102-103). Mr. Nelson 

was also "acutely aware" that Mr. Thompson and Mr. Bondra 

believed there was no violation and had issued no citation 

on August 3 (Tr. 101). According to Mr. Nelson, Mr. Bondra 

was not in the conference room but when company and union 

people said he was in the subject area on August 3 doing an 

investigation, Mr. Bondra was called into the room and at 

that time stated he was there to get information (Tr. 96). 

This is, of course, at variance with the descriptions of a 

regular inspection given by him and Mr. Thompson in their 

testimony (Tr. 23, 44). As a result of what he was told, 

Mr. Nelson decided the citation should be vacated (Tr. 102-

103). He wrote the wording and Mr. Bondra, as the regular 

inspector for the mine signed it (Tr. 103). 

Thus, on September 8, 1983, Mr. Bondra's name appeared 

as co-author of the Accideht Report, which places responsibility upon the company for the accident. Just a few days 

later, Mr. Bondra's name also appeared on an brder vacating 

the citation. Mr. Bondra admitted he was wrong to sign the 

Accident Report since he did not agree with it (Tr. 62-69). 

Moreover, Mr. Nelson's decision to vacate was based on 

incomplete information. Mr. Nelson knew about the chipping 

and the cutter but not about the brow (Tr. 115). In addition, 

he did not know the distances between the roof supports (Tr. 

116-117). All he had was a rough sketch drawn by the company 

(Tr. 116-117). He was thinking the supports were 3 feet 

481 
apart and testified that 55" inches (5'' less than the 5' 

required by the plan) meant nothing (Tr. 117). Finally, 

Mr. Nelson did not see the Accident Report before he decided 

to vacate (Tr. 107). He telephoned Mr. Lenyo, the acting 

sub-district manager, to see if the Accident Report could be 

held up, but Mr. Lenyo said it was being printed and that 

corrections would have to be made afterwards (Tr. 103-104, 

157). Mr. Nelson did not question this (Tr. 104). Mr. Lenyo 

testified he had no problem with Mr. Nelson's vacation 

because Mr. Nelson would have to justify it in writing to 

Mr. Devett, the sub-district manager (Tr. 152). From this 

scenario it appears that this is not a case of the left hand 

not knowing what the right hand is doing. Everybody knows 

what is going on but nobody seems to care. 

When Mr. Devett, the sub-district manager, returned 

from his vacation, he was concerned because the September 8 

manager's conference had been held without any of the 

accident investigation team being present (Tr. 180). 

Another meeting was held on October 25 as a result of which 

it was decided to reissue the citation under section 104(d) (1) 

charging unwarrantable failure by the operator (Tr. 180-

182). Mr. Nelson testified that at the meeting of October 25 

he learned for the first time that chipping had been going 

on while the operator had been mining, that the foreman did 

not give specific instructions to support the place, and 

that after looking at the distances MSHA believed the 

operator was setting supports only a little closer than 

normal (Tr. 120-121). Mr. Lenyo believed that after the 

cutter appeared, spacing was inadequate and that there 

should have been supports outby the cutter (Tr. 166-168). 

Mr. Devett said much the same thing (Tr. 189). 

The final turnabout occurred two days before the hearing 

when the citation was vacated again (Tr. 51). Once again, 

Mr. Bondra, the regular inspector, issued the vacation order 

but he did not participate in the decision to vacate (Tr. 

51-52). He just wrote it and issued it (Tr. 52, 84-85). 

That this might be confusing and misleading to the operator 

and others apparently did not occur to MSHA officials. But 

in his testimony Mr. Bondra touched upon what appears to 

have been one of the principal reasons for the final vacation 

of the order, i.e. he and Mr. Thompson who were first on the 

scene did not.issue a citation (Tr. 52). Mr. Nelson testified 

that Mr. Thompson wanted the re-issued citation vacated and 

spoke to Mr. Devett about it (Tr. 136). Mr. Lenyo stated 

482 
that he agreed with the second vacation because he thought 

MSHA had created a hardship on the company in that Mr. Thompson 

and Mr. Bondra had not recognized a violation on August 3 

(Tr. 155). After referring to the fact that on August 3 

Mr. Thompson and Mr. Bondra told the company there were no 

violations and mentioning all the subsequent confusion, 

Mr. Devett said that he came to believe that in fairness to 

the company the citation should be vacated (Tr. 182-184, 

186-187). After going back and forth and back and forth, 

MSHA apparently decided it was stuck with what had been done 

in the first instance. 

It is not surprising that MSHA officials should have 

differing opinions about a case such as this. The facts are 

exceedingly complex and as might be foreseen, give rise 

to varying conclusions. The record is replete with differences 

over the effect of the brow, use- of the continuous miner to 

cut down top that had been chipping, etc. This is to be 

expected. What is disconcerting is that in a fatality case 

such as this, MSHA apparently had no mechanism for resolving 

such differences, thereby enabling it to make a definitive 

and reasoned decision about how to proceed and present a 

consistent position to the operator and everyone else involved. 

The operator has been treated unfairly. But not because 

it was cited for a violation it did not commit. That is a 

question which will not be answered because of the way this 

case has been handled. This independent Commission cannot 

now decide whether the operator violated the Act since there 

is no outstanding citation. It may well be that if MSHA had 

proceeded with the case, the operator would have successfully 

defended. Or after MSHA properly considered the matter 

those in authority might have determined on the merits that 

there was no violation. What transpired in this case is set 

forth herein only to' demonstrate how MSHA acted. First 

exonerated, then cited, then exonerated, then cited again, 

and finally relieved of responsibility for any violation, 

the operator was made to go around in circles. This is the 

unfair treatment of the operator which this record demonstrates. 

483 
But this case has another, even more unfortunate 

consequence. A miner is dead. Because the government 

agency charged with enforcing mine safety has not properly 

discharged its statutory responsibilities, the public 

interest, as expressed in the enactmefit of the Mine Safety 

Act, has been frustrated. 

