MAY 1984 

Commission Decisions 

5-11-84 Carbon County Coal Company 

5-23-84 Pontiki Coal Corporation 

5-30-84 Mid-Continent Resources, Inc. 

5-31-84 United States Steel Mining Co. 

Administrative Law Judge Decisions 

5-01-84 

5-02-84 

5-04-84 

5-07-84 

5-08-84 

5-09-84 

5-10-84 

5-10-84 

5-11-84 

5-11-84 

5-11-84 

5-11-84 

5-14-84 

5-14-84 

5-15-84 

5-15-84 

5-16-84 

5-17-84 

5-17-84 

5-22-84 

5-22-84 

5-22-84 

U.S. Steel Mining Company 

Gulf Mineral Resources Co. 

U.S. Steel Mining Company 

Louis Henderson v. Loring Quarries, Inc. 

Eddie Higgs d/b/a Higgs Trucking Co. 

Pyro Mining Company 

Turner Brothers, Inc. 

MSHA/James Clarke v. TP Mining, Inc. 

Mathies Coal Company 

Westmoreland Coal Company 

Marjorie Zamora v. U.S. Fuel Company 

Kitt Energy Corporation 

FMC Corporation 

Lawrence Everett v. Industrial Garnet Extrac. 

Lonnie Jones v. D & R Contractors 

Pyro Mining Company 

Getz Coal Sales, Inc. 

The Pittsburg & Midway Coal Mining Co. 

Pyro Mining Company 

Duval Corporation 

U.S. Steel Mining Company, Inc. 

U.S. Steel Mining Company, Inc. 

WEST 82-106 

KENT 83-181-R 

WEST 82-174 

PENN 82-328 

WEVA 83-124-R 

CENT 81-271-M 

PENN 83-131 

CENT 83-48-DM 

KENT 83-196 

KENT 83-225 

CENT 83-40 

LAKE 83-97-D 

PENN 84-2 

WEVA 82-340-R 

WEST 83-48-D 

WEVA 84-92-R 

WEST 81-100-RM 

YORK 83-6-DM 

KENT 83-257-D(A) 

KENT 84-87-R 

LAKE 83-82 

CENT 83-65 

KENT 83-248 

CENT 80-312-M 

PENN83-115 

PENN 83-151 

Pg. 1123 

Pg. 1131 

Pg. 1132 

Pg. 1148 

Pg. 1153 

Pg. 1156 

Pg. 1166 

Pg. 1168 

Pg. 1215 

Pg. 1218 

Pg. 1219 

Pg. 1264 

Pg. 1265 

Pg. 1267 

Pg. 1277 

Pg. 1289 

Pg. 1294 

Pg. 1306 

Pg. 1312 

Pg. 1319 

Pg. 1333 

Pg. 1347 

Pg. 1351 

Pg. 1359 

Pg. 1369 

Pg. 1380 
·i-· 
MAY 

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

Pontiki Coal Corporation v. Secretary of Labor, Docket Nos. KENT 83-181-R, 

etc •• (Judge Kennedy, March 30, 1984) 

Secretary of Labor, MSHA v. Mineral Coal Sales, Inc., Docket Nos. VA 83-26, 

etc •• (Judge Koutras, April 4, 1984) 

Secretary of Labor, MSHA v. Belcher Mines, Inc., Docket No. SE 84-4-M. (Judge 

Kennedy, April 26, 1984) 

Badger Coal Company v. Secretary of Labor, MSHA, Docket Nos. WEVA 81-36-R, etc •• 

(Judge Steffey, April 11, 1984) 

Secretary of Labor on behalf of James Clarke v. T P Mining, Inc.~ Docket No. 

LAKE 83-97-D. (_Judge Kennedy, May 10, 1984) 

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

Monterey Coal Company v. Secretary of Labor, MSHA, Docket Nos. LAKE 84-19-R, 

etc.. (Judge Broderick, April 13, 1984) 

Secretary of Labor, MSHA v. Todilto Exploration & Development Corporation, 

Docket Nos. CENT 79-91-RM, etc •• (Judge Vail, April 17, 1984) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 11, 1984 

Docket No. WEST 82-106 

CARBON ~UNTY COAL COMPANY 

ORDER 

This civil penalty proceeding under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~· (1982), is before us on 

interlocutory review. Carbon County Coal Company seeks review of an 

order of a Collllllission administrative law judge denying Carbon County's 

motion for sullllllary decision. For the reasons that follow, we vacate the 

judge's order and reinand to the judge for reconsideration of Carbon 

County's motion. 

This case arose out of a citation and withdrawal order issued by 

the Department of Labor's Mine Safety and Health Administration ("MSHA") 

on August 24 and September 3, 1981, respectively, alleging that Carbon 

County was operating a mine without an approved ventilation system and 

methane and dust control plan in violation of 30 C.F.R. § 75.316. 

Section 75.316, which mirrors the statutory standard contained in 

section 303(0) of the Mine Act, 30 u.s.c. § 863(0), provides: 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to the 

conditions and the mining system of the coal mine 

and approved by the Secretary shall be adopted by 

the operator and set out in printed form •••• 

Such plan shall be reviewed by the operator 

and the Secretary at least every 6 months. 

Carbon County operates the Carbon No. 1 Mine, an underground coal 

mine located in Hanna, Wyoming. MSHA had approved and Carbon County had 

adopted a ventilation system and methane and dust control plan dated 

August 25, 1980, for the Carbon No. 1 Mine. In March 1981, Carbon 

County submitted a new ventilation plan to MSHA for the 6-month review 

required by section 75.316. In this new plan, Carbon County proposed . 

changes in several of the provisions contained in the previously approved 

August 25, 1980 plan. Negotiations ensued over the proposed changes. 

1123 84-5-4 
Although Carbon County and MSHA reached agreement with respect to most 

of the proposed changes, they could not agree upon the requirement 

dealing with the amount of air to be made available to auxiliary fans 

used to ventilate some sections of the mine. In its submission, Carbon 

County proposed that the volume of air made available to the auxiliary 

fans be greater than "the maximum rated face ventilation." In correspondence with MSHA Carbon County stated that the latter phrase referred 

to the "installed capacity" of the auxiliary fans. MSHA would riot 

approve an "installed capacity'' requirement and insisted that the 

auxiliary fans be provided with a volume of air greater than their "free 

discharge capacity." The previously approved ventilation plan dated 

August 25, 1980, required that the volume of air made available to the 

auxiliary fans exceed their "maximum rated capacity." There are indications in the record that MSHA officials may have believed that this 

term was equivalent to "free discharge capacity," while Carbon County, 

in its motion for summary decision, asserts that the term referred to 

"installed capacity." 1/ 

The Carbon No. 1 Mine is located in MSHA Coal Mine Safety and 

Health District 9, headquartered in Denver, Colorado. District 9 had 

published "guidelines" regarding the contents of ventilation system and 

methane and dust control plans. The District 9 guideline regarding the 

amount of air to be made available to auxiliary exhaust fans stated: 

"[T]he volume of intake air delivered to the fan prior to the fan being 

started shall be greater than the free discharge capacity of the fan." 

The Distr~ct 9 guideline essentially restated MSHA's national guideline 

regarding the amount of air to be made available to exhaust fans. The 

national guideline stated in part: "[T]he volume of positive intake air 

current available ••• shall be greater than the free discharge capacity 

of the fan." The legal effect of the District 9 guideline, and of 

MSHA's possible reliance upon it during the plan review process, are at 

issue in this case. 

·By August 1981, negotiations over the free discharge capacity 

requirement reached an impasse, and the parties were unable to agree on 

a plan requirement governing the amount of air to be made avai.lable to 

the auxiliary fans. In a letter dated August 21, 1981, MSHA revoked its 

approval of Carbon County's plan dated August 25, 1980, and stated that 

it would not approve Carbon County's plan unless the plan contained the 

free discharge capacity provision. After MSHA's revocation of approval 

of Carbon County's plan, Carbon County failed to submit a plan containing 

the provision sought by MSHA and continued to operate the mine. As a 

result, MSHA issued a citation and withdrawal order to Carbon County,. 

under sections 104(a) and (b) of the Mine Act, respectively, for 

!/ In essence, "installed capacity" refers to the ventilation capacity 

of an auxiliary fan when the fan is operated with tubing attached to it. 

"Free discharge capacity," on the other hand, refers to the ventilation 

capacity of an auxiliary fan when the fan is operated without tubing 

attached. The tubing extends from the fan to the face area. The fan 

pulls the air at the face area through the tubing and exhausts the face 

air into the return air. In this way dust generated by the mining 

process and gases liberated in the face area are removed from the mining 

section. 

1124 
operating without an approved ventilation plan. The violation was 

abated when MSHA approved, and Carbon County adopted, a plan which 

contained the free discharge capacity requirement. MSHA then sought a 

civil penalty for the alleged violation. 

Following MSHA's institution of the civil penalty proceeding, 

Carbon County initiated pretrial discovery. At the close of discovery, 

Carbon County advised the judge that it intended to move for sunimary 

decision under Commission Procedural Rule 64. 2/ In its motion and 

supporting brief Carbon County argued that MSHA had improperly required 

it to adopt the disputed provision in violation of the legal principles 

controlling the ventilation plan adoption and approval process enunciated 

in Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). 

In Zeigler, which arose under the 1969 Coal Act, 30 u.s.c. § 801 et 

seq. (1976)(amended 1977), the court construed section 303(0) of that 

Act. This provision was retained without change as section 303(0) of 

the ~977 Mine Act. The court held that provisions of a ventilation 

system and methane and dust control plan, approved by the Department of 

Interior's Mine Enforcement and Safety Administration ("MESA"), MSHA's 

administrative predecessor, and adopted by the operator were enforceable 

under the 1969 Coal Act as though they were mandatory standards. 536 

F.2d at 402-09. As Carbon County noted, however, in discussing the 

ventilation plan approval process the court drew a distinction between a 

negotiated plan requirement "suitable to the conditions and the mining 

system of the coal mine" and a provision of a general nature, not based 

on the particular conditions at the mine, which the government sought to 

impose in the plan but which "should more properly have been formulated 

as a mandatory standard" in conformity with the rule making requirements 

of section 101 of the 1969 Coal Act. 536 F.2d at 407. 

Carbon County contended that MSHA had insisted on inclusion of the 

general free discharge capacity guideline in its ventilation plan, 

mechanically, without regard to the particular conditions at the Carbon 

No. 1 Mine. Carbon County maintained that MSHA's free discharge capacity 

guideline was a general provision applicable to all mines, and that 

before MSHA could lawfully impose that requirement on an operator in the 

plan approval process the provision should first have been promulgated 

as a standard pursuant to the rule making requirements of section 101 of 

the Mine Act. Carbon County also argued that, regardless of the applicability 

±./ 29 C.F.R. § 2700.64 states in part: 

(a) Filing of motion for summary decision. At any time after 

commencement of a proceeding and before the scheduling of a hearing 

on the merits, a party to the proceeding may move the Judge to 

render summary decision disposing of all or part of the proceeding. 

(b) Grounds. A motion for summary decision shall be granted 

only if the entire record, including the pleadings, depositions, 

answers to interrogatories, admissions, and affidavits shows: 

(1) That 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. 

1125-
of the principles enunciated in Zeigler, MSHA acted in violation of the 

Mine Act and the Administrative Procedure Act, 5 u.s.c. § 551 et seq. 

(1982)(the "APA"). Carbon County asserted that the free discharge 

capacity requirement was a general legislative rule and that both the 

Mine Act and the APA required that such a legislative rule be promulgated as a regulation before it could be imposed. Therefore, according 

to Carbon County, MSHA invalidly insisted upon inclusion of the free 

discharge capacity requirement in Carbon County's ventilation p~an. 

In an unpublished order dated February 4, 1983, the Conunission's 

administrative law judge denied Carbon County's motion for sununary 

decision. The judge issued the order without providing the Secretary of 

Labor adequate opportunity to respond to Carbon County's motion. ll 

The judge did not address the issues raised by Carbon County. Rather, 

he viewed the question before him as simply requiring a decision as to 

which proposal for providing air to the auxiliary fans was safer. The 

judge stated: 

I have no doubt that MSHA can properly approve a 

ventilation plan and then at a later date, and 

for good reason withdraw that approval. The procedures for withdrawing that approval and the 

amount of time allowed in this case seem reasonable so the question is: was there a good reason 

for MSHA to insist that the ventilation plan include a [free discharge capacity] provision. 

* * * 

I am not concerned with the guidelines or who 

drafted them. I am concerned with what would 

happen if a break in the tubing occurred at 

various places where the available intake air 

does not exceed the ••• free discharge capacity 

of the auxiliary fan. Until the parties provide 

me with that information, I will not be able 

to decide whether MSHA's demands would create 

a safer mine. 

Ruling on Motion at 1-2. 

We conclude that the judge's ruling was erroneous. Entry of 

sununary decision is warranted when "the entire record •.• shows: 

(1) that there is no issue as to any material fact; and (2) that the 

moving party is entitled to sununary decision as a matter of law." 29 

C.F.R. § 2700.64(b). Carbon County presented to the judge those facts, 

3/ The judge ruled before the 15 days permitted under our procedural rules for response to a motion served by mail had elapsed, and 

despite the fact that the Secretary had requested, and the company not 

objected to, additional time within which to respond. See 29 C.F.R. §§ 

2700.B(b), .9, & .lO(b). 

1126 
obtained through the discovery process, which it believed to be undisputed and material. Carbon County also presented legal theories as 

to why, given those facts, it was entitled to a decision as a matter of 

law. The judge did not rule on Carbon County's legal challenges to the 

plan approval procedure nor did he determine whether, in light of these 

arguments, there were undisputed material facts in the record which 

entitled Carbon County to a decision in its favor. The judge's bare 

statement that, "I am not concerned with the guidelines or who drafted 

them," is, to say the least, ambiguous. Because the judge provided no 

explanation ot this statement, we cannot regard it as a persuasive 

indication that he did consider, or rule on, the operator's legal 

challenges. 

The court's exposition in Zeigler of the general legal principles 

controlling the ventilation plan approval and adoption process was 

premised on the same statutory standard presently applicable under the 

Mine Act. 30 U.S.C. § 863(0). We find the court's discussion persuasive 

and compelling, and hold that the general principles enunciated in 

Zeigler apply to the ventilation plan approval and adoption process 

under the Mine Act. See Zeigler, 536 F.2d at 407. Therefore, if MSHA's 

insistence in this case upon inclusion of the free discharge capacity 

provision in Carbon County's plan contravened the principles of Zeigler, 

the citation and withdrawal order issued to Carbon County cannot stand. 

As noted above, however, the judge did not rule on this question. We 

conclude that, in the interests of proper judicial administration, it is 

incumbent on the judge, as the trier of fact, to first consider and rule 

on Carbon County's arguments in its summary decision motion concerning 

the application of Zeigler to the facts at hand. Furthermore, before 

making his ruling, the judge shall afford the Secretary of Labor the 

opportunity to respond fully to Carbon County's motion. ii 

4/ We note that counsel for the Secretary of Labor has argued on 

interlocutory review that the free discharge capacity provision is 

merely It • II II• t" ti fth dt an MSHA policy statement or interpreta ion o e man a ory 

standard prohibiting recirculation of air, 30 C.F.R. § 75.302-4(a), and 

that as such it does not run afoul of Zeigler, the Mine Act, or the APA. 

Counsel for the Secretary also has argued that the ventilation system 

proposed by Carbon County was rejected not because of MSHA's inflexible 

insistence upon the guideline but because MSHA's District Manager did 

not believe Carbon County's proposal was safe. 

1127 
Accordingly, we vacate the judge's denial of Carbon County:_s motion 

for summary decision and remand the matter for further proceedings 

consistent with this decision. 

1128 
Commissioner Lawson concurring in part: 

The majority has correctly concluded that the judge erred by failing 

to address the legal argument presented by Carbon County's motion for summary 

judgment and in ruling without permitting response by the Secretary. Accordingly, I concur in remanding this case to the judge for reconsideration of 

the summary judgment motion or the taking of additional evidence as may be 

appropriate. 

The legal issue presented by Carbon County is one of first impression 

before the Commission. It is improper at this stage of the proceedings 

for this Commission to determine in the abstract, without the benefit of 

a complete record, ·whether the general principles discussed in Zeigler, 

supra, unnecessary to that holding and therefore dicta, should be adopted 

by this Commission. Furthermore, I note that this case appears to raise 

issues that the Zeigler court specifically declined to discuss, 536 F.2d 

at 410 n. 57, as well as factual and legal matters which distinguish it 

from the general principles there discussed. ]j Under these circumstances, 

the majority's holding in this Order may be dicta as well. 

Accordingly, I concur in the remand but intimate no view at this time 

as to whether Zeig·ler is "persuasive and compelling" (slip op. at 5) or 

even apposite to this case. 

A. w!. Lawson, Commissioner 

J/ The Secretary has maintained on interlocutory review that the guideline 

is no more than a general statement of MSHA policy on approval of ventilation plans, and is to be distinguished from a legislative rule. In his view, 

the ventilation system proposed by Carbon County was rejected not because 

of any guideline, but because the Secretary did not believe it provided a 

safe ventilation system at the particular mine in question. The Secretary 

further asserts, with reference to specific deposition testimony, that the 

guideline does not bind the district manager, who is responsible for the 

approval or rejection of plans, and that the district manager's insistence 

upon "free discharge capacity" ventilation was required Q.y conditions at this 

particular mine: the size and length of the tubing, the capacities of the 

main and auxiliary fans at the mine, previous history of air recirculation 

problems at this mine, and/or the previous history of violations resulting 

from a failure to maintain the ventilation system. In short, the Secretary 

is of the view that MSHA did not approve Carbon County's revised plan because 

MSHA's district manager had reasonable grounds to believe that Carbon County's 

proposed plan language would not meet the requirements of section 303(0) of 

the Act and the validly promulgated mandatory standards contained in Subpart D 

of 30 C.F.R. Part 75, and that an evidentiary hearing is required to resolve 

this disagreement. See §§ 303(a) & (c)(l) of the Act, 30 U.S.C. §§ 863(a) & 

(c)(l); 30 C.F.R. §§ 75.300, 75.302(a), 75.302-4(a), 75.302-4(g). 

1129 
Distribution 

Robert E. Vagley, Esq. 

Preston, Thorgrimson, Ellis and Holman 

Suite 500 

1735 New York Ave., N.W. 

Washington, D.C. 20006 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Henry Chajet, Esq. 

Michael Duffy, Esq. 

Ame.rican Mining Congress 

Suite 300 

1920. N Street, N.W. 

Washington, D.C. 20036 

Administrative Law Judge Charles C. Moore 

Federal Mine Safety & Health. Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1130 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PONTIKI COAL CORPORATION 

1730 K STREET; NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May.23, 1984 

ORDER 

Docket Nos. KENT 83-181-R 

KENT 83-182-R 

KENT 83-183-R 

KENT 83-184-R 

KENT 83-256 

KENT 83-262 

The administrative law judge's motion for leave to intervene and his 

motion for a remand are denied as unauthorized. Canterbury Coal Co., 

1 FMSHRC 335 (1979); Cf. Peabody Coal Co., 2 FMSHRC 1035 (1980); Penn 

Allegh Coal Co., Docket No. PITT 79-97-P (Order, January 3, 1979). 

Accordingly, the following documents are struck from the record in this 

proceeding: (1) the judge's motion to intervene and the accompanying 

oppos.itioti to tbe Secretary's petition for discretionary review; (2) the 

Secretary's opposition to motion for leave to intervene; (3) the judge's 

response to the Secretary's opposition; (4) the judge's motion to remand; 

(5) the Secretary's opposition to motion to remand; and (6) the judge's 

response to the Secretary's opposition. · 

Also, the affidavit and memorandum attached to the Secretary's petition 

for discretionary review are struck as not being part of the record before 

the judge. 30 u.s.c. § 823(d){2)(C). 

In view of the serious allegations contained in the judge's submissions, 

the Commission has, by letter dated May 18, 1984, brought the information 

contained in the documents struck from this record to the attention of the 

Attorney General of the United States or such action as is appropriate. 

1131' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 30, 1984 

Docket No. WEST 82-174 

MID-CONTINENT RESOURCES, INC. 

DECISlON 

The issue presented in this civil penalty case is whether substantial 

evidence supports the conclusion of the Commission's administrative law 

judge that Mid-Continent Resources, Inc., violated 30 C.F.R. § 75.511, 

a mandatory safety standard requiring that certain electrical work be 

performed by qualified persons. For the reasons that follow, we conclude 

that substantial evidence supports the judge's decision and we affirm. 

The case arose following a methane and coal dust explosion at the 

Dutch Creek No. 1 Mine on April 15, 1981. The mine is owned and operated 

by Mid-Continent and is located in Pitkin County, Colorado. Fifteen 

miners were killed in the accident and three received non-fatal injuries. 

The Department of Labor's Mine Safety and Health Administration 

("MSHA") investigated the explosion. In its accident investigation report 

(Pet. Exh. 1), MSHA concluded that the methane was ignited by an electric 

arc originating inside an electrical switch box on a continuous mining 

machine. The machine was fitted with two lighting systems: one provided 

by the manufacturer and an additional system installed by the company, 

known as "add-on lights.n When the mining machine was examined after the 

accident, it was discovered that the switch box for the add-on lights 

had an opening between the box and the box cover (the switch box "cover 

plate") which exceeded permissible limits. (The opening was in excess 

of .015 inch. The maximum clearance permitted under the applicable 

mandatory standard is .004 inch.) The oversized opening was the result 

of an insulated wire having been wedged in the flange· joint between the 

switch box and the cover plate. 

MSHA concluded that prior to the explosion there had been a sudden 

release of methane. MSHA determined that following this release, mining 

was discontinued on the section and the section crew began making ventilation changes in the face area to dilute and carry away the methane. 

When the concentration of methane in the atmosphere around the continuous 

miner reached 2.0 volume per centum, power to the miner was automatically 

1132 
shut off, except to the add-on lights. 1/ As a result, these lights may 

have "blinded" miners working in the face area so that someone then turned 

the add-on light switch on the top of the cover plate to the "off" position. 

(The light switch was found in the off position following the explosion.) 

MSHA concluded that this caused the switch mechanism inside the box to arc 

and that the arc ignited methane which had entered into the box. MSHA concluded that the flame then "escaped" the box through the non:..permiss:i.ble 

opening and touched off the explosion. 

Because MSHA believed that the non-permissible opening between the 

switch box and the cover plate was part of the causative chain leading to 

the explosion, MSHA attempted to determine who had installed the cover 

plate. MSHA concluded that the cover plate was installed on April 6, 1981, 

nine days before the explosion and that this work was not performed by a 

qualified person or performed under the direction of such a person as 

required by 30 C.F.R. § 75.511. MSHA therefore issued a citation to 

Mid-Continent which alleged a violation of section 75.511. The pertinent 

provision of this standard states: 

No electrical work shall be performed on low-, 

medium-, or high-voltage distribution circuits 

or equipment, except by a qualified person or 

by a person trained to perform electrical work 

and to maintain electrical equipment under the 

direct supervision of a qualified person. 

A civil penalty proceeding ensued. Following an evidentiary hearing, the 

judge entered a decision in which he affirmed the violation and assessed a 

penalty of $10,000. 5 FMSHRC 261, 273-78 (February 1983)(ALJ). J:./ 

The judge found that the cover plate was installed by Marge Theil, a 

miner who was not a qualified person within the meaning of section 75.511. 

At the hearing, the Secretary of Labor introduced evidence showing that 

1/ The continuous miner was equipped with a methane monitor. 30 C.F.R. 

§ 75.313, a mandatory safety standard requires that the methane monitor 

be set to deenergize the machine automatically when there is more than 

2.0 volume per centum of methane in the mine atmosphere. However, in 

this instance, the methane monitor was not wired into the primary circuit 

of the continuous miner's lighting transformer. As a result, when the 

sensor of the methane monitor detected concentrations of methane 

exceeding 2.0 volume per centum it deenergized the continuous miner, but 

not the add-on lights which remained lit. MSHA therefore cited 

Mid-Continent for a violation of section 75.313, and the judge concluded 

the company violated the section by failing to properly wire the methane 

monitor. 5 FMSHRC at 269-71. Mid-Continent did not seek review of this 

portion of the decision. 

2/ In addition to asserting that the cover plate was not installed by 

a qualified person, the citation also alleged that the light switch was 

not wired by a qualified person. Because MSHA offered no evidence to 

prove that alleged violation, the judge vacated that portion of the citation. 

5 FMSHRC at 277-78. Neither party challenges the judge's action in this 

regard. 

1133 
the plate was installed on April 6, 1981, during the maintenance shift (the 

"C", or third shift). 5 FMSHRC at 273. Cecil Lester, an MSHA inspector, 

testified that John Cerise, who was the foreman of the maintenance shift both 

prior to and after the explosion, told him that the cover plate "was probably 

installed by Marge Theil who was not a qualified person." 3/ The judge found 

this evidence to be uncontroverted. 5 FMSHRC at 277. The-judge also noted 

that another MSHA inspector, Clarence Daniels, stated that Cerise had told him 

he did not know who had done the work but he thought it was Marge Theil. 4/ 

3/ Cecil Lester is a coal mine inspector stationed at MSHA headquarters in 

Arlington, Virginia. His specialty is the investigation of mine fires and 

mine explosions which are suspected of having an electrical cause. The following exchange at the hearing took place between Lester and the Secretary's 

counsel: 

Q. Mr. Lester, did you participate in determining whether a 

qualified person had installed the light switch cover on 

the auxiliary light control? 

A. Yes. 

Q. And what did you learn as a result of that investigation? 

A. Of course, no one was there that we knew of when the 

light switch cover was installed, therefore, we had to 

rely upon statements made by company officials. We 

questioned each foreman, trying to find out who 

installed it, and we determined by the process of elimination, and also by Mr. Meraz' statement that it was 

installed on the third shift. [Meraz was the master 

mechanic in charge of equipment maintenance at the 

mine. All maintenance foremen reported to him.] We 

talked to the maintenance foreman on the third shift, 

Mr. John Cerise, and he told us that it probably was 

installed by a Mrs. Marge Theil, who was not a qualified 

person •••• We talked to Marge Theil and she stated that 

she didn't remember whether she put the light switch 

cover on or not. 

Tr. 389-90. 

4/ Clarence Daniels is also an MSHA coal mine inspector specializing in 

electrical inspections. His task during MSHA's investigation of the 

explosion at the Dutch Creek No. 1 Mine was to examine the entire 

electrical system of the mine. He testified as follows: 

Q. What did these two gentlemen [Cerise and Meraz] tell you? 

A. They told me they thought this lid was put on this particular machine on April the 6th, 1981. John Cerise 

stated that he examined this lid on April 6th and found 

Tr. 57-58. 

out if the light switch worked. He said he did not examine 

the box as far as permissibility. When asked who put the 

lid on, Mr. Cerise stated that he didn't know who put the 

box on. That he thought Marge Theil on his shift had put 

the light [sic] on. After interviewing Marge Theil, she 

couldn't remember whether she had put the lid on or not. 

1134 
The judge characterized this statement by Cerise to Daniels as similar to 

the one Cerise made to Lester, "but not quite as strong." 5 FMSHRC at 277. 

Mid-Continent offered testimony by its personnel that it was the 

custom and practice at the Dutch Creek No. 1 Mine always to have qualified 

persons do those tasks requiring qualified persons. The judge agreed that 

Mid-Continent's evidence supported a finding that there was an adequate 

number of qualified persons at the mine and that it was the operator's 

custom and practice to have only certified personnel perform thos~ tasks 

which required special qualifications. However, in the judge's opinion, 

this evidence did not overcome the admission of the foreman, Cerise, to 

the inspectors concerning Marge Theil. The judge observed that neither 

Cerise nor Theil said anything to the inspectors concerning this custom 

and practice. 5 FMSHRC at 277. The judge noted that the only statement 

attributed to Theil on the subject was that she "couldn't remember whether 

she put the lid on or not." Id. 1/ 

The judge concluded that the evidence supported a finding that the 

cover plate was not installed by a qualified person as required by the 

cited standard, and found the operator to have violated 30 C.F.R. § 75.511. 

We granted Mid-Continent's petition for discretionary review and subsequently 

heard oral argument in the case. 

The essence of Mid-Continent's challenge on review is that the judge's 

finding of a violation is not supported by substantial evidence. Mid-Continent 

argues that the judge, in relying upon Lester's and Daniels' recitations of 

what they were told by Foreman Cerise, based his finding of a violation upon 

uncorroborated hearsay speculations rather than upon statements of fact. 

Mid-Continent also contends that even if the violation could be established 

by the statements of Cerise, as recounted by the inspectors, it successfully 

defended by establishing that the Secretary failed to prove that all the 

qualified persons who could have installed the cover plate did not do so. 

We begin by noting that the judge properly admitted and relied upon the 

testimony of Inspectors Lester and Daniels concerning what they were told by 

Foreman Cerise. Hearsay evidence is admissible in our proceedings so long as 

it is material and relevant. Secretary of Labor v. Kenny Richardson, 3 FMSHRC 

8, 12 n.7, aff'd, 689 F.2d 632 (6th Cir. 1982), cert. denied, U.S. , 

77 L. Ed. 2d 299 (1983). In this instance, the hearing testimony was offered 

to prove that the cover plate was not installed by a qualified person. Because 

the installation was at issue in the case, the testimony was material. The 

hearsay testimony was relevant also in that, if true, it tended to prove this 

proposition. 

Moreover, properly admitted hearsay testimony, and reasonable inferences 

drawn from it, may constitute substantial evidence upholding a judge's decision 

5/ Theil was not called as a witness by either party and did not appear at 

the hearing. No attempt was made to subpoena her. During the course of 

MSHA's investigation of the explosion she was interviewed over the telephone 

by MSHA investigators. Statements attributed to Theil by the investigators 

were made during this interview. When the hearing took place Theil was no 

longer employed by Mid-Continent. . 

1135 
if the hearsay testimony is surrounded by adequate indicia of probativeness 

and trustworthiness. Richardson v. Perales, 402 U.S. 389, 407-408 (1971); 

Johnson v. United States, 628 F.2d 187, 190-91 (D.c. Cir. 1980); U.S. v. FMC, 

655 F.2d 247, 253-54 (D.C. Cir. 1980). 6/ Hearsay testimony "may~treated 

as substantial evidence, even without corroboration, if, to a reasonable 

mind, the circumstances are such as to lend it credence." Hayes v. Dept. 

of the Navy, 727 F.2d 1535, 1538 (Fed. Cir. 1984)(footnote omitted). We 

reject a per .!!!:. rule that evidence may not be considered to be substantial 

for purposes of our review merely because it bears a hearsay label. Rather, 

we look to its underlying probative value to determine if the evidence may 

support a judge's finding of fact. 

Although no single test can be established to evaluate the role of 

hearsay in determining whether substantial evidence supports a judge's 

finding, we measure the probative value of such evidence by weighing it 

against various factors, which, when added together, may tip the scale 

for or against a determination that substantial evidence is present. 

For example, we look to whether the out-of-court declarant, whose statement 

is reported at the hearing by another, had an interest in the outcome of 

the case and thus a reason to dissemble. Richardson v. Perales, 402 

U.S. at 402-03. We also examine whether the out-of-court statement 

rests on personal knowledge gained from firsthand experience. 402 U.S. 

at 403. If there is more than one reported statement, we inquire 

whether the statements are consistent. 402 U.S. at 404. We also find 

significant whether the party against whom the statement was used exercised 

the right of subpoena so as to cross-examine the out-of-court declarant. 

2._/ Counsel for the Secretary of Labor contends that Cerise's statements 

are "admissions by a party opponent" under Rule 80l(d)(2) of the Federal 

Rules of Evidence. As such, counsel asserts that the statements are 

presumed to be reliable and trustworthy and are entitled to considerable 

weight as statements which are not hearsay. This argument may possibly 

confuse the presumed reliability of a party opponent's admissions with 

the reliability of an unavailable declarant's statements against interest. 

See Fed. R. Evid. 804(b)(3); 4 J. Weinstein & M. Berger, Weinstein's 

Evidence 801-134 to -139 (1981). Even were we to regard Cerise's statements as "admissions by a party opponent" we still would be required to 

examine their underlying probative value. However, we decline the opportunity to become enmeshed in the hearsay intricacies and terminology of 

the Federal Rules of Evidence. While the Federal Rules of Evidence may 

have value by analogy, they are not required to be applied to our hearings--

either by their own terms, by the Mine Act, or by our procedural rules. 

By contrast, the National Labor Relations Board is required under its 

organic act, the National Labor Relations Act, 29 U.S.C. § 151 et~., to 

conduct its administrative hearings "so far as practicable" in accordance 

with the Federal Rules of Evidence. 29 u.s.c. § 160(b). See NLRB v. 

Process and Pollution Control Co., 588 F.2d 786, 791 (10th Cir. 1978). 

We believe it better to view hearsay statements as possibly relevant and 

material evidence whose probative value must be evaluated on the basis 

of each particular case. ~ generally 3 K. Davis, Administrative Law 

Treatise ch. 16 (2d ed. 1980). 

1136 
402 U.S. at 404. We likewise determine whether the making of the statement 

was denied or whether its contents were declared untrue. And we examine the 

content of any contradictory or corroborating evidence. School Board of 

Broward County, Florida v. H.E.W., 525 F.2d 900, 907 (5th Cir. 1976). Our 

aim is to dete·rmine if, given all of these factors, there is "such relevant 

evidence as a reasonable mind might accept as adeq~ate to support [the judge's] 

conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). 

Application of these criteria to the record in this case convinces us that 

the judge's finding of a violation is supported by substantial evidence. 

John Cerise was the out-of-court declarant whose statements were 

testified to by the MSHA inspectors. Cerise, foreman of Theil's shift, 

would have had good reason not to state that the electrical work was done 

on his shift by an unqualified person. As the foreman of the maintenance 

shift, it was his job to assign the maintenance tasks which needed to be 

done, including the installation of the switch box cover plate. (Cerise 

directed repair work on mining equipment. Tr. 276, 378). Also, as foreman, 

he was responsible for assuring the work was done in compliance with 

applicable safety standards. Cerise's statements would tend to indicate 

that he may not have met his responsibilities in this regard. In addition, 

Cerise's statements rested upon his personal knowledge and first-hand 

experience. He was on the section on April 6, the day he stated that Theil 

probably installed the plate. In addition, as noted above, installation of 

the cover plate was the type of work which would be performed by his crew. 

As the foreman, he may be presumed to know what his miners were doing. 

We note also that the testimonial accounts of the two MSHA inspectors 

concerning their conversation with Cerise refer to the same series of 

events and are consistent. 

Nor did Mid-Continent produce witnesses who testified that Cerise's 

statements were not made or that the content of the statements was reported 

inaccurately. Both inspectors agreed that Theil stated that she could not 

remember whether or hot she installed the cover plate. Mid-Continent had 

no records pertaining to the installation of the cover plate. Oral Arg. 

Tr. 10. Mid-Continent's vice president stated that the company did not know 

who installed the plate. Tr. 289. Further, Cerise, a salaried employee 

of Mid-Continent, was not subpoenaed by the operator to rebut what he was 

reported to have said to the inspectors. LI 

LI Our dissenting colleagues err in their assertion that Mid-Continent 

was effectively denied by Commission Rule 59 the right to discover, prior 

to hearing, the identity of declarants Cerise and Theil (Slip op. at 5). 

The Secretary's MSHA accident investigation report (Exhibit 1) was referred 

to by Mid-Continent in its answer to the citation issued herein. The record 

notes that Cerise stated that the cover plate was installed on April 16, 

1981, and this operator could certainly have interviewed Cerise and determined what he had told MSHA, including his identification of Theil as the 

miner who installed the cover. Further, it is unclear what effect, if any, 

Rule 59 would have had on Mid-Continent's ability to obtain the identity of 

an informant whose identity had already been disclosed in the report. Although 

Counsel for Mid-Continent stated at oral argument that he first learned at 

the hearing that Cerise's statements were part of MSHA's case, he did not 

attempt to call either Cerise or Theil and did not seek an adjournment. 

Counsel for Mid-Continent explained at oral argument that during the two-day 

hearing Cerise was employed on the night shift and was "in bed" while the 

hearing was in session. Oral Arg. Tr. 20-21. 

1137 
Thus Mid-Continent did not defend against the Secretary's evidence 

that an unqualified person installed the cover plate by showing that a 

qualified person had installed it. Rather, Mid-Continent offered evidence 

of a general character that there was no shortage of qualified personnel 

and that it was the practice at the mine to use only those employees to 

perform the tasks requiring qualified persons. The judge concluded, however, that because this practice was not mentioned by Cerise (or Theil), 

Mid-Continent's evidence did not outweigh the testimony of Daniels and 

Lester as to the specific statements of Cerise. We agree. General evidence 

that a violation would not normally have occurred does not outweigh the 

inference drawn from specific testimony that the violation did occur. 

In evaluating the probative value of Cerise's statements to the inspectors, we recognize that his statements, to some degree, were expressed 

in terms of probability rather than in terms of absolute certainty. However, 

the record clearly supports a finding that the cover plate was installed on 

Cerise's maintenance shift, the "C" shift, on April 6 by a member of 

Cerise's crew. Inspectors Daniels and Lester stated that they were told so 

by Cerise and by John Meraz, Mid-Continent's master mechanic whose job it 

was to supervise the foremen. Tr. 57, 71, 378, 389, 403. 8/ Presumably, 

therefore, Cerise knew whereof he spoke when he indicated his belief that 

Theil had probably installed the cover plate. The judge inferred from this 

testimony that it was more probable than not that Theil had, in fact, installed the plate. 9/ Such inferences are permissible provided they are 

inherently reasonable and there is a logical and rational connection between 

the evidentiary facts and the ultimate fact inferred. See, for example, 

EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 194 (3rd Cir. 1980). 

Moreover, as noted above, the substantial evidence standard may be met 

by reasonable inferences drawn from indirect evidence. See, for example, 

FMC v. Svenska America Linien, 390 U.S. 238, 248-49 (1968); U.S. v. FMC, 

655 F.2d at 253-54. This is particularly true where, as here:-:ft is either 

impossible or there is only a remote possibility of obtaining direct 

evidence to establish a violation. We must be mindful of the fact that 

the Secretary alleged a violation that was associated with a fatal 

explosion. It is not surprising under the circumstances that no person 

would admit installing the cover plate and that direct proof was lacking. 

Given the difficulty of obtaining direct evidence as to who installed 

the plate, we find the judge's inference that Theil installed it to be 

reasonable, inherently probable and logically connected to the evidentiary 

facts at hand. Moreover, as the Supreme Court has emphasized, "The 

possibility of drawing either of the two inconsistent inferences from the 

evidence [does] not prevent [an agency] from drawing one of them •••• " 

NLRB v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106 (1942). 

~/ In addition, the "B" shift maintenance foreman informed inspector 

Daniels that the lid was not installed on the "B" shift. Carl Heater, the 

only qualified person on the "A" shift told the inspector he had no knowledge of it being instlled during the "A" shift. We also note that at 

oral argument Mid-Continent's counsel conceded that the cover plate was 

installed on April 6. Tr. Arg. 10. 

9/ Theil did not advise the MSHA investigators that she had never 

installed cover plates, a more likely response if, indeed, she had never 

performed this task. 

1138 
In view of the indicia of probity and believability which surround 

Cerise's statements, the judge's conclusion that the cover plate was not 

installed by a qualified person is based on adequate record support and 

substantial evidence. It is, of course, the judge's duty to draw conclusions from the record and where, as here, that evidence is adequate 

to support the conclusion it is our duty to affirm his decision. 10/ 

Accordingly, 

affirmed. 

• L wson, Commissioner 

&~ lu_c_ol~-

10/ The Secretary argues to us, as he argued to the judge, that he deductively proved the violation by establishing that all qualified personnel who could have installed the cover plate denied that they had 

done so. Mid-Continent disputes this claim. The judge did not rule on 

the merits of this contention, and in view of our disposition of the 

case we need not do so either. Nevertheless, we note in passing that 

Mid-Continent's contention in this regard centers on two named individuals, John Ball and Bernie Fenton. Although the statement of qualified 

electrician John Ball to the MSHA inspectors is to some degree un- · 

certain, its thrust is a denial that he installed the cover plate, just 

as the thrust of Cerise's statement is an assertion that Theil had 

installed it. Ball is quoted by the inspectors as saying that he could 

not remember installing the cover plate, but that if he had installed it 

he would have checked between the plate and the switch box for impermissible openings. Tr. 58, 389-90. 

We also note that Mid-Continent asserts that Bernie Fenton, a 

preventive maintenance engineer and a qualified person, was not interviewed by MSHA. Oral Arg. Tr. 13, 37. Without passing on the merits of 

this argument, we note that although Fenton usually worked on the "C" 

shift, it is not clear that his duties, unlike those of Cerise, would 

have included installation of the cover plate. His job was variously 

described as inspecting, oiling and greasing mine machinery and changing 

worn-out machine parts. Tr. 276, 358. 

The dissent notes, at n. 2, that neither Mr. Guthrie nor Mr. Clark 

were interviewed. However, since both individuals were employed on the 

"B" shift, and the evidence establishes the lid was installed on the "C" 

shift, further exculpating evidence is unnecessary. 

11.39 
Collyer, Chairman and Backley, Commissioner dissenting: 

This case was best sunnned up by the trial attorney for the Secretary of 

Labor at the beginning of the hearing where he stated: 

The person or identity of the person who installed the 

light switch cover is not known, either by MSHA or MidContinent Resources. The light switch cover was most 

likely installed by the maintenance shift, which would 

be a third shift at this mine, but that fact has not 

been ascertained as a certainty. (Tr. 6). 

After careful analysis of the entire record we find no reason to dispute 

the Secretary's counsel. Accordingly, we find that the Secretary failed to meet 

his burden of proving that the subject violation occurred and we would reverse 

the ALJ and vacate the subject citation. 

We wish to stress at the outset that this case does not present the question 

of whether the cover plate was impermissible but only the question of who installed 

it. 

The Secretary stated that he did not know who installed the subject cover 

plate, but that through a deductive process he could prove that Marge Theil, an 

unqualified miner, was the only miner who could have installed the cover plate. 

His deduction, however, rests on uncorroborated hearsay testimony which, as 

shown herein, is itself weak and inconclusive. In order to establish any valid 

inference made through a deductive process, it is integral to that process that 

no other choice or possibility reasonably exist. NLRB v. Melrose Processing Co., 

351 F.2d 693 (8th Cir. 1965). Indeed, even the Secretary appears to have appreciated 

this point when he argued in opposition to Mid-Continent's motion to dismiss: 

The testimony will show that in discussions with all the 

qualified personnel at the mine who may have had the opportunity to install that light switch box, all indicated 

they did not install it. Therefore, the only person who 

could have installed it would have been someone who was 

not qualified to install it. (rr. 8; emph. added). 

If the Secretary had actually conducted his investigation as indicated 

above, and if the Secretary had actually proved that all responses from all 

qualified personnel indicated that they had not installed the cover plate, we 

might have been persuaded to affirm the ALJ. However, the record evidence 

clearly establishes that all qualified miners were not interviewed by MSHA, as 

so claimed, and of those qualified miners interviewed, all did not clearly deny 

involvement with the installation of the subject cover plate. Moreover, we find 

the record evidence, upon which the majority relies, to be weak, equivocal, and 

not substantial. 

1140 
Assuming arguendo that the Secretary's contention is correct and that the 

installation of the cover plate occurred on April 6, 1981 ];_/, the record contains 

no evidence of the identity of all Mid-Continent miners who were working on that 

day and who were legally qualified to install the subject cover plate. Although 

the record indicates that Mid-Continent's Master Mechanic Meraz and.Maintentance 

For~men Heater, Cordoba and Cerise were interviewed, none of the maintenance 

foremen was ever called to testify at hearing. Moreover, in closely scrutinizing 

the testimony of Inspectors Daniels (Tr. 58-60) and Lester (Tr. 389), it is 

apparent that they did not question all miners who were legally qualified to 

install the subject cover plate, but rather relied upon the qualified representations made by the aforenamed miners. 

The record also clearly establishes that the Secretary, in issuing the 

subject citation and in prosecuting this matter, did not consider or interview 

the qualified personnel working on the preventive maintenance crew which operated 

on the "C" shift, the very shift during which the Secretary asserts the subject 

cover plate was installed. (Tr. 170). This unbelievable omission was apparently 

a continuing one because the Secretary professed ignorance of the existence of 

the special maintenance crew at oral argument. (Oral argument Tr. 25). This 

omission of evidence as to an entire crew significantly undermines the Secretary's 

deductive process. Indeed, the respondent's evidence suggests that the job of 

replacing the cover plate could have been routinely performed by the preventive 

maintenance crew or by one of the production crews. 

We also find it significant that the "B" shift had been idled for five days 

preceding the April 15 explosion and that no coal production occurred during 

that time. During such "down time" mechanical and/or electrical work is customarily performed on the equipment. Inspector Daniels admitted that he did not 

know production had been suspended. (Tr. 76, 77).. Additionally, Master Mechanic 

Meraz testified that a "foul up" involving qualifed miner Ball had made it 

necessary for "B" shift mechanics Darrell Clark and Eugene Gutherie to perform 

permissibility checks ordinarily performed on the "C" shift. This testimony 

indicates that prior to the explosion, production shift personnel did perform 

work ordinarily performed on the "C" shift. This fact is ignored by the majority 

for the reason that it further removes support for their conclusion. 

Clearly the line between production shift work assignments and maintenance 

shift work assignments often became blurred and therefore it is unreliable and 

unreasonable to hinge a conclusion of violation on a contrary presumption. 

Consequently, because the Secretary has not identified all of the qualified 

miners who were actually working on April 6, 1981, we can only wonder who else 

was not interviewed!:./· · 

];./ Although not established by the Secretary, Mid-Continent appears to have 

conceded this point. (Oral argument Tr. 10). 

'!:_/ Obviously, it was not possible to interview deceased qualified miner Eugene 

Gutherie. However the record contains no evidence to warrant a categorical 

removal of Mr. Gutherie from the list of those who may have had involvement in 

the installation of the subject cover plate. Arso, the record contains no 

evidence inculpating or exculpating qualified miner Darrell Clark. 

1141 
MSHA did, however, interview qualified miner John Ball 1,/. His statement 

is characterized through the hearsay testimony of Inspector Daniels and Lester 

as follows: "John Ball, he stated he couldn't remember putting the lid on, but 

if he had, he was sure that he would have checked for permissability" (Daniels, 

Tr. 58); and "He stated that if he had installed it, he would have ~hecked it 

with a feeler gauge." (Lester, Tr. 390). 