The operator has moved to withdraw its notice of 

contest. The motion is Granted. 

This case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Jerome H. Simonds, Esq., Freedman, Levy, Kroll & Simonds, 

1730 K Street, N.W., Suite 1100, Washington, DC 20006 

(Certified Mail) 

William M. Darr, Esq., Rochester & Pittsburgh Coal Company, 

655 Church Street, Indiana, PA 15701 (Certified Mail) 

Catherine Oliver Murphy, Esq., Office of the Solicitor, 

U. S. Department of Labor, Rm. 14480-Gateway Building, 3535 

Market Street, Philadelphia, PA 19104 (Certified Mail) 

/ln 

484 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW .JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 2 9 1984 

CHADRICK CASEBOLT, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

FALCON COAL COMPANY, INC., 

Respondent 

DECISION 

Before: Judge Kennedy 

Docket No. KENT 83-56-D 

MSHA Case ?10. BARB CD 82-4 3 

South Fork Surf ace 

Statement of the Case 

This discrimination complaint is before me on the 

operator's motion to dismiss for failure to state a claim 

upon which relief may be granted. 1/ Since the motion 

relies upon matters outside the pleadings, the motion will 

be treated as a motion for summary decision. Under Rule 64, 

a motion for summary decision may be granted where the 

pleadings and matters considered outside the pleadings such 

as depositions, answers to interrogatories, admissions, and 

affidavits show (1) there is no genuine issue as to any material 

fact and (2) the moving party is entitled to judgment as a 

matter of law. See also Rules 12(b), 56 of the Fed. R. Civ. P. 

For the purposes of the motion, the operator concedes 

complainant can establish a prima f acie case of unlawful discrimination. This notwithstanding the operator contends that the 

material facts not in dispute establish that entry of a remedial 

order is inappropriate because (1) complainant suffered no loss 

of pay since the job to which he was reassigned when he 

failed the Tech II qualification tests pays more than the 

jobs for which he was found unqualified, (2) a bona fide 

economic retrenchment subsequently eliminated the job of 

Tech II, surveyor, to which complainant seeks instatement, 

and (3) complainant's lack of technical qualifications for 

both the job of Tech II, surveyor, and Tech II, draftsman/ 

mapper, bars complainant's assertion of entitlement to 

either of these positions solely by reason of his competitive 

seniority. 

1/ The complaint charges a wrongful interference with 

complainant's bidding (bumping) rights under Falcon's collective 

bargaining agree~ent. 

485 
Complainant agrees that as a result of the discrimination 

alleged he suffered no loss of pay and that the job of Tech II, 

surveyor, to which he initially aspired was "abolished in 

October 1982 for bona fide economic reasons." y 

Nevertheless, complainant asserts that under the broad 

authority to fashion "make whole" remedies conferred by 

section lOS(c) (3) the trial judge should (1) hold a hearing 

to determine whether there was a nexus at least in part 

between the protected activity alleged and the claimed 

discriminatory disqualification, and (2) upon a finding that 

such discrimination occurred issue (a) an order requiring the 

operator to create a vacancy for a Tech II, surveyor, job 

and override the competitive seniority or bidding rights of 

other miners to place complainant in that job or (b) override the seniority rights of incumbents in the remaining 

Tech II, surveyor, jobs in order to instate complainant or 

(c) if complainant's right to the surveyor and the draftsman/ 

mapper jobs is barred, award complainant "front pay," i.e., 

monetary damages for his temporary (3 months) loss of opportunity and for the emotional, psychic and domestic distress 

brought on as a result of his reassignment to a higher 

paying but lower status job. 3/ 

2/ In May and October 1982, there were two company-wide 

reductions in force necessitated by the loss of contracts 

to supply coal to the TVA. 

3/ Complainant states that as a result of the operator's 

discriminatory action: 

I have been taken away from a job that I cared 

about, one that promises a good future. It also 

deprived me a lot of times with my family by having 

to work nights. It placed me in a dangerous 

situation of which I was not prepared for. It 

has deprived me of my rights within the contract 

and the MSHA laws, and also I had a psychological 

trauma which has brought hardship on my family 

life. It has been very hard for me to accept that 

the company would permit something like this to 

occur. 

48l) 
Findings and Conclusions 4/ 

Casebolt '.s Employment Record 

Chadrick Casebolt, a white, male miner and resident of 

Compton, Kentucky, was first employed by Falcon Coal Company, 

a subsidiary of Diamond Shamrock Corporation of Lexington, 

Kentucky on December 13, 1976. His job was that of tipple 

worker at the Breathitt County Tipples. Three months later 

his immediate superior recommended he be discharged for 

unsatisfactory work performance. After a grievance hearing 

it was found the recommendation stemmed from a personality 

conflict between Mr. Casebolt and his supervisor, Mr. Carpenter. ~ 

Arrangements were made to transfer Mr. Casebolt to the 

Engineering Department. Thus in March 1977, Casebolt found 

himself assigned as an Engineer Helper in Falcon's Engineering 

Department working under the supervision of the Chief Engineer, 

Chester Stevens. 

Casebolt's run-in with Carpenter did not sit well with 

his new supervisor. Statements from several individuals who 

were in the Engineering Department at the time attest that 

Stevens let his dislike for Casebolt be widely known among 

his coworkers. Stevens told them he was forced to take 

Casebolt in the Engineering Department and that he did not 

want anyone to help Casebolt learn the job or show him how 

4/ I wish to emphasize that my findings with respect to the 

facts and background of the discrimination alleged are made 

solely for the purpose of determining the motion. Because I 

have not heard the witnesses, I cannot finally resolve the 

conflicts in witness statements or the questions of 

credibility presented. As the story unfolds, the reader 

will understand why resolution of these conflicts is irrelevant to my ultimate disposition. 