The majority noted the foregoing and concluded that the statement of Ba.11 

was "uncertain" but "its thrust is a denial that he installed the cover plate." 

Although we find the declarations attributed to John Ball to be weak, equivocal: 

and insubstantial, not unlike the declarations attributed to John Cerise and 

Marge Theil, it is of greater interest to note the sharp inconsistency with 

which the majority evaluated the subject hearsay evidence. Inspector Daniels 

also testified that Marge Theil said "she couldn't remember whether she put the 

lid on or not." "Couldn't remember" results in the exculpation of John Ball, 

but through unexplained logic, is used to incriminate Marge Theil! 

Beyond the foregoing hearsay testimony characterizing Marge Theil's statement, 

the Secretary's case rests upon the hearsay testimony of the two MSHA inspectors 

purporting to relate the deciarations of John Cerise, Mid-Continent's maintenance 

foreman of the "C" shift. 

Initially it should be noted that. the record fails to clearly indicate the 

manner in which MSHA Inspectors Daniels and Lester conducted their interview(s) 

of declarants Cerise and Theil. Specifically, it is unclear whether the inspectors 

conducted all interviews jointly or separately. This is not insignificant. The 

number of times and circumstances under which witnesses are interviewed is 

material in evaluating the reliability and trustworthiness of the declarations. 

This factor is even more critical when the entire issue of liability may be 

hinged upon such "evidence." 

As noted in the majority decision, Inspector Daniels testified that John 

Cerise said, "He didn't know who put the box on. That he thought Marge Theil on 

his shift ·had put the light on." (Tr. 57). Inspector Lester testified, "He 

told us that it probably was installed by a Mrs. Marge Theil." (Tr. 389). 

If the foregoing testimony resulted from one interview then there is no 

explanation why the stronger inference of "probability" should have been adopted 

by the administrative law judge and the majority. 

Beyond the fact that the attributed statement(s) itself is weak and inconclusive, more damaging is the fact that it stands alone without any corroboration. 

Although the record contains MSHA reference to a "notetaker", no written corroboration is found in the record. Indeed, even the most rudimentary attempt to 

corroborate the hearsay is not to be found in the record, i.e., there is no 

evidence showing that Marge Theil actually worked on April 6, 1981. Accordingly, 

]_I The record is unclear as to whether Mr. Ball was interviewed by both MSHA 

inspectors jointly or separately. 

1142 
the majority's reliance upon Secretary of Labor v. Ke.nny Richardson, 3 FMSHRC 8, 

12 n.7, aff'd, 689 F.2d 632 (6th Cir. 1982), cert. denied, U.S. , 77 L. Ed. 

2d 299 (1983), is certainly in conflict with one of two express reasons stated 

therein by the Ccmmission: "Virtually all of the hearsay was corroborated by 

direct evidence." 

The majority's reliance upon Hayes v. Department of the Navy, 727 F.2d 1535 

(Fed. Cir. 1984), is similarly flawed. Hayes involved the hearsay use of agency 

records in a hearing before the Merit Systems Protection Beard on an appeal of 

Mr. Hayes' discharge~ The re~ord at issue detailed the circumstances of the 

employee's conviction for assault and battery on a 10-year-old female child. 

The record was developed by a Navy Captain, who had "prepared a memorandum for 

the record which reflected in detail his. conversation with Mr. Hayes, his 

attorney, and with the prosecuting attorney ••• " 727 F.2d at 1536. It is noteworthy that this record was a contemporaneous one, on an issue the employee did 

not dispute. The employee had been advised, before the hearing, of his right to 

see and copy any part of the record developed by the Navy and had not done so. 

In accepting the hearsay, the court also relied on the fact that it was submitted 

as required by properly promulgated regulations of the MSPB. 727 F.2d at 1538-39. 

Surely the hearsay evidence at bar, i.e., the testimony of two MSHA inspectors 

which completely lacks detail or any form of corroboration, is in no way analogous 

to the Hayes memorandum detailing the circumstances of a criminal conviction, 

which conviction was admitted by the employee. 

Despite the inherent weakness of the Secretary's case, the majority has 

concluded, relying upon Richardson v. Perales, 402 U.S. 389 (1971), that hearsay 

evidence may constitute substantial evidence, and that in the instant case the 

subject hearsay evidence is substantial evidence. 

Although we do agr.eethat under certain circumstances hearsay evidence may 

constitute substantial evidence, we find the majority's reliance upon Perales to 

be erroneous. The quality, quantity and precision of the hearsay evidence 

reviewed by the Court in Perales was far superior to the instant hearsay evidence. 

In Perales, the Supreme Court held that written medical reports prepared by 

licensed physicians who had independently examined a disability claimant could 

be received as evidence despite their hearsay character and could constitute 

substantial evidence supportive of a finding adverse to the claimant when the 

claimant had not exercised his right to subpoena the reporting physicians and 

thereby avail himself of the opportunity to .cross-examine them. In reaching its 

decision, the Court carefully outlined several factors pertinent to the written 

reports which the Court felt would "assure underlying reliability and probative 

value." 402 U.S. at 402. 

The Court noted that the social security administrative agency sponsoring 

the hearsay evidence operated as an adjudicator and not as an advocate. Certainly 

MSHA's posture as an enforcement agency in the instant case is not analogous. 

The Court noted that the written medical reports were routine, standard and 

unbiased, and prepared by licensed physicians who were specialists who had 

personally examined the disability claimant. The Court further noted that the 

range of examinations (five) was impressive and represented a "careful endeavor 

by the state agency and the examiner to ascertain the truth." 402 U.S. at 404. 

1143 
In reaching its conclusion that hearsay evidence may constitute substantial 

evidence, the Supreme Court placed considerable weight on the fact that "courts 

have recognized reliability and probative worth of written medical reports even 

in formal trials and while acknowledging their hearsay character have admitted 

them as an exception to the hearsay rule." 402 U.S. at 407. The Court further 

indicated that there exists a uniform court recognition of "reliability and 

probative value" in written medical reports. 402 U.S. at 405. 

Our review of the subject hearsay evidence discloses the existence of none 

of the above-noted safeguards. MSHA's evidence is extremely narrow and inconclusive. 

It consists totally of unclarified hearsay without any indications of the circumstances under which statements were obtained, without contemporaneous corroborating 

notes, and without certainty within the declarations themselves. The haphazard 

investigation which overlooked a number of qualified persons who might have 

installed the cover plate was by no means a "careful endeavor." The Secretary's 

failure to call Marge Theil and/or John Cerise is similarly lacking in care. 

This house of cards is not by any measure "impressive." 

The Court in Perales was also influenced by the fact that the claimant 

failed to seek issuance of the subpoena for the presence of the reporting physicians 

notwithstanding notification that the medical reports were on file and were 

available for claimant inspection prior to hearing. 

In the instant case Commission Procedural Rule 59, 29 ~FR Section 2700.59 

effectively denied Mid-Continent the right to discover, prior to hearing, the 

identity of declarants John Cerise and Marge Theil!:±../· Therefore Mid-Continent 

cannot properly be faulted for failure to seek a subpoena prior to hearing. Nor 

can this failure be utilized as it is by the majority, to give support to their 

findings. Moreover, in view of the weak and insubstantial evidence introduced 

by the Secretary, the party with the burden of proof, we have no difficulty in 

understanding why Mid-Continent apparently decided not to seek the issuance of 

subpoenas commanding the presence of declarants Cerise and Theil. 

Lost in all the pirouetting is the basic proposition that the government 

has the burden of proof. Accordingly, its failure to adequately explain why it 

did not even attempt to subpoena the declarants who were apparently still living 

!!_/ Although the name John Cerise, along with numerous other Mid-Continent 

employees, appears in the MSHA investigative report, there was no prior indication 

that Mr. Cerise knew, or disclosed to MSHA the name of Marge Theil, as the one 

who "probably" installed the cover plate. Moreover, to recommend, as the majority 

does, that Mid-Continent should have attempted to "determine what he (Cerise) 

had told MSHA" (Slip op. at 6; emph. added) reflects a potentially serious 

insensitivity to the parameters of the protections afforded miners under Section 

105 (c), which prohibits interference with miners in the exercise of their 

statutory rights. We have found no record indication supporting the contention 

that Mid-Continent knew of John Cerise as the one who would have, or the one who did 

state that Marge Theil "probably" installed the subject cover plate. 

114.4 
within a reasonable radius of the hearing site is suspect, at least. NLRB v. 

Process and Pollution Control 588 F.2d 786 (10th Cir~ 1978). This failure to 

call the very witnesses upon whom the government relied denied the administrative 

law judge the opportunity to make a very necessary credibility' ruling which 

would have been especially significant in the instant case. 

It appears that the government was intentionally selective in its presentation 

insofar as particular witnesses were concerned. At oral argument, Counsel for 

MSHA admitted that Mrs. Theil was not called by MSHA because: 

••• she would have been an extremely uncooperative witness. 

At best she would not have recalled what happened. At worst 

we may have ended up having to' ask the judge to declare her a 

hostile witness. We had very little in the way of knowing 

exactly what she would testify to. (Oral argument at 30, 31). 

Therefore, the government spared the ALJ from the rigors of determining where 

the truth may lie, and instead presented a neat, tidy statement purporting to be 

Marge Theil's position on this crucial issue. Accordingly, the question arises 

as to whether the judge was given the complete picture. Since he was not, his 

credibility findings are suspect. 

Finally, it should be noted that the Perales Court was in part motivated to 

conclude that the written medical reports should be accepted as substantial 

evidence because of the extremely large volume of disability claim hearings 

conducted. The Court indicated that amount to be in excess of 20,000 cases per 

year. Obviously, the administrative burden placed upon MSHA as well as this 

Commission in no way approaches that volume. 

We conclude that many of the well-reasoned factors relied upon by the 

Perales Court to insure the "reliability and probative value" of the hearsay 

evidence are not to be found in the hearsay evidence at bar. We find the hearsay 

to be weak, equivocal, uncorroborated and therefore suspect. As such it is 

"neither logical nor reasonable" to rely on such evidence as substantial evidence. 

See Union Carbide v. NLRB 714 F.2d 657. 

We are troubled by other serious lapses and contradictions in this proceeding. 

The ALJ found that Mid-Continent had provided "extensive evidence" supporting 

its defense that an adequate number of qualified maintenance personnel were 

employed at the mine and that Mid-Continent's evidence did establish that the 

custom and practice at the Dutch Creek No. 1 mine was to have "only certified 

personnel perform occupational tasks which require special qualifications." 

5 FMSHRC at 277. However, the ALJ rejected the defense of custom and practice. 

In support of that rejection, the ALJ found that declarants Cerise and Theil 

both failed to state to MSHA anything about custom and practice at the mine. 

5 FMSHRC at 277. 

We do not agree with the reasoning of the ALJ and the majority, and would 

conclude and find that he erred. The proper occasion to draw an inference from 

failure to state something occurs only under very narrow, limited circumstances. 

1145 
To draw negative conclusions from silence in the instant case represents a gross 

misjudgment by the ALJ. Here we have been provided with no insight into the 

manner of investigation, no indication of precisely what questions were asked, 

and no indication of precisely what responses were provided. Here the enforcing 

agency characterized prior statements without any indication of the breadth and 

depth of the responses of either declarant. The record consists only of inconclusive 

recollections of two MSHA inspectors who may have heard one declaration from 

each of two Mid-Continent employees. The hearsay testimony is likely a selective 

synopsis of one or mor:e interviews "seasoned" with the passage of time. Accordingly 

we find that the ALJ erred in basing his rejection of the Mid-Continent custom~ 

and practice defense on the conclusion and finding that specific words were not 

uttered by declarants Cerise and Theil 2./. Indeed the error is compounded in 

view of the fact that the ALJ relied on identical evidence in ruling, on a 

related citation, that Mid-Continent properly maintained its methane monitor 

maintenance program EJ. 

For the foregoing reasons we would reverse the ALJ and vacate the citation. 

5/ It should also be stated that the ALJ and majority (see majority decision 

f.n. 9) appear not to appreciate the fact that it would be legally permissible 

for Marge Theil to have deviated from the Mid-Continent custom and practice as 

long as she worked "under the direct supervision of a qualified person." See 30 

CFR Section 75.511. 

EJ This seems to be supported by the fact that on April 9 and 13, MSHA inspectors 

issued no citation to Mid-Continent related to the methane monitor during the 

course of their inspections. 

1146 
Distribution 

Edward Mulhall, Jr., Esq. 

Delaney & Balcomb, P.C. 

P.O. Drawer 790 

818 Colorado Avenue 

Glenwood Springs, Colorado 81602 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

1147 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

/ v. 

UNITED STATES STEEL MINING CO., 

INC. 

May 31, 1984 

Docket No. PENN 82-328 

DECISION 

On April 19, and June 1, 1982, inspectors from the Department of 

Labor's Mine Safety and Health Administration (MSHA) cited U.S. Steel 

Mining Company, Inc. for violations of mandatory safety standards at 

its Dilworth Mine. One citation alleged that U.S. Steel failed to 

comply with its approved ventilation plan in violation of 30 C.F.R. 

§ 75.316. The other citation alleged that loose, dry coal and float 

coal dust were permitted to accumulate under and around the tail piece 

of the belt conveyor in violation of 30 C.F.R. § 75.400. On both 

citation forms the inspectors marked a box to indicate their finding 

that the alleged violations were of such nature as could significantly 

and substantially contribute to the cause and effect of a mine safety 

hazard. Both violations were abated within the time set by the 

inspectors. Pursuant to the Secretary of Labor's penalty assessment 

procedures set forth at 30 C.F.R. § 100.3, MSHA proposed .a. $225 penalty 

for the violation of § 75.316 and a $112 penalty for the 1violation of 

§ 75.400. U.S. Steel declined to pay the proposed assessments and 

I exercised its statutory right to obtain a hearing before this independent Commission. Thereafter, the Secretary of Labor filed a petition 

with the Commission seeking civil penalties for the alleged violations. 

U.S. Steel's answer denied that the violations were properly classified 

as "significant and substantial" and asserted that the penalties should 

be reduced to $20 per violation "since none of the conditions cited had 

a reasonable possibility of causing a significant injury." 

Following U.S. Steel's answer, an administrative law judge of the 

Commission ordered the parties to confer concerning possible settlement 

and to stipulate as to any matters not in dispute. Subsequently, the 

Secretary modified both citations to state that the violations were 

"non-significant and substantial" and presented no likelihood of injury. 

The parties then agreed to settle the matter, and the Secretary moved the 

administrative law judge to approve the settlement. In his motion for 

1148· 
approval of settlement the Secretary stated that the significant and 

substantial designations had been deleted, that the negligence of U.S. 

Steel was "moderate", and the gravity of the violations was "null." The 

Secretary further stated that "in accordance with 30 C.F.R. § 100.4 ••• 

a $20 civil penalty would be appropriate." 1/ 

The administrative law judge denied the motion for approval of 

settlement and set the matter for hearing. The judge stated that he was 

not bound by the Secretary's regulation at 30 C.F.R. § 100.4. At the 

hearing before the judge the Secretary presented evidence regarding the 

existence of the violations, their gravity, the operator's negligence, 

the abatement of ~he cited conditions and the history of previous 

violations at the mine. 2/ U.S. Steel did not deny that the alleged 

conditions existed. Rather, it argued that the judge was bound by 

30 C.F.R. § 100.4 and, consequently, that he was required to assess 

$20 penalties for each violation. 

In his decision the judge again rejected this argument and held 

that he was required to make a de novo determination of the appropriate 

penalty amounts. 5 FMSHRC 934,""'"936 (May 1983)(ALJ). Citing the 

Commission's decision in Sellersburg Stone Company, 5 FMSHRC 287, 291 

(March 1983), appeal docketed, No. 83-1630 (7th Cir. March 11, 1983), the 

judge held that he was bound by section llO(i) of the Act rather than by 

the Secretary's penalty assessment regulations and that he was required to 

determine the amount of each penalty by applying the six penalty criteria 

listed in section llO(i) in light of the evidence of record. The judge 

then made findings with respect to the penalty criteria and assessed a 

$75 penalty for each violation. 5 FMSHRC at 936-37. 

On review U.S. Steel renews its argument that when·a violation meets 

the criteria set forth in 30 C.F.R. § 100.4, the Secretary of Labor's 

so-called "single penalty regulation", a Commission administrative law judge 

must assess a $20 penalty. U.S. Steel's argument evidences a continued 

misunderstanding of the civil penalty scheme of the Act and of the 

discrete roles of the Department of Labor and this independent Commission 

in effectuating that scheme. We previously have addressed this subject on 

!/ 30 C.F.R. § 100.4, a regulation adopted by the Secretary, provides: 

An assessment of $20 may be imposed as the civil penalty where 

the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time 

set by the inspector. If the violation is not abated within 

the time set by the inspector, the violation will be processed 

through either the regular assessment provision (§ 100.3) or 

special ass~ssment provision (§ 100.5). 

'l:_/ The parties stipulated as to U.S. Steel's size and that the assessment of penalties would not affect its ability to continue in business. 

See 30 U.S.C. § 820(i). 

1149 
numerous occasions. See !.:.£. , Secretary of Labor on behalf of Mil ton Bailey 

v. Arkansas-Carbona Co. 5 FMSHRC 2042, 2044-46 (December 1983); Sellersburg 

Stone Co., supra; Knox County Stone Co., Inc., 3 FMSHRC 2478, 2480-81 

(November 1981); Tazco Inc., 3 FMSHRC 1895, 1896-98 (August 1981); Shamrock 

Coal Co., 1 FMSHRC 469 (June 1979), aff'd 652 F.2d 59 (6th Cir. 1981). We 

reiterate our previous holdings in an attempt to dispel any lingering misconceptions. 

The Mine Act divides penalty assessment authority between the 

~Secretary of Labor and the Commission. The Secretary proposes penalties. 

The Commission assesses penalties. The Secretary's penalty proposals · 

are made before hearing. In the event of a challenge to the Secretary's 

proposal, the Commission affords the opportunity for a hearing. Thereafter, 

the Commission assesses penalties based on record information developed 

in the course of the adjudicative proceeding. Sellersburg, 5 FMSHRC at 

290-91, Arkansas-Carbona, 5 FMSHRC at 2044-46. In assessing a penalty 

/the Commission and its judges are required to consider the six statutory 

V'penalty criteria set forth in section llO(i) of the Act (30 u.s.c. § 820(i)). 

Thus, the Commission's penalty assessment is not based upon the penalty 

proposal made by the Secretary, but rather on an independent consideration 

of the six statutory penalty criteria and the evidence of record pertaining 

to those criteria. Sellersburg, 5 FMSRHC at 291-92, Shamrock Coal, 1 FMSHRC 

at 469. The Commission's independent penalty determination and assessment, 

based upon the statutory criteria of section llO(i) of the Act, applies in 

all cases contested b~fore the Commission. 

The Act does not condition the penalty assessment· authority and duties 

of the Commission upon the manner in which the Secretary of Labor has 

chosen to implement his statutory responsibility for proposing penalties. 

Therefore, it is irrelevant to the Commission for penalty assessment 

purposes whether a penalty proposed by the Secretary in a particular 

case was processed under § 100.3, § 100.4, or § 100.5 of the Secretary's 

regulations. The distinctions that U.S. Steel attempts to draw in this 

proceeding between a § 100.3 or § 100.4 penalty proposal by the Secretary 

are without merit and are rejected. 

U.S. Steel furth~r argues that even if the Act literally requires the 

Commission and its judges to consider the six penalty criteria when assessing a civil penalty, we nevertheless should hold, as a matter of policy, 

that when a violation poses little probable harm it will not be assessed 

through consideration of all six statutory penalty criteria. U.S. Steel 

adopts the Secretary's position, as published in the comments accompanying 

the promulgation of the Secretary's Part 100 regul~tions, that "when the 

gravity factor is low and good faith is established through abatement, ••• 

analysis of the negligence, size and history criteria is [not] appropriate 

or necessary." 47 Fed. Reg. 22292 (May 1982). We decline to accept U.S. 

Steel's suggestion. Such a policy would, in our opinion, unwisely restrict 

the wide discretion the Act affords the Commission in assessing civil 

penalties commensurate with the evidence of record. This discretion is 

necessary if, as Congress intended, civil penalties assessed under the Act 

are effectively to enc~urage operator compliance with the Act and its 

standards and to protect the public interest. See Senate Subcommittee on 

Labor, Committee on Human Resources, 95th Cong.~d Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977 at 629, 632-33. 

1150 
In this proceeding the Commission's administrative law judge considered, as.he was required to do, the six statutory penalty criteria set 

forth in section llO(i). The findings he made with respect to each of 

the criteria faithfully reflect the evidence and information before him. 

The penalties he assessed are commensurate with the findings and consistent 

with the statutory criteria. 

Accordingly, the decision of the administrative law judge is 

affirmed. 

Richard ~· V. BaclJ:e);:commissne r 

1151 
Distribution 

Louise Q. Symons, Esq. 

U.S. Steel Mining Co., Inc. 

600 Grant Street 

Room 1580 

Pittsburgh, PA 15230 

Anna L. Wolgast, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Michael H. Holland, Esq. 

UMWA 

90015th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1152 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 1 1984 

U.S. STEEL MINING CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING co.,.INC., 

Respondent 

UNITED MINE WORKERS OF 

AMERICA, 

Intervenor 

. . 

. . 

CONTEST PROCEBD!NG 

Docket No. WEVA 83-124-R 

Citation No. 2001887; 3/4/83 

Gary No. 50 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-219 

A.C. No. 46-01816-03519 

Gary No. 50 Mine 

DECISION 

Appearances: 

Before: 

Louise Q. Symons, Esq., U.S. Steel Mining Co., 

Inc., Pittsburgh, Pennsylvania for Contestant/ 

Respondent; 

James B. Crawford, Esq., Office of the Solicitor 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent/Petitioner; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, for Intervenor·. 

Judge Kennedy 

The captioned review-penalty proceedings came on for an 

evidentiary hearing in Pittsburgh, Pennsylvania on March 15, 

t984. The gravamen of the charge was the operator's refusal 

to pay a union walkaround for time spent participating in a 

"Ventilation Technical Inspection" in violation of section 

103(f) of the Mine Safety Law. The operator challenged· the 

validity of the citation and the penalty assessed on the 

ground the activity was not an "enforcement inspection" 

within the meaning of section 103(a). 

1153 
During the course of his opening statement, the solicitor 

admitted MSHA gave advance notice of the "inspection" whereupon 

the operator moved to vacate and dismiss. In sqpport of her 

argument counsel for the operator pointed out that section 

103(a) prohibits advance notice of any enforcement inspection 

and section llO(e) makes it a misdemeanor punishable by a 

fine of up to $1,000 and imprisonment for up to six months 

for any person -to give advance notice of such an inspection. 

The solicitor opposed the motion stating "there is 

advance notice of all inspections" and more particularly of 

the four quarterly inspections mandated by section 103(a) of 

the Act. The solicitor declared there has never been a 

prosecution for violating the advance notice prohibition and 

expressed confidence that the department would take no adverse 

action against an inspector for doing so. 1/ 

Despite the solicitor's zeal to compel testimony that 

might violate the inspector's Fifth Amendment rights, the 

trial judge refused to allow the inspector to testify unless 

given appropriate use immunity. 2/ 18 u.s.c. § 6002. Under 

the Omnibus Federal Immunity Statute, only the Attorney 

General or his duly authorized representative may approve 

issuance of an immunity order by administrative agencies of 

the United States. 18 u.s.c. § 6001, 6002, 6004. Unfortuaately, the Federal Mine Safety and Health Review Commission 

is not an agency authorized to issue an immunity order. 

1/ If the solicitor's statements accurately reflect MSHA policy, 

they would seem to confirm the widespread impression that 

MSHA is openly flouting the prohibition against giving 

advance notice of enforcement inspections. In my recent 

decision in Pontiki Coal Corporation, 6 FMSHRC , 

March 30, 1984, I called for an inspector general's investigation of what appeared to be a flagrant violation of the 

advance notice prohibition. I am advised that a "file" was 

opened but that no field investigation commenced because the 

investigator assigned to the matter went on "vacation". 

The matter seems to have been prejudged by the Assistant 

Secretary for Mine Health and Safety, Mr. Zegeer. On April 14, 

1984, the press quoted him as saying "everything was done by 

the book" and that his investigation showed "the inspectors 

did everything exactly the way they were supposed to do it." 

If what the solicitor said is correct, "doing it by the 

book" may well be part of the problem. 

2/ While the Labor Department may feel the advance notice 

prohibition conflicts with its policy of "cooperative enforcement," I believe the department's policy conflicts with my 

sworn duty to uphold the law. I declined therefore the 

suggestion to Join in what appears to be a concerted action 

to thwart the law. 

1154 
When it became apparent that neither the solicitor, the 

Secretary, nor anyone else in the Department of Labor or the 

Commission could grant the witness immunity and the trial 

judge refused to allow the solicitor to put the witness in 

jeopardy, the solicitor, after consultation with his superiors, 

moved to vacate the citation and dismiss the proposal for 

penalty. The operator having no objection, the trial judge 

entered an order from the bench granting the motion to 

vacate the citation and dismissing the proposal for penalty. 

The premises considered, it is ORDERED that the bench 

decision of March 15, 1984, be and ereby is, AFFIRMED and 

the captioned matters DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant 

St., Rm. 1580, Pittsburgh, PA 15230 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, NW, Washington, DC 20005 (Certified Mail) 

/ejp 

1155 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

GULF MINERAL RESOURCES 

COMPANY, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 81-271-M 

A.C. No. 29-01375-05008F 

Mt. Taylor Project Mine 

Appearances: Eloise V. Vellucci·, Esq., Office of the Solicitor, 

u. S. Department of Labor, Dallas, Texas, 

for Petitioner; 

John A. Bachmann, Esq., Gulf Mineral Resources 

Company, Denver, Colorado, 

for Respondent. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801, et seq., (the 

"Act"), arose from a March 2, 1981 inspection ofrespondent's 

Mt. Taylor Project Mine. The Secretary of Labor seeks to impose 

two civil penalties because respondent allegedly violated the 

Act and a regulation promulgated under the Act. 

Respondent denies that any violations occurred. 

After notice to the parties, a hearing on the merits was 

held in Albuquerque, New Mexico on June 1, 1983. 

Respondent filed a post trial brief. 

Issues 

The issues are whether respondent violated the Act and the 

regulation. 

Stipulation 

The parties agreed that at the time of the inspection the 

size of the company was 1,120,484 production pounds per year. 

The size of its Mt. Taylor Project uranium mine was 872,540 production pounds per year. The parties further stipulated that the 

mine was no.longer in production (Tr. 5). 

1156 
Citation 152663 

This citation alleges respondent violated Section 108(b) of 

the Act in that the operator delayed three MSHA inspectors in their 

investigation of a fatal accident at the mine. 

Section 108(a} (1) provides, in part, as follows: 

The Secretary may institute a civil action 

for relief, including a permanent or temporary 

injunction, restraining order, or any other 

appropriate order in the district court of 

the United States for the district in which 

a coal or other mine is located or in which 

the operator·of such mine has his principal 

office, whenever such operator or his agent 

(B} interferes with,· hinders, or delays the 

Secretary or his authorized representative, ••• in carrying out the provisions 

of this Act •••• 

Prior to the hearing the judge advised the parties that the 

pertinent provision of the Act was Section 103(a} and not the 

cited section. [Order, February 28, 1983; Waukesha Lime and Stone 

Company, Inc., 3 FMSHRC 1702 (1981)]. 

Pursuant to the Federal Rules of Civil Procedure the complaint 

is amended to allege a violation of Section 103(a} of the Act. 

Rule lS(b}, F.R.C.P. 

The pertinent part of Section 103(a) provides as follows: 

••. For the purpose of making any inspection or 

investigation under this Act, the Secretary 

with respect to fulfilling his responsibilities 

under this Act, or any authorized representative 

of the Secretary •.• have a right of entry to, 

upon, or through any coal or other mine. 

Summary of the Evidence 

MSHA's evidence indicates that at approximately 11:40 a.m. on 

March 2, 1981, Thomas Castor, the supervisory mining inspector at the 

MSHA Albuquerque office was advised of a fatality at respondent's 

mine. The supervisor dispatched a special investigator and two 

inspectors to the mine (Tr. 7-9, 13). The three men travelled to 

the mine in two vehicles. Since the mine was approximately 100 

miles from Albuquerque, they had to pick up clothing at their homes 

in anticipation of an overnight stay (Tr. 9). 

The purpose of an MSHA investigation is to determine the 

cause of an accident and to recommend methods of preventing 

similar accidents. MSHA goes to the scene of a fatality as soon 

as possible. MSHA investigators prefer to interview witnesses 

1157 
and then take them to the scene for a detailed analysis and reconstruction of the occurrence (Tr. 9, 10, 26, 40). By law, an operator 

is also required to make a complete detailed accident report. But 

the operator does not have to give its report to MSHA unless it is 

requested. (Tr. 31, 32). MSHA accepts an accident report from 

operators on Form No. 7000-1 even though there are more than 20 

miners at the reporting mine (Tr. 30, 33). 

The accident at this mine occurred at 9:45 a.m. Since MSHA 

was not advised until 11:40 a.m., respondent was cited for a violation 

of 30 C.F.R. § 50.10. 1/ That citation is now a final order of the 

Commission (Tr. 10, 11). 

Inspector Omer Sauvageau reached the mine at 3:30 p.m. He 

waited at the mine office for Inspectors Tanner and Sisk who arrived 

at 3:45 p.m. to 3:50 p.m. (Tr. 95, 96). 

Inspector William Tanner, Jr. estimates that he arrived at the 

mine between 3:00 and 3:30 p.m. In the meeting room they introduced 

themselves to respondent's representatives John Thompson and David 

Wolfe. Tanner asked if they could interview the two eyewitnesses 

and the two location witnesses so they could continue their investigation. Company representative Dershimer said the witnesses 

were not available because they were being interviewed by the company 

attorney (Tr. 37, 38, 40, 60, 95, 96). At that point L. E. Lewis 

went to check. Upon returning, Lewis said it would be another 

30 minutes before the MSHA inspectors could interview the witnesses. 

Lewis suggested the inspectors go underground to visit the scene. 

They did (Tr. 38, 39). The only comment, which was repeated to the 

inspectors, was that it was Gulf's policy for their attorneys to 

confer with its witnesses before MSHA inspectors could talk to them. 

The company did not state to the inspectors that they were conducting their own investigation (Tr. 39, 63). For their part, the 

inspector did not suggest they should join the company attorney 

(Tr. 61, 62). 

Inspector Tanner told Wolfe the company would be cited and he 

issued Citation 152663 for a violation of Section 108(b) of the 

Act. The citation was given to the company three days later. It 

was issued because the witnesses were not available. The MSHA 

investigation was delayed and hindered at the scene because the 

inspectors could not get the comments of the witnesses firsthand 

(Tr. 41-43, 71, 72). The witnesses were interviewed at 6:00 p.m. 

that day (Tr. 43). 

1/ 30 C.F.R. § 50.10 Immediate Notification. 

If an accident occurs, an operator shall immediately contact 

the MSHA District or Subdistrict Office having jurisdiction 

over its mine. If an operator cannot contact the appropriate 

MSHA District or Subdistrict Office it shall immediately contact the MSHA Headquarters Office in·Washington, D.C. by 

telephone, toll free at (202) 783-5582. 

1158 
Respondent's evidence indicates the company called MSHA and 

the state inspectors at approximately 11:20 a.m. on the day of 

the accident. The state inspectors, enroute on another matter, 

arrived ten minutes after being called. They went underground to 

investigate and they also interviewed three.or four witnesses 

(Tr. 101, 102). 

Company representatives Jerry Omer (safety) and Terry Cullen 

(attorney) arrived from Denver the same day at approximately 

3:30 p.m. They began interviewing the witnesses 15 to 30 minutes 

before the MSHA inspectors arrived (Tr. 102, 103, 113, 114). 

After the MSHA inspectors arrived, Cullen requested an 

additional 20 to 30 minutes to complete his interviews. 2/ 

Respondent's manager F. K. Dershimer requested that the inspectors make the trip underground while Cullen continued his 

interviews. The inspectors voiced no objection, nor did they give 

an indication that they felt they were being delayed, hindered 

or inconvenienced (Tr. 104-106, 114, 115). The MSHA inspectors, 

as suggested, went underground (Tr. 106). The first notice of any 

dissatisfaction with this arrangement was when Dershimer received 

the citation (Tr. 107, 116, 117). 

If the inspectors had requested a joint interview of the 

witnesses Dershimer would have checked with Cullen to see if it 

was "okey" (Tr. 115, 116). Respondent has never prohibited inspectors from talking to company witnesses. Further, there is 

no such company policy (Tr. 105, 115, 116). 

2/ The record does not reflect the purpose of these interviews. 

But in view of the fact that the safety officer and company attorney 

were present on the day of the accident, I infer the operator was 

conducting its investigation pursuant to 30 C.F.R. § 50.~ll.(b). The 

cited regulation provides, in part,: 

(b) Each operator of a mine shall investigate 

each accident and each occupational injury 

at the mine. Each operator of a mine shall 

develop a report of each investigation. 

No operator may use Form 7000-1 as a report, except that an operator of a mine 

at which fewer than twenty miners are 

employed may, with respect to that mine, 

use Form 7000-1 as an investigation report 

respecting an occupational injury not 

not related to an accident. No operator 

may use an investigation or an investigation report conducted or prepared by MSHA 

to comply with this paragraph. An operator 

shall submit a copy of any investigation 

report to MSHA at its request. 

1159 
Discussion 

Section l03(a) of the Act authorizes the Secretary to enter 

any mine. On the essentially uncontroverted facts in this case 

there was no refusal or delay of the Secretary's right of entry. 

On the contrary, respondent facilitated the entry of the inspectors 

to the site. The only delay, if there was one, occurred when the 

company attorney requested additional time to interview the witnesses. This scenario, at best, establishes that respondent 

minimally interfered with the sequence in which MSHA prefers to 

conduct its investigation. But, construed in a light most favorable to MSHA, these facts would not constitute a denial of the 

Secretary's right to enter the mine. 

Section 50.ll(a) of Title 30 of the Code of Federal Regulations 

provides for accident investigations to be performed at the discretion of MSHA district or subdistrict managers. Once the decision 

to conduct an investigation has been made, Section 103(a) of the 

Act provides MSHA inspectors with broad powers in the exercise of 

such an investigation. An inspector has the right of entry into any 

mine. While 30 C.F.R. § 50.ll(a) requires that notice be given 

prior to the investigation of accidents, the Supreme Court has 

held that no warrant is required to conduct such an inspection. 

Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534 (1981). However, 

neither the Act nor any implementing regulations mandate the interviewing of witnesses as the initial step in an investigation. 

Accordingly, on the facts I conclude that no violation of 

Section 103(a) occurred .. Citation 152663 and all penalties 

should be vacated. 

Citation 152667 

This citation charges respondent with violating Title 30, 

Code of Federal Regulations, Section 57.8-2, which provides: 

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. 

Summary of the Evidence 

MSHA Inspector William Tanner, Jr. issued Citation 152667 

because two men with authority at this particular work place 

failed to insist on the crew following the proper procedure for 

replacing the post (Tr. 44, 45). 

1160 
Superintendent Sullivan had been present a few minutes before 

miner Maldonado was killed. In addition, leadman Baca was present 

and on one occasion the victim himself was considered to be a 

"competent person" within the terms of the MSHA regulation (Tr. 46, 

4 7) • 

MSHA construes a "competent person" in Section 57.8-2 to be 

one qualified by ability and experience, who makes safety checks, 

prevents unsafe acts, and who works in this particular area of the 

mine (Tr. 45, 53, 88). There was nothing to indicate to the inspector 

that a safety check had been made or that a competent person had 

looked over the area before everyone "got into place" (Tr. 46, 53). 

Sullivan, the lev~l superintendent, came in about 9:30 a.m. 

and talked to leadman Baca about changing out the steel posts 

(Tr. 4 7) • 

At the intersection of 3N and 3E, the place of the accident, a 

cap goes directly across the back. It is supported by two posts. 

These posts are steel I-beams 8 inches by 8 inches and 10 feet long 

(Tr. 47). The cap is bolted by four bolts on each end (Tr. 47). 

A collar brace, a knee brace, and a toe brace tie all of this steel 

together to keep it from falling (Tr. 47). 

According to the miners, on this particular day they cut 

all the collar braces off one side with a torch. The other side 

had only one collar brace. The inspector did not:know why it 

was not supported (Tr. 48). At approximately 9:30 a.m., Sullivan 

and Baca discussed changing the post. Sullivan left without 

looking to see if the area was safe. At that time victim Maldonado 

was driving up with the replacement, a slightly larger post (Tr. 48). 

When Sullivan was at the intersection there was one collar 

brace on one side and none on the other (Tr. 49). Normal procedure 

to remove and replace a post is to stick a direction boom under the 

cap and hold it up while a worker removes the bolts. After the 

bolts are removed the post is withdrawn and replaced with the new 

post while the boom holds up the 2,000 pound cap. The cap itself 

measures 21 feet by 21~1/2 feet (Tr. 49, SO). 

The normal way to unscrew the bolts would be to climb up a 

ladder and remove them after the cap has been secured. On this 

particular day Maldonado climbed on top of the ·erection boom and 

was jockeyed into position. Barela handed him a one-inch impact 

wrench and Maldonado spun off the bolts without making sure the 

area was secured in any way. 

After the bdlts were spun off the cap leaned over. As it 

did, Maldonado climbed off of the erection boom pedestal (which 

was to be used only for lifting the cap). He then crawled down 

the boom into the bucket (Tr. 51-52). That's when the cap came 

down striking him in the back and killing him (Tr. 51, 52). 

1161 
Baca, the lead miner, had not attempted to stop Maldonado. 

In addition, he did not see that the cap and post were secure 

{Tr. 51). Elliott, a co-worker, had to go after a ladder. He 

could have held the post to keep it from falling over. The cause 

of the accident was that nothing was secure {Tr. 51Y. This 

accident would not have happened had the cap been secured, pinned, 

or supported by the pedestal {Tr. 52). 

The company said Baca and Sullivan were designated "competent 

persons." Sullivan told the inspector he did not investigate but 

he instructed the leadman in his duties {Tr. 53, 81-82). John 

Thompson and David Wolfe told the inspector they were "competent 

persons" and so designated by the company {Tr. 80-81). 

The inspector did not check the log books from previous 

shifts to see who had signed the logs as the designated person 

{Tr. 82, 83). 

This crew had changed out the post on the opposite side of 

the drift the previous day {Tr. 88). On that occasion, Maldonado, 

who was then the leadman, performed the same task {Tr. 91-92). 

Respondent's evidence: F. K. Dershimer, the acting general 

manager, testified that the mine captain designates the level 

supervisor as the "competent person," for the purpose of the 

regulation. If the level supervisor is not present, then the 

mine captain does the walk-through for safety checks or he designates another person. Compliance with the walk-through is recorded 

on the shift report under the portion marked as "Supervisor". 

The time of the safety check, followed by the supervisor's initials, 

are also entered on the shift report {Tr. 118, 119, Exhibit R 1). 

If the supervisor saw something that needed to be fixed he would 

so direct {Tr. 123). 

James Sullivan was in the employ of respondent between 

January 30, 1978 to May 14, 1982. He has 12 years of mining experience. He was hired as a long-hole driller and later was 

promoted to level supervisor, then to level foreman {Tr. 129-131, 

152). Sullivan's experience in replacing posts has come about by 

watching Harrison & Western crews, in inspecting, and as a helper 

in installing steel {Tr. 162). Sullivan considered himself competent 

because he has used good judgment in putting up steel {Tr. 162). 

Lead miner Baca had the responsibility for watching this crew 

and seeing they work safely {Tr. 158, 159). But only Sullivan, and 

not Baca, had the responsibility to check the entire level {Tr. 159). 

On the day before this accident the same crew had changed out 

the post on the opposite side of the drift. Maldonado described the 

correct procedure to Sullivan. When he was on the scene, Sullivan 

discussed the situation with Cruz and Francisco. He told them to 

follow the same directions as before. On the day he was killed, 

Maldonado was doing the work improperly and he was not following 

his stated procedure {Tr. 165-168). 

1162 
According to Sullivan, the post to be changed out was not 

collar braced when he passed through the area. He didn't recall 

if it was pinned at the bottom. In addition, he didn't know how 

the post holding the I-beam was braced (Tr. 164). 

Changing posts is not hazardous. The proper way is to position 

the boom under the cap to hold it fast. Two workers then put a 

ladder at the post being changed. One worker removes the bolts. 

The boom is then raised slightly to release the downward pressure 

on the post. A worker then lays down the post and installs the 

replacement post (Tr. 166). Normally the crew would automatically 

install a collar brace (Tr. 169). 

The MSHA regulat~on requires one safety inspection by a 

"competent person". Respondent requires two. On the day of the 

fatality, inspections were performed by Ray Willis during the 

day shift. If Sullivan had not been required to leave the level, 

he would have done the inspections and signed the logs (Tr. 167, 

169, Exhibit R 1). 

Discussion 

MSHA's regulation, Section 57.18-2, imposes two broad requirements on an operator. 

The first: The operator shall designate a person who is competent to examine each working place each shift for conditions which 

may adversely affect safety or health. 

The second: If there are defective conditions, the operator, 

through his "competent person,~ shall initiate appropriate action. 

We will review these requirements in the light of the evidence 

in the case. First of all, did respondent designate a person to 

examine each working place? 

Yes, I find that witness James Sullivan was so designated 

by the company. He so testified. Further, the company records 

(Exhibit R 1) establish that Sullivan, as supervisor, initiated 

and indicated the times of the safety checks on March 3 and 4, 1981. 

He would have performed the safety checks on March 2 but, due to 

the accident, he went to the surface. 

The inspector testified there was nothing to indicate that a 

"competent person" had looked over the area. But I am not persuaded 

by the inspector's testimony. He admits he did not check the 

company logs on this point. 

Was Sullivan competent as a safety inspector? 

Yes, I find that Sullivan's broad experience includes 12 years 

as a miner. He was hired as a long-hole driller, promoted to level 

supervisor and then level foreman. He has helped install steel, 

1163 
watched other crews working with it, and he has inspected in 

connection with this activity. 

The Secretary waived closing argument and a post trial brief; 

hence, it is somewhat difficult to perceive his position. But 

the citation and the evidence suggest several facets. The 

citation alleges that the person designated by the company as 

competent did not examine the work place "before work commenced." 

If the Secretary had intended a pre-shift inspection he could 

have done so as he did in 30 C.F.R. 57.3-22 and 57.19-129. 

An additional element filtering through the evidence is that 

Baca, the lead miner, or for that matter anyone in charge of the 

crew, was the "competent person" under the regulation. Therefore, 

such a "competent person" would have prevented the unsafe acts. 

I reject such a view of the regulation. On the facts, 

neither Baca nor anyone in the crew were so designated by the 

company as the "competent person" at the time of the accident. 

A secondary factor appearing in MSHA's evidence is that the 

"competent person" should have been present when all of the workers 

were "in place." If so, he could have stopped Maldonado's unsafe 

acts. 

The regulation does not require the "competent person" to 

anticipate unsafe acts by an employee. This record establishes 

that the changing of the post was not inherently dangerous. In 

addition, the crew was experienced. Maldonado had himself removed 

the post on the opposite side of the drift on the previous shift. 

Further, he recited the proper procedure to Sullivan. The crew 

was told to proceed as before. For the foregoing reasons, I 

conclude that respondent complied with the initial portion of 

the regulation; namely, the company designated a competent person 

to examine the work places. 

The second broad requirement of the regulation mandates that 

the competent person initiate appropriate action if there is a 

defective condition. Simply put, was there a defective condition 

when Sullivan was present? 

No, at the time Sullivan was present the most unfavorable 

scenario was that the post being changed out was not collar braced. 

But no evidence establishes that this in and of itself is a 

defective condition. Even without the collar brace the steel 

was also tied together with a knee brace, a toe brace and secured 

by four bolts. Sullivan was at the intersection of Drift 3N-3E 

at approximately 9:35 a.m. to 9:40 a.m. on March 2, 1981. At 

that time Maldonado was driving the loader in with the replacement 

post (Exhibit R 2). There was nothing to indicate to Sullivan 

that a defective condition existed. Further, there was nothing 

to indicate that the post could not be changed without incident. 

Under these facts he was entitled to proceed with his safety check 

survey at the other work places on the 3100 level. 

1164 
Along with other contentions in its post trial brief 

respondent argues that the inspection performed by Sullivan at 

the beginning of the shift was not an "official inspection". 

Therefore, it is contended that his walk-through could not in 

any event constitute a faulty inspection. 

I reject that position. If the facts had established that a 

defective condition existed at any time when Sullivan was present 

and he failed to take corrective action, I would affirm the 

citation. 

For the reasons stated herein Citation 152667 should be 

vacated. 

Brief 

Respondent's counsel has filed a detailed brief which has 

been most helpful in analyzing the record and defining the 

issues. I have reviewed and considered this excellent brief. 

However, to the extent that it is inconsistent with this decision 

it is rejected. 

ORDER 

Based on the facts found to be true in the narrative portion 

of this decision, and based on the conclusions of law as stated 

herein, I enter the following order: 

1. Citation 152663 and all proposed penalties therefor 

are vacated. 

2. Citation 152667 and all proposed penalties therefor 

are vacated. 

Distribution: 

Eloise Vellucci, Esq., Office of the Solicitor, U. S. Department 

of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas 75202 

(Certified Mail) 

John A. Bachmann, Esq., Gulf Mineral Resources Company, 1720 South 

Bellaire S~reet, Denver, Colorado 80222 (Certified Mail) 

/ot 

1165 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 4 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

Docket No. PENN 83-131 

A.C. No. 36-03425-03521 

v. 

Maple Creek No. 2 Mine 

U.S. STEEL MINING CO., INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Janine C. Gismondi, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., U.S. Steel Mining 

Co., Inc., Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Koutras 

Statement of the Case 

This case concerns .a civil penalty proposal 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 assessment in the amount of 

$650 for one violation of mandatory safety standard 30 CFR 

75.514. The violation was cited in a section 104(d) (1) 

order issued on December 9, 1982. 

The respondent contested the proposed assessment, and the 

case was docketed for hearing in Uniontown, Pennsylvania, on 

March 27, 1984, with five other cases involving these same 

parties. However, when this docket was called for trial, the 

parties advised me that the respondent decided to withdraw 

its contest and request for a hearing, and agreed to pay the 

full amount of the $650 civil penalty assessment. 

Discussion 

In view of the foregoing, and in light of the agreement 

by the parties to dispose of this matter by the respondent's 

request to withdraw its contest and to pay the full penalty 

assessment, I considered the request as a motion to approve a 

proposed settlement pursuant to Commission Rule 29 CFR 2700.30. 

116'6 
After due consideration of the arguments presented by the 

parties on the record in support of their joint dispositive 

settlement of this case, and after review of all of the 

pleadings filed, including the conditions and practices cited 

by the inspector in the order· which he issued, I granted the 

motion and concluded that the proposed settlement was in the 

public interest, and it was approved from the bench (Tr. 6-8). 

Order 

Respondent is ordered to pay a civil penalty in the amount 

of $650 in·full satisfaction of 104(d) (1) Order No. 2102664, 

and payment is to be made within thirty (30)days of the date of 

this decision and order. Upon receipt of payment by MSHA, this 

case is dismissed. 

Judge 

Distribution: 

Janine c. Gismondi, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant 

St., Pittsburgh, Pa 15230 (Certified Mail) 

/ejp 

1167 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041. 

LOUIS E. HENDERSON, 

Complainant 

v. 

LORING QUARRIES, INC., 

Respondent 

DECISION 

MAY 7 1984 

DISCRIMINATION PROCEEDING 

Docket No. CENT 83-48-DM 

MD 83-13 

Loring Mine 

Appearances: Bryan E. Nelson, Esq., Alder, Nelson & McKenna, 

Kansas City, Kansas, for the Complainant; 

Kenneth J. Reilly, Esq., Beddington & Brown, 

Kansas City, Kansas, for the Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainant against the respondent pursuant to 

Section lOS(c) of the Federal Mine Safety and Health Act 

of 1977. The complaint was filed pro se after the complainant 

was advised by MSHA that its investigation of his complaint 

disclosed no discrimination against him by the respondent. 

Subsequently, the complainant retained private counsel to 

represent him in this proceeding. 

The basis for Mr. Henderson's discrimination complaint 

is the assertion that he was discharged by the respondent 

because of his refusal to work in an area which he believed 

to be hazardous, and his summoning of certain MSHA inspectors 

to the mine to investigate his safety complaint. Respondent 

denies any discrimination, and asserts that Mr. Henderson 

was discharged for insubordination and that his dischar.ge 

was solely because of a legitimate business purpose and not 

because of any protected activity on Mr. Henderson's part. 

The matter was heard at Kansas City, Missouri on 

December 6, 1983, and the parties have filed posthearing 

proposed findings and conclusions which I have considered in 

the course of this decision. 

1168 
Issue 

The critical issue presented in this case is whether 

Mr. Henderson's discharge was in fact prompted by any protected 

activity under section 105(c) (1) of the Act. Specifically, 

the crux of the case is whether the discharge was in retaliation 

for any safety complaints made to MSHA, or whether it was 

justified because of insubordination, as claimed by the 

respondent. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 301 et seq. 

2. Sections lOS(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2) 

and (3). 

3. Commission Rules, 29 CFR 2700.1, et seq. 

Louis E. Henderson, Jr. testified that he was first employed 

by the respondent on September 2, 1981, and that his last 

day of employment was November 25, 1982. He confirmed that 

he is unemployed and that his last position was as a "powder 

man" (Tr. 6). He stated that when he was discharged by the 

respondent he was told that he was being fired "for negligence 

of equipment, which consisted of a low tire on my air compressor" 

(Tr. 6). He confirmed that he inspected the equipment which 

he used to perform his duties on a daily basis, and he testified 

as to his training as a powderman for the respondent (Tr. 9-11). 

Mr. Henderson explained that the mine in question is a 

limestone mine, and he indicated that he began working in the 

respondent's open pit mine but later moved underground where 

a new mine was being started (Tr. 12). He indicated that 

"it had about two shots taken out of the fact before I started 

it," and he described the mine entry as a 13-foot wide entrance, 

and as one advanced into the mine the f loot-to-ceiling height 

was approximately 11-1/2 to 12 feet. In November 1982, the 

mine had six or eight headings (Tr. 14). 

Mr. Henderson identified the general mine superintendent 

as Bill Feathers, and he confirmed that Mr. Feathers was the 

person who hired and fired him. He identified the quarry 

owner as Ron Stanley, and the mine mechanic as Steve Folsom. 

Mr. Henderson stated that it was his job to report any low 

tire on his equipment,· and Mr. Folsom was the person who 

would take care of it (Tr. 17). Tires were inflated by 

Mr. Folsom by means of an air hoze connected to the compressor 

used by Mr. Henderson (Tr. 18). 

1169 
Mr. Henderson described the limestone mine seam as 

eight to ten inches thick, and that after every shot he 

indicated that one could see the seam sag and that it sometimes 

separated from the ceiling. He stated that after the driller 

drilled the shot holes it was his job to load the shot and 

to detonate it with an electrical charge after testing the 

circuit. The shot was actually detonated while he was located 

several pillars away, but during the loading process he 

would be under the seam (Tr. 18-19). After blasting, 

approximately 12 feet of material would be removed, and the 

seam extended out from the fact for a distance of 12 feet 

after each shot. He described the seam as follows (Tr. 20-21): 

Q. And this limestone seam that you 

described, how would that appear after a 

blast? 

A. Well, you could plainly see it--it was 

up there. You could plainly see a seam 

between the ceiling and the limestone seam. 

Q. How far did it extend from the fact? 

A. About 12 foot, about. 

Q. In other words, it would be pretty much 

be the extent of the area you blasted out? 

A. Oh, yes, yes. Then you would set off 

the next shot. That seam would fall and there 

would be another one. This was after every 

shot. 

Q. Now, tell us what else you observed about 

that seam. Can you give us any idea of how 

much space there was between the ceiling and 

the top of the seam? 

A. Well, it depends. Sometimes it would look 

loke it was tight, flush up against the ceiling. 

Other times I could get up on my loader bucket 

and I could stick my hand back there. It had 

sagged down eight or ten inches. I could stiGk 

a crowbar in there and I couldn't pry it down, 

but you could see it moving up and down, back 

and forth, all over. It was pretty loose. 

Mr. Henderson testified that he first became concerned 

with the roof seam sometime in October 1982. At that time, 

1170 
after returning from lunch, he found slabs of rock lying 

around his truck. The rock did not damage his truck, and 

he stated that the seam was 12 feet outby the face, and that 

the last five feet fell on the truck. He estimated the 

width of the seam which fell at ten feet (Tr. 24). 

Mr. Henderson stated that the second seam fall incident 

occurred sometime between November 12 to 15, 1982. He loaded 

one-half of the heading and pulled out. Thirty seconds later 

the roof seam fell. He explained that he had "pulled out" 

in order to prepare the second half of the heading for loading 

of dynamite. He had "pulled out" for a distance of some 

10 yards (Tr. 25-26). 

Mr. Henderson testified that when the first fall occurred 

on his truck he told only the driller about it. However, 

when the second fall occurred, he immediately advised 

quarry owner Ron Stanley about it, and Mr. Stanley advised 

him not to go under the roof seam if he believed it was 

dangerous, and Mr. Stanley also stated that "I'll guarantee 

you' 11 never hear me. say anything if you don't go under it" 

(Tr.27). 

Mr. Henderson stated that after informing Mr. Stanley 

about the fall, Mr. Feathers came to look the area over. 

Mr. Henderson indicated that he simply wanted to show 

Mr. Feathers where the seam had fallen because he had 

previously asked the drillers and loader operators to try 

to pull down the seam with the loader bucket or to "tap it 

down" (Tr • 2 8 ) • 

Mr. Henderson described the seam which fell as the seam 

"that hangs up there after every shot." He confirmed that 

he did not inform Mr. Stanley or Mr. Feathers about the 

rock which fell on his truck. He explained that "I was scared 

of losing my job, didn't want to stir up trouble and everything." 

He then said that efforts would be made to take the loose 

material down with a drill or loader, and he confirmed that 

efforts were made to do this (Tr. 30-31). When asked whether 

he had inspected the rock seam which fell on his truck, he 

replied that "I looked." He also indicated that he had no 

equipment or crowbars to scale the material down, but that he 

was given a crowbar after the second fall occurred (Tr. 32). 

Mr. Henderson testified that after Mr. Feathers came 

to the scene of the second fall, the following occurred 

(TR. 33-35) : 

1171 
A.· He said, "Are you scared to go under this 

half of this heading that you're loading?" and 

I said, "Yes, I am," and he was standing right 

underneath it. He said that you could get 

killed just as easy driving down the interstate 

as you could up here loading in something like 

this, which was crazy to me. I don't see --

JUDGE KOUTRAS (Interrupting) : Just relate what 

he said now. 

THE WITNESS: That's what he said. 

JUDGE KOUTRAS: O.K. 

BY MR. NELSON: 

Q. Did you have any other conversation? 

A. No. I asked him if he would get me some 

sort of a pry bar so I could try to test it, 

and he said, "Yes," and he brought me up a 

little crowbar. It's about three feet long. 

* * * * 

Q. What instructions, if any, did Mr. Feathers 

give you so far as working under the seam? 

A. He told me to test it with the crowbar from 

then on. This was after the second incident. 

Q. And what, if anything, were you to do after 

you tested it? 

A. I don't know, really. He just told me to 

test --

JUDGE KOUTRAS (interrupting): No. Now, 

Mr. Henderson, after you tested it, if you found 

out that it was loose, what, in your experience, 

would you do, would you continue to work under 

it? What do you mean, you don't know? 

THE WITNESS.: You couldn't tell sometimes that 

it was loose. 

* * * * 

1172 
JUDGE KOUTRAS: 

the pry bar and 

or prying on it 

you do? 

Assuming that you took 

started beating on the thing 

and it didn't move, what would 

THE WITNESS: Well, I would have to go under it, 

I guess. 

JUDGE KOUTRAS: What do you mean, you would have 

to? You would load it, wouldn't you, you would 

continue loading the shot if it was tight? 

THE WITNESS: Well, the one that fell, though, 

Your Honor, was tight, too, though. 

JUDGE KOUTRAS: O.K., but I am trying to understand what you would do as a reasonable person 

if you found that you had to go into an area 

after testing it and found that the roof was 

sound. That's your job to go under there, isn't 

it? 

THE WITNESS: Not if I feel it is a hazard. 

Mr. Henderson stated that later in the day after the 

second fall he called MSHA Inspector Jim McGee at his Topeka 

off ice after the roof seam had fallen and after he had spoken 

to Mr. Stanley and Mr. Feathers, and that he did so because 

"they weren't scaling it down to my satisfaction, to where 

I thought it was safe" (Tr. 37). Mr. Henderson then loaded 

the second half of the shot, and after he and Mr. Feathers 

tested it and found it "to be O.K.," he shot it down and then 

went home (Tr. 38). 

Mr. Henderson stated that he returned to the mine the 

next day but refused to go under another heading because upon 

observation he believed that "it hadn't been pecked or 

tried to scale down at all." He confirmed that he tried to 

scale the roof material down while up in the bucket and 

that he "pecked around a bit." He indicated that it "seemed 

tight," and that he tested it with the bucket and pry bar, but that 

he still refused to go under it because he was afraid that 

it might come down again. He advised Mr. Feathers that.he 

did not want to go under the roof, and he stated that Mr. Feathers 

"got irate with me, got mad," but that he did not instruct 

him to go under the roof (Tr. 41). He then called Mr. McGee 

later in the day or that evening and advised him about his 

refusal to go under the roof seam (Tr. 42). 

1173 
Mr. Henderson stated that when he called Inspector McGee 

he asked him to send an inspector to the mine to "look at 

the situation." Mr. McGee dispatched Inspectors Caldwell 

and Williams to the mine on a Friday morning, and they looked 

at the situation which concerned him, as well as "the mine as 

a whole." Mr. Henderson stated that he did not go with the 

MSHA inspectors, and that the second heading which concerned 

him had not been shot down or loaded out and that it was 

"still hanging." Mr. Henderson was then summoned to the 

mine office with Mr. Stanley and the two inspectors, and he 

indicated that the inspectors told him that his complaint 

was justified, and that "there is a potential hazard there" 

(Tr. 44) • 

In further explanation of the events after the inspectors 

came to the mine, Mr. Henderson testified as follows (Tr. 46-

48) : 

Q. Did you look at it with the inspectors? 

A. No; I wasn't up there with them when they 

looked at it. 

Q. O.K. When you refused to go under there, how 

far did that extend or stand out from the face? 

A. Well, this particular heading, I believe, 

had only had one shot taken out of it, so there 

was about 10 feet of overhanging rock hanging 

there of the seam. 

Q. And is it your testimony that 10 feet was 

overhanging when you refused to go under it? 

A. Yes, I would say about that. I believe 

there was only one shot out of it. 

Q. Now, what happened after the conversation 

you had with the inspectors? You have already 

told us that they said yes, there was a possible 

hazard. 

A. Well, they told Mr. Stanley and me that I 

was responsible along with the foreman to make a 

safe working place. I said, "Yes, that is fine , " 

and he told Mr. Stanley that I was protected by 

the Justice Department, and all this stuff. 

Q. Did they make any recommendations as to what 

should be done? 

11"74 
A. O.K. They said we should get sort of 

a mechanical scaler, maybe build some sort of 

a canopy over the bucket that I was working out 

of--my lift--and there was a couple other 

suggestions, but it was along those lines. 

Q. Did they make any suggestions as to whether 

or not it should be scaled each time blasting 

was done? 

A. No, I don't believe so. 

Q. Was that the first time--when was the 

first time that you were informed that it was 

your responsibility to check that seam? 

A. When they came, when the mine inspectors 

came down. 

Q. Nobody told you that before that? 

A. No. They showed me right out of the rule book. 

Q. And if you found or considered it to be a 

problem from your inspection, what was your understanding then of what was to happen? 

A. Well, I was to get with the superintendent 

or the foreman, you know, whoever the supervisor 

was, to try to work out a solution to the problem, 

try to scale it down somehow. 

Q. Another possible alternative was to put some 

kind of canopy over the truck? 

A. Right, among other things. 

Q. What other things? 

A. Like a mechanical scaler or something. 

Q. You didn't have a mechanical scaler in there, 

apparently? 

A. No, not at all. 

Q. What devices did you have available to scale 

it? 

A. Just a crowbar. 

1175 
Q. What about the company as a whole, what 

devices did they have to scale it? 

A. Well, they tried to use a loader bucket 

sometimes to pull it down with, tried to run 

a drill steel in between the seam and ceiling 

to peck down some of it, but that's about it. 

That's all they had. They weren't really 

scaling machines or anything. 

Mr. Henderson asserted that approximately a week after 

he called the MSHA inspector, he had a conversation with 

Mr. Feathers, and Mr. Feathers told him he "was making 

waves and didn't have to call the MSHA inspectors down" 

(Tr. 48). Mr. Henderson stated that he had the conversation 

with Mr. Feathers after showing him a piece of rock which 

had fallen from the roof. He explained the background and 

the conversation as follows: 

juDGE KOUTRAS: You mean you walked into some 

place and found a rock that had fallen, and 

you picked it up? 

THE WITNESS: What I was trying to do, Your 

Honor, was just show him how thick the seam was, 

Your Honor. 

JUDGE KOUTRAS: But that wasn't the rock that 

fell the time that you pulled it after loading, 

was it? 

THE WITNESS: No. 

JUDGE KOUTRAS: This was just a rock some place? 

THE WITNESS: No, it was off the ceiling. 

JUDGE KOUTRAS: Off the ceiling? 

THE WITNESS: Right, it was off the ceiling. 

JUDGE KOUTRAS: You just wanted to show him a 

representative sample if a rock fell? 

THE WITNESS: It was a big rock. 

JUDGE KOUTRAS: I can take judicial notice that 

if a big rock falls on you, it is liable to kill 

you. Is that what you were trying to impress him? 

THE WITNESS: I was trying to tell him what would 

happen if it fell. 

1176 
Q. This was a piece of seam? 

A. A piece of the seam, right. 

Q. O.K. Now, tell us about the conversation. 

A. Well, I informed him I had called the MSHA 

people in Topeka, and he got pretty irate about 

that. He said, "You didn't have to call them 

people." He said, "I don't want you making waves 

around here," and that sort of thing. That's 

all I can remember specifically. 

Q. How long did that conversation take? 

A. How long did it last? 

Q. Yes. 

A. Less than five minutes. 

Q. O.K., and what did you do after that? 

A. I packed up my stuff, talked to Mr. Stanley. 

Q. Did you tell Mr. Stanley you had called? 

A. Yes, I informed him that I had called, too. 

Q. What did he say? 

A. He didn't say much. I can't remember what he 

said. 

Mr. Henderson stated that after his conversation with 

Mr. Feathers, he began having "problems," and he described 

them as follows (Tr. 53): 

A. Well, just little subtle hints, you know, 

and stuff just like I said, I made waves and 

things like that. 

MR. REILLY: I am going to object--

JUDGE KOUTRAS (interrupting): Mr. Henderson, 

what I am interested in is was all this coming 

from Mr. Feqthers. 

THE WITNESS: Yes. 

JUDGE KOUTRAS: When you say subtle, what? Just 

give me a for instance. You come to work in the 

morning and what would happen? 

1177 
THE WITNESS: Oh, just--I don't know, just like 

I told you, he said I was making waves, causing 

trouble. 

BY MR. NELSON: 

Q. How many times did he say that? 

A. Twice, I believe. This is all within a week--

Q. (Interrupting) You have got to be specific 

about these things that were said. 

JUDGE KOUTRAS: It is not necessary for him to 

be that specific, counsel. His testimony is 

that subsequent to the time he called the inspectors, 

Mr. Feathers was giving him a "hard time" by 

reminding him on at least two occasions that he 

was a troublemaker, making waves. 

Is that the essence of it? 

THE WITNESS: Yes. 

Mr. Henderson stated that he was discharged approximately 

two weeks after the inspectors came to the mine, and that he 

was told that he was being fired for "negligence of equipment," 

and he described the incident which precipitated his discharge 

as follows (Tr. 54-57): 

A. O.K. I got to work in the morning at 7:30, 

looked over my equipment, noticed I had a low 

tire on my air compressor--

Q. (Interrupting) Now, where was your equipment? 

A. It was parked down in the mine. 

Q. How did you inspect it, with your light and 

all that? 

A. Yes, with my head lamp. 

Q. When you find a low tire, what do you do? 

A. I told Steve Folsom, the mechanic, about it, 

that I needed an air hose. 

Q. Now, what did you have to do to tell Steve 

about it? 

1178 
A. He was right there--he just happened to 

be there, starting up the dump trucks and stuff. 

They park them down in the mine when it is 

cold. 

Q. How low was the tire? 

A. Oh, I would say it was maybe half low, not 

low enough to where it would really hurt anything. 

If you would have run it a long distance, it 

might of. 

Q. So what did you do? 

A. I told Steve Folsom that I needed an air hose. 

Q. What did he tell you? 

A. He said he was busy, that he was starting up 

the dump trucks and stuff, getting them warmed up. 

I said, "O.K., I'm going to limp on down here to 

the powder house, I'm going to start making my 

shots up, go down there real slow. When you get 

time, come down there and we will air it up." 

He said, "O.K. Fine." 

Q. O.K., now, why did you go ahead and start work 

when you had a low tire? 

A. Well, because it is a pretty pressing--see, I 

was the only powderman at the time. I was keeping 

the whole place running. To keep them in rock, 

you have to get started early in the morning and 

get right to it or you will fall way behind and 

be there until midnight. 

Q. You were there a long time, then? 

A. Oh, yes, every day. 

Q. Now, is that the reason that you went ahead 

and started work? 

A. Yes. 

Q. Were you concerned tbat you might cause damage 

to the tire?. 

A. No, not at all. 

1179 
Q. Why not? 

A.. Because I was watching it, making sure 

that I wasn't going to hurt anything. 

Q. O.K., and then what took place after that, 

you went up to the powder house? 

A. I was down at the powder house making up 

my shots, and here come Mr. Feathers, pulled up--

I didn't even know what was going on--pulled 

up, jumped out of the truck, started cussing 

at me--I'm not going to repeat what he said--

but started cussing and told me, you know, get 

out, said I was fired, you know. He said 

that is what he was going to put on the report 

is negligence of equipment, and I said, "Why?" 

and he says, "Because you didn't air that tire 

up," and I said, "Well, you know, that's not 

much to fire me on, you know," and he said, 

"Get out, get out of my sight before :t do 

something I'm sorry for." He did assault me, 

but there was no witnesses. 

Q. What do you mean, he assaulted you? 

A. Grabbed me, threatened to hit me. 

Mr. Henderson testified that he was aware of other incidents 

of equipment misuse but that no action was taken against the 

employee. He cited an incident involving a pick-up truck 

which was during too fast colliding with a dump· truck, but 

that nothing was done about it. He also stated that he has 

observed "trucks hot-rodded around," but he was not aware 

of any other employees being fired or disciplined over these 

incidents. (Tr. 58). He confirmed that employees had been 

"talked to" by supervisors, and that he had been previously 

warned by Mr. Feathers about "driving too fast" sometime 

in late September or early October 1982. He denied that 

any other disciplinary action had ever been taken against 

him for misusing equipment (Tr. 59). He believed he was 

fired because he called the MSHA inspectors and because other 

employees had not been disciplined for "things a lot worse," 

and he was fired over a low tire on his compressor (Tr. 60). 

On cross-examination, Mr. Henderson identified exhibit R-1 

as his handwritten complaint filed in this matter (Tr. 62). 

He confirmed that his first experience with a rock fall 

occurred in October 1982 when he began to experience 

some rock ledge formation that continued to cling to the ceiling 

after blasting. He confirmed that he did not inform Mr. Feathers 

1180 
or Mr. Stanley about this incident and they did not know 

about it. After the second incident on or about November 18, 

1982, he told Mr. Stanley about it. Mr. Stanley told him 

in no uncertain terms that he was not to go under any roof 

which he considered to be in an unsafe condition. Mr. Stanley 

also advised him that at no time would he ever be in trouble 

for not going under any unsafe condition (Tr. 65). 

In response to further questions, Mr. Henderson testified 

as follows (Tr. 66-70: 

Q. So the first time you ever complained 

to any official at the quarry, either your 

superintendent or his superior, about the problem, 

the responses were, "Don't go under anything 

that you consider to be an unsafe condition, 

and I'll come up right away and take a look at 

it with you?" 

A. No, that's what Mr. Stanley said. Mr. Feathers 

didn't say anything. 

Q. Mr. Feathers said, "I'll be right up and 

look at it," didn't he? 

A. No, he didn't say that. 

Q. He came right up and looked at it, didn't he? 

A. It was later, about two hours later, that 

afternoon. He said, "Let's go take a look at 

it," and that's what we done. 

Q. And at that time, as far as you were concerned, 

the condition was not unsafe, was it? 

A. Yes, I was pretty scared then. 

Q. I didn't ask you whether you were scared. 

I asked you if it was an unsafe condition. 

A. Out there then, after the second time? 

Yes, I would consider it. 

Q. Did you take a bar and try to pry it down 

to see if any rock came down? 

A. Yes. 

Q. Did any rock come down? 

A. No. 

1181 
Q. Did the ledge wiggle in any way? 

A. Wiggled a little. 

Q. I think you previously testified it 

appeared tight to you? 

A. It appeared tight, but the edge of it 

wiggled a little bit; but the seam as a whole 

was tight, seemed tight. 

Q. And at that time, you were handed a bar or 

given a bar by Mr. Feathers so that you could, 

and were instructed to test it any any time 

you felt it needed to be tested? 

A. Right. 

Q. And did you do that again? 

A. Did I test before I went under these headings 

again? 

Q. Right. 

A. Yes. 

Q. You only went under the heading one more time, 

didn't you? 

A. Well, yes, O.K., yes, the one where there was 

one shot out, yes, one shot out. Then I refused. 

Q. The next day you went back to Mr. Feathers 

and said, "I'm not going to go back under that 

thing again?" 

A. Right. 

Q. In fact, Mr. Feathers said, "Did you test it 

with your bar," didn't he? 

A. I can't remember. 

Q. And you said, "No," didn't you? 

A. I can' t ·remember whe·ther he asked me or not. 

Q. And after you said no, then he got angry with 

you for not having tested it as he had instructed 

you the day before, didn't he? 

A. No. 

1182 
* * * * 

Q. The day you refused to go under it because--

right, the next day. 

A. Right, yes, I had a conversation with him. 

That's when he got mad. 

Q. And he got mad because you hadn't tested the 

ceiling with the bar, didn't he? 

A. I can't remember that. If that is what it 

was over or not, I can't say. 

Q. Mr. Feathers, when you told him that you 

called MSHA, said, "Why did you call them, why 

didn't you come to me first so we could correct 

any situation that you found to be unsafe," 

didn't he? 

A. I can't remember exactly what he said now. 

Q. Isn't that approximately what he said to you? 

A. I can't say for sure. I'll say maybe that's 

what he said, I don't know. It's hard to remember 

conversations way over a year ago. 

Q. When Mr. Feathers had the conversation with 

you about--when he was talking with you about how 

you might get killed on the highway, he was trying 

to calm you down, wasn't he? 

A. No. 

Q. You were very excited, weren't you? 

A. No. 

Q. He wasn't trying to calm you down? 

A. No. 

Q. He didn't state--

A. (Interrupting) He was trying to rationalize 

me going under that ceiling again, and I wasn't 

going to do it. 

Q. And you didn't view that as an effort to calm 

you down? 

A. No, not at all. 

1183 
Q. Were you upset? 

A. Yes, but I wasn't hysterical or anything 

like that. I was concerned, very concerned. 

Q. Do you have a temper, Mr. Henderson? 

A. When I am pushed, just like anybody else, 

I guess. 

Mr. Henderson stated that he could not recall the 

conversations with Mr. Feathers at the time he advised him 

that he would not go under the roof, and he stated that he 

was not sure whether Mr. Feathers tested the roof and that 

nothing came down (Tr. 71), He conceded that all of the 

events surrounding his COIIq?laining spanned a period of eight 

days from November 18 to November 26, 1982 (Tr. 71). 

Mr. Henderson stated that he could not remember running 

the compressor on a flat tire in the past. While he indicated 

that he would not disagree with any testimony that he did, 

"I would just say I can't remember" (Tr. 73-74). With regard 

to his encounter with Mr. Feathers over the compressor tire, 

he stated as follows (Tr. 74-76): 

Q. What was it you said to Mr. Feathers 

that made him so irritated after he called 

A. (Interrupting) After he called me a little 

f .•. er, I called him a mother f •.. er, and that 

is when he grabbed me and threatened to hit me, 

and he said I was fired before that. 

Q. He said you were fired after you said, "F ..• 

you, you old f .•• er," didn't he? 

A. He grabbed me, he tried to grab me; and that 

is when I got mad. He reached over the tongue 

of the air compressor and tried to grab me. He 

assaulted me. He actually bodily touched me, 

and that is when I got mad, and I was trying to 

defend myself any way I could. I didn't want 

to get in a hassle down there in the mine. _ 

I had dynamite strung all over the place trying 

to make up my shots, and that's when he came --

* * * 

Q. After you said what you said to Mr. Feathers, 

he said, "You are fired. Get out of here?" 

1184 
A. Right. 

Q. And then you went down to the shop, didn't 

you? 

A. After he threatened to grab me, after he 

grabbed me, I said that. 

Q. Then you went down to the shop, didn't you? 

A. Right. 

And, at (Tr. 79-80): 

Q. So Mr. Stanley said, "Well, calm down now, 

calm down. Let's see if we can't get this worked 

out," didn't he? 

A. Right. 

Q. He said, "I hate to see people get fired," 

didn't he? 

A. That's right, that's what Mr. Stanley said, 

something to that effect. 

Q. Something to that effect. 

down in this room, and I will 

will see if we can straighten 

he? 

A. Yes. 

He said, "You sit 

go get Bill and we 

this out," didn't 

Q. So at some point, you and Mr. Stanley and 

Mr. Feathers were all sitting in the car, weren't 

you? 

A. Yes; this was over at the office. 

Q. And at that point, Mr. Stanley was trying 

to resolve the whole situation so you weren't 

fired and you were calmed down and Bill was calmed 

down, didn't he? 

A. What Mr. Stanley said was that he had to back 

up his superintendent, his foreman, whatever 

decisions he made. That's about all he said. 

Q. At one point while you were sittin9 in that 

car, didn't you actually go beserk? 

A. No, I didn't. 

1185 
Q .. You're sure you didn't? 

A. No. 

Q. Didn't you become almost incoherent? 

A. No, not at all. 

Q. And at that point, didn't Mr. Stanley then 

fire you? 

A. No. 

Q. Didn't Mr. Stanley then say, "You're gone. 

I can't even talk to you?" 

A. No. 

With regard to his allegations of harassment by Mr. Feathers, 

Mr. Henderson testified as follows (Tr. 84-88): 

Q. At no time did anyone at the quarry tell you 

that you had to work under what you considered to 

be an unsafe condition, did they? 

A. They didn't directly say that, no. 

Q. Now, you said that for the week-long period 

in between when you called MSHA and when you got 

fired, Mr. Feathers impliedly did this and suggestedly 

did that. Do you recall any single instance where 

Mr. Feathers said anything to you? 

A. Well, it's just the main instance that I 

remember, is when I told him that I had called 

MSHA, you know, and I told him no, that I wasn't 

trying to cause any trouble, and that is when he 

got mad. 

Q. That's the only time you can recall Mr. Feathers 

saying --

A. (Interrupting) That's the only time I can 

recall any out and out harassment or anything like 

that. 

Q. As a matter of fact, your complaint doesn't 

even mention any further communication with Mr. Feathers 

throughout the period of time from the day that 

you had this conversation with him until the day 

you were fired, does it? 

1186 
A. Well, I was in close contact with him all 

the time. He was the superintendent, and he 

come up to check on you, see how you were doing, 

things like that. 

JUDGE KOUTRAS: No. His question was from the 

time you fired -- I mean from the time you called 

MSHA until the time you were fired, your complaint 

doesn't say anything about the needling, the 

purported needling, that Mr. Feathers subjected 

you to. 

THE WITNESS: No, there's no real -- I couldn't 

really peg anything down to it. 

BY MR. REILLY: 

Q. There wasn't anything he said to you that was 

actually directed to any of the events that occurred 

with MSHA? 

A. Oh, no, not directly, no. 

Q. He never criticized you or chastized you in 

any way, did he? 

A. Except for that one time -- well, twice. 

Q. You have already indicated except for the time 

when you just told him that you called MSHA, right? 

A. Right; and he got mad, and he got mad the time 

I wouldn't go back under that second half of the 

ceiling that fell. 

Q. Other than that, there was never any comment 

by anybody at the quarry to you about having called 

MSHA, was there? 

A. Not directly, no. 

Q. Not even indirectly, was there? 

A. That's debatable. 

JUDGE KOUTRAS: Was there or wasn't there, Mr. 

Henderson? 

THE WITNESS: I would say yes, some things were. 

BY MR. REILLY: 

Q. What? 

1187 
A. Just by increased workload, things like 

that, you know. 

Q. What was your increased workload? 

A. Working overtime, you know, and things like 

that. 

Q. What was the overtime you worked, Mr. Henderson? 

A. Oh, I don't know. I was putting anywhere from 

SS to 60 hours a week in. 

Q. We are only talking about a one-week period 

here, Mr. Henderson; how many extra hours did the 

quarry make you work because you called MSHA? 

A. Well, I can't prove that. 

JUDGE KOUTRAS: Hold it, counsel. Do you like to 

work overtime? 

THE WITNESS: When I can, yes, sometimes. 

JUDGE KOUTRAS: Did you ever refuse to work overtime? 

THE WITNESS: No, I didn't. 

JUDGE KOUTRAS: Did they ever order you to work 

overtime? 

THE WITNESS: Sometimes, yes, I had to. 

JUDGE KOUTRAS: I mean during this week. 

THE WITNESS: I had to. 

JUDGE KOUTRAS: I get the impression you're trying 

to convince me they punished you by making you work 

overtime, is that a fact? 

THE WITNESS: I had to. I had to work overtime 

because I was the only powder man, and I had· to 

get the rock down on the floor. I couldn't say_ 

no. They would say, "Hit the road. We will get 

somebody else." 

JUDGE KOUTRAS: You got paid for it, didn't you? 

THE WITNESS: Right. 

1188 
JUDGE KOUTRAS: Are you trying to convince 

me that this operator, because of your complaint 

to the two inspectors, punished you by making 

you work overtime? 

THE WITNESS: Well, I can't say that that was a 

punishment, no. I think some of it was. 

JUDGE KOUTRAS: Why was some of it? 

THE WITNESS: I don't know. 

JUDGE KOUTRAS: What leads you to conclude that 

part of the requirement you work overtime was in 

punishment? 

THE WITNESS: Well, it was not only overtime, it 

was subtle things that were going on. 

JUDGE KOUTRAS: All right, Mr. Reilly. 

BY MR. REILLY: 

Q. What were the other subtle things, Mr. Henderson, 

can you name one? 

A. No. 

In response to question from the bench concerning his 

safety concerns, Mr. Henderson testified as follows (Tr. 95-100): 

JUDGE KOUTRAS: All right, Mr. Henderson. Let me 

just ask you a couple of questions now. At the 

time when that half a header fell as you were 

pulling back, it's my understanding you went back 

and checked that area with a bar and found that 

maybe one of the corners may have been loose but 

it was all tight, it was tight, correct? 

THE WITNESS: After one half of it fell? 

JUDGE KOUTRAS: Right. 

THE WITNESS: Yes. We went up in the bucket, I 

pried on it a little bit. It would wiggle a little 

bit but it seemed tight. 

JUDGE KOUTRAS: But that is not the area where you 

refused to go under, is that right? 

1189 
THE WITNESS: No. 

JUDGE KOUTRAS: Did you actually go back under 

the second half of this header after you went 

up and tested it, the half of the header that 

you were working on after you pulled out, 30 

seconds after you pulled out approximately 10 

yards, it fell? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And that caused you some problem, 

right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: You reported that? 

THE WITNESS: Right. 

JUDGE KOUTRAS: Then Mr. Feathers gave you a pry 

bar? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And you went back, and he came 

back up there a couple hours later and observed 

it, is that correct? 

THE WITNESS: Yes. He was with me. 

JUDGE KOUTRAS: He was with you. You tested it 

with a pry bar? 

THE WITNESS: I went up with it, stuck it back 

up in there in that corner, and it wouldn't budge. 

JUDGE KOUTRAS: Now, at that point in time, did 

you make a decision that that header that was 

remaining that you went up and tested was unsafe? 

THE WITNESS: Well, I was taking a chance, really. 

JUDGE KOUTRAS: Forget that. Answer my question. 

If you tested it with a bar and found that it was 

sound, then what else, what other alternative did 

you have? 

THE WITNESS: Well, I am not going to say it was 

sound. 

1190 
JUDGE KOUTRAS: Did you test it with a pry 

bar? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Did you determine after testing 

that it was not safe? 

THE WITNESS: Yes and no. I decided I wanted 

to finish the job and get out from underneath it, 

O.K.? 

JUDGE KOUTRAS: Why didn't you decide that it was 

unsafe and tell Mr. Feathers that you were not going 

to finish the second half of the shot? 

THE WITNESS: I don't know. I felt under 

pressure at the time. 

JUDGE KOUTRAS: You felt under pressure? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And you went ahead and shot it down? 

THE WITNESS: I already had half of it loaded. I 

felt I would go ahead. I was more or less taking 

a chance. 

JUDGE KOUTRAS: You were taking a chance even though 

your pry bar test indicated that it was sound? 

THE WITNESS: Right. 

JUDGE KOUTRAS: Now, the next day is when you called 

the MSHA people? 

THE WITNESS: Right. 

JUDGE KOUTRAS: All right, but the next day when 

you reported to work, you went to another location 

in the mine, correct? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: And you found a ceiling? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Did you test the ceiling? 

THE WITNESS: Yes. 

1191 
JUDGE KOUTRAS: With what? 

THE WITNESS: Well, I went up and pecked it a 

little bit. 

JUDGE KOUTRAS: Pecked it with what? 

THE WITNESS: With the crowbar. 

JUDGE KOUTRAS: With the crowbar that you wtill 

had from the day before? 

THE WITNESS: I believe it was the same one. 

JUDGE KOUTRAS: All right, and you pecked around, 

and what did you find? 

THE WITNESS: It seemed tight. 

JUDGE KOUTRAS: It seemed tight? 

THE WITNESS: Right. 

JUDGE KOUTRAS: Why didn't you go ahead and load 

that shot? 

THE WITNESS: Well, because the other one seemed 

tight, too, and you can't tell when these things 

are going to fall. 

JUDGE KOUTRAS: It could fall today, it could fall 

tomorrow, right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And what means do you have for 

determining whether the area is safe before you 

go in there? 

THE WITNESS: You don't. 

JUDGE KOUTRAS: You just told me. What's the normal 

procedure for testing for soundness of a ceiling or 

a roof in that situation? 

THE WITNESS: The only way I know is to test it 

with a bar. 

JUDGE KOUTRAS: All right. 

1192 
THE WITNESS: And the tension on that ceiling, you 

could not pry it down with a bar. I never had 

been able to get anything down with a bar. The 

fact is you can't -- they can wiggle it around 

with a loader bucket. You can see it working up 

and down, and sometimes it won't fall, sometimes 

it will. 

JUDGE KOUTRAS: Are you suggesting that a roof area 

that's tested with a bar and appears to be sound 

should be taken down anyway? 

THE WITNESS: Yes, oh, yes. 

JUDGE KOUTRAS: To make it 100 per cent safe? 

THE WITNESS: Yes, absolutely. 

JUDGE KOUTRAS: Is that the way it's normally done? 

THE WITNESS: It should be. 

JUDGE KOUTRAS: Why do you take something down if 

you sound it and find it is sound? 

THE WITNESS: Who wants to mess around with somebody's life? 

JUDGE KOUTRAS: Who wants to mess around underground 

in a mine to begin with? I'm not trying to be 

facetious, but I'm trying to understand it here. 

Were there any citations issued in this cas~ to 

the mine operator for failing to sound the roof? 

THE WITNESS: I don't believe so, no. 

Mr. Henderson testified that prior to November 1982, he 

had loaded probably 50 to 100 shots, but that he did not always 

test the ceiling "because I didn't always have time. It 

takes time and I was busy. It's a heck of a schedule I was on" 

(Tr. 101). Mr. Henderson indicated that the responsibility 

for checking the ceiling is his as well as the. superintendent's 

(Tr. 102). When asked what he would do if he checked the 

roof and found that it was not safe, he replied (Tr. 103-105): 

JUDGE KOUTRAS: What would you do if you found 

it was not sound? 

THE WITNESS: Sometimes, regrettably. I would 

go under and do it anyway. 

1193. 
JUDGE KOUTRAS: You would take the chance anyway? 

THE WITNESS: Take a chance. 

JUDGE KOUTRAS: Whose fault is that? 

THE WITNESS: That would be mine. That is the redson 

why I complained about this, is because if I would 

have gotten crushed under there, it would have been 

my fault anyway. 

JUDGE KOUTRAS: You wouldn't be here to complain, 

would you? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Isn't that true -- what I'm trying 

to understand is to what degree do you believe 

that the mine operator has to go to make an area 

absolutely fail-safe under all conditions. 

THE WITNESS: He should buy a scaling machine and 

scale it down, make it safe. 

JUDGE KOUTRAS: How about building a net or putting 

a canopy? 

THE WITNESS: That wouldn't do any good with 10 

tons of rock. It would smash it flat. 

JUDGE KOUTRAS: Is there anything in the regulations 

-- now, you mentioned the federal standards. What 

is your understanding of what these federal laws 

require as far as testing and scaling? 

THE WITNESS: All I know is what the mine inspectors 

showed me when they came out that day. 

JUDGE KOUTRAS: What did they show you? 

THE WITNESS: They showed me a section in there --

I can't remember the section -- like I said, it 

was my responsibility, along with the foreman or 

the superintendent, to make sure it was a safe 

working place. 

JUDGE KOUTRAS: All right. Let's assume the section 

foreman and the mine superintendent determined 

that it was a safe working place? 

1194 
THE WITNESS: Yes; but they never did, though. 

That's the thing, they rarely ever checked on it. 

They didn't even care. 

JUDGE KOUTRAS: How do you know that on this day 

when this roof fell they didn't check it? 

THE WITNESS: Well, I was working up there all 

day long, and I didn't see anybody go under the 

header. 

JUDGE KOUTRAS: How about the second fall where 

you sounded with the bar and found it sound? 

THE WITNF.SS: You are talking about the second 

half of the room that fell? 

JUDGE KOUTRAS: Right. 

THE WITNESS: I don't know if it was tested or 

not. 

JUDGE KOUTRAS: And then the next day, you 

found the ceiling that you also said was sound, 

but you didn't want to go under it? 

THE WITNESS: I thought it was. I wouldn't want 

to take a chance the next day. 

JUDGE KOUTRAS: And what did you want the mine 

operator to do? 

THE WITNESS: Scale it down. 

When asked to clarify his prior statement in his complaint 

to MSHA that Mr. Feathers attempted to scale down the ceiling, 

Mr. Henderson stated as follows (Tr. 111-112): 

BY JUDGE KOUTRAS: 

Q. Part of your statement, you said that after 

you refused to go under the ceiling and after you 

had this conversation -- or at least wanted 

Mr. Feathers to look at it -- you said sometping 

to the effect in your statement -- and I am quoting: 

"So the next day he did make an attempt to scale 

the ceiling, and I told him I appreciated it." 

Can you elaborate on that? You seem to indicate 

in your original statement that Mr. Feathers at 

some point in time made an attempt to scale the 

ceiling and you had told him you appreciated it. 

1195 
.That part there, what's that all about, was 

this when you went back to examine the ceiling, 

and is that the time that he came up to look at 

the second half of the header, or precisely 

what did you have in mind with that? 

A. I don't remember him trying to scale it 

down, I really don't. 

Q. . Is that your statement there? 

A. Yes. This has been so long ago, all this 

Q. {Interrupting) Mr. Henderson, now wait a minute. 

A. I'm not denying he did, O.K.? I am trying to 

remember all this stuff as it comes up, but it 

is hard to remember, it really is. If I made it 

there, then he probably did try to scale it down. 

* * * * 

Q. You may not be able to answer this, but which 

ceiling were you ref erring to? 

A. I guess it was the one that I refused to go 

under. I told you all it only had one shot taken 

out of it. 

Steven H. Folsom, testified that he is employed by the 

respondent as a maintenance mechanic. He testified as to the 

incident concerning the low air pressure on Mr. Henderson's 

vehicle, and he confirmed that the tire looked flat and that 

he advised Mr. Henderson that he would look at it. However, 

before he could take care of the problem, Mr. Henderson left 

the area with the truck, and he observed him later in the shift 

in a conversation with Mr. Feathers about the tire, but did 

not hear what transpired {Tr. 113-117). 

Mr. Folsom had no personal knowledge of any other employee 

.actually being fired because of "negligence of equipment," 

although he was aware of the fact that other employees had 

abused equipment which required him to repair it {Tr. ll7). He 

had no personal knowledge that the tire which Mr. Henderson 

drove on actually caused any damage {Tr. 118). 

On cross-examination, Mr. Folsom confirmed that a tire 

on a compressor truck in the past had been ruined by someone 

driving it with low air pressure, but could not state whether 

1196 
Mr. Henderson was involved in that incident. He did confirm, 

however, that the rim had to be straightened and that a new 

tire had to be installed to replace the damaged one (Tr. 119). 

He confirmed that he spoke with Mr. Henderson after he observed 

him speaking with Mr. Feathers, and that Mr. Henderson told 

him that he had been fired. Mr. Henderson was upset, but he 

had no other detailed conversation with him over the incident 

(Tr. 119). He confirmed that he had previously put air in 

compressor tires in the shop, and that he had previously performed 

this service for Mr. Henderson in the past (Tr. 121). 

Terry Acock, testified that at the time Mr. Henderson 

was discharged he was employed at the quarry as a driller. 

He testified as to an accident which he (Acock) had with a 

truck which he had been driving when it collided with another 

vehicle, and that Mr. Feathers accused him and the other man of 

driving too fast. He was not fired over the incident, and 

knows of no one else who was fired for not taking care of 

equipment or for damaging equipment. However, he confirmed 

that he was discharged by the respondent, but that the reason 

for the discharge was not related to the maintenance of equipment 

(Tr. 121-123}. 

On cross-examination, Mr. Acock confirmed that he did 

not intentionally run into the truck in question and that it 

was an "accident." He did not curse Mr. Feathers, nor did 

he argue with him (Tr. 124}. 

William E. Feathers, quarry superintendent, testified as 

to his background and experience. He testified that Mr. Henderson 

said nothing to him about any rock fall which he may have 

experienced in October 1982, and he explained the procedures 

followed at the mine to scale down any rock which may remain 

after a shot (Tr. 128-134). 

Mr. Feathers stated that sometime between November 16 and 

20, 1982, Mr. Henderson came to him on a Thursday and showed 

him a rock which he threw at his feet and stated "You see this 

rock? That could kill a person." Mr. Feathers asked him 

to explain, and Mr. Henderson told him that the rock had 

fallen from a ceiling where he was working, and that he was 

not going back into the mine to work (Tr. 135}. Mr. Henderson 

then explained to him that he called MSHA, and when Mr: Feathers 

inquired as to why he had not first brought the matter to 

his attention or to the attention of Mr. Stanley, Mr. Henderson 

did not reply (Tr. 1~6). 

Mr. Feathers stated that he never asked Mr. Henderson 

"to go into any condition that he felt was unsafe," and he indicated 

that at any time an employee believes a condition is unsafe 

1197 
they would come to him because "that's my job" (Tr. 137). 

Mr. Feathers stated that he and Mr. Stanley examined the 

area that Mr .• Henderson complained about, and they found 

that "a chunk" of the ceiling had fallen out for a distance 

of some five feet, but that the rest of the ceiling was 

tight. Mr. Feathers checked the ceiling with a bar, which 

is the standard method for doing so, and he determined that 

it was safe (Tr. 138). Since it was the end of the work shift, 

there was no question raised at that time about Mr. Henderson 

going back to work, and the conversation ended (Tr. 138). 