5/ The record shows that Mr. Casebolt holds a BA degree 

(Class of '71) from Morehead State University with a major in 

Physical Education and minors in Biology and Sociology. At 

the time of his employment by Falcon in 1976 he was 29 years 

old, married with a family. He may have been over qualified 

in terms of education for the job of general laborer at a 

mine preparation plant. His employment application shows he 

did not seek employment in a job involving mechanical or 

engineering skills but something that would enable him to 

employ his clerical skills. 

487 
things were done. Stevens also told employees in the 

Engineering Department that he did not care how they treated 

Casebolt. 

For his part, Stevens said Casebolt "has himself overrated" because of his college degree. Stevens said Casebolt 

is "weak in mathematics" and that after three months in the 

Engineering Department he decided to assign him to the job 

of water sampler. Performance of this job did not require 

any of the skills needed to be a surveyor or draftsman/mapper 

which were the jobs to which others in the Engineering 

Department were assigned. 6/ Management animosity against 

Casebolt apparently goes back, as his coworkers said, a 

long way. 

When Casebolt started work in the Engineering Department he was assigned as a rod and chain man with one of the 

surveying crews. He completed his probationary period 

three months later. At that time (June 13, 1977), his 

performance was rated as "substandard but making progress." 

About a month after this evaluation, Stevens changed 

Casebolt's job from that of surveyor to that of water 

sampler. He continued, however, to be classified and paid 

as a Tech II, Engineer Helper. He worked under Stevens' 

direct supervision. The new assignment deprived Casebolt 

of the opportunity for any extensive on-the-job training as 

a surveyor or draftsman/mapper. Nevertheless, the pay was 

the same and, with the exception noted below, Casebolt 

remained in the job without complaint for the next five 

years. 

During the period in question, March 1977 to November 

1982, Falcon claims its Engineering Department consisted of 

a Chief Engineer who supervised the department and two 

divisions consisting of (1) the three field surveying crews 

and (2) the two miners assigned to drafting/mapping work. 

The water sampling job was first assigned as an additional 

duty to the members of the surveying crews. After Casebolt 

was assigned to it, however, it became his full-time job and 

the others did not participate. While Casebolt claims his 

understanding was that he was qualified to perform any 

Tech II position in the department because his classification for pay purposes was the same as the other Tech II's, 

it appears that he was already in a "dead end" job. 

6/ The operator claims that the knowledge and skill required 

of a water sampler are comparable to those of "high school 

aged lifeguards [who perform] similar water sampling duties 

at swimming pools in the summer." 

488 
Casebolt first became concerned that his competitive 

seniority within the department was being adversely affected 

by his job as water sampler in January 1981. 7/ Mark 

Campbell; the new Chief Engineer, advised him-that to bump 

into one of the other jobs in the department he would have 

to pass written tests of his ability to solve problems in 

algebra and trigonometry. Casebolt was reluctant to take 

these tests, fearing that if he did not pass they would be 

used against him. At the urging of Campbell, Casebolt 

finally took the written math exams for the jobs of surveyor 

and draftsman/mapper on October 15 and November 12, 1981. 

On the first test Casebolt scored 47.2% and on the second 

51.6%. The arbitrator found a passing score of 70% was 

required to qualify for the Tech II surveying and draftsman/ 

mapper jobs. 8/ Casebolt was afforded the opportunity to 

retake the tests in July 1982 at the time he tried to bump 

Mark Sheffel from a Tech II, surveying position but according 

to Jay Watts, the Chief Engineer, Casebolt declined to take 

the tests. It was Casebolt's position then, as now, that 

because he was already in the Engineering Department he 

could bump on the basis of his competitive seniority alone 

and that his competitive seniority was in no way qualified 

by a requirement to show a proficiency in mathematics. 

Work As A Water Sampler 

As a water sampler, Casebolt was responsible for 

collecting water samples from the silt ponds located at 

respondent's various surface mines. Because this required 

him to drive and work alone in remote mountainous terrain 

where dangerous conditions existed, he requested his 1978 

pickup truck be furnished with a two-way radio. On several 

occasions during 1978 and 1979, Casebolt requested such 

communications equipment. It was not until some time in 

7/ Casebolt's concern over his job security may have been 

stimulated by the cancellation of a large coal supply agreement with TVA. As a result of this contract cancellation, 

Falcon began to reduce its work force on January 7, 1980. 

8/ There is no claim that Casebblt failed these tests 

because of any protected activity. 

489 
1980, however, that Mr. Stevens provided Casebolt with a 

Citizens Band radio for the pickup truck. ~ 

Casebolt claimed that because of its limited range and 

power this radio did not provide him with a means of communication in the most remote areas. He continued to complain of 

his need for a two-way AM/FM radio that would allow him to 

remain in communication with his home office at all times. 

He was not furnished with this piece of equipment until 

June 15, 1982. Two weeks later he was bumped from his job 

as Tech II, water sampler by Jim Hutchinson a Tech II, surveyor 

with greater competitive seniority. 

The Rif's 

During 1982, two major series of seniority bumpings (Rif's) 

took place. The first of these occurred on June 7, 1982 in 

response to a reduction in force which Falcon began on May 21, 

1982. The Rif first hit the Engineering Department when Zane 

Watts successfully bumped Woody Gabbard from a Tech II, 

surveyor job on Field Crew #1. The consequences of this 

series of seniority bumpings is shown on the attached 

diagram, Exhibit 1. 

As Exhibit 1 shows, Woody Gabbard bumped Archie Combs 

who bumped Ben Johnson who bumped Jim Hutchinson who bumped 

Chad Casebolt. Casebolt then attempted to bump Mike Sheffel 

a Tech II, surveyor with less seniority. At this point, 

Falcon invoked the provisions of Section 9(c) (iii) of the 

collective bargaining agreement to require Casebolt demonstrate his qualifications for the position by taking a 

9/ Falcon's failure and refusal to furnish Casebolt with 

this equipment until almost two years after it was requested 

may have constituted a violation of 30 C.F.R. 77.1700. 