The next day was a Friday, and since Mr. Feathers was not 

at work, he did not see Mr. Henderson again until the following 

Tuesday (Tr. 139). 

Mr. Feathers stated that when he next spoke with. Mr. Henderson 

on the Tuesday following the rock fall incident, Mr. Stanley 

had given him a seven-foot bar to use in scaling the ceiling 

and that Mr. Henderson had it in his truck. After examining 

the ceiling that Tuesday, Mr. Feathers found that it was 

"tight" and found nothing that he believed to be unsafe (Tr. 141). 

Later that week, Mr. Henderson told him that he had refused 

to "load a room," and when asked whether he had checked the 

ceiling, Mr. Henderson replied "no," and Mr. Feathers commented 

"What do you think we bought that bar for you, just to haul 

around and look at? We bought it for you to use." Mr. Feathers 

stated that he then went back and checked the room that 

Mr. Henderson was complaining about, but it was not the same 

room that he had complained about on the previous Thursday. 

He found that it was "tight" and found nothing unsafe 

(Tr. 141). Mr. Feathers explained further as follows 

(Tr. 142-143) : 

JUDGE KOUTRAS: Excuse me just a second now 

for interrupting your .narrative, but was that 

the same ceiling that he had refused to go under? 

THE WITNESS: No, no, no, sir. 

JUDGE KOUTRAS: This was another location? 

THE WITNESS: Yes. This was the whole mine in 

general that he told me to go up, and there was 

one particular area over there in the east wjng 

that he wanted me to try and knock down, and so 

I went over and tried scaling it; but while I 

was up there, I went around and checked all of 

them and tried knocking down all the loose rock 

that I possibly could, and Louis came -- I 

though it was a good gesture -- he came; and 

after he seen me doing it, he said, "I appreciate 

you doing it," and I said, "That is what we 

want to do," to try to make the place safe to 

work. 

1198 
BY MR. REILLY: 

Q. Was that the complete conversation? 

A. That's the last conversation I had with 

Louis about the ceiling. 

Q. That's the one he is referring to here in 

his complaint where he was you did make an 

attempt to scale the ceiling and he told you 

he appreciated it. 

A. I imagine. 

Q. That's the one he is referring to? 

A. Yes. 

Mr. Feathers testified as to the incident which occurred 

on the morning of November 26, with respect to Mr. Henderson's 

driving his truck with the air in the compressor truck tire low. 

He indicated that this was not the first time this had happened, 

and that on a prior occasion Mr. Henderson had ruined a tire 

by driving on it without air, and that he (Feathers) had 

warned him about this practice (Tr. 144-145). Mr. Feathers 

stated that when he discussed the matter with Mr. Henderson 

on November 26, Mr. Henderson swore at him, then Mr. Feathers 

told him that he was fired. Mr. Feathers conceded that he 

was angry and that he told Mr. Henderson "you're fired because 

you are going to cause me to do something we both might be 

sorry of" (Tr. 145). Mr. Feathers denied grabbing, touching, 

or attempting to swing at Mr. Henderson, and he stated that 

he fired Mr. Henderson because he swore at him. After he 

told him that he was fired, Mr. Henderson left the area (Tr. 146). 

Mr. Feathers stated that after firing Mr. Henderson, he 

encountered Mr. Stanley at the entrance of the mine and informed 

him what he had done. Mr. Stanley informed him that he wanted 

"to talk the matter over," and they went to the mine office 

to speak with Mr. Henderson. The three of them then sat 

in a car outside the office to discuss the matter further, 

and Mr. Stanley was attempting to reconcile the matter. 

However, Mr. Henderson began criticizing Mr. Feathers' _work 

and abilities as a supervisor. At that point, Mr. Feathers 

commented that "there was no way" he and Mr. Henderson 

could continue to work together and still have the cooperation 

needed to do the work. (Tr. 148), and he described what happened 

next as follows (Tr. 149-150): 

1199 
Q. O.K. Did Ron say something to Mr. Henderson 

at that point? 

A. Well, Ron's gesture was that he was 

trying to impress upon him that if there would 

be some kind of more or less reconciliation 

between the two of us, he could continue to work 

there; and I knew that this was Ron's intentions 

and his own personal feelings that we could 

reconcile this difference, and I wanted to hear 

his opinion is because the reason why I wasn't 

saying anything. I knew Louis is -- well, it may 

be said maybe nobody really knows Louis -- I 

thought that I did and I had a working relationship 

between him, and he did -- and as far as powdering, 

he was a good powderman. I never had to get onto 

him for speed or anything, and we did maintain, 

I thought, a fairly decent working relationship, 

and I wasn't in no way looking forward to firing 

him and going out and finding a new powderman and 

bringing him in and spending 40 hours retraining 

somebody to take his job. That's nothing to look 

forward to because there is --

Q. (Interrupting) Did Mr. Henderson become 

enraged in the car? 

A. Yes. 

Q. And did Ron say, "That's it. You're out?" 

A. Yes. 

Mr. Feathers testified as to the incident concerning a 

truck accident involving Mr. Acock, and he confirmed that 

Mr. Acock was not fired, did not swear at him when he discussed 

the incident with him, and he confirmed that Mr. Acock did 

not intentionally wreck the truck, and in fact, apologized 

over the incident (Tr. 152). 

On cross-examination, Mr. Feathers confirmed that during 

the cleanup procedures after a shot is fired, the loader 

operator is protected by an overhead canopy on his vehicle 

when he goes in to scale the area, and that his risk would 

be less than that of a powderman (Tr. 156). When asked 

whether he would have preferred that Mr. Henderson sit idly 

by while awaiting someone to air up the tire on the compressor, 

Mr. Feathers answered that Mr. Henderson could have left 

the compressor and gone ahead with his work without "endangering 

the tire" (Tr. 157). Mr. Feathers again denied provoking 

Mr. Henderson, or that he ever threatened.or cursed him (Tr. 158). 

He denied that he accused Mr. Henderson of being a "troublemaker," 

or that he criticized him for caliing in the inspectors 

(Tr. 159-160). He also denied that he fired Mr. Henderson for 

complaining to MSHA (Tr. 162). 

1200 
Ronald H. Stanley, owner and manager of the quarry in 

question, testified that he has operated the facility for 

eight years. He confirmed that he works at the quarry on a 

daily basis, and he identified the quarry superintedent 

as Bill Feathers. Mr. Stanley confirmed that Mr. Henderson 

worked for him as a powderman, and he confirmed how rocks 

are scaled and the procedures followed by the loader operator 

after a shot is fired (Tr. 166-168). 

Mr. Stanley confirmed that he first learned of any 

problems with Mr .• Henderson on November 18, and that Mr. Henderson 

did not inform him of any prior problems which he may have 

had in October. He described his first encounter with 

Mr. Henderson as follows (Tr. 169): 

A. It's foggy, but to the best of my 

knowledge, we were loading an outside shot, and 

we needed Louis's caps to load it, and so I 

was up preparing the holes to load them. Louis 

came down and we had already started a few holes 

before Louis had mentioned -- he said, "You 

know, some ceiling fell up there," and I said, 

"I don't know." He said, "Well, it did and it 

just scared the hell out of me." I said, 

"O.K., let's finish this shot, and we. will 

get up there and look at it. Don't go in or 

anything if you don't think it's safe, obviously," 

and we went ahead and finished the shot, and I 

think we shot it -- I might have went somewhere 

in the meantime, Louis had told Bill about it. 

Mr. Stanley stated that after finishing the shot in 

question, he went to the area where Mr. Henderson had indicated 

had previously fallen, and he found that approximately half 

of a ten~foot ceiling had fallen. After examining the area, 

he (Stanley) and Mr. Feathers, considered that it was safe, 

and as far as he knew Mr. Henderson had not called MSHA 

that day about this prior fall (Tr. 170). The next day, 

Mr. Henderson informed him that he had called MSHA, and 

Mr. Stanley stated that he told Mr. Henderson that he thought 

this was a "great idea" because of ceilings which had hung 

after six or eight months. Mr. Stanley stated further that 

he personally called an MSHA inspector to send some inspectors 

to the mine to check the mine ceilings because he did not 

want Mr. Henderson to work in areas which had not bee inspected 

(Tr. 171) • 

Mr. Stanley confirmed that MSHA had previously inspected 

his mine, had been in the "upper mine" areas which concerned 

Mr. Henderson, and no one ever mentioned anything about the 

1201 
seams which concerned Mr. Henderson. Mr. Stanley denied that 

he ever asked Mr. Henderson to go into any mine area which 

he or Mr. Feathers considered to be in an unsafe condition 

(Tr. 172). Mr. Stanley indicated that his instructions were 

that all walls were to be scaled with bars, and that if 

Mr. Henderson believed they were still unsafe he was to tell 

him or Mr. Feathers about it (Tr. 173). -After the aforesaid 

incident. Mr. Stanley had no further contacts with Mr. Henderson. 

concerning any work refusals, nor did he have any conversations 

with him about the condition of the mine ceiling until the 

day of his discharge (Tr. 173). With regard to what transpired 

at the time of the discharge, Mr. Stanley stated as follows 

(Tr. 173-174) : 

A. I don't know how I knew he was fired. 

I was just driving through the mine, and Louis 

-- I think he was in the shed changing clothes 

or putting in his timecard -- and I asked, 

"What is going on?" and he said, "I got fired." 

He was upset but not vocally upset, and I said, 

"Oh, hell. Why don't you get in the car, 

go over to the office, get a pickup, go to 

the office. I will get Bill and we will come 

over to the off ice and talk. So I had to run 

Bill down; and I asked Bill what happened, 

and he said, "Well, he just cussed me out, 

drove with a flat tire, and I fired him," and I 

said, "Well, let's go over and talk to him," 

and I said, "If we go over and talk to him and 

we get this straightened out, would you hire 

him back?", and Bill said "Yes," which is hard 

to do because I stand behind Bill. That's 

his responsibility. So I said, "O.K., so let's 

at least go over and try to talk it out." Bill 

got in the car. Louis got in the car in front 

of the office. Bill was kind of being quiet, and 

it's real hard to start a conversation, and Louis 

really got upset as far as I'm concerned, just 

went totally -- he told one specific thing 

I remember definitely. He said, "Bill doesn't 

care how many men are killed out here as long 

as we get production." Well, that pissed me 

off because I know Bill cares about somebody}s 

life, but he said he doesn't care if a man gets 

killed every day as long as we have production, 

and I said, "Louis, I know better than that," 

and as the-conversation went on and on, Louis 

got hotter than hell, and I started getting 

made, and I said, "O.K., that's all. Forget 

it. You are gone," and that is the last I can 

remember. 

1202 
Mr. Stanley stated that at the time of the discharge 

the question of Mr. Henderson calling MSHA never came up, 

and that Mr. Feathers said nothing about Mr. Henderson being 

"a troublemaker." As a matter of fact, Mr. Henderson stated 

that he had no problems with Mr. Henderson in the past and 

that he heard through hearsay that Mr. Feathers had in the 

past talked him out of quitting his job because others were 

"needling" him about working overtime. Mr. Stanley stated 

further that he never "punished" Mr. Henderson by requiring 

him to work extra hours, and he indicated that Mr. Henderson 

liked extra hours and "worked all the hours he could get" 

(Tr. 17 5) • 

On cross-examination, Mr. Stanley denied that Mr. Henderson 

told him that Mr. Feathers "grabbed him" or "started to hit 

him" (Tr. 176). He confirmed that Mr. Henderson worked at 

the quarry for about a year, and that matter concerning 

Mr. Feathers' talking him out of quitting occurred six to 

eight months into his employment (Tr. 176). 

In response to bench questions, Mr. Stanley confirmed 

that he went to the area where the ceiling fell with the 

MSHA inspectors after Mr. Henderson called them, and that 

the area had already been shot and was "gone" (Tr. 177). 

He confirmed that the inspectors looked at the ceiling conditions 

of the entire mine in the areas where the ceiling is left 

after the shots are fired, and they inspected approximately 

12 headings. Mr. Stanley suspected that Mr. Henderson was 

concerned generally about all of these ceiling conditions, 

and he stated further as follows (Tr. 179-181): 

JUDGE KOUTRAS: All right. Now, what did 

the inspectors have to say about the 

conditions that they viewed, the general 

THE WITNESS: They said if it hangs back 

10 foot, it's pretty bad even though you 

can get a bucket up there and you can lift. 

I have seen them lift the whole machine 

off the ground trying to pull it down; 

and there's two other things we can do. 

We can drill our top holes a little closer 

to the ceiling, and then it will break 

back. On half the shots, you may get a 

ledge only this far. You may get a foot. 

Some of them cling straight back to the 

face; but on ones that hang back, they said 

you have just got to try and make sure 

everybody tries harder to get it done the 

best they can; and when Louis comes up 

there to check with a bar and let somebody 

know if he doesn't feel it is safe, is 

their opinion. 

1203 
JUDGE KOUTRAS: So, theoretically, is it 

your position that if none of this was done 

to your satisfaction, he would consider 

any roof area in that mine to be unsafe and 

he would probably refuse to work any place, 

or is that being unfair? 

THE WITNESS: I don't know his frame of mind 

at the time. I'm sure that day he was nervous. 

He didn't want to go anywhere in the mine. 

JUDGE KOUTRAS: If half a header fell, I can 

understand his being a little nervous about 

that. You probably should have given him the· 

rest of the day off or something, but what I 

am trying to understand is the facts of this case. 

Now, let me ask you this. At that point in time, 

was your mine operating under a particular written 

plan for the scaling of walls, or do you simply 

ref er to the mandatory standards? 

THE WITNESS: The standards, but our own standards. 

JUDGE KOUTRAS: Your own procedures as testified? 

THE WITNESS: The man that is on the loader has 

beein in limestone mines for 40 years, and he is 

kind of an old hand on ceilings. He is the first 

one in the room; and when he says it is unsafe 

or it needs picking, we kind of use him for a guide. 

I have been in mines for 20 years. He is kind of 

the old salt of the mines, and then the driller 

has been there a long time; and then after those 

two get through with it, we consider it safe --

I do unless someone comes around and tells us. 

JUDGE KOUTRAS: Who is the person responsible 

for making the examination required under the 

mandatory standard? 

THE WITNESS: Bill, Mr. Feathers. 

JUDGE KOUTRAS: What is your track record, have 

you ever had any fatalities or accidents at that 

mine involvinq roof falls? 

THE WITNESS: No fatalities. We had a rock fall. 

A guy skinned his arm one time off to the side. 

1204 
JUDGE KOUTRAS: Have you ever had any citations 

issued to you for violations of mandatory 

standards dealing with underground ground support 

as found in Part 57 of the Regulations? 

THE WITNESS: No. 

JUDGE KOUTRAS: Did any citations or violations 

result of MSHA's, Mr. McGee's, visit to your mine? 

THE WITNESS: No, as far as I know, no. 

When called in rebuttal, Mr. Henderson stated that 

he had a good working relationship with Mr. Stanley. He also 

indicated that he had a similar good relationship with Mr. Feathers 

"until the time I turned him in to MSHA" (Tr. 136). When asked 

to elaborate, he explained as follows (Tr. 126-127): 

Q. Now, what do you mean, real good, did 

you get along well? 

A. Got along with him just fine as far as 

I don't know -- no hassles or anything like that, 

no arguments really. 

Q. And what change did you notice in your 

relationship with Mr. Feathers after you made 

your complaint? 

A. Just some sarcastic -- short with me all the 

time, stuff like that. 

Q. That's what you were describing earlier about 

the incident? 

A. Right. 

MR. NELSON: Thank you. 

CROSS-EXAMINATION 

BY MR. REILLY: 

Q. Can you recall what sarcasism Mr. Feathers 

expressed to you on any given occasion between 

November 18 and November 26 of 1982? 

A. Not any outright hostility or anything like 

that. 

Q. Can you recall any instance when he was short 

with you, can you tell the Court a specific instance 

when he was short with you between November 18 

and November 26, 1982? 

1205 
A. Not a specific instance, no. 

MR. REILLY: No other questions. 

JUDGE KOUTRAS: Mr. Henderson, you said up until 

the time you turned him in to MSHA. Now, when you 

called the MSHA inspectors, you just wanted them 

to come out to examine the workplace, right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: How did that translate to turning 

him in, did you mean by that since he was in charge 

of the mine as the superintendent there, that he 

was responsible? 

THE WITNESS: Well, I didn't mean it to sound like 

I was turning him in. I just wanted somebody to 

come out and look at the mine. 

JUDGE KOUTRAS: When you called the MSHA people, 

did you mention Mr. Feathers' name? 

THE WITNESS: I don't think I did. 

JUDGE KOUTRAS: You just wanted the inspectors to 

come out to look at the scene? 

THE WITNESS: Right. 

On the evening prior to the scheduled start of the hearing, 

it was called to my attention that complainant's counsel had 

"requested" the appearance of two MSHA inspectors for testimony 

at the hearing. Although no subpoenas had issued for their 

appearance, they appeared voluntarily at the hearing, and were 

accompanied by a representative from the Labor Department's 

Kansas City Regional Solicitor's Office (Tr. 110). Since this 

is a "private" discrimination matter, the Solicitor's representative was prepared to interpose an objection to the service of 

the subpoenas on the inspectors in question in accordance with 

the applicable Departmental policy. 

By agreement and stipulation of the parties, the inspectors 

were not called to testify and they were excused (Tr. 110). 

Complainant's counsel stated the following terms of the stipulation in lieu of the in-specters' testimony (Tr. 108-109): 

1206 
The two inspectors are Dean William and Lloyd 

Caldwell, and I would expect them to testify that 

they were notified of this problem Mr. Henderson 

has described at the mine, and they went out to 

inspect the mine. They observed a condition at 

the point where Mr. Henderson said that he refused 

to work where the seam had been scaled down to 

six to eight feet from the face. They considered 

that any problem that had existed had been solved 

by that scaling down. However, they did make 

recommendations that the seams routinely be 

scaled down after the blast or that a protective 

shield of some kind be constructed for the vehicle 

and for Mr. Henderson's safety. 

They would also _testify that they did consider 

this particular seam to be potentially dangerous 

after blasting although they didn't observe it 

other than in the scaled-down condition it was in 

when they arrived. 

They would further testify that it is the duty 

of the miner to inspect and that if the miner, after 

inspecting considers a condition to be hazardous or 

dangerous, that it is then the responsibility of the 

owners or supervisors to see that the condition is 

corrected before the miner goes underneath it, and I 

think we can get the citations for that from the 

Federal Register. 

Respondent's counsel pointed out part of the stipulation 

should include the fact that when the MSHA inspector's came to 

mine in response to Mr. Henderson's request, they issued no 

citations for violations of any mandatory safety or health 

standards, and found no condition which was in any way hazardous 

to Mr. Henderson's health (Tr. 110) • 

. Findings and Conclusions 

The complainant alleges that his discharge was discriminatory in that it was in retaliation for his complaining to MSHA 

inspectors about certain mine conditions which he believed 

were hazardous. In his posthearing brief, complainant's counsel 

states that he is also claiming that Mr. Henderson's discharge 

was in retaliation for exercising his right to reasonably refuse 

work under conditions he considers "eminently dangerous." 

Further, although Mr. Henderson's original complaint made no 

mention of any harassment by mine management, he raised this 

issue during the course of the hearing. Finally, Mr. Henderson 

argues that prior to his discharge no one else was terminated 

for misuse of equipment. At page seven of his brief, 

Mr. Henderson's counsel asserts that "the record abounds with 

evidence of misuse of equipment by other employees." 

120~7 
Alleged Harassment ·and :Intimidation 

I find nothing in the record to support Mr. Henderson's 

assertion that Mr. Feathers harassed or intimidated him because 

of his exercise of any protected safety rights. Mr. Henderson 

could cite no specific instances of hostility or intimidation, 

and he simply concluded that Mr. Feathers accused him of "making 

waves" and "causing trouble." 

Mr. Henderson asserted that Mr. Feathers retaliated against 

him for complaining to MSHA, and he inferred that this took the 

form of requiring him to work overtime. However, Mr. Henderson 

could not substantiate this claim, and I conclude and find that 

the record here does not support any such conclusions. 

I conclude and find that any "hostility" shown by 

Mr. Feathers towards Mr. Henderson resulted from their encounter 

over the low air pressure in the compressor tire, as well as 

their obvious dislike for each other stemming from that incident, 

as well as Mr. Henderson's "opinions" concerning Mr. Feathers' 

supervisory talents as related to Mr. Stanley during their 

conversation after the discharge. After viewing the witnesses 

during the hearing, I find Mr. Feathers' account of the incident 

over the tire to be credible and believable, and I believe that 

he was provoked by Mr. Henderson's conduct, and reacted accordingly. Further, I take note of the fact that Mr. Henderson is 

much younger and physically larger than Mr. Feathers, and that 

after considering their testimony and viewing them on the stand, 

I simply do not believe Mr. Henderson's assertion that 

Mr. Feathers was the aggressor during their encounter over the 

tire incident. 

With regard to any intimidation or harassment against 

Mr. Henderson by the quarry operator (Stanley), for safety 

reasons, there is absolutely no evidence to suggest this was 

the case. To the contrary, while it is true that Mr. Stanley 

ultimately discharged Mr. Henderson, the record shows that 

Mr. Henderson was tolerant and charitable towards Mr. Henderson, 

and even suggested that he and Mr. Feathers attempt to reconcile 

their differences, and Mr. Stanley attempted to mediate their 

differences. However, based on Mr. Stanley's testimony, which 

I find credible and believable, Mr. Henderson became argumentative, and after questioning Mr. Feather's supervisory abilities, 

Mr. Stanley supported Mr. Feather's version as to why he proposed 

to discharged Mr. Henderson, and Mr. Stanley finalized the action 

by firing Mr. Henderson. 

120-8 
Alleged Work Refu:sa:l for Saf·ety Reasons 

Mr. Henderson testified as to two rock falls which occurred 

in his work area. The first occurred sometime in October 1982, 

when a rock ledge formation remained on the ceiling after he 

had finished blasting the area. After returning to the area 

after his lunch break, he found some slabs of rock lying around 

his truck. The rock did not damage his truck, and he estimated 

that the last five feet of the seam which was some 12 feet outby 

the face, had fallen. 

Mr. Henderson testified that the second rock fall occurred 

sometime between November 12 to 15, 1982. After loading on 

half of the heading, he withdrew for a distance of 10 yards, 

and while preparing to set off the shot some thirty seconds 

later, the roof which he had loaded fell. 

Mr. Henderson conceded that at no time did anyone ever 

direct or order him to work under any conditions which he 

believed were unsafe. As a matter of fact, when the first 

fall occurred, Mr. Henderson admitted that he did not tell 

Mr. Feathers or Mr. Stanley about it. When the second fall 

occurred, he testified that he told Mr. Stanley about it, and 

Mr. Stanley advised him not to go under any roof~ seams which 

he believed were dangerous. Mr. Henderson also indicated that 

Mr. Feathers came to the area to look it over, and that 

Mr. Feathers provided him with a bar to test the roof. He also 

indicated that Mr. Feathers instructed him that he was to test 

the roof with the bar from that point on. Mr. Henderson also 

confirmed that after both he and Mr. Feathers tested the second 

half of the shot area and found it to be safe, Mr. Henderson 

loaded it, shot it down, and then went home. 

Mr. Henderson stated that the day after the second fall 

occurred, he returned to work but refused to go under another 

heading because, upon visual observation, he did not believe 

that any attempts had been made to scale the roof. He tested 

it himself with a pry bar, and after "pecking around a bit" 

with the bar from a bucket, he found that the roof was tight, 

but he still refused to go under it because he was afraid that 

it might fall. At that point in time, Mr. Henderson claims 

Mr. Feathers became "irate." However, Mr. Henderson conceded 

that Mr. Feathers did not instruct him to go under the roof, 

and Mr. Henderson claims he then telephoned MSHA Inspector McGee 

the afternoon or evening ·after he returned to work to advise 

him about his refusal to go under the roof and to ask him to 

send an inspector to the mine to "look at the situation." 

1209 
Mr. Henderson asserted that two inspectors came to the mine, 

but that he did not go with them to the area which concerned him, 

and he claims that the inspectors met with Mr. Stanley, and told 

him {Henderson) that his complaint was justified and that there 

was a "potential hazard there." However, Mr. Henderson also 

stated that the inspectors told him that he and the foreman had 

a joint responsibility to see to it that the working place was 

safe. 

Mr. Henderson's counsel stipulated that after the MSHA 

inspectors came to the mine and inspected the area which concerned Mr. Henderson, the inspectors were of the opinion that 

any concern on Mr. Henderson's part had been resolved by the 

scaling of the area. As a matter of fact, the stipulation 

suggests that at the time the inspectors looked at the area 

which concerned Mr. Henderson, the area had been scaled down 

and the inspectors had no basis for making any determination as 

to whether the area was in fact hazardous. This probably 

explains why no citations or violations were ever issued by the 

inspectors. 

When asked about his prior statement in his complaint that 

Mr. Feathers attempted to scale down the ceiling which he 

complained about, Mr. Henderson at first claimed that he could 

not remember making such a statement. He then acknowledged that 

he did make the statement, and he also admitted that the ceiling 

in question was the same one which he initially refused to work 

under. 

Mr. Henderson conceded that when he first informed 

Mr. Stanley about his safety concern with respect to his working 

in any areas of the mine which he believed were not safe, 

Mr. Stanley advised him not to work in any such areas. 

Mr. Henderson also confirmed that Mr. Stanley told him that he 

would never question his decision in this regard, and even 

offered to go with him to inspect any areas of the mine which 

he {Henderson) believed were hazardous. 

With regard to Mr. Feathers, Mr. Henderson conceded that 

Mr. Feathers agreed to inspect the areas which he {Henderson) 

believed were hazardous, and both Mr. Feathers and Mr. Stanley 

inspected these areas, tested them with a bar, and found that 

they were "tight" and safe. As a matter of fact, Mr. Henderson 

himself tested the areas with a bar and found that they were 

tight. It would appear to me that Mr. Henderson's concern for 

the stability of the ceiling stemmed from the fact that since 

part of a ceiling fell near his work area in the past, he was 

concerned that it might fall again. However, on the facts of 

this case, I conclude and find that this concern on his part 

was unreasonable. 

1210 
Mr. Henderson confirmed that prior to November 1982, he had 

loaded 50 to 100 shots, but did not always test the roof because 

he did not have time. He acknowledged that testing the roof was 

part of his responsibility, and he admitted that if he tested 

the roof and found it not to be sound he would still take a 

chance and go under it. 

Refusal to perform work is protected under section lOS(c) (1) 

if it results from a good faith belief that to go ahead with the 

assigned work would expose the miner to a safety hazard, and if 

the belief is a reasonable one. Secretary ·of Labor, ex rel. 

Pasula v. Consol:idation Coal Co., 2 FMSHRC 2786, 2 BNA MSHC 1001 

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

Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir:-1981); Secretary of 

Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 302, 

2 BNA MSHC 1213 (April 1981}; Bradley v. Belva Coal Co., 4 FMSHRC 

982 (June 1982). Further, the reason for the work refusal must 

be communicated to the mine operator. Secretary of Labor ex rel. 

Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (February 

1982). 

On the facts of the instant case, there is absolutely no 

credible evidence to even suggest that Mr. Henderson's discharge 

was in any way connected with his alleged refusal to perform 

work which he believed was hazardous. Prior to the hearing in 

this case, Mr. Henderson never directly asserted that his "work 

refusal" motivated his discharge, and his counsel raised this 

issue during and after the hearing. Even if I were to conclude 

that Mr. Henderson's claim in this regard was a viable one, I 

would still reject it. 

While it is true that Mr. Henderson's refusal to work under 

conditions which he believes to be hazardous is protected 

activity, the refusal must be reasonable. In this case, it 

appears to me that Mr. Henderson wanted mine management to 

guarantee that a mined-out roof would never fall, regardless of 

the area of the mine where Mr. Henderson happened to be at any 

given time. I find Mr. Henderson's position in this regard to 

be unreasonable, and for the reasons which follow, I conclude 

that the respondent promptly addressed Mr. Henderson's safety 

concerns, and did all that was reasonable to accomodate him. 

Based on the credible testimony and evidence adduced in 

this case, Mr. Henderson's perceived safety concerns were 

immediately addressed by mine management, and management did 

everthing reasonably possible to insure that Mr. Henderson had 

a safe working environment. The particular area which concerned 

Mr. Henderson was inspected and scaled by mine management, and 

Mr. Henderson was provided with a scaling bar and detailed 

1211 
instructions as to the procedures which he was to follow to 

insure that the roof was sound. Mine management never 

instructed Mr. Henderson to work in any hazardous areas, and 

the mine operator himself (Stanley) instructed Mr. Henderson 

to withdraw from any areas which he believed were hazardous. 

Further, by his own admissions, Mr. Henderson, on many 

ocassions, often took chances in working under roof conditions 

which were less than desirable, and he never complained or 

brought these conditions to the attention of his supervisors. 

Under the circumstances, Mr. Henderson's assertions that his 

discharge was out of retaliation for his refusal to work under 

dangerous conditions are without foundation, and they are 

rejected. I conclude and find that on the facts of this case, 

Mr. Henderson's asserted refusal to work for safety reasons was 

unreasonable, and therefore not protected activity. 

Mr. Henderson's Safety Complaints and the Alleged Retaliation 

for those complaints 

It is clear that a miner has an absolute right to make 

safety complaints about mine conditions which he believes 

present a hazard to his health or well-being, and that under 

the Act, these complaints are protected activities which may 

not be the motivation by mine management for any adverse 

personnel action against an employee; Secretary of Labor ex rel. 

Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), 

rev 1 d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 

663 F.2d 1211 (3rd Cir."198I'); and Secretary of Labor ex rel. 

Robinette v. United Castle Coal· Co., 3 FMSHRC 803 (April 1981). 

In order to establish a prima f acie case a miner must prove by 

a preponderance of the evidence that: (1) he engaged in protected activity, and (2} the adverse action was motivated in any 

part by the protected activity. Further, the miner's safety 

complaints must be made with reasonable promptness and in good 

faith, and be.communicated to mine management, MSHA ex rel. 

Michael J. Dunmire· a:nd James Estle v. Northern Coal Company, 4 FMSHRC 126 (1982). 

As indicated above, Mr. Henderson's complaints about certain 

working conditions which he believed were hazardous were 

promptly and properly addressed by mine management. Further, 

under the facts of this case, I cannot conclude or find that 

Mr. Henderson's complaints or fears of perceived hazards were 

reasonable. While it is true that there were two rock falls in 

and about his work area, he failed to bring the first one to 

anyone's attention until well after the fact. As for the second 

one, once called to mine management's attention, the problems 

were immediately addressed. 

1212 
With regard to Mr. Henderson's calling the MSHA inspector's 

to the mine~ once there, they inspected the area and found that 

any loose rock had been scaled. While it is true that the 

inspectors may have made certain recommendations, the fact is 

that no citations or violations were issued, and there is no 

credible evidence that mine management disregarded MSHA's 

suggestions or attempted to avoid corrective action. As for 

any suggestion that Mr. Feathers or Mr. Stanley retaliated 

against Mr. Henderson for summoning the inspectors, I find 

absolutely no evidence of record, either direct, or indirect, 

to support any such conclusion or finding. Accordingly, 

Mr. Henderson's assertions in this regard are rejected. 

Alleged Disparate Trea:tment 

At page seven of his posthearing brief, Mr. Henderson's 

counsel states that "no one was previously terminated from the 

mine for misuse of equipment, despite the fact that the record 

abounds with evidence of misuse of equipment by other employees." 

However, counsel fails to cite any such evidence as part of his 

arguments, nor has he cited any references to the record to 

support his conclusions. Counsel simply asserts that "the 

attitude of Mr. Feathers regarding Mr. Henderson's complaint, 

Mr. Feathers' attitude at the time of termination, and the 

relationship in time between the refusal to work and termination 

establish complainant's burden of proof that he was discharged 

in violation of 30 u.s.c. § 815 (c) (1)." 

Mr. Henderson alluded to an accident involving a Mr. Acock 

in which he struck a dump truck with his pick-up truck while 

driving too fast, and he indicated that Mr. Acock was not 

terminated (Tr. 57). Mr. Henderson also mentioned that he had 

observed trucks "hot".""rodded around," and indicated that he was 

not aware of anyone being fired for misuse of equipment (Tr. 58). 

However, Mr. Henderson conceded that he has heard supervisors 

speak to other employees for this conduct, and he admitted that 

he had previously been verbally warned by Mr. Feathers about 

driving too fast (Tr. 59). 

Although mechanic Steve Folsom testified that in the 

5 years he has worked for the respondent few employees have been 

fired, he did indicate that "most of them quit." However, he 

did indicate that a truck driver named "Tracy" was dismissed for 

"tearing up the transmission" (Tr. 117). 

Terry Acock, formerly employed by the respondent as a 

driller, testified about the accident referred to by 

Mr. Henderson. Mr. Acock indicated that he did not intentionally 

run into the truck in question, and that it was an "accident." 

1213 
He confirmed that Mr. Feathers accused him and the other driver 

of speeding,. but that he was not fired over that incident. 

Mr. Acock confirmed further that he was subsequently discharged 

by the respondent, but for reasons unrelated to the accident in 

question (Tr. 123). 

Mr. Feathers explained the circumstances surrounding the 

accident involving Mr. Acock. He stated that Mr. Acock did not 

intentionally wreck the truck, and that he apologized for the 

incident and did not curse him or abuse him. Under these 

circumstances, he did not believe that the facts surrounding 

the Acock accident were the same as those which prevailed when 

Mr. Henderson deliberately operated his compressor truck with 

low tire air pressure (Tr. 152). 

Aside from the accident involving Mr. Acock, Mr. Henderson 

was unable to document any instances of disparate treatment. 

To the contrary, the record here suggests that at least one 

employee was discharged for damaging a truck transmission, and 

that others, including Mr. Henderson, were verbally warned and 

cautioned by Mr. Feathers about speeding and other such 

incidents. Given the fact that the respondent's quarry operation is a small, non-union operation, the fact that the 

respondent has not generally fired many employees is not 

critical. As confirmed by Mr. Folsom, employees usually quit 

rather than being fired, and since Mr. Henderson has the burden 

of proof here, it was incumbent on him to establish any disparate 

treatment by a preponderance of credible evidence. This he has 

not done. Accordingly, his arguments in this regard are rejected. 

Conclusion and Order 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the evidence and testimony 

adduced in this case, I conclude and find that the complainant 

here has failed to establish a prima f acie case of discrimination 

on the part of the respondent. Accordingly, the complaint IS 

DISMISSED, and the complainant's claims for relief are DENIED • 

Distribution: 

. 

7

/~I /} ii. ~~ ~ ,.// ~ 

" i(;'tfc[-:11 A. ouEras 

Administrative Law Judge 

Kenneth J. Reilly, Esq., Beddington & Brown, Security National 

Bank Building, Minnesota Avenue at 7th Street, Suite 100, 

Kansas City, KS 66101 (Certified Mail) 

Bryan E. Nelson, Esq., Alder, Nelson & McKenna, Suite 301, 

825 North Seventh Street, Kansas City, KS 66101 (Certified Mail) 

/slk/fb 

1214 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

MAY 8 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EDDIE HIGGS, d/b/a HIGGS 

TRUCKING COMPANY, 

Respondent 

. . 

Docket No. KENT 83-196 

A.C. No~ 15-10364-03501-A5A 

Preparation Plant 

DECISION 

Appearances: 

Before: 

Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Byron W. Terry, Safety Director, Higgs Trucking 

Company, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This case is submitted for decision on a stipulated set 

of facts and certain exhibits. There is no dispute as to the 

essential facts. Both parties have filed written arguments 

on the applicable law. Based on the record including the 

stipulations and exhibits, and considering the contentions of 

the parties, I make the following decision. 

FINDINGS OF FACT 

Teddy D. Higgs and James E. Higgs (apparently also known 

as Eddie Higgs), his brother, were partners i~ a company known 

as the Higgs Trucking Company. The Higgs Trucking Company was 

an independent contractor doing coal haulage for Golden R. Coal 

Company, Inc. On October 8, 1982, Teddy Higgs was told to 

drive the company truck to Golden R. Coal Company and haul coal 

from the mine to the preparation plant. Teddy Higgs did as he 

was instructed and dumped his load of -coal at the preparation 

plant at about 8:55 a.m. He then moved the truck and raised the 

truck bed in order to grease the rear universal joint. While 

lying across the truck frame he apparently contacted the control 

cable which released the bed. The bed crushed Teddy Higgs 

against the frame injuring him fatally. 

1215 
Following an investigation, MSHA issued a citation charging 

Higgs Trucking Company with a violation of 30 C.F.R. § 77.404(c) 

(Repairs and maintenance were performed on machinery when the 

machinery was not blocked against motion) • Respondent was 

assessed a penalty of $500 for the violation. 

Respondent is a small operator. James E. Higgs, presently 

a sole proprietor, had a gross income of $36,657 in 1982, and 

of $28,000 in 1983. His net profit in 1982 was said to be 

$7,000. Respondent has no history of prior violations. 

ISSUES 

1. Is Respondent, an independent contractor, subject to 

the Act? 

2. Was the deceased partner a miner under the Act? 

3. Is the Partnership liable for a civil penalty for a 

violation of the Act committed by and affecting one of the 

partners? 

4. If Respondent is subject to the Act and liable for the 

violation, what is the appropriate penalty? 

CONCLUSIONS OF LAW 

1. Section 3(b) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 802(b), defines "operator" to include "any 

independent contractor performing services or construction at 

such mine." Section 3(g) defines a "miner" as "any individual 

working in a coal or other mine." The Act thus clearly covers 

Respondent's activities in hauling coal for Golden R. Coal 

Company on October 8, 1982. See Secretary v. Old Ben Coal 

Company, 1FMSHRC1480 (1979); Secretary v. Phillips Uranium 

Corporation, 4 FMSHRC 549 (1982). Just as clearly, Teddy D. 

Higgs who was fatally injured on that date was a miner. Therefore, I conclude that Respondent was responsible to observe the 

mandatory safety standards and was properly cited for a violation of 30 C.F.R. § 77.404(c). 

2. A civil penalty proceeding under the Mine Act is not 

analogous to a civil action for wrongful death. The purpose of 

imposing civil penalties for violations of safety standards is 

to promote safety in the nation's mines, and penalties are 

mandated for violations whether or not the mine operator was at 

fault. Secretary v. Ace Drilling Coal· Company, Inc., 2 FMSHRC 

790 (1980); Secretary v. Nacco Mining Company, 3 FMSHRC 848 

(1981). The mine operator here was a partnership. The mine 

1216 
operator is liable for violations of mandatory standards and 

for resultant civil .penalties. Respondent's arguments, that 

truckers operating on mine sites are not required to have 

hazard training and are not acquainted with MSHA regulations 

are irrelevant. 

3. Although Respondent argues that the imposition of a 

penalty "could possibly effect his staying in business," there 

is no evidence in the record to support this assertion. The 

violation here was extremely serious since it resulted in a 

fatal accident •. The negligence was very great, but perhaps 

should not be charged to the operator. The operator is a small 

operator and has no history of prior violations. 

The tragic circumstances of this case make a substantial 

civil penalty inappropriate, despite the seriousness of the 

violation. The purpose of assessing penalties is to deter 

future violations. The deterrent effect of a monetary penalty 

cannot possibly add to the deterrence which resulted from a 

brother's fatal accident. See Secretary v. R. F. H. Coal 

Company, 5 FMSHRC 1863 (Decision Approving Settlement by 

Judge Steffey 1983) • 

Therefore, applying the criteria in section llO(i) of the 

Act to these facts, I conclude that a civil penalty of $21 is 

appropriate for the violat5 -:m. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, Citation No. 2074514 issued December 17, 1982, to 

Respondent Higgs Trucking Company is AFFIRMED. Respondent is 

ordered to pay within 30 days of the date of this decision the 

sum of $21 as a civil penalty for the violation found herein 

to have occurred. 

Distribution: 

j c:VVl,cu.$ ~Vl)df!A/l~/e._ James A. Broderick 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Byron w. Terry, Safety Director, Higgs Trucking Company, 

P.O. Box 431, Beaver Dam, KY 42320 (Certified Mail) 

/fb 

1217 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-225 

A.C. No. 15-13881-03502 

Pyro No. 9 Slope 

William Station 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

By order of April 20, 1984, I denied the Secretary 

motion to approve settlement of this matter in the amount 

of $20.00 and offered to consider an amended motion in 

the amount of $250.00. On May 4, 1984, the Secretary 

renewed his motion setting forth that the parties had 

now agreed to settle the matter at the amount stipulated 

by the trial judge, namely, $250. 

The premises considered, therefore, it is ORDERED that 

the motion to approve settlement d dismiss be, and hereby 

is, GRANTED, and the captioned m t er DISMISSED. 

Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Pyro Mining Company, P.O. Box 267, Sturgis, KY 42459 

(Certified Mail) 

/ejp 

1218 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

MAY 101984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

·Petitioner 

v. 

TURNER BROTHERS, INC., 

Respondent 

DECISIONS 

Docket No. CENT 83-40 

A.C. No. 34-01241-03501 

Docket No. CENT 83-51 

A.C. No. 34-01241-03502 

Muskogee No. 2 Mine 

Docket No. CENT 83-52 

A.C. No. 34-01357-03503 

Welch No. 1 Mine 

Docket No. CENT 83-54 

A.C. No. 34-01317-03506 

Docket No. CENT 83-55 

A.C. No. 34-01317-03507 

Heavener No. 1 Mine 

Appearances: Allen Reid Tilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; 

Before: 

Robert J. Petrick, Esq., Muskogee, Oklahoma, 

for ·Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety _and Health Act of 1977, 

30 u.s.c. 820(a), seeking civil penalty assessments for 17 

alleged violations of certain mandatory safety and health 

standards promulgated pursuant to the Act. Respondent 

contested the proposed assessments, and hearings were held 

in Muskogee, Oklahoma. The parties waived the filing of 

written posthearing proposed findings and conclusions, but 

their oral arguments made on the record during the course 

of the hearings have been considered by me in the these cases. 

1219 
Issues 

The issues presented in these proceedings are (1) 

whether the violations occurred as stated in the citations 

issued by the MSHA inspector in question, (2) the appropriate 

civil penalties to be assessed for any violations which have 

been established by the preponderance of the evidence adduced 

at the hearings, and (3) whether several of the citations 

were in fact "significant and substantial" as alleged by 

the inspector who issued them. 

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 seq. 

2. Commission Rules, 29 CFR 2700.l et seq. 

Discussion 

The citations and allegations of violations in each of 

these dockets follow below. 

CENT 83-40 

Section 104(a) Citation No. 2076868, March 21, 1983, 

cites a violation of 30 CFR 77.410, and the condition or 

practice cited is as follows: 

The Caterpillar 777 rock haul truck, 

company no. 258, hauling rock from the 

004 pit to the stock pile area would not 

give an automatic audible warning when 

put in reverse. The warning device was 

not in operating condition. Four front 

end loaders, two dozers, three haul 

trucks, and four persons on foot were 

in the area in the pit when this truck 

was being operated in reverse. 

Section 104(a) Citation No. 2076869, March 21, 1983, 

cites a violation of 30 CFR 77.1605(d), and the condition or 

practice cited is as follows: 

The Caterpillar 777 rock haul truck, 

company no. 249, hauling rock from the 

004-0 pit to the stock pile area was not 

provided with an audible warning device 

(front horn) in operating condition. 

Three haul trucks, four frontend loadersj 

and four persons on foot were in the area 

where this truck was being operated. 

1220 
Section 104(a) Citation No. 2076870, March 21, 1983, 

cites a violation of 30 CFR 77.1710-(i), and the condition 

or practice is as follows: 

The caterpillar 966 frontend loader, 

company no. 314, equipped with a ROPS 

operating in pit 004-0 was not equipped 

with seat belts for the operator to 

wear. This loader is operated up and 

down an incline going in and out of the 

pit where there is a danger of it 

overturning. 

Section 104(a) Citation No. 2076871, March 21, 1983, 

cites a violation of 30 CFR 77.1109-(c) (1), and the condition 

or practice is as follows: 

The D-10 Caterpillar bulldozer, company 

no. 818, operating at pit 004-0 was 

not equipped with a portable fire 

extinguisher. 

CENT 83-51 

Section 104(a) Citation No. 2007403, May 3, 1983, cites 

a violation of 30 CFR 71.101, and the condition or practice 

is as follows: 

A valid respirable dust sample taken by 

MSHA 4/19/83 from the operator's cab of 

a Caterpillar D-10 bulldozer operating 

in pit 001-1 (cassette# 40399373), 

showed a respirable dust concentration 

of 1.5 Mg/M3. This sample was sent to 

the Pittsburgh Health Technology Center 

for qu~rtz analysis 4/20/83. The results 

of this analysis indicates a quartz precent 

[sic] of 18%. Therefore, the operator 

was not maintaining the average concentration 

of respirable dust in the atmosphere 

during each shift to which each miner at 

this work position (Designated 001-0, 368) 

is exposed at or below a concentration of 

respirable dust computed by dividing the 

precent [sic] of quartz into the number (10) 

ten as required by section 71.101, Title 30, 

CFR. 

1221 
CENT 83-52 

Section 104(a) Citation Nos. 2076408, 2076411, and 

2076412, were all issued on May 17, 1983, and each cites 

a violation of 30 CFR 77.410. The conditions or practices 

cited are as follows: 

2076408. The Caterpillar 980-C 

Frontend loader operating at Pit 

001-1, cleaning coal was not equipped 

with an automatic warning device 

that would give an audible alarm when 

such equipment was put in reverse. 

No persons on foot in the area at 

the time this violation was observed. 

2076411. The 510-B, PM Grader operating 

at Pit 001-0 cleaning coal was not 

equipped with an automatic warning 

device that would give an audible alarm 

when such equipment was put in reverse. 

No persons on foot in the area at the 

time this violation was observed. 

2076412. The Caterpillar 988-B Frontend loader operating at Pit 001-0 (loading 

rear dump trucks) was not equipped with 

an automatic warning device that would 

give an audible alarm when such equipment 

was put in reverse. No persons on foot 

in the area at the time this violation 

was observed. 

Section 104(a) Citation No. 2076409, May 17, 1983, cites 

a violation of 30 CFR 77.1605(d), and the condition or practice 

is as follows: 

The Caterpillar 980-C operating in 

pit 001-0, cleaning coal was not provided with an audible warning device 

(horn) in operating condition. No 

persons on foot in the area at the time 

this violation was observed. 

Section 104(a) Citation No. 2076410, May 17, 1983, cites 

a violation of 30 CFR 77.1110, and the condition or practice 

is as follows: · 

The fire extinguisher on the 510-B PM 

Grader operating at Pit 001-0 cleaning 

1222 
coal was not being maintained in a 

useable and operating condition in that 

the guage on the fire extinguisher showed 

the fire extinguisher to be discharged. 

Three other fire extinguishers in the area 

at the time this violation was observed. 

CENT 83-54 

Section 104(a) Citation No. 2007402, March 15, 1983, 

cites a violation of 30 CFR 71.100, and the condition or 

practice is as follows: 

The results of (3) valid respirable 

dust samples taken by MSHA 3/08, 09, 

10/83 from the operator's cab of the 

Reed SK35 Drill at Pit 001 show the average 

concentration of respirable dust as 

3.7 Mg/M3. Therefore the operator is not 

maintaining the average concentration of 

respirable dust in the atmosphere during 

each shift to which each miner at this 

work position (Designated 002-0, 384) 

is exposed at or below the allowable 

limit of 2.0 Mg/M3. The Reed SK35 Drill, 

serial number 1061193 is one of (2) two 

drills working at Pit 001 at the time 

these samples were collected. 

The inspector modified the citation on March 23, 1983, 

and the justification for this action states as follows: 

The results of a respirable dust sample 

collected by MSHA 3/10/83 from designated 

work position 002-0, 384 and forwarded 

to Pittsburgh Health Technology Center for 

quartz analysis show a quartz percent of 

33 percent. Therefore, citation number 

2007402 issued 3/15/83 is modified to show 

the respirable dust standard as 0.3 Mg/M3. 

On March 28, 1983, the inspector extended the original 

abatement time from March 25, 1983, to April 5, 1983, and 

the justification for this action states as follows: 

The mine operator removed the Reed SK35 

highwall drill, serial # 1061193 

{Dwp 002-0, 384) from service and replaced 

this drill with a Reed SK35, serial # 

1061206 that is equipped with an air 

1223 
conditioned pressurized cab. Therefore, 

more time is granted to allow the operator 

to collect the five (5) samples required 

by section 71.20l(d). 

On April 11, 1983, the inspector again extended the 

abatement time, to May 11, 1983, and the justification for 

this action states as follows: 

The Heavener Mine No. 1, I.D. # 34-01317, 

was placed in a "B" nonproducing status 

April 1, 1983. Therefore, citation # 

2007402 is further extended to allow 

production to resume before respirable 

dust samples required by section 71.20l(d), 

Title 30 CFR can be collected by the 

operator. 

On April 11, 1983, the inspector modified the original 

citation as follows: 

Citation Number 2007402 issued 3/15/83 

is hereby modified to show the part/ 

section Title 30 CFR as 71.101 (respirable 

dust standard when quartz is present). 

On May 18, 1983, the inspector issued a section 104(b), 

order of withdrawal (2007405) affecting the Reed SK35 

highwall drill at pit 001, and the condition or practice 

justifying this order is shown as follows: 

The results of the five (5) respirable 

dust samples taken by the operator to 

comply with the requirements of section 

71.20l(d), Title 30 CFR indicated3an 

average concentration of 1.6 Mg/M • 

Due to ineffective efforts by the operator 

to control respirable dust in the atmosphere 

of designated work positions 002-0, 

384 at or below the allowable limit of 

0.3 Mg/M3. Citation Number 2007402 is not 

extended. 

On May 18, 1983, the inspector modified the section 104(b) 

order, and on June 1, 1983, he terminated it after compliance 

with the applicable respirable dust standards. 

1224 
CENT 83-55 

All of the citations issued in this case are section 

104(a) citations served on the respondent on June 6, 1983. 

Citation No. 2076969, cites a violation of 30 CFR 

77.1605(d), and the condition or practice is as follows: 

The caterpillar rock truck, company no. 

912 being operated at Pit 001-0 was not 

provided with an audible warning device 

(front horn) in operating condition. 

This truck was hauling top soil and 

other equipment was being operated in 

the area. One rock truck, two frontend loaders,·and one road grader. 

Citation No. 2076970 cites a violation of 30 CFR 77.1110, 

and the condition or practice is as follows: 

The 96 caterpillar bulldozer being 

operated at Pit 001-0 was not provided 

with a fire extinguisher maintained in a 

usable and operative condition. The 

fire extinguisher on this dozer was 

equipped with a guage that showed the 

extinguisher to be discharged. 

Citation No. 2076971, cites a violation of 30 CFR 77.410, 

and the condition or practice is as follows: 

The caterpillar 14G road grader being 

operated on the haul roads at the 

001-0 pit was not equipped with an 

automatic warning device that will give 

an audible warning when the road grader 

was put in reverse. The warning 

device ·was not in operating condition. 

Citation No. 2076972 cites a violation of 30 CFR 77.208(e), 

and the condition or practice is as follows: 

The valves on two compressed gas 

cylinders, one oxygen and one acetylene, 

were not protected by covers. The 

cylinders were located on a portable 

welding machine near pit 001-0. Two 

mechanics were working in this area. 

1225 
Citation No. 2076973 cites a violation of 30 CFR 77.410, 

and the condition or practice is as follows: 

The 988 caterpillar front end loader 

being operated loading coal into trucks 

in the 001-0 pit was not equipped with 

an automatic warning device in operating 

condition that would give an audible 

warning when the loader was pit in 

reverse. Three persons were on foot 

working in the pit where the loader was 

being ·operated. 

Citation No. 2076978 cites a violation of 30 CFR 77.1605(b), 

and the condition or practice is as follows: 

The international coal haulage truck 

operating at pit 001-0 was not equipped 

with a parking brake in operating condition 

in that when the parking brake was set on 

a small incline going into the pit it would 

not hold the truck. 

Testimony and Evidence Adduced by the Parties 

CENT 83-40 

Citation 2066868, 30 CFR 77.410 (Tr. 12-19). 

Inspector Donalee Boatright cited a Caterpillar 777 rock haul 

truck after he asked the driver to back it up and heard no 

backup alarm sound. A horn was on the truck, but it was 

inoperative, and he believed that a wire was loose. The 

truck was taken out of service, and the device was repaired. 

Mr. Boatright stated that he issued the citation at 

9:30 a.m., and that the shift started at 7:00 a.m. He 

indicated that the alarm in question could have been working 

at the beginning of the shift, and it also could have been 

checked at the beginning of the shift. A simple two or three 

minute test is all that is required to test the alarm, and 

he conceded that wires can come loose or that normal wear 

and tear may render them inoperable. 

Mr. Boatright described the pit where the truck was 

at as approximately 140 feet wide. He stated that when the 

truck is loading rock there are two loaders loading it and 

the truck back up to where the loaders are positioned for 

loading. In addition, in another part of the pit "over from 

where the trucks were loading, they were taking out coal." 

1226 
Mr. Boatright stated that if the truck ran over someone, a fatality would occur, and if it struck someone 

" a glancing blow," lost workdays or restricted duties 

would result. He indicated that at the time of the citation, 

there were three or four front end loaders working four 

persons were on foot in the area, and two dozers were in the 

area. At times, the people operating the equipment would 

get off the equipment and would also be exposed to a hazard. 

He indicated that all of this equipment was working "more 

or less in the same area." 

On cross-examination, Inspector Boatright described the 

parameters of the pit area and ramp where the truck in question 

would travel, and he described the pit as approximately 100 

to 140 wide and 250 feet long (Tr. 23). He stated that the 

truck was hauling material out of the pit and traveling to 

a stockpile which encompassed a total trip area of some 2,000 

to 2,500 feet (Tr. 24). He described the travel route of the 

truck and indicated on a sketch (exhibit R-2), where the truck 

would have traveled. He confirmed that the truck would travel 

into the pit area, go by the coal stockpile in a forward 

direction until it reached the face, and would then back into 

the area where two loaders would be waiting to load (Tr. 27). 

He also indicated that on the day he issued the citation, there 

were people on foot in the area where the truck was in reverse, 

and that they were "cleaning coal and-taking coal down there" 

(Tr. 28) • 

Mr. Boatright further explained where the truck was 

operating, as follows (Tr. 29): 

JUDGE KOUTRAS: No, no. Mr. Inspector, 

I think the point Mr. Petrick is trying 

to make is that you've indicated on here 

on the face of your citation is that 

there were four people on foot, and you've 

marked this violation as significant and 

substantial. Now what he's trying to 

determine is whether or not the people 

that you've described as being on foot were 

really exposed to this truck backing over 

them. In other words, were they in the 

immediate vicinity of the truck at the time 

that the truck would normally go into 

reverse? 

THE WITNESS: At the time I saw them, 

they weren't directly behind the 

truck, no, sir, but they were in the pit 

area. 

1227 
JUDGE KOUTRAS: But they were in the 

pit area. All right. 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: All right, that's fine. 

Q. (By Mr. Petrick). But the truck you're 

talking about -- the triple seven truck was 

loading spoil, shale; was it not --

A. Yes, sir. 

Q. rock? Okay. And the coal that they 

were working on was cleaned and ready for 

processing taken out and being cleaned; 

was it not? 

A. They were cleaning and loading it. 

Q. Okay. And what was the distance between 

the time the area where the loaders were loading 

this triple seven truck and the coal area where 

they were cleaning? 

A. I did not measure that. I did not measure 

the distance. 

Q. Do you have a guess? 100 feet, 200 feet? 

A. No, it wasn't. I would say not more 

than 7,500 feet. But it was all in the pit 

area right here (indicating). 

Q. Okay. But my scenario so far as driving 

by the coal pad area is that they were always 

in the forward gear. They did not go into 

reverse until they got by the coal pad, the coal 

area. 

A. That's probably right. 

* * * 

Q. (By Mr. Petrick). Now, Mr. Boatright, right 

before you inspected this truck, did you watch 

the operation for any length of time? 

A. I had probably been an hour and a half or 

so I guess, I don't know. 

1228 
Q. And during that period of time -- well 

let.me ask you this way: Wasn't there two 

992's in the pit taking rock at that 

particular ~ime? · 

A. I believe there was. 

Q. And the tandem that the truck is working 

in, there's three triple seven trucks. One 

pulls in and gets loaded and goes on its way 

to unload the thing. And then the second 

one comes in, backs in, gets its load, goes 

on. The third one backs in, gets loaded, 

and it goes on. By that time the first one 

has dumped and comes back, so you're running 

it in a cycle; is that not correct? 

A. Yes, sir, they run in a cycle. 

Q. Now in addition to that, in the pit 

area there is a grader that takes care of the 

road, there's a water haul truck that takes 

care of -- taking care of the dust and that 

type of stuff on the road. Were they in the 

area? Did you observe them? 

A. Seemed like I saw a road grader, but I 

don't recall the water truck. 

Q. Okay. Now also on the coal scene where 

these four men were working in the area, the 

most immediate piece of equipment to those 

four men was a 966 or 980 loader; was it not? 

A. I believe they was using a 966 loader cleaning 

the coal. 

Q. And it had a back-up horn, it was running 

back and forth all over the place right next 

to those men; wasn't it? 

A. It was running back and forth cleaning up 

coal, yes, sir. 

Q. Okay. And it had a back-up horn and the 

back-up horn was soundinq? 

A. Yes, sir. 

Q. The back-up horns on the two 992's were 

sounding, weren't they? 

1229 
A. As far as I recall they were, yes, sir. 

Q. And the same with the grader when it was 

backing up, wasn't it? What I'm driving at, 

Mr. Boatright, is that at any given period 

of time in that pit is it not a fact that 

all of the other back-up horns were going? 

A. Yes, sir. I think that was the only 

violation of a back-up horn I found. 

Q. And what I'm saying is in the immediate 

proximity the back-up horn is going all the 

time on one of those pieces of equipment. 

So, so far as your gravity of being reasonably 

likely that somebody's going to get run over due 

to the result of this back-up horn not working, 

that's not really true. Because there's other 

back-up horns alerting people all the time in 

that pit in that area? 

A. For the particular piece of equipment that 

it's on it's alerting, but not for the one that 

it's not operating on. 

Q. Well the two 992's are right next to the 

triple seven truck, aren't they? 

A. When a triple seven truck backs under them 

they are, yes, sir. 

Q. And were the back-up horns different so 

far as sound is concerned, so that you can tell 

whether you've got a 992 corning at you or a 

triple seven truck? 

A. I wouldn't say the sound was different. 

Citation 2076869, 30 CFR 77.1605(d) (Tr. 39-44). 

Inspector Boatright confirmed that he issued this citation 

on another Caterpillar 777 rock haul truck at approximately 

9:45 a.rn. after finding that the front horn was inoperative. 

He believed that the problem was caused by a loose wire~ 

and the horn was repaired by 11:00 a.rn. This citation was 

at the same location and area of the previous one (2076868). 

Mr. Boatright stated that the purpose of the horn is to 

warn people and other equipment in the area, and that at 

1230 
the time the citation issued, employees were on the ground, 

but he observed no "near misses," and observed no one 

actually in the path of the truck. However, in his opinion, 

the people and equipment previously testified to "could get 

in the path of this truck." He also believed the probability 

of an injury occurring in this area would be greater because 

of all of the equipment operating there. 

Mr. Boatright stated that simply pushing the horn 

button would indicate whether the horn was working. He 

described the truck as being otherwise "in good shape," 

and that a foreman was in the pit area. 

On cross-examination, Mr. Boatright indicated that 

the truck would not drive over the coal which was being 

cleaned up out of the pit, and he confirmed that when the 

trucks are loaded they would not go faster than five miles 

an hour at the ramp. However, he did not know how fast they 

would travel corning and going from the pit. He could not recall 

whether the pit crew was taken out by pick-up truck or whether 

they walked out, and he stated his rationale for his gravity 

finding as follows (Tr. 51-53): 

JUDGE KOUTRAS: Mr. Petrick, if I may 

interject. Even in your scenario there, 

assuming that was the case, assuming that 

the f orernan brought these three or four 

fellows in the pickup and the trucks come 

by, and these three or four fellows are out 

of the danger zone, if you will, on this 

particular day. The foreman comes back and 

puts them in the pickup truck and he drives 

away. Just at that time here comes a truck 

now with an inoperative horn, then in that 

situation his testimony would probably be the 

samei that the truck, the pickup truck would 

be exposed to a possible hazard of being struck 

by the truck because he wouldn't be able to 

sound his horn; isn't that true? 

THE WITNESS: That's right, if neither one 

of them had brakes or go up there or whatever. 

JUDGE KOUTRAS: That's right. But in my 

hypothetical, with all of these other hypotheticals then, that situation would certainly 

pose a more direct gravity situation than it 

would given the fact that these four guys over 

there working on the coal pile as the trucks go 

by on the road, that's some distance removed; 

isn't that true? 

1231 
THE WITNESS: Yes. 

JUDGE KOUTRAS: Yes, I understand all of 

that. Okay. 

But see, the problem here is that this 

case was assessed based on the description 

as provided by the inspector on the face 

of this citation, and you're trying to 

establish in this hearing is that the gravity 

was less than what MSHA believed it was; 

isn't that true? 

MR. PETRICK: That's right. 

JUDGE KOUTRAS: Okay, fine. 

Q. (By Mr. Petrick)~ Did you also inspect 

this triple seven truck for brakes at the 

same time? 

A. Yes, sir. 

Q. The brakes were in proper working order, 

were they not? 

A. Yes, sir. 

Q. Nothing to prevent the operator from 

stopping the truck in the event that somebody 

were to stray into the path of it? 

A. This equipment -- you can have the best 

brakes in the world on it. When you get one 

of those trucks loaded, you don't stop them just 

like --

Q. Yeah, but in this pit area you're not 

talking about driving more than five miles an 

hour, are you? 

A. No, sir, but I'm not talking -- taking 

long if it runs into somebody, or speeds, or 

somebody walks in front of it. 

Q. Isn't it true with that truck driving 

five miles an hour, just will stop just as 

fast as your automobile in driving it five 

miles an hour? 

A. No, sir, I don't think it would stop as 

fast as you could an automobile with 85 tons, 

as you said, on it. 

1232 
Citation 2076870, 30 CFR 77.1710(i) (Tr. 56-59): 

Inspector Boatright cited a 966 Caterpillar frontend 

loader because it was not equipped with a seat belt. The 

loader was equipped with ROPS (rollover protection), but 

without a seat belt for the operator to wear, there would 

be a danger if the vehicle overturned. The loader was 

inunediately taken out of service and seat belts were ·installed 

within an hour. 

Mr. Boatright stated that the loader traveled up and 

down a ramp which was at a 12-14 percent incline, and that 

the cited standard requires that when equipment is operating 

in· an area where there is a danger of overturning, the operator 

shall wear his seat belt. Here, the loader was not equipped 

with a belt. The only person exposed to any hazard here 

would be the loader operator. Mr. Boatright determined 

that there was no seat belt by a simple visual inspection 

·of the loader. 

On cross-examination, Mr. Boatright stated that the 

cited regulation requires that all loaders be equipped with 

seat belts regardless of what they are doing, and that all 

operators of such loaders must wear the belts (Tr. 60). 

He then stated that the question as to whether the regulation 

would apply would depend on how the loader is equipped, and 

he confirmed that he issued the citation because he believed 

there was a danger of the loader overturning. Even if the 

loader were operating on a level pit area, he would still 

issue the citation because the loader has to use the ramp 

(Tr. 61). He described the loader as being 8 to 12 feet 

wide, and while he did not measure the width of the ramp, 

he estimated that it was probably 50 to 75 feet wide (Tr. 65). 

His interpretation of the regulation is that seat belts are 

required if "there's a possibility of overturning" (Tr. 65). 

Citation 2076871, 30 CFR 77.1109(c} (1) (Tr. 72-76). 

Inspector Boatright cited a D-10 bulldozer for not 

having a portable fire extinguisher. He stated that he did 

not consider this violation "significant and substantial" 

because there was other equipment operating in the area 

that had fire extinguishers on them. A fire extinguish~r 

was obtained from the nearby mine off ice and placed on the 

bulldozer to abate the citation, and this took about ten 

minutes. 

Mr. Boatright confirmed that the cited bulldozer 

was equipped with a "built-in" fire suppression system inside 

the operator's cab, but that the standard still requires a 

portable fire extinguisher. 

1233 
CENT 83-55 

Citation 2076969, 30 CFR 77.1605(d) (Tr. 150-153). 

Inspector Boatright cited a Caterpillar rock haul truck 

at 9:15 a.m., because it had an inoperable front,horn, and 

the respondent repaired it. The truck was hauling topsoil 

to the mine reclamation area, and Mr. Boatright was concerned 

with the fact that if another piece of equipment crossed 

in front of the truck, the driver would have no way of 

warning the equipment operator. He believed that "there could 

be" other equipment operating in the area, and that there 

was a "possibility" that the operator would not see the truck. 

Mr. Boatright confirmed that no employees were exposed 

to any hazards on the ground, but if the truck collided with 

another piece of equipment, "lost work days, restricted duty, 

even fatal" would result. If the condition were to continue, 

he believed that it was reasonably likely that such injuries would 

occur, and he asserted that his instructions are to issue 

"S&S" violations, using this standard. 

Mr. Boatright stated that the shift started at 7:00 a.m., 

and that it was possible that the truck was checked, but 

that he "couldn't say." 

On cross-examination, Mr. Boatright stated that the 

pits at this mine are 150 feet wide and a half mile long, 

and he confirmed that the truck was traveling on a road 

which was 75 feet or more wide, hauling top soil from one 

location to another. He conceded that the roads had more 

than adequate clearance for the trucks to drive around in 

the area in question. He also confirmed that he observed 

no laborers on the ground in any area where the truck was 

operating. He also confirmed that any elevated roadway 

used by the truck would be bermed (Tr. 153-155). 

When asked to explain why his citation stated that four 

people would be exposed to a hazard, he identified two frontend loaders, a road grader, and another truck operating "in 

the area." However, he conceded that the truck would be 

stopped when it was being loaded, and that he was simply 

counting the equipment that was in the area. However, he 

also indicated that he has no way of knowing when any 0£ 

these equipment operators will get out of their equipment 

(Tr. 15 7) • 

Mr. Boatright that the truck and loaders are all equipped 

with seat belts, ROPS, but that he still believed that if 

they collided, the operators would be thrown around the 

1234 
cabs, and possibly through the windshield (Tr. 158). He 

had no idea how fast the equipment would be traveling 

(Tr. 159). His rationale for finding a "significant and 

substantial" violation is reflected in the following bench 

colloquy (Tr. 162-163): 

Q. But I get the impression that what 

you've found in this case, as in the 

others, you saw other equipment working 

in the pit. You saw men that were 

operating that equipment, and you figured 

that at some point in time during the 

mining process it's all together possible 

that some fellow may get out of his equipment and walk across the road, or a piece 

of equipment might get over close to a 

truck, and that therefore this is why they 

should have horns and back-up alarms. 

And since they didn't have them, this is 

why you found the gravity that you found; 

isn't that true? 

A. Yes, sir. 

Citation 2076970, 30 CFR 77.1110 (Tr. 168-169). 

Inspector Boatright cited a 9L Caterpillar Bulldozer 

after observing that a fire extinguisher on the machine 

was not charged. He determined that it was not charged by 

observing "a guage indicating that it had been discharged, 

and the pin was pulled." A fire extinguisher is needed in the 

event of small fires on the machine, and since fire extinguishers 

were available on other equipment in the area, he marked 

the negligence "as low and unlikely." He confirmed that the 

machine operator tested the extinguisher and determined 

that it had been discharged. 

Citation 2076971, 30 CFR 77.410 (Tr. 170-171). 

Inspector Boatright cited a 14-G Caterpillar road 

grader after finding that the back-up alarm was inoperative. 

The grader was operating in the pit haul road and spoil 

areas, and he found the gravity to be "low" because the 

machine is seldom put in reverse. The condition was corrected 

within two hours. 

Citation 2076972, 30 CFR 77.208(e) (Tr. 171-175). 

Inspector Boatright cited an oxygen and an acetylene 

gas cylinder stored in a trailer near where two mechanics 

1235 
were working on a bulldozer which had unprotected valves. 

The cylinders had no guages or hoses, and the protective 

covers had not been put back on them. The covers were 

immediately replaced, and they were located next to the 

cylinders. He assumed that the mechanics had used the 

cylinders and left the covers off. 

Mr. Boatright indicated that the cylinders were vertical, 

and that if the valves were knocked off by a piece of equipment or someone hitting them, the tank could be ruptu~ed. 

He believed the. negligence was "moderate" in that the pit 

foreman or superintendent should have discovered the conditions. 

On cross-examination, Mr. Boatright confirmed that the 

cylinders were immediately adjacent to each other and they 

were the only ones in the trailer (Tr. 175). He did not 

speak with the mechanics, and he indicated that the cylinders 

were secured by a chain which was around them. Although he 

did not ascertain what was in the cylinders, he indicated 

"they weren't empty cylinders, they were full" (Tr. 177). 

However, based on his interpretation of the standard, he 

would have cited the cylinders regardless of whether they 

were full or empty (Tr. 178). 

Mr. Boatright confirmed that he observed no one actually 

using the cylinders, and when asked to explain his "significant 

and substantial" finding, he stated as follows (Tr. 180-186): 

Q. Your testimony is that he said that they 

were full? 

A. I asked him if the cylinders were empty 

or full, but I would have still cited those 

cylinders if they had been empty. 

Q. If he told you that they were empty, you 

would have still cited him; is that what 

you're telling me? 

A. That's exactly 

Q. And what kind of gravity finding? 

A. I wouldn't have cited them if they had --

Q. I'm not trying to c~nfuse you, I'm trying 

to understand. Go ahead. 

A. It says they will be protected by covers. 

1236 
Q. That's right. 

A. It don't say whether they're empty or --

Q. That's right. But if he'd told you they 

were empty, you would have cited them because 

they didn't have the covers on them; right? 

A. Yes, sir. 

Q. But what kind of a gravity finding would 

you have made? 

A. There wouldn't have been too --

Q. And why? 

A. It was in violation of the standard. 

Q. And why would there not have been too much 

of a gravity finding? 

A. Because there wouldn't have been any hazards. 

* * * 

Q. Did you ever observe those mechanics or anybody 

else using those cylinders? 

A. Not that particular day, no, sir. 

Q. Would you tell me again what factors went 

into your determination that there was a significant 

and substantial danger as a result of those 

covers being off those cylinders? 

Let me make sure -- we stopped in the middle of 

things. They were secured, were they not? 

A. Yes, sir. 

Q. And were standing? 

A. Yes, they were standing. 

Q. And up off the ground so that normal activity, 

if somebody walking on the ground, it would have 

been very unlikely that the top of those cylinders 

would have been touched? 

1237 
A. A possibility it could have been. 

Q. How far were those two mechanics away 

from these cylinders? What was the distance 

between the mechanics and the cylinders? 

A. I'd say the trailer was SO, 60 feet 

away from where they were working. 

Q. SO, 60 feet away from where they were 

working? · 

A. Yes. 

Q. And how far away was the bulldozer they 

were working on? Further away than that? 

A. That was about where the bulldozer was 

at in relation to where --

Q. Is there anything in between the bulldozer, the mechanics and those cylinders? 

A. Not at that particular time, no, sir. 

Q. Did you observe any other activity in the 

area at the time? 

A. This is in the pit area, backed up behind 

the pit area. They haul in the pit area where 

this was at. 

Q. Yeah, but you've got a pit that's a half 

a mile long? 

A. Yes. 

Q. '"was there any other equipment in the immediate 

area of this trailer? 

A. Not right in the immediate area, no, not right 

by it. 

* * * 

Q. Tell me what factors·you used to determine 

that we were had a significant and substantial 

violation? 

A. Well I felt like the negligence on the thing 

was moderate, because you had a supertendent in 

the area and there was a pit foreman working there, 

and they should have saw these things not being on it. 

1238 
* * * 

Q. Well that's -- let me get back to what I 

asked you before. You didn't determine how --

when it had last been used, or whether it was 

getting ready to be used; did you? 

A. I'm sure it wasn't being ready to be used. 

If it was, it shouldn't have been off anyway. 

They should have put the guages on it they were 

going to use it. There were no guages there to 

even put on it. 

Q. Well how much is involved in putting a set 

of gauges on that thing? How much time? 

A. Very little time. 

Q. A minute and a half? 

A. I'd say probably. 

* * * 

Q. Okay. What other factors to into being 

significant and substantial? 

A. If it continued to stay there, I'd say it 

would be reasonably likely that something would 

happen with the equipment there. 

Q. Like what? 

A. Like people working in this area. Your 

mechanics are working on the equipment and driving 

around, yes, sir. 

Q. But you didn't observe any of that. All 

you're talking about is -- getting back to this 

same standard that you've heretofore testified --

you're speculating that something like that might 

happen. You didn't actually observe that in 

any way, shape or form? 

A. No, sir, not right next to it. 

Q. Nearest· the thing that you observed to those 

two cylinders was 60 feet away? 

A. Approximately 60 feet. 

1239 
Citation 2076973, 30 CFR 77.410 (Tr. 193-196). 

Inspector Boatright cited a 988 Caterpillar frontend 

loader at 11:00 a.m. after determining that the back-up 

alarm was inoperative when the equipment was ope,rated in 

reverse. The loader was loading coal out of the pit and 

into the truck, and it operated forward and in reverse 

during this loading process. Three people were on foot 

in the area where coal was being loaded, and he believed 

it was "possible" and "reasonably likely" that these people 

would be in the path of the loader while it was in reverse. 

One of the individuals was a coal foreman, and the other 

two were cleaning around the coal with shovels, and they 

were working close to the loader. However, he saw no one 

actually step behind the loader or "almost get run over." 

The alarm was repaired that same day, and he believed the 

pit foreman should have noted that the back-up alarm was not 

working. 

On cross-examination, Mr. Boatright did not believe 

the loader operator ever operated the loader more than five 

miles an hour, and at all times the employees were either 

in front or on the side of the machine, and when asked to 

explain his "significant and substantial" finding, he stated 

as follows (Tr. 198-202): 

Q. So taking into account your observation 

of Turner Brothers operation, there's 

no reason for any of those workers that 

you've denominated there, to be behind that 

loader in any way, shape or form? 

A. I don't know that those loaders are 

going to always be where they're at on that 

coal when they're in that pit area. 

Q. Well we're back to the same situation 

we've-been in before. I'm talking about 

your observation at that particular time? 

A. I did not see one behind the loader at 

that particular time, no, sir. 

Q. But yet you say there's a reasonable 

likelihood that one of those people are going 

to be hurt, and I don't understand how, if 

they're not· behind it. Are you telling 

me that one of them might get away and wander 

over there because he doesn't have anything 

to do, and just get behind that loader and 

get run down? Is that what you're telling 

me? 

1240 
A. I'm telling you it's possible when you 

have people on foot in the area, when there's 

equipment like that. 

Q. Have you ever seen a laborer in Turner 

Brothers' organization stand around not doing 

anything? 

A. No, sir, not too often, or anyone else. 

Q. They all got a job to do and there's somebody out there making sure they're doing it; isn't 

there? 

A. Yes, sir. 

* * * 

Q. Okay. Now you've checked the box with regard 

to significant and substantial. Again, what 

factors went into your determination from this 

particular case -- on this particular case as 

to what other factors had caused you to check 

that box? 

A. I think it would be reasonably likely if 

this loader continued to operate like this and 

backed over someone, that you would have a serious 

accident or a fatality. 

Q. But here's nobody in the area, nobody's job 

in the area, that would -- that you've testified 

about, that would indicate that you saw anybody, 

or there was -- in other words, what I'm started 

to say, and I lost the train of thought of this 

sentence. But unless somebody went over there 

and was goofing off or not doing his job, there 

would be no likelihood at all that anybody's 

get hurt as a result of that back-up horn being 

inoperable; is that correct? 

A. Like this pit -- you were talking about this 

pit corning down the side, coming out here 75 feet 

and loading the coal. When you're taking this 

1241 
coal ~nd coming out here, this loader's 

backing up here. You don't know whether 

somebody's going to walk back and forth between 

it when you've got people on foot in that area, 

whether they're going to walk back in that area 

or not, or passing by there or something. 

Q. Okay. But you've had enough observation 

at Turner operation that there's nothing for 

anybody on foot to do in that area where the 

coal has ~lready been taken? 

A. They could be walking back through that 

area to come out of the end of the pit. 

Q. For what purpose? 

A. To get out of the pit. If they had to get 

out of the pit for some reason. 

Q. They could have walked across the coal seam, 

too, couldn't they? 

A. They sure could have. Or they could have 

walked between the loader and the highwall 

there it could have backed in there. 

Q. What other factors went into your determining 

that there was a significant and substantial 

hazard? 

A. Well I think if it continued, it would be 

reasonably likely it would happen. And I've heard 

Q. You said that? 

A. Sir? 

Q. You said that before? 

A. I think if it occurred, you would have loss 

of workdays or restricted duty. That was the 

determination that I marked. 

Q. And that's all the factors that you've taken 

into account in checking the box that says there 

was a signfficant and substantial hazard, or was 

reasonably likely so far as your gravity is concerned? 

A. Yes, sir. 

1242 
Citation 2076978, 30 CFR 77.1605(b) (Tr. 203-207). 

Inspector Boatright cited an International coal haul 

truck after he had the driver stop it on a small incline 

and set the parking brake. The brake would not hold the 

truck, and it rolled. The condition was corrected. 

Mr. Boatright stated that the truck had been operating 

on level ground for two days and that a mechanic told him 

that a valve was not working. Mr. Boatright went to inspect 

the truck, and it appeared that it had been put back into 

service without the parking brake in operating condition. 

Mr. Boatright stated that he never observed th~ truck 

parked where he tested it, and he indicated that the truck 

is not parked "too much." However, when the truck is not 

hauling coal, and when the driver is having lunch, it is 

parked on the north side of the pit. He believed that all 

of the trucks are shut down for lunch. 

Mr. Boatright did not believe the pit superintendent 

was negligent because he thought the parking brake was 

probably working, and that "it could have been." However, 

the mechanic told Mr. Boatright that the truck had "an 

old rusty-looking valve" that did not appear to be working. 

Mr. Boatright believed that the violation was "significant 

and substantial" because "the likelihood of an injury 

occurring could be reasonably likely if this condition 

continued to occur." 

On cross-examination, Mr. Boatright stated that the 

parking areas where the trucks park for lunch is "fairly 

level," but that there are some areas in the pit, which are 

not on level ground, where the truck could be parked. He 

also confirmed that the area where the truck was parked and 

being worked on for two days was "fairly level," and he 

confirmed that he has not seen many trucks roll as the result 

of a defective parking brake (Tr. 207-209). 

Mr. Boatright conceded that the parking areas used 

by the trucks during the lunch break are on level ground. 

He also conceded that when the trucks are parked at the· end 

of the shift they are all parked in a row on level ground. 

Mr. Boatright's reasons for a finding of "significant 

and substantial," is reflected in the following bench colloquy 

(Tr. 211-212): 

1243 
MR. PETRICK: I'm having a terrible difficulty, 

your honor, with understanding his reasoning for 

checking the significant and substantial hazard 

situation. 

JUDGE KOUTRAS: Well I don't have any difficulty 

understanding why he did it in this case. The 

truck didn't have a parking brake. The standard 

says it should have one. I'll correct the 

inspector, if I will -- but that's not his fault 

-- he says the standard requires you to have one 

in working order. It says no such thing. It 

just says to be equipped with parking brakes. 

But there are decisions that say if it's not in 

working order, it's like not having one. 

MR. PETRICK: All right. 

JUDGE KOUTRAS: Maybe the standard should read, 

"it also shall be equipped with operable parking 

brakes," but it doesn't. So I'll give you that. 

I mean, if they're not operating, it's like not 

having them. 

And the reason he found it was S and S is because 

he found that if this truck happened to be parked 

on an incline and got away due to a faulty brake, 

it would more than likely run into something. 

Assuming that something was there -- and it didn't 

have them -- a collision and an injury. And 

that's why he considered it to be significant 

and substantial; isn't that true? 

THE WITNESS: Yes, sir. 

MR. PETRICK: What I'm trying to point out with 

his testimony is, there's no likelihood it would 

be parked on an incline. 

JUDGE KOUTRAS: You may prevail on the finding 

that this may not be S and S. But he's already 

told you why he felt it was S and s. You're 

not going to change his mind. 

You're free to develop your own record as to the 

factors that you feel he should have considered 

and were not present. 

1244 
Mr. Boatright clarified the circumstances under which 

he cited the truck, as follows (Tr. 212-214): 

JUDGE KOUTRAS: Let me just ask: What 

called your attention to this particular 

truck in the first place? 

A. I was on a general inspection, Your 

Honor, and we have to check every piece of 

equipment down there. And I was checking the 

truck when it come into the pit. The parking 

brake is one of the things you check on your 

general inspection when you're checking the 

truck. 

Q. Okay. Now on a general inspection, the 

parking brake is one of the things. But this 

truck -- you took him to an incline to check 

to see whether he had the parking brakes; is that 

right? 

A. Yes, sir. 

Q. Did you know in advance that there was 

something wrong with the parking brake? 

A. No, sir, I sure didn't. 

Q. Well what's this business about the truck 

had been down for a repair for a couple of days? 

A. Something else was wrong with it -- this 

particular truck. I'd been there for two days 

on the inspection, and the point I'm saying, 

is that it should have been working after it had 

been down for two days. The parking brake was 

not i~ operating order. 

Q. What I'm saying is, the truck was down 

for repairs for two days. And after they repaired 

it is when you decided to check it out? 

A. I had not checked the truck during the general 

inspection. And also the law ·says I ought to check 

each piece of equipment that's operating, during 

the general.inspection. 

And they put it back into operation, and I didn't 

check the equipment until the operator put it 

back into operation. 

1245 
Q. Okay. And that's why you decided to 

check it is because of your general --

A. Yes, sir. 

Q. And in order to check the parking brake 

to see whether it works or not, you're not 

going to check it on level ground; right? 

A. No, sir. 

Q. So you had the driver -- what? -- take 

it to an incline? 

A. It was on an incline going down into the 

pit, and I checked it there. 

Q. Were you in the cab with him? 

A. No, sir, I was standing outside. 

Q. And you had him stop the truck on an incline? 

A. Yes, sir. 

Q. Was it full 

A. Checked the parking brake. 

Q. Was it full or empty? 

A. It was empty. 

Q. The truck was empty? 

A. It was stopped on an incline. 

Q. And you had him set the brake? 

A. Yes, sir, and it would not hold. 

CENT 83-51 

Inspector Boatright testified that he took some dust 

samples with an M.S.A. Dust Pump, and that he followed MSHA's 

usual procedures and instructions in doing so. He confirmed 

that he took some dust samples, and also made a noise survey 

when he was at the mine on March 21, 1983. He gave the samples 

to MSHA Inspector and Health Officer James Cameron, but could 

not recall how many samples he took, and he did not have his 

records with him at the hearing (Tr. 78-80). 

1246 
When asked whether he took the samples on April 19, 1983, 

Mr. Boatright stated that he was not sure about the date, 

and indicated that he would have sampled whatever equipment 

was operating when he was there. This would have included 

a D-10 bulldozer, loader, truck, scraper, and a drill, if 

it were operating. He was not sure as to how many equipment 

samples were taken (Tr. 81). 

Mr. Boatright explained his dust testing procedures, 

and he indicated that after he places the testing device 

on a particular piece of equipment, he will check it periodically 

during the course of the 8 hour shift. After removing the 

dust cassette, he plugs them, and places them in their 

respective containers with a dust record card and takes them 

to his office in McAlester, and the samples are never out of 

his possession during their transit to the office. He either 

personally gives them to Mr. Cameron, or leaves them on 

his desk or takes them to the laboratory if Mr. Cameron is 

not at the office. Mr. Boatright does not handle them or 

see them after this (Tr. 83-84). 

MSHA Inspector Jemes D. Cameron testified as to his 

background and experience, and he testified as to the procedures 

which he followed in processing the dust cassette obtained 

by Inspector Boatright during his inspection. He confirmed 

that he sent the cassette to MSHA's Pittsburgh laboratory 

for processing and that he did so following MSHA's procedures. 

After receiving the results of the testing, he issued citation 

2007403, because the test results indicated that the respondent 

was out of compliance with the applicable dust standard. He 

confirmed that the quartz content percentage was high 

(Tr . 8 5-9 2 ) • 

Inspector Cameron did not know how many samples 

Inspector Boatright may have taken on the day of his inspection, 

and he confirmed that with the exception of the one sample 

which showed a high presence of quartz, the other samples 

were in compliance (Tr. 100). He also confirmed that he did 

not send in other samples for MSHA laboratory analyses because 

there was insufficient quartz weight gain to show any 

substantial presence of quartz (Tr. 101). 

Inspector Cameron identified exhibit P-3 as a copy of 

an MSHA computer print-out showing the results of MSHA's 

Pittsburgh laboratory testing (Tr. 106). He explained that 

under MSHA's new quartz standards, if a particular piece 

of equipment which was tested indicated a presence of quartz 

in excess of the acceptable 0.5 level, a citation would be 

issued. In this case, the concentration of quartz was shown as 

1247 
1.5, and even though it was based on one sample, under MSHA's 

instructions a citation would issue, and that is why he 

issued the citation in this case (Tr. 115). Since the one 

sample in question showed 18 percent of quartz, the testing 

indicated a concentration of 1.5, and that was sufficient to 

establish a violation under MSHA's interpretation of the 

standard (Tr. 117). MSHA's counsel took the position that 

under the cited standard, one sample which is out of compliance 

is suffucient to establish a violation (Tr. 125). 

Respondent's Testimony and Evidence 

William T. Turner, confirmed that he is the President 

of the respondent company, and is responsible for the 

supervision of all mining operations. He testified as to his 

education, and his mining experience, and confirmed that 

respondent operates four mines in the State of Oklahoma. 

He testified as the company safety program, daily safety 

inspections, and he stated that the Muskogee number two mine 

is comprised of a "group of pits," and he diagramed what 

the mine looked like (exhibit R-2; Tr. 132-135). He also 

described the operation of the mine in question, including 

the mining cycle and development of the pits (Tr. 135-138). 

Mr. Turner went on to describe the operation of the cited 

trucks, and he indicated that the roadway where the trucks 

traveled were approximately 75 feet in width. He stated that 

under normal operating procedures, there would be no laborers 

on foot, and he indicated that the location where coal being 

loaded would be 75 to 100 feet from where trucks would be 

passing by (Tr. 140). He also indicated that if any trucks 

were in the coal loading area, they would be backing away 

from any trucks which may have been in the area, and that 

laborers would have no reason to be behind any of these trucks 

(Tr • 141-14 2 ) • 

CENT 83-54 

MSHA Inspector James D. Cameron testified as to his 

mining background, experience, and training, and he confirmed 

that he issued Citation No. 2007402, on March 15, 1983. He 

also confirmed that he took three respirable dust samples 

from the operator's cab of the Reed SK-35 Drill on March 8, 9, 

and 10, 1983, in accordance with his usual practice and 

procedures, and that he tested the samples and found that 

average concentration of respirable dust exposure for that 

piece of equipment and operator was 3.7 milligrams per cubic 

meter of air. Since the mandatory requirements of section 

71.100, require that respirable dust exposure be maintained 

at or below 2.0 milligrams, he cited the ~espondent with a 

violation of that mandatory section, and fixed a reasonable 

time for abatement. 

1248 
Inspector Cameron explained that the three samples which 

he took to support his citation were mailed to MSHA's Pittsburgh 

dust laboratory for quartz analysis pursuant to MSHA's usual 

practice and procedures. He stated that his local MSHA 

district office has no testing capabilities for determining 

the presence of quartz in the dust samples which he took. 

He stated that if any dust samples contain more than five 

percent quartz, a new co~pliance standard is then established 

pursuant to section 71.101. 

Inspector Cameron stated that the first sample of 

March 8, 1983, was rejected by MSHA's Pittsburgh laboratory 

because it was somehow defective. The second sample taken 

March 9, 1983, reflected the presence of 15 percent quartz, 

and the last sample taken on March 10, 1983, indicated the 

presence of 33 percent quartz. Under MSHA's policy guidelines 

and procedures, the last sample in a series where quartz is 

detected is used to compute the new compliance standard. 

In the instant case, the last sample showing 33 percent quartz 

was computed pursuant to section 71.101, to establish 

the new dust compliance standard for the cited drill as 

0.3 milligrams per cubic meter of air, rather than the initial 

standard of 2.0 milligrams per cubic meter of air as stated 

in section 71.100. Under the circumstances, he modified his 

original citation on March 23, 1983, to cite the respondent 

with a violation of section 71.101 rather than 71.100. 

Inspector Cameron stated that after he modified his 

citation, he extended the abatement time after the respondent 

removed the cited drill and replaced it with another one 

which was equipped with a pressurized air conditioning unit 

in the operator's cab. He extended the abatement time so 

as to permit the respondent time to collect five dust samples 

so as to determine whether the replacement drill was in 

compliance with the newly established standard of 0.3 milligrams. 

Subsequent samples indicated an average dust concentration 

of 1.6 milligrams, and since this did not achieve compliance, 

he decided to extend the abatement time further, and issued 

a section 104(b) order. He modified the order the same day 

in order to allow the respondent additional time to install 

a "Hupp Aire cab pressure system" on the drill, and after this 

was installed and additional samples taken, the respondent 

achieved compliance by lowering the dust concentration for 

the drill to 0.2 milligrams per cubic meter of air (Tr. 217-225). 

Inspector Cameron confirmed that the dust samples which 

he took on March 8, 9, anq 10, 1983, indicated the average 

concentration of respirable dust to be 3.7 milligrams, and he 

also confirmed that these test results were from his own 

personal weighing which he conducted at MSHA's laboratory 

1249 
in McAlester (Tr. 226). The sampling for quartz content 

was conducted by MSHA's laboratory at Pittsburgh, but his 

laboratory tests pursuant to section 71.100 indicated the 

presence of respirable dust in excess of the required 2.0 

amount (Tr. 227). He confirmed that the sample results of 

7.3, 2.2, and 1.8, were processed by him and since they 

indicated an average concentration of 3.7, he issued the 

citation (Tr. 228). In short, he confirmed that his sampling 

of the dust exposure on the cited Reed SK 35 highwall drill 

indicated noncompliance, and that is why he issued the 

citation (Tr. 229). He confirmed that the drill was taken 

out of service and replaced with another one (Tr. 230). 

Findings and Conclusions 

Jurisdiction 

MSHA Inspector Donalee Boatright testified that the 

respondent operates a surface strip mining operation and 

at one time actively mined at four strip mine locations. 

One of the locations ceased mining operations approximately 

three or four months prior to the date of the hearing. 

Mr. Boatright testified that respondent's mining 

operations includes the stripping of overburden and top soil, 

the blasting of rock, the stripping of the exposed coal seam, 

and reclamation of the mined-out pit areas. Mr. Boatright 

estimated the respondent's annual coal production as between 

500,000 to 750,000 tons, and he estimated that the respondent 

employs a total workforce of 40 miners working on rotating 

shifts, seven days a week. 

Mr. Boatright also confirmed that the coal mined by 

the respondent is shipped out of state, and that the respondent 

is regularly inspected by MSHA pursuant to the Act (Tr. 8-11). 

He also conf irrned that the mine has an MSHA identification 

number, and that he has inspected it on previous occasions 

(Tr. 18-19) • 

Mr. Boatright stated that mining at the respondent's 

Muskogee mine ceased sometime in late 1983, and that when 

the mine was operational, it worked seven days a week, 

12 hours a day. Respondent's other mines are still operating 

(Tr. 11). 

Respondent's Pre~ident, Torn Turner, confirmed that his 

company uses approximately 70 pieces of major mining equipment 

1250 
such as trucks, loaders, and bulldozers, and 30 pieces of 

other equipment in its mining operations .. He also confirmed 

that the coal produced is shopped out of state and that his 

mining operation is nonunion (Tr. 146). 

Although the respondent entered a general denial of 

jurisdiction, it did not reassert this issue during the 

hearings, nor has it advanced any arguments that it is not 

a "mine" subject to petitioner's enforcement jurisdiction. 

I conclude that the testimony here indicates that the respondent 

is a mine subject to the Act and to MSHA's enforcement 

jurisdiction. 