This provides: 

No employee shall be assigned, or allowed, or be 

required to perform work alone in any area where 

hazardous conditions exist that would endanger his 

safety unless he can communicate with others, can 

be heard, or can be seen. 

490 
five-day field performance test and a written test of his 

proficiency in algebra and trigonometry. 10/ 

Falcon asserted and the arbitrator agreed that the 

provision that requires senior bumping rights to be exercised 

in the same manner as bidding on a new job posting (Section 

9(b) (iv)) required Casebolt to meet the job qualifications 

10/ The collective bargaining agreement between Falcon and 

the company union, Falcon Coal Company Employees' Association, 

is dated July 13, 1981. The provisions invoked provided 

as follows: 

9. SENIORITY, LAYOFF AND JOB POSTING. (a) Seniority 

shall be determined on the basis of the length of 

continuous full-time employment with Falcon ... 

* * * 

(c) If a reduction in the work force is made, 

layoffs of Association Members shall be based 

upon company-wide seniority and shall be 

accomplished as follows: 

* * * 

(iii) Subject to the provisions of subsection 

(iv) below an Association Member with sufficient 

seniority to remain in the Company after such 

layoff, but who has been displaced in the provisions of this section, shall exercise his 

seniority rights within five (5) days and displace 

any Associ'ation Member with less seniority. An 

Association Member so exercising his seniority 

shall have five (5) working days in which to 

prove his ability to perform the job, just as 

if he had obtained the new job through the bid 

system provided for herein. In the event that 

such an Association Member is unable to perform 

such new job, he shall again exercise his seniority 

rights until he finds a job he can perform. 

491 
for Engineering Tech II's as set forth in Exhibit "B" of the 

collective bargaining agreement. 11/ Section 9(b} (i). 

Casebolt, as noted, refused to take the written math 

exam. Despite this, Falcon afforded him.the opportunity to 

take the five-day field test. This was done under the 

supervision of Jay Watts, the Chief Engineer at the time. 

The test was administered on July 6, 7, 8, 9 and 12, 1982. 

Mr. Casebolt was asked to perform the same nine duties 

usually required of all Tech II, surveyors. These are run 

level, set tripods, rod for cross sections, roll up tape, 

use reducing arc, keep field notes, reduce field notes, plot 

cross-section notes and plot pit surveys. Watts's notes of 

Casebolt's performance during the five-day period showed he 

performed poorly on most of the subjects on which he was 

tested. Based on an evaluation of his performance by 

Watts, Larry Allen and Mark Campbell on July 12, and on the 

fact that Mike Sheffel had five years experience on the job 

with adequate performance ratings, Falcon declared Casebolt 

unqualified to bump Sheffel. 

Approximately a week later, Casebolt attempted to bump 

into the Tech II drafting/mapping position held by Charles 

Booth. He was found disqualified for this position also but 

has not alleged that this disqualification resulted from 

any wrongful interference with his bumping rights. 

While Casebolt was attempting to bump into the Tech II 

surveyor job held by Sheffel, Sheffel was attempting to bump 

into the drafting/mapping position held by Booth. Sheffel 

was also found disqualified for Booth's position. 

11/ While Falcon admits that "Passing the written exam is 

not required if the employee's performance during the 

five-day qualification period or previous work experience 

demonstrates that the employee has the requisite mathematical 

proficiency," it claimed Casebolt's work experience and 

previous demonstrated math deficiency did not justify 

waiving the written math test in his case. The arbitrator 

agreed. 

The job qualifications set forth in Exhibit "B" to the 

collective barbaining agreement are as follows: 

5. ENGINEERING-TECHNICIAN II--Knowledge of general 

mathematics and fundamentals of Algebra and 

Trigonometry for use in the solution of routine 

engineering oriented technical problems. 

Proficient in engineering, lettering and 

drafting. Knowledge of proper rod and chain 

techniques. 

492 
During the week of August 2, 1982, Casebolt successfully 

bumped into his present position as a rock truck driver on 

the night shift. This marked the conclusion of the bumping 

that began .in the Tech II area with Zane Watts on June 7, 

1982. 

The Arbitration 

Casebolt took the question of his disqualification for 

both Tech II jobs to arbitration and on August 18, 1982, the 

arbitrator denied the grievance. At the arbitration hearing 

Casebolt did not contend that he was disqualified because 

of any activity protected under the Mine Act. What he did 

contend was that it was discriminatory for Falcon to require 

him to demonstrate proficiency in the duties of a Tech II 

when none of those holding such jobs had been required to 

demonstrate such proficiency. Casebolt's lawyer argued that 

since he and the others were classified as Tech II engineers 

at a time when there were no contractually specified qualifications for the position Falcon could not condition the 

exercise of his competitive seniority rights on a showing that 

he met the job qualifications set forth in Exhibit "B" to the 

collective bargaining agreement. 

The arbitrator rejected this and held the company was 

not estopped to challenge Casebolt's qualifications for a 

Tech II surveying or mapping job because, 

The Company has the right to expect any employee 

who bumps into a position to have the requisite 

abilities at the time of the bump or at least be 

able to demonstrate adequate ability within the 

five (5) day qualification period established by 

the Agreement. It must be remembered that the Company 

not only owes the bumping employee an opportunity to 

show his ability in the new job, but also owes the 

employee who is being bumped the opportunity to retain 

his position if the bumper does not have the requisite 

abilities. 

In essence, then, it is my opinion that, under the 

circumstances before me in this case, merely because 

the Grievant was properly classified as an Engineering 

Technical II does not mean that he was properly 

qualified for a job on the mapping and survey crew. 

The duties and qualifications of a water sampler are 

so separate and distinct from those of the mapping 

and survey crew that I cannot conclude that the 

493 
classification of Engineering Technician II automatically qualifies an employee to perform all duties 

now within that classification, when taking into 

consideration the fact that the Grievant's classification preceded the contractually established minimum 

required abilities. Dec. p. 7. 

The arbitrator decided that while "no other Engineering 

Technician II has ever been required to take a written test 

or go through the five (5) day qualification period in order 

to bump into a job of another Engineering Technician II" the 

written and field testing were particularly appropriate for 

Casebolt because "no other Engineering Technician II has 

been almost exclusively assigned to water sampling duties, 

with only limited experience and other abilities required 

of that classification." Id., p. 9. 

With respect to the claim of "premeditated, retaliatory, 

discrimination," the arbitrator found that while the evidence 

showed the Chief Engineer, Jay Watts, disliked Casebolt and 

may have pressured him in such a way as to prejudice Casebolt's 

performance during the five-day field test, a review of Watts's 

contemporaneous notes of Casebolt's field performance and 

the written math tests, which were unaffected by Watts's 

conduct, was persuasive of the fact that he did not possess 

the job qualifications prescribed by the collective bargaining 

agreement. Id. pp. 3, 6, 8, 9. Thus, the arbitrator held 

that, notwithstanding the discrimination alleged, the evidence 

was "sufficiently tangible and objective" to support the 

Company's decision to disqualify Casebolt from the positions 

of Tech II, surveying and mapping. Id. p. 9. 

Casebolt has never contested the arbitrator's finding 

that he failed to demonstrate a lack of proficiency in 

mathematics. Complainant's contention before me as before 

the arbitrator is that he was not bound by the terms of the 

collective bargaining agreement to show a proficiency in 

algebra and trigonometry because (1) he was classified as 

a Tech II before the job qualifications were put in the 

contract, (2) he continued in the classification for some 

time after they were inserted, and (3) no other Tech II was 

required as a condition of exercise of his bumping rights 
to show such proficiency. As we have seen, the arbitrator 

rejected each of these contentions holding that under the 

terms of the contract, as he construed it, the operator 

could require Casebolt to demonstrate his proficiency in 

the solution of routine engineering problems involving a 

knowledge of general mathematics and the fundamentals of 

algebra and trigonometry. 12/ 

The results of the 1981 math tests, which Casebolt took 

voluntarily and which he has never claimed were tainted with 

Watts's alleged discriminatory conduct, were reliable, 

probative and ~ubstantial evidence of his lack of knowledge 

and skills for the job of surveyor or mapper. This evidence 

which came from his own hand at a time when he was trying to 

qualify for the jobs in question is, I believe, dispositive 

of any claim that but for his protected activity he would 

not have been disqualified. Consequently, whether or not 

Watts's motive was as malevolent as claimed, the smoking gun 

of disqualification came from Casebolt's own hand. 

In arriving at this conclusion, I have given appropriate, 

but not controlling, deference to the arbitrator's "specialized 

competence" in interpreting the seniority provisions of the 

contract. 13/ I find this position to be in accord with 

both the doctrine of deference with respect to arbitral 

decisions that interpret the competitive seniority provisions 

of collective bargaining agreements and complainant's right 

12/ The arbitrator stated that "I have personally reviewed 

both tests taken by the Grievant and find them to be fair, 

appropriate and reasonable." Casebolt has never challenged 

the fairness of the math tests. 

13/ While no transcript was made of Casebolt's arbitration 

hearing, a complete and authentic copy of the collective 

bargaining agreement in question has been furnished in 

support of the operator's motion. The arbitrator's decision 

contains a recitation of the evidence submitted by the 

parties. This closely parallels that in the MSHA investigation file which is also in the record. 

495 
to a de novo review of his claim by this trial tribunal. 14/ 

In addition to the fact that Casebolt cites no authority for 

disregarding the contract to which he was a party as a 

member of the Falcon Coal Company Employees' Association, a 

close scrutiny of the contract shows no evidence of an 

intent to exclude Casebolt from the conditions attached to 

the exercise of seniority bumping rights by Section 9(c) (iii) 

and Exhibit "B''. Further, I agree with the arbitrator that 

in view of Casebolt's failure to pass the written math exam 

less than a year previously and his limited experience onthe-job it was reasonable for Falcon to require Casebolt to 

demonstrate his qualifications for both jobs. I find 

particularly unappealing the argument that the alleged 

deficiencies of others in the engineering department excused 

Casebolt's lack of qualifications. In this connection, I 

note Casebolt has never claimed that the man he tried to 

bump, Mike Sheffel, was lacking in any of the essential 

qualifications required by the contract. Accordingly, 

whether I apply the doctrine of deference or my own de ~ 

review of the contract I conclude Casebolt's competitive 

seniority rights were subject to the job qualification 

provisions of the contract. 15/ 

14/ See w. R. Grace & Co. v. Local 759, U.S. , 

76 L Ed 2d 298, 306 (1983). See also the NLRB's deferral 

policy in Morris, The Developing Labor Law, Ch. 20, Accommodation to Arbitration, (2d ed. BNA, 1983) and Olin Corporation, 

268 NLRB No. 86 (1984). No Commission decision has previously 

touched on the question of the extent to which a trial judge 

should defer to arbitral decisions involving the interaction 

of job qualifications with the exercise of competitive 

seniority rights. Prior decisions of the Commission have 

focused on the standards governing the weight to be accorded 

to credibility and disputed factual findings by arbitrators 

with respect to activity involved in section 105(c) retaliation 

(discrimination) cases. See, David Hollis v. Consolidation 

Coal Company, FMSHRC , decided January 9, 1984. 

Compare, Alexander v. Gardner-denver, 415 U.S. 36, 59-60, 

n. 21 (1974). In Gardner-Denver, the Supreme Court recognized 

the "specialized competence of arbitrators" in interpreting 

collective bargaining agreements. Id. at 53, 57. 