Stipulations 

The parties stipulated as to the accuracy of the dates~ 

times, and places where Inspector Boatright issued his 

citations, as well as to the fact that they were served 

on the respondent's representative as shown on the face 

of the citation forms (Tr. 57). 

Fact of Violations - Docket CENT 83-40 

I conclude and find that MSHA has established by a 

preponderance of the evidence that the cited Caterpillar 

777 rock haul truck had an inoperative back~up alarm, that 

a second truck had an inoperative front horn, and that the 

cited D-10 Caterpillar bulldozer was not equipped with a 

portable fire extinguisher. Accordingly citations 2076868, 

2076869, and 2076871 are all AFFIRMED. 

With regard to the citation concerning the lack of a 

seat belt on the cited front end loader, the cited standard 

section 77.1710-(i) requires that.seat belts be provided 

in a vehicle where there is a danger of overturning and 

where roll protection is provided. Here, the loader in 

question was provided with ROPS and the inspector believed 

there was a danger of overturning because the loader had 

to travel up and down a ramp which was at an incline of 

some 12 to 14 percent. He described the width of the ramp 

as 50 to 75 feet, and the width of the loader as 8 to 12 

feet. 

The standard in question contains two conditions 

precedent which must be met before seat belts are required. 

The standard does not require seat belts for allvehicles, 

nor does it require seat belts for vehicles equipped with ROPS. 

The inspector must first make a finding that there is a 

danger of overturning before he can require that seat belts 

be installed on ROPS-equipped vehicles. 

1251 
In this case, when asked whether or not he issued the 

citation simply because he found that the loader had to travel 

up and down a ramp, Inspector Boatright replied "where there 

was a danger of overturning, yes sir" (Tr. 62). When asked 

whether he would have issued the citation if the loader 

where operating on "flat ground," Mr. Boatright stated that 

he would not. He clarified this answer by stating that 

since the loader had to travel up and down the ramp, he 

believed there was a "possibility" of overturning, and that 

is why he issued the citation. As a matter of fact, Inspector 

Boatright stated that his interpretation of the standard 

is that a seat belt is required whenever "there is a possibility 

of overturning." However, the standard does not state this 

proposition. The standard says that seat belts are required 

when there is a danger of overturning. In my view, the 

question of whether such a danger exists depends on the facts 

presented at any given time. 

On the facts of this case, I cannot conclude that MSHA 

has established that there was a danger of the loader 

overturning. I am convinced that the inspector issued the 

violation simply because the loader in question was equipped 

with ROPS, and that it traveled up and down the ramp. It 

seems to me that if MSHA wishes to require seat belts for 

every vehicle which is equipped with ROPS and which happens 

to travel up and down an incline it should specifically say 

so in its standard. Here, the standard only requires a 

ROPS equippped vehicle to have seat belts if there is 

danger of _overturning. Based on the testimony here, I 

cannot conclude that MSHA has established that there was 

a danger of the loader overturning. Simply because it 

traveled up and down a ramp is insufficient evidence to 

establish that it would overturn. The evidence here establishes 

that the ramp was of sufficient width to allow the loader 

to go up and down without being exposed to other traffic, 

there is no evidence as to how fast the loader traveled, 

the conditions under which it traveled the ramp, nor is 

there any testimony from any loader operators as to whether 

or not they were in any danger. In short, I conclude that 

the inspector issued the citation here because he believed 

that a ROPS-equipped vehicle had to have a seat belt. Under 

the circumstances, the citation IS VACATED. 

Fact of Violations - CENT 83-51 and CENT 83-54 

I conclude and find that MSHA has established by a 

preponderance of the evidence that the allowable respirable 

dust level for the tested Caterpillar D-10 bulldozer 

operator exceeded the requirements of cited mandatory standard 

1252 
section 71.101. Respondent's evidence did not rebut the findings of the inspector, and although respondent questioned the 

validity of MSHA's testing procedures, he withdrew his objections when the inspector agreed that the violation was not 

"significant and substantial." 

I find that Inspector Boatright's testimony concerning the 

procedures he followed in conducting and taking the dust samples 

to support his citation to be credible. Accordingly, Citation 

No. 2007403, issued in Docket No. CENT 83-51, IS AFFIRMED. 

With regard to Citation No. 2007402, issued by Inspector 

Cameron in Docket No. CENT 83-54, I conclude and find that MSHA 

has established by a preponderance of the evidence that the 

allowable respirable dust level for the tested Reed SK 35 Drill 

operator exceeded the requirements of cited mandatory standard 

section 71.101 (as amended by Inspector Cameron on April 11, 

1983). Respondent's evidence did not rebut the inspector's 

findings, and I find that Mr. Cameron's testimony regarding his 

testing procedures, as well as his detailed explanation of the 

application of the cited section to be credible. Accordingly, 

the citation IS AFFIRMED. 

Fact of Violations - Docket No. CENT 83-55 

I conclude and find that MSHA has established by a preponderance of the evidence that the cited No. 912 rock truck had 

an inoperable front horn, that the 14G road grader had an inoperable back-up alarm, that the 988 front end loader had an 

inoperable back-up alarm, and that the 96 bulldozer was equipped 

with a fire extinguisher which was not usable or operative. 

Accordingly, Citations 2076969, 2076971, 2076973, and 2076970, 

are all AFFIRMED. 

With regard to Citation No. 2076978, concerning an inoperative parking brake on a coal haulage truck, I take note of 

the fact that while the regulatory language in section 77.1605 

(b) ,.that mobile equipment. be equipped with adequate brakes, 

and that all trucks be equipped with parking brakes, may be 

ambiguous since it simply requires that a truck be equipped 

with parking brakes, with no specific requirement that they be 

serviceable or adequate, I conclude that. a reasonable application of thi~tandard requires that the parking brake perform 

the function for which it is designed. In short, a truck with 

a parking br ke which will not hold it or prevent its movement 

while in a pa. king mode,· regardless of where it is parked, 

does not sati$fy the intent of the standard. ' 

1253 
In the instant case, Inspector Boatright's testimony 

that the brake would not hold the truck when it was tested 

on a small incline has not rebutted by the respondent. 

Mr. Boatright testified that the truck was empty at the time 

he asked the driver to set the brake, and when he did, 

the brake would not hold. 

I conclude and find that MSHA has established a violation 

by a preponderance of the evidence, and Citation No. 2076978 

IS AFFIRMED. 

With regard to Citation No. 2076972, concerning the 

absence of protective covers on two compressed gas cylinders, 

r·take note of the fact that the cited standard section 

77.208(e) provides that: 

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. 

Inspector Boatright testified that he observed the 

two cylinders "stored" in a trailer "near" an area where 

two mechanics were working on a bulldozer. The valves were 

next to the cylinders, and he assumed that the mechanics 

had used the cylinders and simply forgot to replace the 

valves. The cylinders were next to each other in an upright 

position, and they were secured by a chain which was around 

them. 

Mr. Boatright also testified that he did not speak to 

the mechanics, nor did he observe them using the cylinders. 

Although Mr. Boatright stated that the cylinders were full, 

he indicated that he would have issued a citation even if 

they were empty. He confirmed that the mechanics were working 

50 or 60 feet away from the trailer and the bulldozer was 

in that same area away from the trailer. He also confirmed 

that the cylinders were not "being ready to be used." 

It seems clear to me from the inspector's testimony 

that the cylinders in question were not being transported 

or being used by anyone at the time the inspector made his 

observations. Since he did not speak to the mechanics,· he 

acted on pure assumptions and speculations which are unsupported 

by any credible evidence. Further, although his citation 

narrative gives the impression th~t the two mechanics were 

using the cylinders, the facts show otherwise. 

1254 
In further explanation as to why he issued the citation, 

Inspector Boatright stated that the cylinders were "just sitting there" (Tr. 190). He believed that they were being 

"stored" (Tr. 191), and his citation states that they were on 

a portable welding machine. He also stated that if the guages 

are not on the cylinders, or if the cylinders are not being 

used, then he would consider that they are "stored" (Tr. 190). 

He confirmed that the cylinders in question had no guages or 

hoses when he observed them. 

In response to questions from respondent's counsel, 

Mr. Boatright conceded that the normal storage area for full 

and· empty cylinders is at the mine off ice located over a half 

a mile away from the area of the trailer (Tr. 191). He also 

indicated that prior to the day he cited the cylinders, whenever he had occasion to observe the trailer or a mechanics 

truck, the valves and guages were always protected by covers 

if they were on the cylinders (Tr. 191). 

The question presented here is whether or not MSHA has 

established that the cited cylinders were "stored" within the 

meaning of section 77.208(e). If they were, the next question 

is whether or not on the facts here presented, the cylinders 

were required to have protective valve covers. 

After careful review and consideration of all of the testimony and evidence adduced in this case, I conclude that the 

two cylinders in question were stored at the time the inspector observed them. While it may be true that they were not 

located at the normal storage area, they were on a portable 

welding machine, in an upright position and were not in use. 

I conclude that in their location, they were stored, and that 

the valve covers should have been on them. The citation is 

AFFIRMED. 

Significant and Substantial Violations 

Docket No. CENT 83-40 

Citation No. 2076868 

Inspector Boatright's citation concerning the inoperable 

backup alarm on the 777 rock haul truck states that four frontend loaders, two dozers, three haul trucks, and four persons 

on foot were in the pit area when the truck was operated in 

reverse. 

Mr. Boatright stated that the work shift started at 7:00 

a.m., and that he cited the truck at 9:30 a.m. The inoperable 

alarm was the result of a loose wire, and the truck was immedi~ 

ately taken out of service. He conceded that the alarm could 

have been working before he cited it, and he conceded that wires 

do become loose. 

1255 
Based on all of the facts and circumstances which prevailed 

at the time of the issuance of this citation, I cannot conclude 

that MSHA has established that the violation was significant and 

substantial. Apart from the fact that the inspector observed no 

one working behind the truck when it was being loaded, the evidence here establishes that until its arrival at the pit loading· 

area, the truck was always driven in a forward mode along a 

rather wide and clearly defined route. In addition, the two 

loaders used to load the truck, as well as the other loaders 

which were cleaning the coal away from the loading area, were 

all equipped with operable backup alarms which were sounding 

while being operated in reverse. The.loaders loading the coal 

were operating at the same area where the truck would back up to 

be loaded, and I cannot conclude that the operators were exposed 

to any hazards. 

With regard to the four men who Inspector Boatright stated 

were on foot, I cannot conclude that their duties required them 

to be positioned to the rear of the truck while it backed up to 

be loaded. Inspector Boatright conceded that he included these 

men in his citation because it was possible that "somebody within the pit area may possibly stray within the hazard zone" (Tr. 

38). This could be true of any violation of this kind. However, 

in order to support an "S & S" violation, I believe that an inspector should rely on facts which reasonably indicate a likelihood of injury during the normal mining and loading process. 

Here, the inspector's beliefs that an accident or injury was 

likely to occur is sheer speculation. Accordingly, his "S & S" 

finding is unsupported, and it is VACATED. 

Citation No. 2076869 

Inspector Boatright issued this citation after finding 

that the front horn on another 777 rock haul truck was inoperative. The condition was abated within an hour or so of the 

issuance of the violation, and the condition was caused by a 

loose wire. The inspector cited the violation as "S & S" because 

he was concerned that an individual or a piece of equipment could 

inadvertently stray in front of the moving truck, and the truck 

driver would have no way of sounding his horn. 

While it is true that the truck in question was in otherwise good condition, had operative brakes, and traveled approximately five miles an hour while going up and down the pit ramp, 

it is also true that while driving t9 and from the pit area, 

the truck would be moving faster, and the driver could encounter 

unexpected pedestrian and vehicular traffic in and around his 

route of travel. Without an operative horn, the driver would be 

unable to warn such obstacles in his path, and a collision would 

likely occur. Regardless of whether the truck were empty or 

full, I believe one can reasonably conclude that in the event of 

1256 
a collision, personal injuries or equipment damage would likely 

result. Under the circumstances, I conclude and find that the 

violation is significant and substantial, and the inspector's 

finding in this regard is AFFIRMED. 

Docket No. CENT 83-55 

Citation No. 2076969 

Inspector Boatright issued this citation after finding 

that a Caterpillar rock haul truck used to haul top soil from 

the pit to the reclamation area had an inoperative front horn. 

He was concerned that a collision with other equipment might result in personal injuries or equipment damage. 

While it is true here that the area where the other equipment noted in the inspector's citation was an area where the 

cited truck in question would normally be stopped during the 

loading process, once the truck left that area it could very 

well encounter other equipment while on its way to the reclamation area. Without an operative front-horn to warn other vehicular traffic, any resulting collision would likely result in 

injury to the vehicle operator or to the truck or other equipment. Accordingly, the inspector's "S & S" finding is AFFIRMED. 

Citation No. 2076972 

Inspector Boatright believed that the cylinder citation 

was a significant and substantial violation because "if it continued to stay there, I'd say it would be reasonably likely 

that something would happen with the equipment there." Based 

on his other testimony as to all the circumstances which prevailed at the time he observed the cylinders, particularly the 

fact that the cylinders were stored and secured in an upright 

position with a chain, were not being used, were isolated from 

the two mechanics, and were far removed from any other equipment, I cannot conclude that it was reasonably likely that any 

injury or accident would occur. In short, I can find no evidence to support the inspector's conclusion that the violation 

was significant and substantial. Accordingly, his finding in 

this regard is VACATED. 

Citation No. 2076973 

Inspector Boatright's citation concerning the inoperative 

backup alarm on the 988· front-end loader states that "three 

persons were on foot working in the pit where the loader was 

being operated." He testified that the loader was loading coal 

out of the pit and into the truck, and that it operated forward 

and in reverse during this loading process. He believed it was 

"possible and reasonably likely" that a foreman and two workers 

who were cleaning coal with shovels close to the loader would 

be in the path of the loader while it operated in reverse. 

1257 
On cross-examination, Mr. Boatright stated that at no time 

did the loader operator operate the machine more than 5 miles 

an hour, at no time did he see anyone behind the machine, and, 

in fact, he stated that at all times the employees were either 

in front or on the side of the machine. 

When asked to explain his "significant and substantial" 

finding, Mr. Boatright stated that he believed "it would be 

reasonably likely if this loader continued to operate like this 

and backed over someone, that you would have a serious accident 

or fatality." 

When asked to explain why he believed an accident or injury 

would occur since no one would have any business being in the 

area where the loader was operating, Mr. Boatright stated that 

he would have no way of knowing whether anyone would be walking 

through the area on foot while leaving the pit. He also indicated more than once that had he permitted the loader to continue to operate with an inoperable backup alarm, that it would 

have caused an accident in the event it backed over someone. 

I can take judicial notice of the fact that if a loader 

backed over someone, it would likely cause a serious injury. 

However, I believe that the question of whether a violation is 

significant and substantial should be based on a reasonable 

likelihood of an accident based on the actual conditions which 

prevailed at the time the inspector observes the condition which 

prompts him to issue a citation. 

On the facts of this citation, the inspector has not established that the foreman and the two coal shovelers were in 

close proximity to the loader, or that their duties required 

them to be in close proximity to the truck or behind it when it 

backed up. I am convinced that he included the "three persons 

on foot" in the citation because he could never insure that they 

would not stray or wander behind the loader. I find this to be 

rather speculative, particularly when he conceded on close crossexamination that the three persons he had in mind had no business 

being in the immediate area where the loading was being done, and 

that respondent's employees had clearly defined duties and responsibilities. Under the circumstances, I conclude that the 

inspector's "S & S" finding is unsupportable, and it is VACATED. 

Citation No. 2076978 

This citation was issued after the inspector found that 

the parking brake on a coal haulage truck was inoperative and 

would not hold the truck when the brake was tested by "setting 

it" while the empty truck was parked on an incline. The inspector was concerned about a possible injury in the event the truck 

were parked on an incline and "got away" and ran into something. 

1258 
Although the inspector here had the driver park the truck 

on an incline so that he could test the parking brake, there is 

no evidence that during the normal course of any shift during 

which the truck is used is it ever parked on an incline. The 

inspector conceded that the truck is parked on level ground during the lunch break, and that at the end of the working shift it 

is parked on level ground in a row with other trucks. Although 

the inspector alluded to the fact that there are some pit areas 

which are not on level ground, there is absolutely no evidence 

that the truck in question would ever be stopped or parked in 

any of these areas. As a matter of fact, the inspector conceded 

that the haul truck in question is seldom parked during the working ·shift. Under these circumstances, I cannot conclude that it 

was reasonably likely that an accident or injury would result 

from the faulty parking brake during the normal working shift 

when the truck is used. Absent any reasonable showing that the 

truck would at any time be parked on an incline, I cannot conclude that it would be likely that the truck would roll and collide with another vehicle while it was parked on level ground. 

Under the circumstances, the inspector's "S & S" finding is 

VACATED. 

During the course of the hearing, respondent's counsel 

interposed objections with respect to the admissibility of certain MSHA exhibits concerning certain laboratory testing results 

in connection with the dust citations issued in Dockets CENT 

83-51 and CENT 83-54 (Tr. 84-128). However, the objections were 

later withdrawn after the parties stipulated and agreed that the 

two dust citations were not "significant and substantial" violations (Tr. 263-265). 

Additional Findings and Conclusions. Dockets CENT 83-40, 83-51, 

83-54, 83-55. 

Gravity 

Citation 2076871, concerning an inoperative portable fire 

extinguisher on the D-10 bulldozer, involved a low degree of 

gravity since the record shows that other extinguishers were 

available nearby, and the bulldozer had a built-in fire supression system. The inoperative front horn on the 777 rock haulage 

truck is a serious citation because the driver would be unable 

to signal anyone in the event of an emergency of sudden appearance of traffic or miners in the path of the truck. The remaining citation for an inoperative back-up alarm on another 777 

haulage truck presented a low degree of gravity since I have 

concluded that no one would likely be exposed to injury (CENT 

83-40). 

I find that the lack of an operable horn on the haul truck 

was a serious violation (2076969). As for the remaining citations in this docket, I find that the conditions cited constituted 

1259 
a low degree of gravity. While the cited bulldozer (2076970) 

had no portable fire extinguisher, other operable extinguishers 

were readily available nearby. The inspector confirmed that 

the 14-G road grader was seldom operated in reverse, and he 

found a low degree of gravity for the inoperable back-up device. 

The circumstances surrounding the cylinder citation reflects 

that no one was in jeopardy of any harm or injury, and I have 

concluded that the inoperative parking brake and the inoperative 

alarm on the 988 front-end loader would not likely lead to any 

injuries (CENT 83-55). 

I cannot conclude that the two dust citations issued in 

these dockets were serious violations. The inspector agreed to 

change his initial "S & S" findings to "non-S & S". Apart from 

this, with regard to Citation 2007403, Inspector Cameron confirmed that he found quartz present in only one sample, but that 

other samples were in compliance and he did not send them to the 

laboratory because there was insufficient quartz weight gain to 

show any substantial presence of quartz. 

With regard to Citation 2007402, the citation was extended 

several times as work progressed to achieve abatement, and the 

~espondent finally installed pressurized air conditioned cabs 

for its drills. However, absent any detailed testimony concerning the seriousness of the cited dust concentrations, the affected 

occupations, etc., I have no basis for concluding that the citation here was serious (CENT 83-51 and 83-54). 

Good Faith Compliance 

Inspector Boatright testified that the respondent was always cooperative in correcting any condition or practice which 

has been cited as violations in these proceedings, and while 

mine management did not always agree with him, all of the cited 

conditions or practices were always corrected (Tr. 141). 

Mr. Boatright confirmed that the respondent exhibited good faith 

compliance by abating all of the citations which he issued 

either within the time fixed by him or in advance of this time 

(Tr. 43-44). Accordingly, I conclude that respondent exhibited 

good faith in achieving abatement for all of the cited violations in these proceedings, and this is reflected in the civil 

penalties assessed for the violations. 

Negligence 

Inspector Boatright testified that the respondent's surface 

mining operations are by their very nature "pretty dusty", and 

that dust, mud, and dirt does clog the truck horns and alarms, 

thereby causing them to malfunction. He also confirmed that "on 

the whole", the respondent has a "pretty good safety program", 

and conducts a "pretty good operation" (Tr. 55-56). 

1260 
After careful examination of all of the testimony and evidence in this case, I conclude and find that all of the violations which have been affirmed in these proceedings resulted 

from the respondent's failure to take reasonable care to prevent 

the cited conditions or practices. I further conclude that all 

of the violations resulted from ordinary negligence. 

History of Prior Violations 

Respondent's history of prior violations is reflected in 

several computer print-outs produced by MSHA concerning the 

history of paid violations at the Welch #1 Mine, the Heavner #1 

Mine, and the No. Two Mine, for the periods March 21, 1981, 

through June 5, 1983. The information submitted shows that the 

respondent has made payment for a total of 17 violations issued 

during these time periods~ 

Considering the inspector's testimony, as well as the information reflected in the computer print-outs, I cannot conclude that the respondent's prior compliance record is such as 

to warrant any increases in the civil penalties otherwise 

assessed by me in these proceedings. 

Size of Business and Effect of Civil Penalties on the Respondent's 

Ability to Continue in Business 

I conclude that respondent is a medium sized operator, and 

that the penalties assessed for the violations which have been 

affirmed will not adversely affect its ability to remain 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: 

Docket No. CENT 83-40 

Citation No. 

2076868 

2076869 

2076871 

Docket No. CENT 83-51 

Citation No. 

2007403 

Date 

3/21/83 

3/21/83 

3/21/83 

Date 

5/3/83 

30 CFR Section 

77.410 

77.1605(d) 

77.1109(c) (1) 

30 CFR Section 

71.101 

1261 

Assessment 

$50 

$80 

$20 

Assessment 

$35 
Docket No. CENT 83-54 

Citation No. Date 30 CFR Section Assessment 

2007402 3/15/83 71.101 $35 

Docket No. CENT 83-55 

Citation No. Date 30 CFR Section Assessment 

2076969 6/6/83 77.1605{d) $70 

2076970 6/6/83 77.1110 $30 

2076971 6/6/83 77.410 $30 

2076973 6/6/83 77.410 $40 

2076978 6/6/83 77.1605{b) $50 

2076972 6/6/83 77.208{e) $35 

ORDER 

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. 

Docket No. CENT 83-52. Findings and Conclusions. 

This docket concerns five citations issued by MSHA Inspector Johnny M. Newport on May 17, 1983, after an inspection at 

the respondent's Welch #1 Mine. All of the citations are "non 

S & S" citations issued pursuant to section 104{a) of the Act. 

Citations 2076408. 2076411, and 2076412 were all issued for 

violations of mandatory safety standard 30 CFR 77.410, after the 

inspector found that two front-end loaders and a grader operating in the pit area were equipped with automatic warning devices 

that would not give an audible alarm when the equipment was 

operated in reverse. 

Citation 2076409 was issued after t.he inspector found that 

a front-end loader operating in the pit area was equipped with 

an inoperative horn. Citation 2076410 was issued because a 

grader operating in the pit area was equipped with a discharged 

fire extinguisher. 

At the hearing, the· parties proposed to settle this case by 

the respondent making full pa~ent for the proposed initial 

assessments in the amount of ~00 for all of the citations. In 

support of this proposed settlement disposition, petitioner's 

counsel pointed out that the inspector found low negligence and 

gravity, that no miners were found to be on foot in any of the 

areas concerning the inoperable back-up devices and horn, and 

1262 
that three operational fire extinguishers were readily available in the area where the grader with the discharged extinguisher was operating. Further, petitioner's counsel asserted 

that the respondent has a good compliance record for an operation of its size. 

In addition to the foregoing, the record establishes that 

three of the citations were abated within 10 or 15 minutes, one 

within 30 minutes, and one within an hour or so of its issuance. 

Further, all of the inoperable devices apparently involved loose 

wires which were corrected as soon as they were brought to the 

attention of the pit superintendent. 

Conclusion 

After careful consideration of all of the information of 

record, including the pleadings and arguments made on the record 

in support of the proposed settlement, I conclude and find that 

it is reasonable. Accordingly, pursuant to 29 CFR 2700.30, IT 

IS APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the following amounts within thirty (30) days of the date of this decision, 

and upon receipt of payment by the petitioner, this case is 

dismissed. 

Citation No. Date 30 CFR Section Asses·sment Settlement 

2076408 5/17/83 77.410 $ 20 $ 20 

2076409 5/17/83 77.1605(d) $ 20 $ 20 

2076410 5/17/83 77.1110 $ .20 $ 20 

2076411 5/l7/83 77.410 $ 20 $ 20 

2076412 5/17/83 77.410 $ 20 $ 20 

$100 $100 

Distribution: 

Allen Reid Tilson, Esq.; U.S. Department of Labor, Office of the 

Solicitor, 555 Griffin Square, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box 447, 

Muskogee, OK 74401 (Certified Mail) 

slk/yh 

1263 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOtll FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

11AY 101984 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JAMES M. CLARKE, 

Complainant 

v. 

T. P. MINING, INC., 

Respondent 

. 

. 

. . 

. . 

. . 

Docket No. LAKE 83-97-D 

MSHA Case No. VINC-CD-83-09 

T. P. Strip 

ORDER OF DISMISSAL 

Before: Judge Kennedy 

The Solicitor having failed and refused to comply with 

my order to provide an amended complaint in support of the 

penalty proposal that was severed from the discrimination 

complaint, it is ORDERED that (1) the order approving settlement of the discrimination complai is AFFIRMED and the 

complaint DISMISSED and (2) that h severed penalty proposal 

be, and hereby is, DISMISSED FO T OF PROSECUTION. 

Distribution: 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

John J. Malik, Jr., Esq., Malik, Knapp, ~igerl & Frizzi, 

3381 Belmont St., Bellaire, OH 43906 (Certified Mail) 

/ejp 

1264 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, &TH· FLOOR · 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MATHIES COAL COMPANY, 

Respondent 

MAY 111984 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 84-2 

A.C. No. 36-00963-03525 

Mathies Mine 

•DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

On April 9, 1984, the Solicitor filed a Motion for 

Decision and Order Approving Settlement in the above-captioned 

case. The one violation at issue was originally assessed at 

$2,000. The settlement proposed by the parties is for $1,500. 

Order No. 2104294 was issued for violation of 30 C.F.R. 

§ 75.200, for failure to comply with the approved roof control 

plan. Sacrifice coal was being mined when a roof fall occurred 

which covered the continuous miner and entrapped the operator 

for approximately 1 hour and 10 minutes. 

The Solicitor submits that the $500 reduction from the 

original assessment is warranted in view of the uncertainties 

of litigation and after detailed consideration of the six 

statutory criteria. The operator's negligence was assessed as 

high. Subsequent investigation revealed two mitigating factors 

regarding the level of negligence. First, the roof control 

plan was not being complied with in that sacrifice stumps of 

coal required to be left in place were mined. However, the 

Solicitor points out that the roof control plan does not 

specify a size for the sacrifice stumps that must be left 

unmined. Second, prior to the coal being mined from the cited 

area, there existed a "weak wall" condition at that location. 

In order to remove this potential hazard, the operator mined 

coal from the front stump of the sacrifice coal and eliminated 

the "weak wall" condition. This '.'weak wall" posed a potential 

hazard in particular to the miners recovering the crib by the 

cited area. Given these two factors, the Solicitor asserts 

that the negligence of the operator is reduced, and accurately 

reflected by the proposed reduction in the civil penalty. 

1265 
The Solicitor also considered gravity and the probability 

of harm associated with the violation. It was reasonably 

likely that the aforementioned mining of the sacrifice coal 

stump would have exposed the continuous miner operator to 

potential injury due to the roof fall. 

The operator demonstrated a good faith effort to abate 

the violation. The operator reviewed the roof control plan 

with all miners involved in retreat mining and the violation 

was abated within t1'.e required time period. 

I accept the Solicitor's representations and accordingly, 

the proposed settlement is hereby approved. 

ORDER 

The operator is hereby ORDERED to pay $1,500 within 

30 days of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William M. Connor, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Karl T. Skrypak, Esq., Consolidation Coal Company, 

Consol Plaza, Pittsburgh, PA 15241 (Certified Mail) 

/fb 

1266 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE HAY 11.1984 

FALLS CHURCH, VIRGINIA 22041 

WESTMORELAND COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY.AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF 

AMERICA, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

; 

1267 

CONTEST PROCEEDING 

Docket No. WEVA 82-340-R 

Order No. 2002585; 7/15/82 

Docket No. WEVA 82-341-R 

Order No. 2002586; 7/15/82 

Docket No. WEVA 82-342-R 

Order No. 2002587; 7/15/82 

Docket No. WEVA 82-343-R 

Order No. 2002588; 7/15/82 

Docket No. WEVA 82-344-R 

Order No. 2002589; 7/15/82 

Docket No. WEVA 82-345-R 

Order No. 2002590; 7/15/82 

Docket No. WEVA 82-346-R 

Order No. 2002591; 7/15/82 

Docket No. WEVA 82-347-R 

Order No. 2002592; 7/15/82 

Docket No. WEVA 82-348-R 

Order No. 2002593; 7/15/82 

Docket No. WEVA 82-349-R 

Order No. 2002594; 7/15/82 

Docket No. WEVA 82-350-R 

Order No. 2002595; 7/15/82 

Docket No. WEVA 82-351-R 

Order No. 2002596; 7/15/82 

Docket No. WEVA 82-352-R 

Order No. 2002597; 7/15/82 

Ferrell No. 17 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-73 

A. C. No. 46-02493-03504 

Docket No. WEVA 83-143 

A. C. No. 46-02493-03515 

Ferrell No. 17 Mine 
Before: 

DECISION APPROVING SETTLEMENT 

AND DISMISSING NOTICES OF CONTEST 

Judge Steffey 

Counsel for both the Secretary of Labor and Westmoreland 

Coal Company (WCC} filed on April 20, 1984, in the aboveentitled proceeding a motion for approval of settlement and 

for dismissal of the notices of contest. Under the parties' 

settlement agreement, wee has agreed to pay reduced civil penal ties totaling $38,000 instead of the civil penalties totaling 

$55,040 proposed by MSHA. 

In orders issued in this proceeding on May 4, 1983, and 

August 2, 1983, I consolidated the civil penalty issues raised 

in Docket Nos. WEVA 83-73 and WEVA 83-143 with the issues 

raised in the notices of contest which seek review of 13 withdrawal orders issued on July 15, 1982, under the unwarrantablefailure provisions of section 104(d} of the Federal Mine Safety 

and Health Act of 1977. The aforesaid order of May 4 also 

granted in part motions for summary decision filed by wee and, 

in doing so, vacated all 13 of the withdrawal orders as having 

been issued in error under section 104(d} of the Act. The 

order of May 4 held, however, that the violations alleged by 

MSHA in the 13 orders survived vacation of the orders so that 

the 13 violations would have to be considered on their merits 

in the civil penalty cases (Island Creek Coal Co., 2 FMSHRC 279 

(1980}, and Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980}}. 

The parties' settlement agreement renders moot the issues 

raised in the notices of contest and makes it appropriate for 

me to grant the motion for dismissal of the notices of contest, 

as hereinafter ordered. 

Section llO(i} of the Act lists six criteria which are 

required to be considered in determining civil penalties. The 

proposed assessment sheet in the official file in Docket No. 

WEVA 83-143 shows that wee produces about 5,866,000 tons on an 

annual basis which supports a finding that wee is a large operator. Consequently, to the extent that civil penalties are 

based on the criterion of the size of the operator's business, 

the penalties should be in an upper range of magnitude. 

There is no information in the official file or in the motion for approval of settlement pertaining to the operator's 

financial condition. The Commission held in Sellersburg Stone 

Co., 5 FMSHRC 287 (1983}, that if an operator supplies no facts 

regarding its financial condition, a judge may find that an 

operator is able to pay civil penalties. In the absence of any 

facts to support a contrary conclusion, I find that WCC's ability to continue in business will not be adversely affected by 

the payment of civil penalties. Therefore, no civil penaluies 

1268 
in this proceeding need to be reduced under the criterion of 

whether the payment of penalties would cause the operator to 

discontinue in business. 

The proposed assessment sheet in the official file in Docket 

No. WEVA 83-73 shows that Wee had less than .3 of a violation 

per inspection day when its history of previous violations is 

evaluated under the assessment procedures used by MSHA, as described in 30 C.F.R. § 100.3(c). When an operator has less 

than .3 of a violation per inspection day, MSHA assigns zero 

penalty points under section 100.3(c). There are no facts in 

the record to show that MSHA incorrectly evaluated the criterion 

of WCC's history of previous violations. Consequently, none of 

the penalties to be assessed in this proceeding need to be increased under the criterion of the operator's history of prev~ 

ious violations. 

·Three criteria remain to be considered, namely, negligence, 

gravity, and whether the operator demonstrated a good-faith effort to achieve rapid compliance after the violations were cited. 

The circumstances involved in the citing of the 13 violations 

involved in this proceeding are unique so that all three of the 

remaining criteria should be borne in mind in light of the facts 

hereinafter discussed. 

An explosion occurred on November 7, 1980, ln the 2 South 

Section of wee' s Ferrell No. 17 Min·e. Five miners were killed 

in the explosion. Immediately after rescue and recovery operations had been completed, the 2 South Section was sealed off 

and MSHA has not yet completed its physical inspection of the 

2 South Section. Although other sections of the mine were 

allowed to produce coal after MSHA's investigation was completed, 

except for the sealed off 2 South Section, the motion for approval of settlement (p. 2) states that the Ferrell No. 17 Mine 

is presently closed in its entirety and that it is doubtful if 

the 2 South Section will ever be reopened. 

The motion for approval of settlement states that wee, 

without regard to its potential civil and criminal liability, 

cooperated fully in the investigations of the disaster. Subsequently, wee and several of its employees were indicted for violations of the Act with respect to the explosion. wee ultimately pleaded quilty to 16 violations and paid a total of $600,000 

in fines. As part of the disposition of the criminal charges, 

wee also made $475,000 in charitable contributions for improved 

heal th care, the education of physic.ians, and safety training 

in Boone County, West Virginia, where the Ferrell No. 17 Mine 

is located. 

The 13 violations involved in this proceeding were all 

written on July 15, 1982, by an inspector in Arlington, Virginia, 

on the basis of his examination of sworn statements obtained by 

1269 
MSHA's investigators in December 1980. The alleged violations 

pertain to conditions which the inspector thought contributed 

to the explosion which occurred on November 7, 1980. MSHA proposed large penalties ranging from $5,000 to $10,000 for six of 

the alleged violations and all of those violations are alleged 

in the proposal for assessment of civil penalty fi'led in Docket 

No. WEVA 83-143. MSHA proposed the large penalties in Docket 

No. WEVA 83-143 under section 100.5 of its assessment procedures 

which specify that MSHA may waive the use of the formula described in section 100.3 and propose penalties under section 

100.5 by making narrative findings pertaining to the six criteria. The remaining seven violations were alleged by MSHA in 

the petition for assessment of civil penalty filed in Docket No. 

WEVA 83-73. The penalties proposed for those seven violations 

range from $420 to $655 and were determined by assigning penalty 

points as described in section 100.3 of MSHA's assessment procedures. 

While the discussion above is helpful for an understanding 

of how the alleged violations in this proceeding were cited and 

.how the penalties were proposed, it does not specifically show 

why WCC's agreement to pay $38,000 in civil penalties, as opposed 

to the $55,040 in civil penalties proposed by MSHA, is justified 

when evaluated under the six criteria. That sort of showing 

cannot be demonstrated without making a specific examination of 

the violations which were alleged. I shall briefly consider 

each of the alleged violations under the docket number in which 

the respective civil·penalties were proposed by MSHA. 

Docket No. WEVA 83-143 

As previously indicated above, all of the alleged violations were cited in orders written pursuant to section 104(d) 

of the Act. Since I have already found in my order issued 

May 4, 1983, that all 13 of the orders are invalid, they will 

hereinafter be discussed as vacated orders, but the violations 

alleged in the orders survived the vacation of the orders because they eould have been issued as valid citations pursuant 

to section 104(a) of the Act (Island Creek Coal Co., 2 FMSHRC 

279 (1980), and Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 

(1980)) • 

Vacated Order No. 2002586 alleged a violation of section 

75.316 because permanent stoppings had been replaced by plastic 

stoppings and the plastic stoppings had not been properly maintained. MSHA believed that the improperly maintained stoppings 

may have prevented air from going to the 2 South Section where 

the explosion occurred. MSHA proposed a maximum penalty of 

$10,000 for the aforesaid violation and wee has agreed to pay 

in full that proposed penalty. Since WCC is paying the maximum 

penalty permitted by the Act, no discussion is required to jus~ 

tify the settlement proposal with respect to the violation alleged in vacated Order No. 2002586. 

121'0 
Vacated Order No. 2002587 alleged a violation of section 

75.316 because wee had failed to follow its approved ventilation plan by not providing crosscuts at or near the face of 

each entry before the entries were abandoned. The order states 

that there is no evidence to show that it was unsafe to develop 

the required crosscuts. MSHA considered the violation to have 

been serious, to have been associated with a high degree of negligence, and proposed a penalty of $5,000 which wee has agreed 

to pay in full. Inasmuch as MSHA properly proposed a large penalty which wee has agreed to pay in full, no discussion is required to justify acceptance of the settlement proposal with respect to vacated Order No. 2002587. 

Vacated Order No. 2002588 alleged that a violation of section 75.316 occurred because wee had frequently failed to keep 

in a closed position the ventilation doors which had been installed in 1 South between 1 East and 1 West. MSHA considered 

the violation to have been very serious, to have been associated 

with a high degree of negligence, and proposed a penalty of 

$8,000, whereas wee has agreed to pay a reduced penalty of 

$2,500. A reduction is justified in this instance because the 

language used in citing the violation speaks of "numerous occasions during the course of last year" when the doors were not 

closed. If a hearing had been held, it is doubtful that MSHA 

would have been able to prove that the doors were open at the 

time the explosion occurred so as to support a finding that 

failure to keep the doors closed specifically contributed to 

the cause of the explosion. 

Vacated Order No. 2002589 alleged a violation of section 

75.305 because wee•s section foreman admitted that he did not 

examine at least one entry of each intake and return air course 

in its entirety when he made a weekly examination for hazardous 

conditions. The section foreman traveled in the track entry 

and made intermittent examinations of the intake and return 

entries. MSHA considered the violation to have been very serious, to have been associated with a high degree of negligence, 

and proposed a penalty of $8,000, whereas wee has agreed to pay 

a reduced penalty of $2,500. A substantial reduction is warranted in this instance because the section foreman's failure 

to examine the intake and return entries in their entirety during a weekly inspection could hardly be shown to have directly 

contributed to the explosion. 

Vacated Order No. 2002590 alleg~d a violation of section 

75.303 because wee•s personnel were not making preshift examinations on each shift prior to the entrance of miners into 2 South 

for the purpose of removing mining equipment during a 2-week 

period in late August and early September 1980. MSHA considered 

the violation to have been extremely serious, to have been 

1271 
associated with a very high degree of negligence, and proposed 

a penalty of $10,000, whereas wee has agreed to pay a reduced 

penalty of $6,000. A reduction in the proposed penalty in this 

instance is also warranted because no facts are given in the 

file or MSHA's narrative findings which show how a failure to 

make a preshift examination during a 2-week period in August and 

September would have contributed to an explosion which occurred 

on November 7, 1980. 

Vacated Order No. 2002593 alleged a violation of section 

75.303 because wee's personnel failed on November 7, 1980, to 

make an inspection for methane and oxygen deficiencies in the 2 

South Section within 3 hours before five miners entered that section for the purpose of retrieving some track rails. The miners 

entered the 2 South Section about 1:55 a.m. and were killed by 

the explosion which occurred a short time later. MSHA considered 

the violation to have been extremely serious, to have been associated with a very high degree of negligence, and proposed a maximum penalty of $10,000 which wee has agreed to pay in full. wee•s 

agreement to pay the proposed maximum penalty makes it unnecessary 

to discuss the matter of whether the settlement proposal may be 

accepted with respect to the violation alleged in vacated Order 

No. 2002593. 

Docket No. WEVA 83-73 

Vacated Order No. 2002585 alleged a violation of section 

75.322 because wee's personnel had made a change in ventilation 

on October 27, 1980, which materially affected the main air current. MSHA assessed a penalty under the provisions of section 

100.3 by assigning a maximum number of points under the criteria 

of negligence and gravity which resulted in a proposed penalty 

of $655, whereas wee has agreed to pay a reduced penalty of $250. 

A reduction in the proposed penalty is justified in this instance 

because there is nothing in the order to show that a change in 

ventilation/on October 27, 1980, contributed to the explosion 

which occurred over a week afterwards. Also the change in ventilation involved stopping one out of two fans. There is nothing 

to show that only one fan was being used on November 7, 1980, 

when the explosion occurred. 

Vacated Order No. 2002591 alleged that a violation of section 75.314 occurred because wee's personnel frequently failed 

to make the required examinations in idle and/or abandoned areas 

not more than 3 hours before miners who check and install pumping equipment entered such areas to work. MSHA assigned a maximum number of penalty points under the criteria of negligence 

and gravity and proposed a penalty of $655, whereas wee has agreed to pay a reduced penalty of $250. The parties' agreement 

to reduce the penalty in this instance is also justified because 

the order fails to explain how the alleged violation contributed 

to the occurrence of the explosion on November 7, 1980. 

1272 
Vacated Order No. 2002592 alleged a violation of section 

75.303 because wee's personnel failed to make the required preshift examination of haulageways and travelways within 3 hours 

preceding the oncoming shift. The order states that inspections 

of haulageways and travelways were made, but the examinations 

were made at the start of the shift while the miners were on 

their way to the working sections. MSHA assigned less than the 

maximum number of penalty points under the criteria of negligence 

and gravity and proposed a penalty of $420, whereas wee has agreed to pay a reduced penalty of $200. A reduction in the proposed penalty is warranted in this instance because the order 

shows that wee's personnel did make examinations of the haulageways and travelways before miners began working, but did not make 

the examinations at the required time. 

Vacated Order No. 2002594 alleged a violation of section 

75.303 because wee's personnel failed on November 7, 1980, to 

make a preshift examination in the 3 East off 2 North Section 

within 3 hours before miners entered that section. MSHA assigned 

a maximum number of penalty points, and almost a maximum number 

of penalty points, under the criteria of negligence and gravity, 

respectively, and proposed a penalty of $500 which wee has agreed 

to pay in full. MSHA properly proposed a penalty of $500 because 

the failure to perform the preshift examination occurred on the 

same day as the explosion even though the failure to make the 

preshift examination, in this instance, did not pertain to the 2 

South Section where the explosion occurred. 

Vacated Order No. 2002595 alleged that a violation of section 75.303 occurred because wee's personnel failed to make a 

preshift examination in the 1 East Section on October 24, 1980, 

before miners entered that section to recover belt structures. 

MSHA assigned the maximum number, and almost the maximum number, 

of points under the criteria of negligence and gravity, respectively, and proposed a penalty of $500 which wee has agreed to 

pay in full. MSHA properly proposed the penalty in this instance 

and wee•s agreement to pay the full amount should be approved. 

Vacated Order No. 2002596 alleged a violation of section 

75.301 because the rescue team, while recovering the bodies of 

five miners killed by an explosion, found water which was within 

12 inches of the mine roof in the No. 2 entry. The inspector 

who wrote the order speculates that the water may have contributed to the inadequate ventilation which resulted in the explosion. MSHA assigned a maximum number of penalty points under. 

the criteria of negligence and gravity and proposed a penalty 

of $655, whereas wee has agreed to pay a reduced penalty of $200. 

A reduction in the penalty is warranted in this instance because 

the person who wrote the order is speculating about whether 

water observed in an entry after occurrence of an explosion 

contributed to the cause of the explosion. The explosion could 

have caused a pump to stop working or could have broken a 

~1273 
waterline which could have produced the accumulation of water. 

Payment of a substantial penalty ought to be based on more than 

mere speculation. 

Vacated Order No. 2002597 alleged a violation of section 

75.1106 because one of WCC's miners used a cutting torch on 

November 6, 1980, in the 1 East belt entry near the mouth of 2 

South Section. He failed to use a fireproof enclosure and a 

qualified person did not test continuously for methane while 

the torch was being used. MSHA assigned the maximum number of 

penalty points under the criteria of negligence and gravity and 

proposed a penalty of $655, whereas wee has agreed to pay a reduced penalty of $100. The reduced penalty is warranted in 

this instance because large penalties have been assessed in 

this proceeding primarily on the basis of whether a given vio~ 

lation may have contributed to the cause of the explosion which 

occurred on November 7, 1980. The torch was used on the day 

preceding the explosion and there is nothing in the file to 

show that a torch had been used on the 2 South Section at the 

time the explosion occurred. Moreover, section 75.1106 provides for the use of a fireproof enclosure "whenever practicable". The order does not say that use of a fireproof enclosure 

is practicable when the miner using the torch is cutting down 

belt conveyor hangers, as was being done in this instance. 

Finally, use of a torch in a belt entry, which has a neutral 

split of intake air, is not as hazardous as it would be if the 

torch had been lighted in a return entry or at the working 

faces. 

I find, on the basis of the foregoing discussion of the 

six criteria, that the motion for approval of settlement should 

be granted and that the settlement agreement should be approved. 

The motion for approval of settlement stresses the fact 

that wee demonstrated good faith in cooperating in the investigation of the explosion and in making a large voluntary charitable contribution to improve health and safety in Boone County, 

West Virginia. I believe that those are additional reasons 

which support acceptance of the settlement agreement. 

Another point which should be emphasized is that all of 

the alleged violations were cited in orders written on July 15, 

1982, by an MSHA inspector who reviewed sworn statements obtained in December 1980 by MSHA's investigators. If a hearing 

had been held, those sworn statements would have had to have 

been reexamined by the parties and any party who might have 

wished to controvert anything in a sworn statement would have 

had the burden of trying to find witnesses with vivid memories 

who could recall details of events which occurred nearly 4 

years ago. 

1274 
In such circumstances, acceptance of a settlement is preferable to holding a hearing, especially when it is considered 

that wee has agreed to pay substantial penalties totaling 

$38,000. 

WHEREFORE, it is ordered: 

(A) The joint motion for approval of settlement is granted 

and the settlem~nt agreement is approved. 