15/ Since my de novo determination is congruent with that of 

the arbitration, I find it unnecessary to deal with Casebolt's 

claim that the arbitrator was not technically authorized to 

hear and determine his grievance. 

49G 
The Complaint To MSHA 

While the grievance was pending before the arbitrator, 

Casebolt filed a discrimination complaint with MSHA. This 

complaint alleged substantially the same acts of discrimination as were alleged under the grievance except that the 

MSHA complaint alleged the discriminatory treatment stemmed 

from a protected activity instead of a personality conflict 16/ 

and general animus against him on the part of his supervisorS:-

MSHA's investigation confirmed that several of Casebolt's 

co-workers witnessed acts of continuous harrassment by 

Watts during the five-day test period. One individual 

claimed he saw Watts "throw rocks at Casebolt when he was 

trying to set up a tripod." Mike Sheffel told the investigator that after he was bumped by Casebolt, but before 

Casebolt was found disqualified, Jay Watts told him he did 

not like Casebolt and "would make sure Casebolt did not 

qualify for the surveying job." Watts denies having ever 

said this. He also denied that Casebolt's requests for a 

two-way radio had anything to do with his disqualification. 

He said that Casebolt had worked with a surveying crew 

for about two months several years earlier but had no 

experience with new equipment introduced since then. Watts 

thought the C.B. radio which he claimed was furnished Casebolt 

in 1979 provided an adequate means of communication. 

For the purposes of the motion, I do not resolve the 

conflicts in the statements of the witnesses or attempt to 

determine the "true" motive,for Casebolt's disqualification. 

I am assuming for the purposes of the motion that Casebolt 

was disqualified at least in part for his claimed protected 

activity. 

16/ . For example in the grievance proceeding the Union, on 

behalf of Casebolt, offered evidence which showed that Watts 

told Sheffel, the miner Casebolt was trying to bump, that 

Sheffel need not worry because Watts did not like Casebolt 

and would make sure Casebolt didn't qualify for the surveying 

job. At the arbitration hearing this was cited as showing a 

premeditated intent to discriminate against Casebolt. The 

arbitrator found the Union's evidence established a "longstanding personality confict" between Watts and Casebolt 

which put Casebolt under pressure during his five-day field 

test. But, the arbitrator concluded, even if the field 

test was unfair, the math tests were not and that Casebolt's 

refusal to reta~e them was tantamount to an admission that 

he lacked the knowledge and skills necessary to perform the 

job. 

497 
MSHA declined prosecution of Casebolt's complaint on 

the ground no violation of section 105(c) (1) occurred and 

on December 1, 1982, Casebolt filed a pro se complaint with 

the Commission under section 105(c) (3)-.~After responding 

to the pretrial order, Casebolt employed his present counsel. 

The Second Rif 

In the meantime, on October 15, 1982, a second companywide reduction in force necessitated by the loss of additional TVA contracts resulted in the elimination of one 

Tech I and two Tech II jobs in Field Survey Crew #3. See 

Exhibit 2 attached. Archie Combs who was a Tech I in Field 

Crew #3 bumped Jim Hutchinson, who had earlier bumped 

Casebolt, from the water sampling job and Hutchinson became 

a rock truck driver on the night shift with Casebolt. Ben 

Johnson, who earlier had been bumped from the Tech I job 

by Archie Combs into a Tech II job bumped Eugene Turner from 

a Tech II job on Field Crew #2. Turner tried, unsuccessfully, 

to bump into the Tech II job held by Charles Booth in the 

mapping/drafting division and then successfully bumped into 

a job as a rock truck driver with Casebolt on the night 

shift. Finally, with the elimination of Field Crew #3 

Mike Sheffel, whom Casebolt had been unsuccessful in bumping 

back in July, had to bump into a position as a rock truck 

driver on the night shift with Casebolt. 

Thus, by November 15, 1982, when these realignments had 

taken place all the Tech I and II jobs in the surveying division 

were held by men senior in service to Casebolt and two men 

with greater seniority and experience as either Tech I or 

II's (Turner and Hutchinson) were driving rock trucks on the 

night shift with Casebolt. Further, Mike Sheffel who held 

the job Casebolt tried to bump into was also driving a rock 

truck on the night shift. For these reasons, the operator 

contends that even if Casebolt was disqualified as the 

result of some unlawful discrimination in July 1982 he would 

still have ended up driving a rock truck on the night shift 

with his junior Mike Sheffel and his seniors Hutchinson and 

Turner in October 1982. 17/ I find the material facts not 

in dispute show (1) that---Casebolt was technically unqualified 

for a Tech II job and (2) that as the result of a bona fide 

economic retrenchment there is no Tech II job to which 

Casebolt can be instated without violating the competitive 

seniority rights of other miners under the collective bargaining 

agreement. 

17/ In April 1983, the Tech II water sampling job was 

abolished and its responsibilities transferred to the 

Reclamation Department. I assume, therefore, that Archie 

Combs may also be driving a rock truck. 

498 
Jurisdiction to order instatement depends on my finding 

not only that Casebolt was deprived of a Tech II position 

because of unlawful discrimination but that no bona fide 

business or economic justification exists for its subsequent 

elimination. Here, however, the undisputed facts show, and 

Casebolt concedes, that he would have lost any Tech II 

surveying job he might have occupied in October 1982 when, 

for bona fide economic reasons, the job (then held by Mike 

Sheffel) was abolished. 18/ 

As respondent points out, if business conditions result 

in a reduction in the work force the right to back pay is 

tolled because a discriminatee is entitled to back pay only 

for the period during which he would have worked but for 

the unlawful discrimination. Phelps Dodge Corp. v. NLRB, 

313 U.S. 177, 198, n. 7 (1941). Furthermore, back pay does 

not accrue to a discriminatee for any period after the date 

he would have lost his position because of lack of competitive seniority or the unavilability of work. NLRB v. 

Columbia Tribune Pub. Co., 495 F.2d 1384, 1393---nfth Cir. 

1974). By a parity of reasoning, the courts have held that 

18/ Because the undisputed facts show Casebolt was not 

technically qualified for a draftsman/mapping job and because 

I do not read his complaint or response to the pretrial 

order as alleging his disqualification for this job was 

tainted by any unlawful intent or motive to discriminate, I 

decline to entertain any suggestion that Casebolt is entitled 

to further protract these proceedings by being allowed to 

amend his complaint. Complainant's case has been gossamer 

thin from the beginning. I believe Mr. Casebolt has had his 

day in court, and then some, and that any further protraction 

of this matter would be unfair and vexatious to the respondent. 

Because miners of ten have no professional guidance in the 

institution of pro se' discrimination cases, it would be 

unjust to apply to them the sanctions ordinarily available to 

deter the filing of frivolous, unreasonable or groundless 

claims. If, however, a miner were to insist on pursuing a 

claim after it clearly appears to be frivolous, unreasonable 

or groundless the common law sanction for pursuing or 

continuing vexatious claims, i.e., claims pursued in bad 

faith may be invoked to deter abuse of the adjudicatory 

process. See Christianburg Garment Co. v. EEOC, 434 U.S. 

412, 422 (1978); Roadway Express, Inc. v. PIPer", 447 U.S. 

752, 766 (1980). 

49!:1 
the unavilability of a position due to a bona fide economic 

retrenchment or reduction in force bars reinstatement of a 

discriminatee. M.S.P. Industries, Inc. v. NLRB, 568 F.2d 

166, 179-180 (10th Cir. 1977); Union Drawn Steel v. NLRB, 

109 F.2d 587, 592 (3d Cir. 1940); 48A Am. Jur. 2d § 1580. 

In Union Drawn Steel and MSP Industries, the courts 

held the NLRB could not order reinstatement without a finding 

that there was work for the discriminatees to do. Again in 

NLRB v. Federal Bearings Co., Inc., 109 F.2d 945 (2d Cir. 

1940), the court held that where depressed business conditions required a reduction in force an employer was not in 

contempt by failing to reinstate. In the same vein, was the 

Third Circuit's holding that a company cannot be required to 

reinstate employees for whom there is no work as a result of 

curtailment of operations for bona fide economic reasons. 

NLRB v. Wilson Line, 122 F.2d 809 (3d 1941). And in NLRB 

v. Southeastern Pipeline, 210 F.2d 643 (5th Cir. 1954r:-"""the 

Fifth Circuit held that where the employee did not have the 

knowledge required for a new position created by combining 

two former jobs and had been given a transfer to another 

location at the same pay, reinstatement should not be 

ordered. 

The defense of unavailability of work to a claim for 

reinstatement was also upheld in NLRB v. Sterling Furniture 

Co., 227 F.2d 521, 522 (9th Cir. 1955). There the court held 

that under the National Labor Relations Act, the remedial 

model for section 105(c), it is well settled that an employer 

may refrain from reinstating a discriminatee during a period 

when employment is not available for non-discriminatory 

reasons. Compare NLRB v. United Contractors, Inc., 614 F.2d 

134, 137-138 (7th Cir. 1980). 

Most closely in point, perhaps, is United Steelworkers 

of America v. Overly Mfg. Co., 438 F. Supp. 922 (W.D. Pa. 

1977). There the court refused to find an employer in civil 

contempt of a prior order of the court that directed reinstatement of a discriminatee to his job of draftsman with 

full seniority. The court upheld the defense of impossibility 

of reinstatement upon a showing that the position no longer 

existed as well as a change of circumstances that would 

have rendered enforcement of the reinstatement decree 

inequitable. The facts showed that during the pendency of 

litigation to enforce the arbitral award and the appeals 

that followed the employer had transferred the discriminatee' s job of journeyman draftsman from its Greenberg, 

500 
Pennsylvania plant to its plant in Glendale, California. 

Thereafter, the only drafting work available in Greenberg 

had to be performed by professional engineers who were 

college graduates because the design work involved the use 

of higher mathematics. Discriminatee had only a high school 

education and no formal education in drafting. Discriminatee 

refused the offer of a job in California and insisted he be 

paid as a draftsman at the Greenberg plant even if there was 

no work for him to do. 

The court found that while resolution of discriminatee's 

right to reinstatement was not simple, the absurdity of 

ordering literal compliance with the order of reinstatement 

in the light of changed circumstances dictated denial of 

the Union's petition. 438 F. Supp. 927. 

I am cognizant of the fact that the "rr.ake whole" 

remedy to which complainant is presumptively entitled embraces 

the use of constructive or preferential seniority. But this 

is true only where complainant's plight is the result of 

wrongful discrimination. It does not justify catapulting 

Casebolt into a better position than he would have enjoyed 

absent the discrimination. 

Only if Casebolt could show, as he cannot, that he is 

driving a rock truck because of the discrimination that 

occurred in July 1982 would this trial tribunal have jurisdiction and power to abrogate Falcon's seniority system by 

slotting Casebolt into the system ahead of Turner and 

Hutchinson or displacing an incumbent. Ford Motor Co. v. 

EEOC, U.S. , 76 L. Ed 2d 721, 733-734, n. 22 (1982); 

Franks v. Bowman Transportation Co., 424 U.S. 747, 746, 

770, 778 (1976); W. R. Grace & Co., U.S. , 76 L. 

Ed 2d 298, 310 (1983). Unlike the EEOC this Commission is 

vested with power and jurisdiction to adjudicate discrimination claims and to impose sanctions that are enforceable by 

the courts of appeals. But in the absence of a finding that 

Casebolt lost seniority as a Tech II as a result of the 

discrimination assumed it would be inequitable and a violation of the rights of innocent third parties to slot him 

ahead of them under the collective bargaining agreement's 

seniority provisions. Casebolt is now, as he was then, 

ahead of Sheffel on Falcon's company-wide seniority list and 

is now, as he was then, below Turner and Hutchinson. If a 

vacancy in a Tech II job occurs he can bid on it ahead of 

Sheffel and behind his two seniors. That is the agreement 

he bargained for. It was not affected by what transpired in 

July 1982. 