(B) Pursuant to the parties' settlement agreement, Westmoreland Coal Company, within 30 days from the date of this 

decision, shall pay civil penalties totaling $38,000 which are 

allocated to the respective alleged violations as follows: 

Docket No. WEVA 83-73 

Vacated Order No. 2002585 7/15/82 § 75.322 $ 250.00 

Vacated Order No. 2002591 7/15/82 § 75.314 250.00 

Vacated Order No. 2002592 7/15/82 § 75.303 200.00 

Vacated Order No. 2002594 7/15/82 § 75.303 500.00 

vacated Order No. 2002595 7/15/82 § 75.303 500.00 

Vacated Order No. 2002596 7/15/82 § 75.301 200.00 

Vacated Order No. 2002597 7/15/82 § 75.301 100.00 

Total Settlement Penalties in Docket No. 

WEVA 83-73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,000.00 

Docket No. WEVA 83-143 

Vacated Order No. 2002586 7/15/82 § 75.316 $10,000.00 

Vacated Order No. 2002587 7/15/82 § 75.316 . . . 5,000.00 

Vacated Order No. 2002588 7/15/82 § 75.316 2,500.00 

Vacated Order No. 2002589 7/15/82 § 75.305 2,500.00 

Vacated Order No. 2002590 7/15/82 § 75.303 6,000.00 

Vacated Order No. 2002593 7/15/82 § 75.303 10,000.00 

Total Settlement Penalties in Docket No. 

WEVA 83-143 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • $36, 000. 00 

Total Settlement Penalties in This 

Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $38, 000. 00 

(C) The motion for dismissal of the notices of contest is 

granted and the 13 notices of contest filed by Westmoreland Coal 

Company in Docket Nos. WEVA 82-340-R through WEVA 82-352-R are 

dismissed. 

Richard 

~e.oi~ C. Steffey ~ Administrative Law Judge 

1275 
Distribution: 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut 

Avenue, NW, Washington, DC 20036 (Certified Mail) 

Frederick w. Moncrief, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Bmulevard, Arlington, VA 22203 

(Certified Mail) 

Scott L. Messmore, Esq., Senior Attorney, Eastern Operations, 

Westmoreland Coal Company, P. O. Drawer A & B, Big Stone Gap, 

VA 24219 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 - 15th 

Street, NW, Washington, DC 20005 (Certified Mail) 

1276 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 HAY 111984 

MARJORIE ZAMORA, 

Complainant 

v. 

UNITED STATES FUEL COMPANY, 

Respondent 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. WEST 83-48-D 

DENV CD 83-9 

King 4, King 5 and King 6 

Appearances: Marjorie Zamora, Vernal, Utah, pro se; 

Barry D. Lindgren, Esq., Mountain States Employees 

Counsel, Inc., Denver, Colorado, 

for Respondent. 

Before: Judge Vail 

STATEMENT OF THE CASE 

Complainant filed this proceeding under section 105(c) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, 

et seg. Cthe Act), claiming that she was discharged by respondent 

because of safety related activity protected under the Act. 

Initially, complainant filed a complaint of discriminatory 

discharge with the Secretary of Labor under section 105(c)(2) of 

the Act. The Secretary, after investigation, declined to prosecute the complaint. Complainant then brought this proceeding 

directly against respondent under section 105(c)(3) of the Act. 

A hearing on the merits was held in Price, Utah on August 

25, 1983. Complainant appeared pro~; respondent appeared 

through counsel. Both parties filed post-hearing briefs. Based 

on the evidence presented at the hearing and considering the 

contentions of the parties, I make the following decision. To 

the extent that the contentions of the parties are not incorporated in this decision, they are rejected. 

STATUTORY PROVISIONS 

Section 105(c)(l) of the Act, provides in pertinent part as 

follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

1277 
exercise of the statutory rights of any miner, representative of miners or applicant for employment 

in any coal or other mine subject to this chapter 

because such miner, representative of miners, or 

applicant for employment has filed or made a complaint 

under or related to this chapter, including a complaint 

notifying the operator or the operator's agent, or the 

representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in 

a coal or other mine. 

Section 10S{c){2) of the Act, provides in pertinent part as 

follows: 

Any miner or applicant for employment or representative 

of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by 

any person in violation of this subsection may, within 

60 days after such violation occurs, file a complaint 

with the Secretary alleging such discrimination ••.• 

Section 105{c){3) of the Act, provides in pertinent part as 

follows: 

Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in 

writing, the miner, applicant for employment, or representative of miners of his determination whether a 

violation has occurred. If the Secretary, upon investigation, determines that the provisions of this 

subsection have n'9t been violated, the complainant shall 

have the right, within 30 days of notice of the Secretary's determination, to file an action in his own behalf before the Commission, charging discrimination or 

interference in violation of paragraph (1) •••• 

FINDINGS OF FACT 

1. United States Fuel Company {"respondent") is a subsidiary 

of Sharon Steel Corporation. It operates three coal mines near 

Hiawatha, Utah employing approximately 465 employees; supervisory 

and underground {Transcript at 65). 

2. Marjorie Zamora {"complainant") started working for 

respondent as an underground miner in July 1977. After four 

months she was given the job as instructor and after a year and a 

half was designated training supervisor which position she held 

until November 2, 1982 when whe was discharged {Tr. at 11, 12). 

1278 
3. William C. Vrettos is respondent's manager of industrial 

relations and is responsible for personnel, office 

administration, payroll, safety, and training. In January 1981, 

Lou Mele was the Director of Safety and Training. Under his 

supervision were the complainant, as supervisor of training, and 

Gary Lauflin, supervisor of safety. Mele terminated his 

employment with respondent in August 1981 and thereafter the 

complainant and safety supervisor reported directly to Vrettos 

(Tr. at 139). 

4. During the latter part of 1981, Vrettos and the 

complainant had several meetings where they discussed the 

objectives of the training department for the forthcoming year 

(1982). Vrettos proposed a rough outline of what the objectives 

of the department would be and complainant ultimately submitted a 

written plan outlining sp·ecific objectives and completion dates 

which was approved by Vrettoa (Exhibit R-1 and Tr. at 139-141). 

5. In March 1982, Vrettos met with complainant to review the 

first quarter results of the 1982 action plan for the training 

department. He determined that complainant had not been 

following the plan and "specifically" told her that they were to 

adhere to the plan "without exception" (Tr. at 142). 

6. In April 1982, complainant entered the miners bath house 

at the Middlefork mine and heard several miners discussing with 

representatives of the Safety Department a request that the 

miners sign their 5000-23 task training forms. Three miners 

maintained they had not received the task training indicated on 

the forms (Tr. at 14). Complainant told the representatives of 

the Safety department that the miners were right and that the 

forms should not be shown or exposed to other miners in the bath 

house. The following day complainant met with representatives of 

the Safety department and Vrettos and stated that the 5000-23 

task training forms were to be kept secure and private and that 

the forms were being filled out wrong (Tr. at 16 and 17). 

Vrettos told complainant she was being "pretty hard on safety" 

and criticized her for being an improper supervisor (Tr. at 16). 

Vrettos agreed to a class being held for teaching supervisors how 

to fill out the miners task training forms. This class was 

scheduled and held on April 22, 1982 (Tr. at 21 and Exhs. C-1, 

C-2, C-3 and C-4). 

7. Complainant scheduled emergency medical technician 

training (EMT) for May and June 1982, and volunteered to teach 

the classes (Exh. C-5). Vrettos offered to contact doctors for 

the sessions but requested an outline of what was to be covered. 

Complainant furnished photocopies of pages from her manual which 

Vrettos rejected as not adequate to inform the doctors of what 

was required of them. Complainant then offered to get the 

1279 
doctors to appear at the classes but found on contacting them 

that they were busy so the classes were delayed further into the 

summer. Complainant was criticized by Vrettos for this delay and 

also for not keeping the training room cleaned up. This room was 

being used by Vrettos for supervisory training during the same 

period as complainant's EMT classes (Tr. at 29-31). 

8. Complainant was requested by Vrettos on the May 1982 

training report to furnish July and August 1982 schedule of all 

training planned. Vrettos wrote on the bottom of the form "I 

will schedule the instructor class." Complainant set up an 

instructors class for August 1982. She requested in a letter 

dated July 28, 1982, film from the Heart Association to be used 

in the training. Due to a party scheduled one day in August and 

the Mine Rescue Contest, which complainant had to attend, 

employees from the Safety Department did not attend the 

instructor's class until the 24th of September, 1982. As a 

result, complainant was required to ask for an extension on the 

date she was to return the film to the Heart Association (Tr. at 

34, 35 and Exhs. C6-C7). 

9. In June 1982, as a result of several miners asking the 

complainant about annual retraining, she went through her files 

and listed those miners who would require such retraining CExh. 

C-9). Vrettos had indicated that upon submission of a list of 

such miners, they would be scheduled to come in on complainant's 

shift for retraining rather than have her return to the mine 

during that particular miner's shift. Vrettos argued with 

complainant about how to set the annual retraining classes so 

that it would not cause confusion as to who was trained. 

Finally, by September 1982, Vrettos agreed to allow complainant 

to set up the classes for the tipple and surface miners as she 

suggested. However, due to deer season and other interferences 

such as mixup on dates, only half of the miners scheduled attended the session. This put the matter 50 percent behind 

schedule CTr., at 44). 

10. In September 1982, an internal auditor of Sharon Steel 

Corporation did an audit of several of respondent's 

administrative functions that included safety, training, and 

personnel records. As to the training department, two areas were 

noted to be deficient. Training records (5000-23 forms) were 

incomplete for many underground miners based upon a random sample. 

Also, as to mine rescue requirements, the respondent was not in 

compliance with the law by not having two full teams ready to 

provide mine rescue service to the respondent CExh-R-2 and Tr. at 

147-148). 

11. On October 14, 1982, complainant was requested to come to 

Vrettos' office for a meeting. Vrettos and Richard Graeme, 

1280 
respondent's vice president and general manager, were present. 

Complainant ~as presented a letter signed by Vrettos indicating 

that projects in the 1982 action plan had not been completed 

despite oral and written directions. Complainant was demoted 

from training supervisor to training instructor and warned that 

unless her performance and accountability improved significantly 

in the very near future, her employment with U.S. Fuel would be 

jeopardized. Complainant was to report to Vrettos for the 

balance of 1982 and then to the Safety Training Supervisor upon 

notice in 1983. Salary level would remain at its present level 

without reduction in lieu of any raise for the next twelve months. 

The letter stated the following instructions1 

The Training Department's goals through the rest of 1982 

are to complete the followings responsibilities: 

1. As asked for since July, a schedule of the Annual 

Retraining by mine and individual is to be completed by 

Friday, October 22, 1982. If the schedule is altered 

you are to communicate the changes to myself within 24 

hours. 

2. All Maintenance Training records are to be updated, 

organized and reviewed with me on October 22nd. The 

format was given to you in October after written 

requests in September. 

3. Your efforts to keep Task Training updated have been 

very unsuccessful and you have not followed by direct 

instruction on auditing. You will complete a monthly 

audit of all personnel on the property and update the 

Task Training form by the last day of each month. To 

conclude your audit, a formal notification is to be made 

to each respective mine foreman or department head as to 

the Task Training (by individual) which needs to be made. 

Monthly ydu will note if the mine foreman has completed 

the task training or not. You are to continue to 

publish the Task Training list monthly. 

4. The Training Room has continued to appear unsightly. 

The Training Room appearance is most important to 

setting impressions of an operations. In the future, no 

training materials or tools are to be left out of the 

storage area more than four hours before or after 

training takes place. A plan is to be put into effect 

by October 29th to identify and store all materials and 

equipment used for training including a diagram of the 

plan. On the 29th of Oct. a tour of the new layout and 

storage is to be given to myself and other interested 

parties explaining the changes and instructions for 

1281 
others to follow when using the training room facilities. 

A list of "RULES" for everyone's use is to be posted on 

the incoming door. And a list of all equipment is to be 

provided. 

5. "Communicator" was not published in the third 

quarter. A November edition and a December edition is 

to be published giving all writers a two week notice of 

deadline. This communication device has become more 

effective with each publication and your editorial 

guidelines are very successful. Timely publication is 

important. 

6. A Task Training check list for each classified 

equipment operation is to be made by March of 1983. The 

first two will be reviewed on November 12th .•• shuttle 

car and roof bolter. ·These are to be combination JSA 

and procedure guidelines for supervisors to use in Task 

Training new employees. 

7. The Mine Rescue training requirements and monthly 

guidelines are to be outlined for 1982/83 as previously 

requested by October 29th in formal letter format to 

myself for review. Changes to the program are to be 

communicated to me in advance of the training session. 

8. In general your time at U.S. Fuel is not used 

affectively to accomplish Training's objectives. In the 

future, all secretarial typing and copying requirements 

are to be channeled through me 24/48 hours in advance of 

need. Your time as a Training Instructor is too valueable to be repeate~ly used on these items. 

9. On Fridays of each week, we will review a written 

report of your last weeks schedule and accomplishments 

as well as your coming weeks schedule. Please follow 

the Monthly Report format (which is now being replaced 

by the weekly report). Please include a monthly updated 

calendar of events weekly. 

10. Electrical Training Program. Due in June, 1982 

please provide an electrical training course outline for 

an effective 40 hour class. The sessions are to be in 

two hour modules including identification of materials, 

aids, handouts and instructors of the course. 

11. Publish monthly an update of all state and federal 

certifications on the property to all mine foreman and 

above. Include in your last weeks meeting with myself. 

1282 
These instructions are not to overshadow your many 

accomplishments since you have been at U.S. Fuel. You have helped 

and assisted the organizational effort in many ways. It is most 

important that you restrict your efforts to the priorities listed 

in this letter to assure the Training function is aq_~omplished. 

cc: R. Graeme 

/s/ William C. Vrettos 

William C. Vrettos 

Manager, Industrial Relations 

(Exh. C-10) 

12. On October -20, 1982, complainant contacted Frank Roybal 

and Mark Garcia of the Union Safety Committee at the bath house 

for King 4 and 5 mine. She told them of her problems with 

training and asked if they wanted to get it "straightened out" by 

calling in the Mine Safety and Health Administration (MSHA). 

Later, complainant had a conversation with George Hillas, 

financial secretary of the union, and Hillas asked if there was 

some way that the company and safety committee could get together 

to straighten out the problems with training. Hillas did not feel 

that the employees or the company could afford to be "hassled" by 

MSHA at that time (Tr. at 53). 

13. On October 28, 1982, complainant and Vrettos discussed 

the annual retraining class scheduled for November 1, 1982. 

Complainant had prepared an outline of what she intended to cover 

during the course (Exh. R-3). Vrettos suggested that complainant 

cover certain items including three suggested by Gary Barker, 

respondent's general supervisor, including roof and rib control 

plan, sanders be inspected on the mantrip, and the ventilation 

plan. Vrettos also told complainant that she was to cover the 10 

points for surf ace miners re.quired to be covered in annual 

retraining under the union contract (Tr. 159-162). Also, Vrettos 

proposed that Keith Thomas teach the class on the rib and roof 

control plan (Tr. at 164). 

14. On November 1, 1982, Vrettos attended the annual 

retraining course scheduled that day and taught by the complainant. 

She had a pile of 5000-23 forms on her desk in which were two 

forms she claimed were improper. After going through the training 

plan, complainant informed Vrettos that there was "a possible 

faulty certification in the pile." Vrettos asked complainant to 

give him the forms which she refused to do unless there were 

members of the union safety committee there. Frank Guisman, a 

member of the union safety committee was summoned to the class and 

Vrettos and Guisman took the forms to be copied (Tr. at 54-56). 

Vrettos had been present throughout the day except for 10 to 20 

minutes when he left the room to have copies made of the task 

training forms. 

1283 
15. At the end of the day, he met with complainant and 

Richard Graeme and reviewed the adequacy of the training the 

complainant had given that day. Vrettos went through the outline 

for the class and told the complainant that she had not adequately 

covered many of the items including check in and out procedures, 

mining plans, mining cycle was not covered, fire extinguishers, 

and the rib and roof control plan was covered in less than 10 

minutes time. This was the part of the course that was supposed 

to be taught by Keith Thomas as discussed by Vrettos and 

complainant at their October 28th meeting (Tr. at 169-170). As a 

result of this discussion, Vrettos concluded that complainant was 

not keeping proper records and not doing a proper job of training 

and informed her that he was going to suspend her and audit the 

files. Vrettos ask~d for complainant's keys to all of the files 

and requested that she come back to the off ice on the next day 

(Tr. at 178). 

16. On the following morning, Vrettos, with two secretarial 

employees, took random samples of the records for face bosses, 

electricians, and newly hired employees and found that 8 of 22 

employees had not had orientation training forms completed and 

placed in their files which meant they should not be working 

underground. 13 of 26 new employees did not have timbering or 

belt tests training completed so should not have been released to 

general labor underground. There were very few electrical 

certifications, mine certifications, mine foreman or fire boss 

certifications in the records. Of 10 to 15 experienced miners, 

records were reviewed and it was found that 40 percent of the 

tasks they were classified in had no forms on record showing that 

they had been task trained (Tr. at 179). 

17. A meeting was held on the day following the audit of the 

training department records. Vrettos, Miners' Union International 

and district safety representative, district president, and safety 

committee chairman were present. Also, Gary Lauflin was in 

attendance and conducted the meeting. The records from the audit 

of the training department were made available to the people in 

attendance after Lauflin had reviewed what they revealed. The 

Union representatives chose not to review these records (Tr. at 

180). The safety supervisor contacted MSHA and asked if it was 

permissible to use College of Eastern Utah instructors to complete 

annual retraining for the miners. The College of Eastern Utah has 

a mining department with MSHA qualified instructors. Permission 

was given by MSHA for respondent to do this (Tr. at 181). 

18. On November 2, 1982, Vrettos met with complainant and 

informed her of the results of the audit. and told complainant he 

was changing her suspension to a termination as of that date. The 

"blue slip" given to complainant read "improper insufficient work 

1284 
performance." Later on Vrettos called complainant and asked if 

she wished to "quit." Complainant's response was "No, you fired 

me and we'll leave it there" (Tr. at 182). 

19. On November 27, 1982, complainant filed a discrimination 

complaint with the Utah Anti-Discrimination Division alleging she 

was fired because of her sex and age (56) and replaced with a male 

who was younger and less experienced. The matter was settled by a 

written agreement dated January 19, 1983 wherein the respondent 

agreed to revise complainant's personnel file from "poor work 

performance" to "resigned for personal reasons", expunge file of 

any and all comments related to this charge, provide neutral 

references, and discontinue its appeal action against 

complainant's request for unemployment compensation CExh. R-4). 

DISCUSSION 

Under the analytical guidelines established in Secretary on 

behalf of Fasula v. Consolidation Coal Corp., 2 FMSHRC 2786 

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

Coal Corp. v. Marshall, 663 F. 2d 1211 (3rd Cir. 1981), and 

Secretary on behalf of Robinette v. United Castle Coal Company, 3 

FMSHRC 803 (April 1981), a prima facie case of discrimination is 

established if a miner proves by a preponderance of the evidence 

that (1) she engaged in protected activity and (2) the adverse 

action against her was motivated in any part by that protected 

activity. If a prima facie case is established, the operator may 

defend affirmatively by proving that the miner would have been 

subject to the adverse action in any event because of his unprotected conduct alone. See NLRB v. Transportation Management 

Corp., U.S. , 76 L.Ed. 2d 667 (1983). Also, see 

Secretary on behalf of Patricia Anderson v. Stafford Construction 

Company and Federal Mine Safety and Health Review Commission, F. 

2d CD.C. Cir. 1984), stating that an agency like the 

Commission has ample authority to adopt the Fasula burden of proof 

allocation. See Berch v. FMSHRC, 719 F. 2d 194, 196 (6th Cir. 

1983). 

In the case at .issue here, Complainant alleges she was fired 

or discharged from her position as training instructor for 

respondent because she stated at the annual retraining session on 

November 1, 1982, that the training plan was not being followed 

and that "fraudulent" certification of training was issued for 

training not given or was inadequate. Also, that this was a 

culmination of a problem between complainant and William Vrettos, 

her immediate supervisor, which started in April 1982 

(Complainant's Brief at p. 1). 

I find that when the complainant asserted that there were 

some inadequate certifications of training of miners on their 

5000-23's both in April 1982 and on November 1, 1982, during the 

1285 
retraining class, she was engaged in activity that is protected 

under the Act. The facts show that complainant was sufficiently 

concerned about the 5000-23 forms to contact Vrettos and employees 

of the safety department about this (Finding No. 6). On October 

20, 1982, she also contacted members of the miner's union safety 

committee and advised them of her problems with training. At this 

time the complainant asked if the union officials thought the 

matter should be referred to MSHA. The union's response was that 

it should be worked out with the company at that particular time 

rather than involve MSHA (Finding No. 12). 

The specific question is whether complainant's discharge was 

in any way or part motivated by or retaliation for the above 

protected activity. If so, a prima facie case is proven and the 

burden shifts to respondent to demonstrate by a preponderance of 

the evidence that the complainant would have been discharged even 

if she had not engaged in the protected activity. 

Respondent presents two arguments: 1) That complainant's 

termination was not motivated in any part· by her protected 

activity. 2) If it were found that respondent was motivated in 

part in discharging complainant for her protected activity, she 

would have also been terminated for her unprotected activities 

alone (Respondent's Brief at 6 and 9). 

I find that the complainant has failed to show that she was 

fired by reason of her protected activity under the Act. The 

preponderance of the most credible evidence shows that complainant 

was discharged for her failure to adequately perform the duties 

assigned her as respondent's training supervisor. Also, timeliness of completion of tasks under the year's (1982) action plan 

was obviously a cause for conflict and discord between complainant 

and Vrettos. This is evident from the various documents admitted 

as exhibits in this case which describe the dissatisfaction of 

complainant's immediate supervisor with her job performance (Exhs. 

C-1, C-5, C-10, R-1, R-3). 

The undisputed evidence shows that a 1982 action plan was 

discussed and agreed upon between Vrettos and complainant in the 

latter part of 1981 (Exh. R-1). The most credible evidence shows 

that complainant failed to follow or meet the requirements of the 

plan by March, 1982. At a meeting between complainant and 

Vrettos, he informed her that she had not met the deadlines or 

performed the tasks set out and was in the future to adhere to it 

"without"exception" (Finding No. 5). Also, at meetings between 

Vrettos and complainant in May and the second week in July 1982, 

and then weekly thereafter into the fall, Vrettos "tried to get 

Marge to follow the plan." (Tr. at 142). The parent company's 

internal audit in September 1982 found deficiencies in the 

training department indicating a "lack of timely follow-up to 

document the training conducted on hourly employees, noncompliance 

1286 
with MSHA regulation requiring the documentation on both safety 

and task training", and other suggestions that management should 

adopt in training procedures (Exh. R-2). Based on this audit, 

Vrettos met with complainant on September 15, 1982, and 

established a two week deadline for auditing task training records 

to have them be in compliance with company and MSHA regulations. 

This was not completed as requested and the deadline was extended 

to October 10, 1982 which again was not met. Vrettos then 

assigned the job of auditing the underground mines to the Safety 

Department while complainant was assigned the job of auditing 

surface employees. Complainant had not performed her part of the 

task by October 28, 1982 (Tr. at 149-154). 

As a result of the above continuing concern over the training 

department, Vrettos·met with complainant on October 14, 1982 and 

outlined his criticisms of her performance. This was reduced to 

writing (Exh. C-10). Complainant was demoted from supervisor to 

training instructor and givert written job responsibilities and 

deadlines (Finding No. 11). Also, complainant was advised that 

her job with respondent was in "jeopardy". 

On October 28, 1982, Vrettos again met with complainant and 

indicated she was failing to furnish required weekly reports of 

her performance and also discussed the forth-coming annual 

retraining session. Vrettos gave her specific instructions as to 

what he wanted covered and that other employees were to instruct 

certain parts of the course. After his attendance at the meeting, 

Vrettos met with complainant and expressed displeasure with her 

performance and compliance with his instructions. Following an 

audit of the training department records on the following morning, 

Vrettos discharged complainant. 

Complainant contends that much of the above occurred because 

of Vrettos attempt to make her job difficult, if not impossible to 

perform, to create a paper-trail rather than give proper training, 

and transfer her duties from training to other individuals not 

qualified (Complainant's Brief p. 1). Also, the charge is made by 

complainant that Vrettos was upset because of her "exposure" in 

the November 1, 1982 retraining session of "fraudulent 

certification" of task training forms. Whether or not Vrettos was 

"upset" over this is not the issue here. The specific issue is 

whether complainant was discharged because of these complaints. I 

do not find the evidence in this case supports complainant's 

argument. The facts as detailed above, show that when complainant 

indicated to Vrettos her concern regarding task training, he 

arranged for such a training class to be taught by complainant 

(Tr. at 144 and Exh. C-1 and C-2). This incident showed that 

Vrettos responded in April 1982 in a positive manner to 

complainant's concerns. 

.1287 
Further, prior to complainant's statements made at the annual 

retraining class on task training, Vrettos had already indicated 

complainant's job was in jeopardy, not due to her protected 

activity, but rather, her failure to perform her duties of 

supervisor of the training department in a satisfactory manner. 

I am persuaded by the overwhelming weight of evidence that 

respondent fired the complainant for her unprotected conduct 

alone. 

CONCLUSIONS OF LAW 

1. Respondent at all times pertinent to this case was the 

operator of mines subject to the provisions of the Federal Mine 

Safety and Health Act of 1977. 

2. I have jurisdiction over the parties and subject matter 

of this proceeding. 

3. Complainant failed to show by a preponderance of the 

evidence that she was fired because of any activity protected 

under the Act. 

ORDER 

Based upon the above findings of fact and conclusions of law, 

IT IS ORDERED that this proceeding is DISMISSED. 

~~-:?~ -·_/J?~ Virg~J. • Vail 

Admi strative Law Judge 

Distribution: 

Ms. Marjorie Zamora, 238 s. 300 West, Vernal, Utah 84078 

(Certified Mail) 

Barry D. Lindgren, Esq., Labor Relations, Mountain States 

Employers Counsel, Inc., 1790 Logan Street, Denver, Colorado 

80201 (Certified Mail) 

/blc 

1288 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, &TH FL®R 

WASHINGTON, D.C. 20006 

May 11, 1984 

KITT ENERGY CORPORATION, 

Contestant . . CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: 

. . 

DECISION 

Docket No. WEVA 84-92-R 

Citation 2262913; 11/29/83 

Kitt No. 1 Mine 

Appearances: Bronius K. Taoras, Esq., for Kitt Energy 

Corporation, Contestant; 

Before: 

Jonathan Kronheim, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Respondent. 

Judge Merlin 

This case is a Notice of Contest filed on December 27, 

1983, by Kitt Energy Corporation under Section lOS(d) of the 

Act, 30 u.s.c. § 81S(d) to review a citation dated November 29, 1983, issued by an inspector of the Mine Safety and 

Health Administration (hereinafter referred to as "MSHA") 

under Section 104(d) (1) of the Act, 30 U.S.C. § 814(d) (1). 

By Notice of Hearing dated January 13, 1984, this case was 

set for hearing on March 13, 1984. The hearing was held as 

scheduled. 

At the hearing, the parties agreed to the following 

stipulations: 

(1) The applicant is the owner and operator of the 

subject mine. 

(2) The mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

(3) The Administrative Law Judge has jurisdiction 

of this case pursuant to Section 105 of the 

1977 Act. . 

(4) The inspector who issued the subject order 

was a duly authorized representative of the 

Secretary of Labor. 

1289 
(5) A true and correct copy of the subject order was 

properly served upon the operator in accordance 

with the 1977 Act. 

(6) A copy of the subject order is authentic and may 

be admitted into evidence for the purpose of establishing its issuance, but not for the truthfulness or relevance of any statement asserted 

therein. 

(7) Inspector Tulanowski conducted an inspection of 

the Kitt No. 1 Mine on November 29, 1983. 

(8) In the course of his inspection, Mr. Tulanowski 

discovered two areas as described in the subject 

order along the C Mains No. 2 belt where float 

coal dust was present in the belt entry. 

(9) The float coal dust was present only on the floor, 

and not on the roof or ribs or on the equipment 

in the entry. 

(10) The float coal dust described in the order 

constituted a violation of 30 C.F.R. § 75.400. 

(11) The subject mine is classified as a gassy mine, 

liberating 2,400,000 cubic feet of methane per 

24 hours. 

(12) Section 104(d) (1), Citation No. 2263047, ~ssued 

on November 2, 1983, is the p,rocedural basis 

for the order which is the subject of this p;roceeding. 

Section 304(a) of the Act, 30 U.S.C. § 814(~), which 

also appears in 30 C.F.R. § 75.400, proyides as follows: 

Coal dust, including float coal dust deposited 

on rock dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

peri:nitted to accumulate in active workings, or on 

electric equipment therein. 

The subject Order No. 2262913 describes the violative 

condition or practice as follows: 

There was float coal dust (_black in color) deposited 

on the rock-dusted surface of the mine floor, beginning at survey station No. 48 + 39.83 C-Mains No. 2 

Conveyor belt, and extending for a distance of approximately 600 feet inby and beginning at the tailpiece 

and extending for a distance of approximately 600 feet 

outby. This condition was reported in the preshift 

examiner's book since the 11-14-83. John Helms, Mine 

Foreman. 

1290 
The validity of the underlying citation was upheld in a 

decision dated March 23, 1984 (WEVA 84-60-R). As set forth 

above, the parties have stipulated that.a violation existed 

as described in the order. The issue remaining for resolution with respect to the validity of this (d) (1) order is, 

therefore, unwarrantable failure. Old Ben Coal Company, 1 

FMSHRC 1954, 1959 (1979). Unwarrantable failure exists 

where the operator failed to correct conditions it knew or 

should have known existed or which it failed to correct 

because of a lack of due diligence or because of indifference or lack of reasonable care. Zeigler Coal Company, 7 

IBMA 280 (1977) • 

It was reported in the preshif t books that from November 14 to November 28 the belt needed dusting (Tr. 15). The 

operator's witnesses allege that the entry "needs dusted" in 

the preshift and onshif t reports did not refer to float coal 

dust. However, this entry was the only one ever made to describe the condition of the belt. The onshift report for 

the very shift on which the order was issued contained an 

entry "needs dusted". The operator has stipulated the existence of float coal dust in this instance. (Tr. 6) A 

review of all of the evidence renders more persuasive the 

inspector's testimony, that based upon his experience the 

entry "needs dusted" in the preshift and on shift books 

indicated the presence of float coal dust (Tr. 60-66). 

In addition, in more than three fourths of the reports, 

it was also recorded that there was work in progress (Tr. 

16-17, 60). Mr. Phares, the belt cleaner who was working 

the midnight shift when the subject order was issued, testified about his work on the belt during this two week 

period (Tr. 126, 158-161). Each day he dragged the belt and 

worked ·on the areas which needed float dust cleared away 

(Tr. 126). He also checked the drive for splices, rock 

dusted the drive, ch~cked the take up rollers, and made sure 

that the drive was running safely and water was correctly 

put on the belts (Tr. 134). Mr. Phares testified that there 

was a belt cleaner on another shift, Mr. Carr, who had been 

working the afternoon shift before the order was issued (Tr. 

127, 149). Mr. Phares and Mr. Carr rotated shifts (Tr. 

127). Mr. Carr did not testify and the witnesses who did 

testify did not know exactly what his duties were or how 

much time he spent cleaning the belt (Tr. 127, 149-150, 249-

250) . 

As demonstrated by the preshif t books and the testimony 

at the hearing, this is not a case where the operator did 

not work on the belt. The record shows that work was done 

on the belt throughout the period, but it also shows that 

the work done was never enough to entirely clean up the 

belt. Mr. Phares testified that on one occasion, he had 

been able to clean the entire belt up to the tailpiece in 

1291 
one day's time but only on the clearance side (Tr. 158-161). 

Moreover, Mr. Phares told the mine foreman and the section 

foreman that the belt was in bad condition, it was hard for 

him to keep up with the amount of dust on the belt, pod 

dusting was needed and it would be nice if he had some help 

(Tr. 138-142, 166-167). The mine foreman came by nearly 

every day so he actually knew the condition of the belt (Tr. 

162). The section foreman admitted that prior to November 28, Mr. Phares had said a number of times he could not 

do the belt by himself (Tr. 238). The section foreman testified that he did not give Mr. Phares any help because he 

thought Mr. Phares was doing a good job (Tr. 239). Mr. 

Phares may have been doing a good job in that he was doing 

all that could reasonably be expected of him. However, as 

shown by the condition found by the inspector and admitted 

by the operator, and as demonstrated by Mr. Phares' testimony, he was not able to clean the entire beltline by himself. Despite the fact that Mr. Carr may have spent some 

time cleaning the belt on another shift, the entire length 

of the beltline was not cleaned. The operator should have 

put men on the belt, in addition to Mr. Phares and Mr. Carr, 

sufficient to completely clean it. The operator's failure 

to do so in the face of its actual knowledge of the belt's 

condition constituted unwarrantable failure. 

A separate and distinct basis for finding unwarrantable 

failure exists because of the operator's failure to clean up 

the belt on November 28. Mr. Phares testified that at the 

end of the November 28 midnight ·shift, i.e. 8:00 a.m. on 

that morning, he told the mine foreman the belt was in bad 

shape and needed dusting (Tr. 28-29, 141). There is some 

conflict in the evidence over what, if anything, the operator did in the intervening two shifts to clean up the belt. 

Mr. Phares testified that when he returned the next night, 

it looked like very little had been done (Tr. 145-146, 164). 

The operator's evidence indicated that some portion of the 

belt may have been cleaned between Mr. Phares' work on the 

November 28 midnight shift and his work on the November 29 

midnight shift (Tr. 225-229). But this evidence is not 

clear because there was confusion between the witnesses over 

the location of certain points in the belt entry (Tr. 79-83, 

189-191). Moreover, the only work that could have been done 

in the interval between Mr. Phares' two midnight shifts 

would have had to have been done by Mr. Carr on the afternoon shift of November 28, but the operator's section 

foreman did not know what Carr did on that shift (Tr. 250). 

In any event, on the morning of November 28, management personnel were told by Mr. Phares that the belt was in bad 

shape and needed dusting. In light of this information, the 

operator should have investigated the situation and taken 

1292 
action to have it completely cleaned up once and for all. 

Here again, Mr. Phares may have had some help from Mr. Carr, 

the extent of which cannot be determined on this record, but 

whatever the extent of such help, it was insufficient because the belt was not completely cleaned. Old Ben Coal 

Corporation, supra. 

In light of the foregoing, the subject order is Affirmed and the operator's Notice of Contest is Dismissed. -==R . 

Chief 

P~lin Administrative Law Judge 

Distribution: 

Bronius K. Taoras, Esq., Kitt Energy Corporation, 455 Race 

Track Road, P.O. Box 500, Meadow Lands, PA 15347 (Certified Mail} 

Jonathan Kronheim, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail} 

/nw 

1293 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 HAY 141984 

FMC CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

FMC CORPORATION 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 81-100-RM 

: Citation/Order No. 5771201 

: 11/12/80 

: FMC Mine 

. . 

: CIVIL PENALTY PROCEEDINGS . . 

: Docket No. WEST 80-140-M 

: A.C. No. 48-00152-05013 

Docket No. WEST 80-477-M 

: A.C. No. 48-00152-05025 

: Docket No. WEST 81-233-M 

: A.C. No. 48-00152-05041 I 

Docket No. WEST 81-289-M 

: A.C. No. 48-00152-05047 I 

. 

. 

: FMC Mine 

Appearances: John A. Snow, Esq., Vancott, Bagley, Cornwall & 

McCarthy, Salt Lake City, Utah, 

for Contestant/Respondent1 

Robert J. Lesnick, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Respondent/Petitioner. 

Before: Judge Vail 

STATEMENT OF THE CASE 

These consolidated cases arise under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seg. In the four 

civil penalty cases, the Secretary seeks to have a civil penalty 

assessed for an alleged violation of a mandatory safety standard. 

Docket No. WEST 81-100-RM is a request for review by FMC 

Corporation CFMC) of Citation No. 577120 issued for an alleged 

violation of 30 c.F.R. 57.3-22. Docket No. 81-233-M is the civil 

penalty proceeding pertaining t~ Citation No. 577120 contained in 

WEST 81-100-RM, and on motion of FMC, was consolidated with WEST 

81-233-M. 

An evidentiary hearing was held in Green River, Wyoming. 

Based upon the entire record and considering all of the arguments 

of the parties, I make the following decision. To the extent 

that the contentions of the parties are not incorporated in this 

decision, they are rejected. 
ISSUES 

The principal issues presented in this proceeding are: Cl) 

whether respondent has violated the provisions of the Act and 

implementing regulations as alleged in the proposal for assessment of civil penalties filed herein; and, if so, (2) the 

appropriate civil penalty that should be assessed against the 

respondent for the alleged violations upon the criteria as set 

forth in section llOCi) of the Act. Additional issues raised by 

the parties are identified and disposed of in the course of this 

decision. 

In determining the amount of a civil penalty assessment, 

section llOCi) of the Act requires consideration of the following 

criteria: Cl> the operator's history of previous violations, (2) 

the appropriateness of such penalty to the size of the business 

of the operator, (3) whether the operator was negligent, (4) the 

effect on the operator's ability to continue in business, (5) the 

gravity of the violation, and (6) the demonstrated good faith of 

the operator in attempting to achieve rapid compliance after 

notification of the violation. 

STIPULATIONS 

The parties stipulated to the following: 

1. FMC does not contest the jurisdiction of Federal Mine 

Safety and Health Act in any of the above consolidated cases. 

2. FMC mine would be considered a large operation. 

3. The history of past violations would neither cause an 

increase or decrease in the amount of a civil penalty assessed in 

these cases. 

4. The assessment of a civil penalty would not affect FMC's 

ability to continue iri business. 

5. FMC exhibited good faith in the abatement of the issued 

citations considered in these consolidated cases. 

Docket No. WEST 80-477-M 

During an inspection of the No. 8 shaft-sinking project at 

respondent's FMC mine, MSHA inspector Fred Hanson issued a type 

107(a) order No. 337405 alleging a violation of 30 C.F.R. 

§ 57.19-128 which reads as follows: 

Mandatory. Ropes shall not be used for hoisting 

when they have: (a) More than six broken wires in 

1295 
any lay. Cb) Crown wires worn to less than 65 percent of the original diameter. Cc) A marked amount of 

corrosion or distortion. Cd) A combination of similar 

factors individually less severe than those above but 

which in aggregate might create an unsafe condition. 

The inspector stated in the order that a section of the 

hoist rope, approximately 30 feet in length above the bucket, had 

numerous broken wires and a considerable amount of distortion. 

He stated that this created a hazard to personnel working below 

in the shaft. In a subsequent action, the inspector changed the 

"part and secti6n" designation in the order to a 30 C.F.R. 

§ 57.19-128(d). 

Hanson testified that after bringing the rope to the surface 

it was cleaned with a solvent. He observed approximately 30 feet 

of the rope was in "very poor shape" with more than 6 broken 

wires in a lay. l; The crown wires were very worn with some 

wires sticking out (Transcript at 11-12). Melvin Jacobson, MSHA 

Field Office Supervisor, testified that he observed the rope on 

the day the citation was issued and opined that the rope was in a 

severe "state of affairs" with broken wires and abrasions (Tr. at 

29). 

A section of the rope was cut off, tagged, and sent to MSHA 

Technical Support Staff in Denver, Colorado for examination. In 

a document dated November 1, 1980, Roy L. Jameson, safety 

specialist, reported that from the results of the wire rope 

analysis and a tensil test, it was concluded that this rope 

specimen was appropriately removed from service because of severe 

deterioration. The service life of the rope specimen was 

considered to have exceeded a safe margin of safety for man 

hoisting CExh. P-6). 

Respondent argues that the petitioner failed to prove by a 

preponderance of the evidence that a violation of the cited 

standard occurred. Julius Jones, respondent's safety manager, 

testified that after the rope had been pulled from the shaft and 

placed on the ground, he ran a rag over it and found no broken 

wires. This is an accepted practice used to check for broken 

wires in a rope (Tr. at 33-34 and Exh. R-1). David Jones, 

respondent's safety director, testified that he did not observe 

1/ Lay. The direction, or length, of twist of the wires and 

strands in a rope. Zern. d. The length of lay of wire rope is 

the distance parallel to the axis of the rope in which a strand 

makes one complete turn about the axis of the rope. Bureau of 

Mines U.S. Dept of Interior, A Dictionary of Mining, Mineral and 

Related Terms (1968). 

1296 
distortion in the rope and after unraveling the strands, found 

some broken wires but less than six in a single lay (Tr. at 57). 

Also, a measurement showed that wear of the crown wires was less 

than 35 percent (Tr. at 57-58). 

After careful consideration of all the evidence in this 

case, I find that the petitioner failed to prove that the 

condition of the cited rope was a violation of 30 C.F.R. § 57.19-

128(d). The specific issue is whether there was a violation of 

subsection (d) of standard § 57.19-128. That is, were there a 

combination of factors, less severe than the three listed 

factors, that might create an unsafe condition. In light of the 

petitioner's evidence, I do not find that he has proven such a 

combination of factors. Also, I find that the (d) portion of the 

standard to be too vague, indefinite, and uncertain to give the 

respondent notice of what is required to determine when the rope 

should be replaced. 

The testimony as to the condition of the rope is conflicting 

and confusing. Jameson reported that under microscopic examination, he found crack initiations and crown wear. Although 

there is considerable general information in his report dated 

November 1, 1980 (Exh. 6), and the supplement thereto, the 

specifics do not show a violation of any of the first three 

provisions of the standard. There was no showing of 6 broken 

wires in a lay although there was testimony that crack initiations be considered evidence of broken wires. 

Also, no distortion was alleged to exist in the tested wire, 

although some corrosion was found. At the most, the report 

lacked clarity. The conclusion stated the writer's opinion that 

the rope should be removed from service due to deterioration. I 

find no mention of deterioration in the standard as grounds for 

citing an operator. 

Jameson appeared at the hearing and testified regarding his 

report and stated that the tensil test of the rope had no direct 

relationship to the possibility of breakage of the rope. It will 

only tell you whether the rope will break at a higher or lower 

strength than that assigned in the catalogue listing of its 

tensil strength (Tr. at 43). The balance of Jameson's testimony 

failed to explain where in his report it proved a violation of 

any of the three specific items listed as (a)(b) and Cc) under 

the standard was indicated. It must be assumed from this 

evidence that the violation occurred under Cd). 

Petitioner's witnesses testified that the rope was unsafe 

based upon generalizations. These statements would, in 

combination, allude to paragraph Cd) of the standard which states 

that conditions less severe than the three specific findings 

might create an unsafe condition. I find this part of the 

standard vague and difficult to apply. Any number of situations 

and conditions come to mind that might create an unsafe condition. 

1297 
My concern is that such a provision is not specific enough 

to put the operator on notice as to what the requirement is as to 

when a hoist rope should be removed from service if it does not 

meet the first three provisions of the standard. Apparently, the 

same concerns where recognized by the drafters of these standards 

as 57.19-128 was rewritten and new standards adopted effective 

January 24, 1984. These standards are now designated 30 C.F.R. 

§ 57.19-24. There is not a reference in this standard similar to 

Cd) in§ 57.19-128, and the term might has been abandoned in the 

new adopted standard. 

Regarding the issue of vagueness in standards or 

regulations, the Commission has authority to determine the 

validity of standards under the 1977 Act. See Sewell Coal 

Company, 2 MSHC 1345 (1981), Alabama By-Products Corporation, 2 

MSHC 1981 Cl982). In order to pass constitutional muster, a 

statute or standard adopted thereunder, cannot be "so incomplete, 

vague, indefinite or uncertain, that men of common intelligence 

must necessarily guess at its meaning and differ as to its 

application." Connolly v. Gerald Constr. Co., 269 U.S. 385, 391 

(1926). Rather, "laws (must) give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited 

so that he may act accordingly." Grayned v. City of Rockford, 

408 U.S. 109, 108-109 (1972). 

Therefore, in this case the question is whether the operator 

would know what section (d) of the cited standard required of him. 

I find that the wording of this section would be difficult to 

interpret and follow. Also, the drafters of the replacement 

regulations recently adopted felt the same way and chose not to 

adopt a similar provision. Therefore, Citation No. 337405 is 

vacated. 

Docket No. WEST 80-140-M 

In this case, petitioner issued four citations and proposed 

penalties therefore as follows: 

Citation No. 

576186 

575778 

337305 

337306 

Date 

8/15/79 

8/16/79 

8/17/79 

8/17/79 

Citation Nos. 575778 and 337306 

30 C.F.R. 

Standard 

57.12-18 

57.15-5 

57.16-6 

57.9-2 

Proposed 

Penalty 

$210.00 

255.00 

30.00 

305.00 

At the hearing of this case, the parties stipulated that a 

deposition would be taken of the inspector issuing citation Nos. 

1298 
575778 and 337306 and furnished to the Judge in order that a 

decision could be rendered. On April 20, 1984, the petitioner 

filed a motion to withdraw the proposal for penalties for the 

mine inspector who issued the citations is not now employed by 

MSHA and unavailable to provide testimony in support of the 

citations. The respondent has filed no opposition to this motion 

and therefore the two citations are vacated. 

Citation No. 576186 

MSHA inspector Gerry Ferrin issued citation No. 576186, 

while on a regular inspection, for an alleged violation of 30 

C.F.R. § 57.12-18 2/ due to the respondent's failure to have a 

label on a main power switch to show which piece of equipment it 

controlled. Ferrin testified that identification of which piece 

of equipment was controlled by the switch could not be identified 

by its location from the distribution center it was attached <Tr. 

at 6). The hazard in this case was that a maintenance mechanic 

or or electrician working on the particular piece of equipment 

involved could tag or lock out the wrong switch through misidentification and receive an electrical shock (Tr. at 6, 7). 

There is nominally 480 volts involved here. The equipment 

serviced by this particular switch and cable was a fan. 

The respondent did not present any evidence or submit a 

brief in this case. I find that a violation of·§ 57.12-18, as 

alleged did occur. The operator was negligent in failing to 

properly label the switch involved here. The gravity is that a 

serious injury could occur to a miner including death as a result 

of such a failure to provide proper labeling. The operator 

abated the citation in good faith by labeling the male portion of 

the plug at the bitter end of the trailing cable that fits into 

the distribution box (Tr. at 12, 15). I find the proposed 

penalty of $210.00 is reasonable in this case. 

Citation No. 337305 

MSHA inspector Martin Kovick, during a regular inspection of 

respondent's surface operation issued Citation No. 337305 wherein 

2/ 57.12-18 Mandatory. Principal power switches shall be 

labeled to show which units they control, unless identification 

can be made readily by location. 