501 
Since no Tech II job vacancy exists, it is unnecessary 

to consider whether a lateral transfer under section 9(h) of 

the contract is an available remedy. Under the circumstances that have prevailed since October 1982, this provision cannot be used to nullify Turner's and Hutchinson's 

seniority rights. Further, an order compelling reinstatement either directly or laterally to a job that does not 

exist would result in an egregious form of featherbedding 

and an abuse of the equitable remedial powers conferred by 

the Act. 

Finally, if no relief is available by means of reinstatement, back pay1 or retroactive, constructive, or preferential 

seniority, it is suggested I award Casebolt "front pay." 

This term refers to the substitution of monetary relief in 

lieu of injunctive relief for identifiable victims of 

discrimination. It has been most widely used in cases where 

discriminatees were wrongfully denied promotions because of 

discriminatory hiring or promotion policies. Schlei and 

Grossman, Employment Discrimination Law, (2d ed. 1983), at 

1434-1436. In Franks v. Bowman Transportation Co., supra, 

777, N. 38, 780-781, the Supreme Court declined Justice 

Burger's suggestion to use front money as a substitute for 

constructive seniority but found that under Title VII it 

was available as a remedy. Casebolt urges that in view of 

this I fashion a monetary remedy in lieu of reinstatement 

and thereby avoid infringing the seniority rights of other 

miners. The difficulty is that Casebolt lost no opportunity, 

promotion or otherwise. At least not one that can be 

quantified. Front pay for a lost opportunity must be 

calculated on the basis of the present discounted value of 

earnings that are reasonably likely to occur between the 

date of the lost opportunity and the date of its realization, 

i.e., promotion, reinstatement, etc. See, Patterson v. 

American Tobacco Co., 535 F.2d 257, 269 (4th Cir. 1975), 

cert. denied, 429 U.S. 920 (1976). 

Because Casebolt lost no earnings or opportunity for 

promotion there is no basis for making a present discounted 

value calculation of his claimed injury. 

Windfalls are not part of the "make whole" relief to 

which a discriminatee is entitled. To award Casebolt 

monetary damages on some unspecified, unquantified basis 

would not just make him whole it would put him in a better 

position than other miners who were bumped to the rock 

trucks for non-discriminatory reasons. 

502 
As for the claim that Casebolt is entitled to something 

for his emotional and psychic distress and loss of consortium 

by reason of the fact that he had to work nights, all I can 

say is that life is unfair but that I find no warrant in the 

statute or precedent for an award of damages for pain and 

suffering. At least not in this case. 

Accordingly, it is ORDERED that the motion for summary 

disposition be, and hereby TED and the captioned 

complaint DISMISSED. 

Distribution: 

Timothy J. Wilson, Esq., Attorney for Complainant, P.O. Box 

641, Hindman, KY 41822 (Certified Mail) 

Chadrick Casebolt, Rt. 1, Box 216, Campton, KY 41301 

(Certified Mail) 

George Brooks, Esq., Falcon Coal Company, Inc., 1200 First 

Security Plaza, Lexington, KY 40507 (Certified Mail) 

Attachment 

/ejp 

503 
EXHIBIT 1 (Bumping caused by Zane Watts, 6/7/82-8/9/82) 

ZANE WATTS 

~ 

~ 

u 

::i::: 

:::E: 

ri:t 

z 

E-i 

ENGINEERING DEPARTMENT 

Surveying - Jay Watts (Supervisor) 

Field Crew #1 -- Ray Shepherd (12/09/75) Tech I 

Bumped 

Woody Gabbard (8/18/75) Tech IIJ 

Bumped ~~~~~ Archie Combs (8/03/76) Tech II 

Field Crew #2 -- John Burke (1/28/74) Tech I 

Bumped 

Anthony Noble (8/03/76) Tech II 

Eugene Turner (9/07/76) Tech II 

Field Crew #3 -- Ben Johnson (8/16/76) Tech I Water Sampling 

J Bumped Bumped 

Jim Hutchison (10/05/76) Tech II Chad Casebolt (12

Mike srffel (9/15/77) Tech II .;--Attempted_Bump ~Unsuccessful

I Attempted Bump (Unsuccessful) 

Drafting/Mapping I 

J; Attempted Bump (Unsuccessfu

Charles Booth (10/31/77) Tech II t-- - - - - - - - - -

Tom Watts (5/17/78) Tech II 

Bumped to ro
EXHIBIT 2 (Bumping caused by elimination of Field Crew #3, 10/15/82-1

~ 

E-i 

E-i 

~ 

u 

::i:: 

~ 

z 

E-i 

ENGINEERING DEPARTMENT 

Field 

Surveying 

Crew #1 

Ray Shepherd Tech I 

Zane Watts Tech II 

Woody Gabbard Tech II 

Field Crew #2 

John Burke Tech I 

Anthony Noble Tech II Bumped 

,-- ·- -····-- -- -·· ----····-~--------·---.-... 

- - ~ - Eugene Turner 

I 

I 

I 

Field Crew #3 

Tech 

§ 

(!) 

ro 

II Rock 

PRODU

Bumped 

I Archie Combs 

ill I Bumped Water Sampling 

Tech I ~Jim Hutchison II Rock T

o..-1 Ben Johnson Tech II 

83 j . ill~ I Mike Sheffel Tech II ::; Rock 

ro en 

Bumped 

(!) (!) 

.μ u I . I . ~ g Drafting Mapping 

(!) en L 

+1 i:: - - ~Charles Booth Tech II .μ ::> --7 

<-

Tom Watts Tech II