1299 
he alleged a violation of 30 C.F.R. § 57.16-6 3/. Kovick 

testified that he observed a Union Pacific Railroad Company 

{"Union Pacific") truck near the respondent's load-out area with 

acetylene tanks standing in the back of the truck with the gauges 

or regulators on them. The standard requires that when 

compressed gas cylinders are transported or stored~ the 

regulators {valves) are to be removed and covers are to be put on 

{Tr. at 21). 

Respondent presented testimony at the hearing that the mine 

site involved i~ this citation is located on property it leases 

from Union Pacific and that the railroad's property "pretty much" 

surrounds respondent's leasehold {Tr. at 28). Robert L. May, 

respondent's surface safety supervisor, stated that Union Pacific 

employees and vehicles have a right of entry onto and across the 

respondent's property including a key to the main gate. 

Respondent did not produce at the hearing, or subsequent thereto 

as agreed to at the hearing, a copy of the document or lease 

agreement covering Union Pacific's rights on respondent's leased 

property. 

Respondent argued that they had entered into the lease 

agreement prior to the Federal Mine and Safety Act being adopted 

and that the Union Pacific is not subject to the Act. Also, the 

Union Pacific retained an exclusive right to right-of-way over 

the leased property and is not subject to control by respondent 

{Tr. 31). 

The specific issue is whether the violation cited in this 

case was the responsibility of the respondent. I find that the 

petitioner has failed to prove that the mine operator in this 

case is responsible for the Acts of the Union Pacific employees. 

The facts show that the alleged violation of § 57.16-6 did occur 

on mine property under the control of respondent. Also, the 

parties agree that the compressed gas cylinders were in a truck 

owned by Union Pacific and operated by their employees. There is 

no evidence, or does the petitioner contend, that the Union 

Pacific is an agent or independent contractor for the mine 

operator. Therefore, the provisions of the Act and regulations 

that apply to these two situations are not applicable here. 

I am unable to find any provision of the Act or its 

regulations, or prior decisions by the Commission or the Courts, 

which gives direction as to whether the mine operator should be 

3/ 57.16-6 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. 

1300 
held responsible for all acts on the mine property which violate 

the Act. In El Paso Rock Quarries, Inc., 1 FMSHRC 35, 32, (1981) 

the Commission considered the issue of whether the operator may 

be held liable when its customers or employees of its customers 

do not comply with mandatory safety standards. In this case, the 

parties were "rock pickers" who are not employees of the operator 

but were allowed on the mine property as customers or employees 

of customers to break up rock blasted loose by the operator and 

subsequently collected in a truck and hauled away. The 

Commission affirmed Judge Moore's decision that the "rock 

pickers" are miners in accord with section 3(g) of the Act which 

defines "miner" as "any individual working in a coal or other 

mine." 

I find a definite distinction between the customers in the 

El Paso, c~se and other decisions involving independent 

contractors and haulers of materials and the Union Pacific employees in this case. Here, ·the truck was only passing through 

the mine property on its way to other Union Pacific property. It 

would be stretching the usual liberal interpretation of the Act 

too far to find the employees of Union Pacific in this instance 

"miners" and, as such, subject to the mandatory standards. 

Such an interpretation would impose a requirement on the operator 

to be responsible and check all vehicles that entered on its 

property for whatever reason. I do not believe there is 

sufficient control of the Union Pacific employees in this case to 

justify such an interpretation. 

I find that the petitioner has failed to prove a violation 

here against respondent and Citation No. 337305 is dismissed. 

Docket No. WEST 81-289-M 

Citation No. 576979 was issued to respondent on September 8, 

1980, ·and charges a violation of 30 C.F.R. § 57.9-37 as a result 

of a maintenance jeep being parked on a grade without the wheels 

being blocked or turned into the rib. The jeep rolled forward 

pinning a miner against the belt control box. The accident 

resulted in injuries to the miner. The cited standard provides 

as follows: 

Mandatory. Mobile equipment shall not be left 

unattended unless the brakes are set. Mobile equipment with wheels or tracks, when parked on a grade, 

shall be either blocked or turned into a bank or rib; 

and the bucket or blade lowered to the ground to 

prevent movement. 

Respondent does not deny that the accident occurred or the 

violation of the standard cited. Instead, respondent contends 

that the penalty proposed by the Secretary is too high. In 

support of this argument, respondent contends it was their policy 

to require that all mobile equipment, when parked on a grade, 

have chocks placed behind the wheels and that it be turned into 

the rib. Kim Curtis. the miner involved in the accident in this 

1301 
case, testified that he was told by his supervisor, that any time 

he got off the mantrip (jeep), to make sure to put blocks behind 

the wheels. This conversation occurred approximately two weeks 

prior to the accident. Curtis admitted that there were blocks 

available on the jeep. However, he was only going to stop for a 

half minute and didn't set the blocks (Tr. at 8, 9). 

The facts in this case shows that respondent's employee 

Curtis was negligent in failing to follow the procedure for 

parking vehicles on a grade. Also, the gravity of the violation 

is high as evidenced by the resulting injuries to the miner and 

potential for death that could result. However, the facts also 

show that the respondent had required that its miners follow the 

procedures outlined in the standard. Curtis testified that as a 

result of a similar.accident which had occurred earlier, his 

supervisor had told him that any time he got off the mantrip, to 

make sure he put the blocks behind the wheels (Tr. at 7). 

It is well-settled that under the Mine Act, an operator is 

liable without fault for violations of the Act and mandatory 

standards committed by it employees. Allied Products Co. v. 

FMSHRC, F. 2d , No. 80-7935, 5th Cir. Unit B (Feb. 1, 

1982). In Southern Ohio Coal Company, 4 FMSHRC 1464, (August 

1982), the Commission reversed an administrative law judge's 

decision holding that the negligence of rank-and-file nonsupervisory employees may be directly imputed to the operator 

for the purpose of penalty assessment. The Commission stated as 

follows: "However, where a rank-and-file employee has violated 

the Act, the operator's supervision, training and disciplining of 

its employees must be examined to determine if the operator has 

taken reasonabl~ steps to prevent the rank-and-file miner's 

violative conduct. Nacco, supra, 3 FMSHRC at 850-851." 

The only evidence presented in this case regarding this 

point indicates that Curtis's supervisor had instructed him to 

follow the procedures outlined in the standard as late as two 

weeks prior to the accident (Tr. at 6). Based on this, I find 

that the penalty proposed by the Secretary should be reduced. I 

find a penalty of $100.00 is reasonable in this case. 

Docket No. WEST 81-233-M.and 

Docket No. WEST 81-100-RM 

Citation No. 577120 was issued on November 12, 1980 as a 

result of an accident on November 6, 1980 involving a rock that 

fell and struck a miner. The citation alleged a violation of 30 

C.F.R. § 57.3-22 which states as follows: 

Mandatory. Miners shall examine and test the back, 

face, and ribs of their working places at the beginning of each shift and frequen_tly thereafter. 

Supervisors shall examine the ground conditions during 

daily visits to insure that proper testing and ground 

1302 
control practices are being followed. Loose ground 

shall be taken down or adequately supported before any 

other work is done. Ground conditions along haulageways and travelways shall be examined periodically and 

scaled or supported as necessary. 

The condition or practice described in the above citation 

reads as follows: "A miner working in 20 cross-cut of #4 room in 

7 CM Panel was injured when a rock about 42 inches long, 20 

inches wide and from 10 to 4 inches thick fell from the roof 

stricking (sic) him in the upper back. The roof was approx. 7 

1/2 feet above the floor. The miner stated that he checked this 

rock at the beginning of the shift but did not continue to check 

it or support it. Approx. two hours after checking the rock it 

fell and struck him. This man's foreman had not been in this 

area during the shift prior to the accident. The shift started 

about 0001 hours 11/6/80 and .the accident happened about 0240 

hours 11/6/80. The miner.arrived at his working place at 

approximately 0045 hours 11/6/80. The miner stated that he had 

sounded the rock but had not tried to scale it down." The 

citation was abated by holding a safety meeting and everybody was 

cautioned about working under bad ground and the proper way to 

scale and support. 

As a result of the issuance of the above citation, 

respondent filed a notice of contest which is docketed at WEST 

81-100-RM and has been consolidated with the penalty proceeding 

WEST 81-233-M. In the request for review, respondent requested 

that the citation be vacated. 

The facts in the above consolidated cases are not basically 

in dispute. I find that on November 6, 1980, Ivan Miller, 

respondent's employer, commenced work at the FMC mine at 12:00 

midnight. For six months, Miller, as part of a crew, was working 

in a section of the mine described as 7 CM Panel of the mine, and 

on the night of the accident, in 20 cross-cut of #4 room. Miller 

had been working in this same area for the preceding six months 

and during that time, was in the area 3 or 4 times a week and the 

only shift working in the area during that time (Tr. 7). Miller 

testified that he entered the mine at midnight and after loading 

up the welder, it took approximately one and a half hours to get 

to the area where he was to work (Tr. at 23). 

The area where the roof fall occurred was in an established 

part of the mine and the roof had been bolted. Miller stated 

that he examined the roof by "sounding" it and barred down some 

loose rocks (Tr. at 6). Miller did not know where the rock that 

struck him fell from so did not know if he barred that area. 

1303 
Miller testified that he started cutting with a welding 

torch on a steel plate and continued working for approximately an 

hour to an hour and a half, after his arrival at the location, 

when a rock fell and struck him in the back causing injuries. He 

also stated that he had frequently checked the roof while he was 

working {Tr. at 8). 

MSHA Inspector William Potter testified that he went to the 

FMC mine to investigate this accident shortly after it was reported by the respondent. When he arrived at the location 

underground, the injured miner had been removed to the hospital. 

He examined the site and concluded that the rock that struck the 

miner had fallen from a point right over where the miner was 

working. Potter stated that he would call the location where the 

rock had fallen from as the "brow." {Tr. at 48). 

There is some testimony by Potter in this case that a crack 

had existed in the area from where the rock fell for a period of 

time and that Miller and other miners whose names he did not know 

had indicated that they had tried unsuccessfully in the past to 

bar this down {Tr. 46). I reject this as being unsupported by 

the most credible evidence of record. First, it is denied by the 

injured miner Miller who testified at the hearing that he did not 

know where the rock fell from. Also, the other sources 

of information was based on reference to statements made by 

unidentified miners who were present during the investigation but 

did not testify at the trial. No testimony of any witness 

corroborated this information and fails to refute the testimony 

of Miller. 

Based on the most credible evidence in this case, I find 

that petitioner, has not proven a violation by respondent of 

§ 57.3-23 in thrs case. This was not a new section of the mine 

but rather an established area where the injured miner had been 

working for six months. Miller was an experienced underground 

miner and familiar with the conditions in a trona mine such as 

the FMC mine. The evidence is not disputed that Miller examined 

the roof of the area upon arrival and, in fact, barred down some 

loose before he began his work. He also checked the roof 

"frequently" while he worked. Potter testified that he thought 

checking the roof on a basis of every 45 minutes to an hour would 

be sufficient {Tr. at 33, 34). It is not determined here what 

more the respondent, or its employee, could have done to have 

prevented this accident. The procedure for supporting the roof 

in this area of the mine is to use roof bolts on four foot 

centers. This had been done. For a dangerous looking rock or 

area, that cannot be barred down, timbering is used. However, 

the credible evidence does not establish that such a situation 

existed in this case. I therefore ORDER that Citation No. 577720 

be vacated. 

130.4 
ORDER 

1. In Docket No. WEST 80-477-M Citation No. 337405 is 

VACATED. 

2. In Docket No. WEST 80-140-M, Citation Nos. 575778 and 

337306, in accordance with motion by petitioner to withdraw its 

petitions for penalties, are DISMISSED. Citation No. 576186 is 

affirmed and a penalty of $210.00 is assessed. Citation No. 

337305 is DISMISSED. 

3. In Docket No. WEST 81-289~M, Citation No. 576979 is 

affirmed and a penalty of $100.00 is assessed. 

4. In Docket Nos. WEST 81-233-M and WEST 81-100-RM, 

Citation No. 577720 is vacated~ 

Respondent is ordered to pay a civil perialty in the total 

amount of $310.00 within 40 days of the date of this decision. 

Distribution: 

~/??~£ Vircj{l E. Vail 

Administrative 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) 

John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy 50 South 

Main Street, Suite 1600, Salt Lake City, Utah 84144 

(Certified Mail) 

/blc 

1~0fi 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 141984 

LAWRENCE L. EVERETT, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. YORK 83-6-DM 

INDUSTRIAL GARNET EXTRACTIVES, 

Respondent 

MSHA Case No. CD 83-58 

Appearances: 

Before: 

DECISION 

Lawrence L. Everett, West Paris, Maine, pro se; 

Carol A. Guckert, Esq., Portland, Maine, for~ 

Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainant filed this case, contending that he was discharged on June 21, 1983, from the position of electrician 

which he had with Respondent because of activity protected 

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

§ 801 et seq. Respondent denied that Complainant's discharge 

was related to protected activity. Respondent filed certain 

interrogatories on Complainant, some of which were answered 

and some of which Complainant refused to answer. Respondent 

moved to dismiss the complaint on March 12, 1984, because of 

Complainant's failure or refusal to answer the interrogatories. 

I withheld my ruling on the motion. At this time, I Deny the 

motion because Respondent failed to establish any prejudice 

resulting from the refusal to answer the interrogatories in 

question. 

Pursuant to notice, the case was heard in Auburn, Maine, 

on March 22, 1984. The case was consolidated for hearing with 

the case of Ferrie W. Everett v. Industrial Garnet Extractives, 

Docket No. YORK 83-7-DM, but since the cases involve separate 

alleged discriminatory discharges, they are being decided 

separately. Complainant and Forrie w. Everett testified on 

Complainant's behalf; George B. Robinson, Deborah Hartness, 

Bruce Sturdevant, Thomas Scott Hartness, Donald Berry, Daniel 

Abbott and Richard Kusheba testified on behalf of Respondent. 

The parties were afforded the opportunity of filing posthearing 

briefs. Complainant filed such a brief; Respondent did not. 

1306 
Based on the entire record, and considering the contentions 

of the parties, I make the follow~ng decision. 

FINDINGS OF FACT 

Complainant was employed .by Respondent beginning in 

February, 1982, as a plant electrician. He had been an 

electrician for 12 to 14 years, and his most recent previous 

position was as an electrician for a mobile home manufacturer. 

When he began with Respondent, he was paid $5.00 per hour. 

Complainant found the Respondent's plant to be in "a total 

shambles;" he had no material to work with and told Scott 

Hartness, the Vice President for production who had hired him, 

that he could not work under the conditions. Hartness assured 

him that he would see that whatever Complainant needed would be 

made available to him. An account was opened at an electric 

supply company and a hardware store and Complainant was 

authorized to buy materials and supplies. 

Complainant understood that he was responsible to Hartness 

alone. However, for about 1 month in the Spring of 1983, Wally 

Hinch was made maintenance foreman, and at other times Bruce 

Sturdevant was given authority over both production and 

maintenance employees. Sturdevant never told Complainant that 

he was his supervisor and Scott Hartness did not specifically 

inform Complainant that Sturdevant was his boss. Complainant 

regarded Hartness as his supervisor and continued to discuss 

maintenance problems directly with him. 

Complainant discussed safety problems in the plant with 

Hartness regularly, and on several occasions submitted written 

reports of unsafe conditions. The conditions were discussed 

but "that was about the end of it." 

In July, 1982, an MSHA inspection team visited the 

facility. Complainant went through the mill with them. A 

number of electrical problems were pointed out and several 

citations were issued. Complainant was directed by Hartness 

to remedy the problems. 

On June 20, 1983, a front-end operator, Danny Abbott, was 

working on a machine when it was started by another employee. 

Abbott had failed to lock out the machine. He told Complainant 

about it and Complainant told Sturdevant. Sturdevant "didn't 

want to talk about it. Just turned around and walked away" 

(Tr. 19). Complainant then notified Hartness of the incident. 

Hartness told Sturdevant to "make sure he understands to lock 

the machinery out" (Tr. 99). Respondent was apparently having 

1307 
a problem with employees concerning lockouts and more lockout 

tags had recently been ordered. Complainant had special 

responsibility in this connection since he was an electrician, 

and had given lectures to employees on electrical lockouts. 

After the incident involving Danny Abbott, but still about 

midmorning, Complainant was working on the engine of a fork 

truck. He found a short circuit, "a wiring mess" (Tr. 20), and 

in tracing the wires, he blew a number of fuses. He finally 

ran out of fuses. He worked on the truck past dinner time. 

Sturdevant told Complainant "look we've got to have that fork 

truck, it's the only one we've got and I don't care how you 

get it, but get it between all the other things" (Tr. 21). 

Complainant punched out for dinner and drove his truck to 

the hardware, got the needed fuses and returned to the mill. 

He had a cup of coffee and sandwich; then he punched in, put 

the fuse back in the fork truck and had it running before the 

fork truck operator returned. He finished out the shift at 

about 5:00 p.m., and went home. 

Respondent paid its employees during their lunch time and 

beginning in the Spring of 1983 notified all employees that 

they were to remain on the company premises during lunch. 

Thereafter, a number of employees complained to Sturdevant and 

Hartness that Complainant continued to leave the premises to eat 

lunch. Hartness specifically told Complainant that he was not 

to leave at lunch time. Wally Hinch also told him and Complainant 

objected with choice expletives to this direction. During the 

afternoon of June 20, Sturdevant told Hartness that Complainant 

had left again for lunch and that the other employees thought 

Complainant was being treated with special favor. At the end of 

Complainant's shift, Hartness told him "I've had some complaints 

lodged against you." Hartness then turned to talk to another 

employee and Complainant left for home. 

On June 21, 1983, when Hartness came to work about 

20 minutes before 7, Sturdevant told him that he "pulled 

[Complainant's] time card" (Tr. 102), which meant that he 

fired him. When Complainant arrived that morning, Hartness 

told him "Bruce pulled your time card • • • for leaving company 

property during lunch hour" (Tr. 102). 

Complainant then handed Hartness a written list of safety 

complaints alleging that lock out procedures are not being 

followed or enforced, general housekeeping is "practically 

nonexistant," safety railings and catwalks are missing, a number 

of unsafe electrical practices were permitted in the mill, and 

1308 
there was excessive dust in the air when the plant was operating. 

Hartness handed the written statement to Sturdevant. Sturdevant 

and Hartness wanted to talk about why Complainant left the 

company property the previous day; Complainant wanted to talk 

about his written complaint. Finally Complainant said that he 

did not want to be bothered with this petty bullshit and that 

Hartness and Sturdevant could take the job and shove it. 

When he was discharged, Complainant earned $6.50 per hour. 

He remained off work following his discharge until September 17, 

1983, when he began working for Cornwall Industries as a 

maintenance electrician and mechanic. He earns $5.30 per hour. 

He does not seek to be reinstated in his position with Respondent. 

ISSUES 

1. Whether Complainant's discharge was motivated in any 

part by activities protected under the Mine Safety Act? 

2. If it was, whether Respondent established that it would 

have discharged him in any event for unprotected activities alone? 

3. If Complainant's discharge was in violation of the Act, 

what remedies is he entitled to? 

CONCLUSIONS OF LAW 

In order to establish a prima f acie case of discrimination 

under section 105(c) of the Mine Act, a Complainant bears the 

burden of production and proof to show (1) that he engaged in 

protected activity and (2) that an adverse action against him 

was motivated in any part by the protected activity. 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), and 

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

3 FMSHRC 803 (April 1981) • In order to rebut a prima facie 

case, an operator must show either that no protected activity 

occurred or that the adverse action was in no part motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner, it may nevertheless affirmatively defend 

by proving that (1) it was also motivated by the miner's 

unprotected activities, and (2) that it would have taken the 

adverse action in any event for the unprotected activities alone. 

The operator bears a burden of proof with regard to the.affirmative defense. Haro v. Magma Copper co., 4 FMSHRC 1935, 1937 

(November 1982):----T°he ultimate burden of persuasion that illegal 

discrimination has occurred does not shift from the Complainant. 

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

3 FMSHRC at 818 n. 20. The Supreme Court recently approved the 

1309 
National Labor Relations Board's virtually identical analysis 

for discrimination cases arising under the.National Labor 

Relations Act. NLRB v. Transportation Management Corp., 

76 L.Ed. 2d 667 (1983) • See ·also Boich v. FMSHRC, 719 F. 2d 194 

(6th Cir. 1983) (approving the Commission's Pasula-Robinette 

test). 

It is clear that Complainant was concerned about safety at 

the mill, particularly electrical safety. It is also clear 

that there were unsafe conditions and practices at the mill. 

Complainant's personality was abrasive, particularly toward 

his supervisors, and they reacted against his abrasiveness. 

Part of the reaction, particularly that of Sturdevant, seems to 

have been the result of Complainant's bringing up safety matters. 

The proximity to the discharge of Complainant's remonstrance 

to Sturdevant about the Danny Abbott lock-out problem, (a 

protected activity) "is itself evidence of an illicit motive." 

Secretary of Labor v. Stafford Construction Company and FMSHRC, 

No. 83-1566, slip op. at 13 (D.C. Cir. April 20, 1984). I 

conclude, therefore, that Complainant's discharge was motivated 

in part by activity protected under the Mine Safety Act. 

Other factors, however, played a part in the decision to 

discharge Complainant. The evidence establishes that he 

frequently violated the company rule that employees remain on 

the premises during lunch time - this resulted in numerous 

complaints from other employees who felt that Complainant was 

given favorable treatment because of personal friendship with 

Sturdevant. Complainant also had and voiced a negative attitude 

about the company: He expressed the hope that the company would 

go bankrupt or that it would be shut down by the State environmental authority. At a supervisors meeting on June 17, 1983, 

a number of supervisors complained that Complainant "had become 

a source of trouble with the other men • • • [and] has been 

causing moral (sic) problems by telling everyone that Central 

Maine Power was going to shut us down; the DEP was going to shut 

us down • • • • he was constantly telling the other men that 

IGE [Respondent] was never going to make it and other disparaging 

remarks" (Respondent's Exh. 2). I conclude, therefore, that in 

discharging Complainant, Respondent was also motivated by his 

unprotected activities. 

Did Respondent establish by a preponderance of the evidence 

that it would have discharged Complainant regardless of his 

protected activity? The stated reasqn for the discharge was 

Complainant's leaving the company premises during lunch time. 

In fact, he did and had done so in the past and was reprimanded 

for it a number of times. He obviously believed the rule was 

petty and flouted it. Whether the rule was petty or not, the 

131_0 
the flouting of it was causing dissention among the employees 

and undermining the authority of Sturdevant and Hartness. A 

complicating factor, however, is the fact that Complainant was 

authorized to leave the property to purchase supplies and he 

did so regularly. It is clearly established that he both 

purchased supplies and took lunch time when he left on June 20. 

The supervision in the plant was lax and erratic. Scott Hartness 

was "at times vague" (Tr. 80) according to Sturdevant. 

Complainant contends that his discharge was unfair and unreasonable. The fairness and reasonableness of discharging Complainant 

under the circumstances is not an issue which I have authority to 

resolve, however. However unfair or unreasonable discharging 

Complainant may have been, I conclude that the preponderance of 

the evidence establishes that Complainant would have been discharged for unprotected activity alone, namely violating the 

company rule concerning the lunch hour and undermining employee 

morale. Therefore, no violation of section 105(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 • 

. //{~ ~/3i,vdL-t-l~-/(_ 

J. James A. Broderick 

. Administrative Law Judge 

Di;::;tribution: 

Mr. Lawrence L. Everett, RR 2, Box 1640, West Paris, ME 04289 

(Certified Mail) 

Carol A. Guckert, Esq., Law Office of Ralph A. Dyer, 477 Congress 

Street, Portland, ME 04101 (Certified Mail) 

/fb 

1311 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LONNIE JONES, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041. MAY iL \984 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 83-257-D(A) 

D & R CONTRACTORS, 

Respondent 

MSHA Case No. BARB CD 83-19 

Appearances: 

Before: 

DECISION 

Jeffrey A. Armstrong, Esq., Appalachian 

Research and Defense Fund of Kentucky, 

Inc., Barbourville, Kentucky, for 

Complainant; 

Larry E. Conley, Esq., Williamsburg, 

Kentucky, for Respondent. 

Judge Melick 

This case is before me upon the complaint of Lonnie 

Jones under section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act", 

alleging that he was discharged from the partnership known 

as D & R Contractors on April 25, 1983, in violation of 

section 105(c)(l) of the Act.l Mr. Jones had charged in 

his initial complaint before this Commission that he had 

been unlawfully discharged on that date as an employee of 

Mingo Coal Co., Inc. However, by decision dated March 8, 

1984, it· was held that Jones had not been employed by Mingo 

Coal Company, and that no representative or agent of Mingo 

Coal Company was involved in the discharge of Jones from 

D & R Contractors. That complaint was accordingly dismissed. 

Lonnie Jones v. Mingo Coal Co., Inc., 6 FMSHRC 632. 

1 Section 105(c)(l) of the Act provides in part as follows: 

"No person shall discharge * * * or cause to be discharged or otherwise interfere with the exercise of the statuto~y rights of any miner * * * in any * * * mine subject to 

this Act because such miner * * * has filed or made a complaint under or related to this Act, including a complaint 

notifying the operator or the operator's agent * * * of an 

alleged danger or health violation in a * * * mine * * * or 

because of the exercise by such miner * * * on behalf of 

himself or others of any statutory right afford by this 

Act." 

1312 
In order for the Complainant to establish in this case 

a prima facie violation of section 105(c)(l) of the Act, he 

must prove by a preponderance of the evidence that he engaged 

in an activity protected by that section and that his discharge or removal from D & R Contractors was motivated in any 

part by that protected activity. Secretary, ex rel David 

Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980), 

reversed on other grounds, sub nom Consolidation Coal Company 

v. Secretary, 663 F.2d 1211 (3rd. Cir. 1981). See also NLRB 

v. Transportation Management Corporation, 76 L.Ed.2d 667 

(1983), affirming burden-of-proof allocations similar to 

those in the Pasula case, and Boich v. FMSHRC, 719 F.2d 194 

(6th Cir. 1983). 

In this case, Mr. Jones has alternatively asserted that 

he was discharged on the afternoon of April 25, 1983, 

because he had refused to continue working overtime after 

working a 10-hour shift. At hearing, Jones alleged that he 

arrived at the Mingo coal mine for work at about 7:15 on the 

morning of the 25th and worked until approximately 5:00 p.m. 

with only a one-half hour break for lunch. He further 

alleged that he had a headache and the flu that day and was 

therefore not feeling well. He thus claims that when the 

"foreman", Ron Perkins, approached him that afternoon about 

working overtime, he declined believing it would be hazardous. Jones claims that when he was discharged later that 

afternoon by Perkins, that action was based upon his refusal 

to work any additional overtime, a work refusal protected by 

the Act. A miner's exercise of the right to refuse work is 

a protected activity under the Act so long as the miner 

entertains a good faith, reasonable belief that to work 

under the conditions presented would be hazardous. 

Robinette v. United Castle Coal Company, 3 FMSHRC 803 (1981). 

See also Eldridge v. Sunfire Coal Company, 5 FMSHRC 408 

(1983). 

Timeliness of Filing. 

It is not disputed that Lonnie Jones was removed from 

D & R Contractors on April 25, 1983, and that he filed his 

complaint of unlawful discrimination with the Federal Mine 

Safety and Health Administration CMSHA) on May 10, 1983, 

alleging that both Mingo Coal Company and D & R Contractors 

violated his section 105Cc> rights~ By letter dated 

June 13, 1983, MSHA notified Mr. Jones of its determination 

that a violation of the Act had not occurred. Allowing 

5 days for mailing of the above letter, it may be presumed 

in the absence of any contrary evidence that Mr. Jones 

received notice of the determination on June 18, 1983. 

Jones did not, however, seek to join D & R Contractors in 

his complaint before this Commission until August 22, 1983, 

1313 
some 35 days beyond the 30 day 

section 105(c}(3} of the Act. 

opposed the motion for joinder 

not timely filed. 

filing deadline set forth in 

D & R Contractors thereafter 

on the grounds that it was 

I find, however, for the reasons set forth below that 

the delay in joining D & R Contractors was excusable. The 

delay, consisting of only 35 days, was brief and no legal 

prejudice has been demonstrated. I note, moreover, that 

D & R Contractors was cited in the initial complaint to MSHA 

filed by Mr. Jones and that it was therefore then given 

notice of action contemplated against it under section 

105Cc> of the Act. Accordingly, D & R Contractors would be 

expected at that time to have begun preparation of its 

defense of this matter including the preservation of 

evidence. 

I also find that Jones could reasonably have been confused as to the proper entity to proceed against. As a 

layman of limited education, it is understandable that he 

may have been confused as to the legal niceties of his 

employment relationship. Until Mingo Coal Company filed its 

initial responsive pleading asserting as one of its defenses 

that Jones was a partner of D & R Contractors and that that 

entity was entirely responsible for any violations under the 

Act, it is understandable that Jones may not initially have 

joined D & R Contractors in this proceeding. It is also 

significant that the referenced pleading of Mingo Coal 

Company was itself filed untimely on August 17, 1983, and 

that the motion for joinder was filed only 5 days thereafter, on August 22, 1983. Within this framework, the 

motion for joinder of D & R Contractors, filed some 35 days 

beyond the deadline set forth in section 105(c}(3} of the 

Act, is deemed to have been timely filed. 2 

The Merits. 

2 This determination of timeliness overrules a previous 

determination made at hearing. The decision at hearing was 

made on the erroneous miscalculation that the delay in f iling the motion for joinder of D & R Contractors had been 

filed some 14 months late. When the error was discovered by 

the undersigned, D & R Contractors was given opportunity to 

present additional evidence and to cross-examine witnesses 

who had appeared at the hearings in this case. It is noted 

that counsel for D & R Contractors was present throughout 

the hearings and that D & R Contractors waived the opportunity to present additional evidence and/or to cross-examine 

witnesses. 

1314 
The issue on the merits is whether Mr. Jones' refusal 

to continue to work overtime under the circumstances herein 

was an activity protected by section 105(c) of the Act and, 

if so, was his removal from the partnership D & R Contractors motivated in any part by that protected activity. 

Whether the activity was protected depends on whether Jones 

entertained a "reasonable, good faith belief that a hazard" 

existed at the time he refused to continue working overtime. 

Robinette, supra, at page 810. In Robinette, the Commission 

defined the good faith requirement as an "honest belief that 

a hazard exists." In explaining the "reasonableness" portion of the test, the Commission rejected the adoption of a 

stringent rule requiring "objective, ascertainable evidence" 

to corroborate the validity of the miners' fear. Robinette, 

at p. 811. The Commission held that the "reasonableness" 

test may be met through evidence establishing "that the 

miners' honest perception was a reasonable one under the 

circumstances." See also Secretary on behalf of Pratt v. 

River Hurricane Coal Company, 5 FMSHRC 1529 (1983) and Har~ 

v. Magma Copper Co., 4 FMSHRC 1935 (1982). On the facts of 

this particular case, I do indeed find that Mr. Jones entertained a good faith, reasonable belief that to continue 

working in his condition would have been unsafe. 

It is not disputed that Jones had worked from 7:15 on 

the morning of April 25, until about 5:00 p.m. that day with 

only a one-half hour break for lunch. Furthermore, it is 

not disputed that during the course of that almost 10-hour 

work shift, Jones was performing a variety of strenuous physical tasks in the difficult environment of a 26-inch seam of 

"low coal." These activities included setting timbers, 

dragging water pumps, shoveling coal from the ribs, hauling 

a 75 pound coal drill and its cable, untangling the cable, 

pushing a 60 pound box of dynamite, drilling and blasting, 

rock dusting with 50 pound bags of rock dust, and setting 

ventilation curtains. Jones maintains that by 5:00 p.m., he 

was so tired he could "hardly get around" and his ability to 

concentrate was "not too good." The dangers existing for 

miners and particularly for a shot firer handling explosives 

under such conditions are obvious. 

As the shot firer, Jones was also exposed to blasting 

powder. It is not disputed that continued exposure to the 

chemicals in blasting powder may induce headaches and that 

Jones had such a headache. Jones also felt "lousy" that day 

because he was still recovering from the flu. The duplicate 

certificate in evidence shows that on April 14, 1983, Jones 

had in fact been treated for the flu by R. D. Pitman, M.D. 

Accordingly, when Perkins asked Jones to continue working overtime after the mining crew had already completed a 

1315 
10-hour shift, Jones refused and purportedly told Perkins 

that he was too tired and that "somebody might get hurt bad." 

Indeed, Perkins himself conceded at hearing that the crew 

could have safely worked only 9 or 10 hours on the day at 

issue and acknowledged that when he asked Jones to continue 

working overtime, Jones had already worked a 10-hour shift. 

Within this framework of evidence, it is apparent that 

Mr. Jones entertained a reasonable good faith belief that to 

continue working overtime under the conditions presented did 

indeed pose a safety hazard to himself and to the other 

miners working with him. His refusal to continue working 

overtime therefore constituted a protected activity within 

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

In his posthearing brief, Perkins does not appear to 

dispute that Jones' refusal to continue working overtime was 

based on a reasonable good faith belief of a safety hazard, 

but claims that Jones failed to testify or present any other 

evidence that he communicated to Perkins or to any of the 

other partners that his work refusal was based on a matter 

of safety. In Secretary on behalf of Dunmire and Estle v. 

Northern Coal Company, 4 FMSHRC 126 (1982); the Commission 

stated that "(w]here reasonably possible a miner refusing to 

work should ordinarily communicate, or at least attempt to 

communicate, to some representative of the operator his 

belief in the safety or health hazard at issue." The purpose of the rule is to assist in "weeding out work refusals 

infected by bad faith." ·Secretary on behalf of Dunmire and 

Estle, supra, at p. 134. Accordingly, when the bona fides 

of a work refusal is not challenged, as it is not in this 

case, and where the representative of the operator acknowledges the existence of the safety hazard at issue, as 

Perkins did in this case, the communication requirement is 

superfluous. 

In any event, contrary to the Respondent's allegations, 

the Complainant did in fact testify that in response to 

Perkin's request to continue working overtime he said "Buddy 

••. I can't. I'm too tired. I might forget something 

around here. Somebody might get hurt bad" (Tr. 119). I 

find this testimony to be credible. There is, first of all, 

a credible factual basis to support Jones contention that 

after the 10-hour work shift he was suffering fatigue and a 

headache and that he was still recovering from the flu when 

Perkins asked him to work additional overtime. Perkins 

himself acknowledged that 9 or 10 hours was "a good day's 

work" and indicated that to go beyond that might be unsafe. 

In addition, the working relationship among the "partners" 

was such that it would reasonably be expected that Jones 

would not have simply refused to work without offering some 

explanation. Under the circumstances, even though I find 

1316 
that it is not necessary for the Complainant to have met the 

requirements of the communication rule, I find that he has 

nevertheless met those requirements in this case~ 

The Complainant must also show in setting forth a prima 

facie case that his discharge was motivated in any part by 

the protected activity. It may reasonably be inferred from 

the timing of Jones' discharge only minutes after his 

refusal to continue working overtime, that it was indeed 

motivated by the protected activity. See Secretary on 

behalf of Anderson v. Stafford Construction Co., et al., 

No. 83-1566, D.C. Cir. April 20, 1984. There is no question 

that Ron Perkins, the person who discharged Jones, knew of 

Jones' protected activity and it may also reasonably be 

inferred that Perkins was hostile toward that protected 

activity because it had a direct negative impact on his 

earnings. 

There was, moreover, no credible "non-protected" reason 

advanced for Jones' discharge. Perkins testified that he 

fired Jones because of his bad work habits, because Jones 

wanted only to do the job of "tamping" and would not volu.1-

teer to do anything else and because Jones wou~d grumble 

about working. In spite of these alleged serious deficiencies, however, Perkins had laid o~f two other miners only a 

short time before Jones' discharge. There is, moreover, no 

evidence that Perkins had previously warned Jones of these 

allegedly bad habits or discussed these problems with the 

other "partners" before the April 25th removal. Perkins' 

claims are indeed devoid of any corroboration and I find 

them to be without credibility. It is clear that Jones' 

discharge was motivated entirely by his protected activity. 

Accordingly, I find that Mr. Jones was discharged by D & R 

Contractors in violation of section 105(c)(l) of the Act. 

ORDER 

1. The parties are hereby ordered to confer regarding 

the possibility of settlement concerning reinstatement, 

costs, damages, and attorneys' fees in this-case and to 

report to the undersigned in writing on or before May 25, 

1984, concerning the results of such discussions. 

2. In the event the parties are unable to reach a 

settlement of these matters, they are to submit to the 

undersigned on or before May 25, 1984, a statement of 

undisputed facts relating to the issues of reinstatement, 

costs, damages, and attorneys' fees, and to indicate the 

specific matters remaining in dispute. 

1317 
3. This decision is not a final disposition of 

case and no final disposition will be rendered until 

time as the issues of reinstate~ent, damages,[sts, 

attorneys' fees are r solved. : 

~ i ~ tJ ~"~ ~v1 

· 

this 

such 

and 

Chief Adm1 strative Law Judge 

Distribution: ·. \ 

Jeffrey A. Armstrong, Es~., Appala~ian Research and 

Defense Fund of Kentucky, Inc., P.O. Box 919, 

Barbourville, KY 40906 (Certified Mail) 

Larry E. Conley, Esq., P.O. Box 577, 102 South Third 

Street, Williamsburg, KY 40769 (Certified Mail) 

/fb 

1318 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 151984 

PYRO MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. KENT 84-87-R 

Order No. 2338185; 1/24/84 

Docket No. KENT 84-88-R 

Order No. 2338186; 1/24/84 

Pyro No. 9 Slope 

William Station 

DECISION 

Appearances: William M. Craft, Assistant Safety Director, 

Sturgis, Kentucky, for Contestant; 

Darryl A. Stewart, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for Respondent. 

Before: Judge Steffey 

A hearing in the above-entitled consolidated proceeding 

was held on February 28, 1984, in Evansville, Indiana, pursuant 

to section 105(d), 30 u.s.c. § 815{d), of the Federal Mine 

Safety and Health Act of 1977. I consolidated for hearing with 

the issues raised by the notices of contest the civil penalty 

issues which will be raised when the Secretary of Labor files a 

proposal for assessment of civil penalty with respect to the 

two violations of 30 C.F.R. § 75.200 alleged in Order Nos. 

2338185 and 2338186. No decision by me on the civil penalty 

issues will be made, however, until the operator has had an 

opportunity to participate in the civil penalty procedures described in Part 100 of Title 30 of the Code of Federal Regulations, as hereinafter explained. 

At the conclusion of presentation of evidence by both 

parties, I rendered a bench decision, the substance of which 

is set forth below: 

The parties stipulated at the beginning of the hearing 

that each order, No. 2338185 and No. 2338186, issued on January 24, 1984, properly alleged a violation of section 75.200, 

and that the inspector had correctly noted in each order that 

1319 
the violation was "significant and substantial". 1/ Having 

made the aforesaid stipulation, the contestant stated that the 

only point which was being contested at the hearing was whether 

the violations should have been cited under section 104{d) of 

the Act in unwarrantable failure orders, rather than in citations, written under section 104{a), which could also have been 

used to designate the violations as being "significant and substantial". 2/ 

1/ The phrase "significant and substantial" comes from section 

104{d) (1) of the Act which reads as follows: 

"{d) (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 unwarrantable failure of such operator to 

so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation, 

except those persons referred to in subsection {c) to be withdrawn from, and to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that 

such violation has been abated. [Emphasis supplied.] 

2/ The Commission recently sutained the Secretary of Labor's 

practice of issuing citations with an indication on the face of 

the citations that the violations being cited are "significant 

and substantial" {Consolidation Coal Co., 6 FMSHRC 189 (1984)). 

Section 104{a) readsas follows: 

"Sec. 104. {a) If, upon inspection or investigation, the 

Secretary or his authorized representative believes that an operator of a coal or other mine subject to this 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. In addition, the citation shall 

fix a reasonable time for the abatement of the violation. The 

requirement for the issuance of a citation with reasonable 

promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act." 

1320 
The parties' stipulation enables me to skip from a detailed 

consideration of the first three findings, namely, (1) that violations occurred, (2) that they did not cause an imminent danger, 

and (3) that they were "significant and substantial", which have 

to be made before an order can be issued under section 104(d) (1), 

to the ultimate question of whether the violations were caused 

by an unwarrantable failure of the operator to comply with section 75.200. 

My conclusion as to whether there was an unwarrantable failure will be based largely on the findings of fact which are set 

forth below: 

1. Inspector James E. Franks went to the Pyro No. 9 Slope, 

William Station Mine on January 24, 1984, to check on a roof 

fall which had occurred. While he was in the mine, he went to 

the No. 5 Unit and specifically to the last open crosscut between the Nos. 4 and 5 entries. At that time, he issued two 

unwarrantable-failure orders. The first one was Order No. 

2338185 which described the violation of section 75.200 as follows (Exh. 1) : 

The approved roof-control plan (dated 8/12/83, 

page 4, par 12(C)) was not being followed on the No. 

5 Unit, ID No. 005, in that the last open crosscut 

between Nos. 5 and 4 entries (100 feet inby spad No. 

1380, #5 entry) was unsupported for an area of approximately 15 ft. long by. 20 ft. wide and the area 

had not been dangered off, so as to warn persons 

that the area was unsupported. 

2. The provision in the operator's roof-control plan which 

the inspector believed was violated was paragraph 12C which 

reads as follows (Exh. 2, page 4): 

All places where the roof is not supported shall 

have conspicuous markers or signs or reflective 

sticks suspended 'from the roof placed outby the 

unsupported roof. 

3. The inspector also wrote Order No. 2338186, pursuant to 

section 104(d) (1) of the Act, describing a second violation of 

section 75.200 as follows (Exh. 3): 

The last open crosscut between Nos. 5 and 4 

entries (100 ft. inby spad No. 1380 #5 entry) No. 

5 Unit, ID No. 005, was cut through in the middle 

and cleaned up, and the area (15 ft. long by 20 ft. 

wide) was unsupported and the evidence indicated 

crosscut had been rock dusted, cable for the roof 

bolter was all the way through the unbolted crosscut, and the tire prints of a piece of equipment, 

1321 
probably the roof bolter, was present in the rock 

dust all the way through the unbolted. (unsupported) 

crosscut, one or more persons had traveled through 

the unsupported area. 

4. The inspector testified that there was a roof-bolting 

machine in the crosscut between the Nos. 4 and 5 entries. He 

stated that the fact that the roof-bolting machine was in the 

entry at the time he wrote both withdrawal orders was immaterial 

in determining whether there was a violation of paragraph 12C of 

the roof-control plan because the inspector's interpretation of 

that paragraph is that the company is required to hang the specified warning devices as soon as a place is cleaned up, regardless of whether the roof-bolting machine and its operator are 

immediately available to go into the place that has been cleaned 

up, for the purpose of installing roof bolts. The inspector believed that the warning devices were required even if an ongoing 

production shift is in progress. The inspector believed that it 

was especially bad that the warning devices had not been placed 

in the crosscut in this instance because no active production 

was going on in the No. 5 Unit at the time he wrote the order, 

although some maintenance or nonproductive work was being performed. 

5. Contestant presented three witnesses, but the testimony 

of two of them is especially noteworthy. The first one was a 

mechanic named Henry Michael Dennis who had been asked by Ken 

Reed, a boss on the third. shift, to do some work on a roofbol ting machine in a crosscut between the Nos. 4 and 5 entries. 

When Dennis went to the place to do the work, he found that the 

roof-bolting machine was being used in the crosscut, but it was 

situated under what Dennis characterized as unstable-looking 

rocks in the roof. Therefore, Dennis asked that the roof-bolting 

machine be backed towards the No. 5 entry. At that point, Dennis 

went to the repair shack to get some parts. When he returned, 

he found the roof-bolting machine closer to the No. 4 entry than 

it was to the No. 5 entry, although when he had left the roofbolting machine, it had been closer to the No. 5 entry than it 

was to the No. 4 entry. Since Dennis had not seen the roofbolting machine moved, he did not know whether it went under 

unsupported roof to be on the side closest to the No. 4 entry. 

In any event, he did the work on the brakes and the torquing device of the machine that he had come there to perform. 

6. The other significant witness presented by the company 

was Ronnie Presley who was normally assigned to the group of 

miners who clean up roof falls. On the morning of January 24, 

1984, the day on which the orders were issued, Presley had been 

requested by John Greenwell, a day-shift foreman, to go to Pyro 

No. 5 Unit and perform any roof bolting which needed to be done 

in any area which had been cleaned up but left unsupported. 

1322 
Presley first installed bolts in the face area and then moved 

down to the crosscut between the Nos. 4 and 5 entries. After 

he had installed two rows of bolts in the crosscut, Dennis, as 

indicated in Finding No. 5, supra, asked Presley to move the 

roof-bolting machine back towards the No. 5 entry. When Presley 

did so, he observed some places in the roof at the new location 

which did not look particularly stable for the performance of 

maintenance work under them. Without thinking about the safety 

factor involved, he inadvertently pulled the roof-bolting machine the remainder of the way through the crosscut. In doing 

so, he passed under unsupported roof. Because of Presley's inadvertent act, the roof-bolting machine was near the No. 4 

entry in the crosscut when Dennis came back to work on the 

machine. 

7. Presley admitted during his testimony that he had violated the roof-control plan, or section 75.200, by going under 

unsupported roof. He stated that when he came out of the mine 

that same day, he was reprimanded for his violating the roofcontrol plan and company policies. He was also suspended for 1 

day because of the violation. 

Docket No. KENT 84-87-R 

At the conclusion of the evidentiary presentations, contestant's representative reiterated his belief that while violations, as the company had conceded, had occurred, he did not 

think that the company's complicity rose to the level of negligence which is required to support a finding of an unwarrantablefailure violation. The company's representative placed in the 

record as Exhibits B through 0 references to various administrative law judges' decisions. I have no disagreement with those 

decisions which seem to follow acceptable definitions of unwarrantable failure. I.am not aware of a Commission decision which 

provides any changes in the definition of unwarrantable failure 

given by the former Board of Mine Operations Appeals in its decision in Ziegler Coal Co., 7 IBMA 280 (1977), in which the 

Board defined the identical provision of unwarrantable failure 

in section 104(c) of the Federal Coal Mine Health and Safety 

Act of 1969 as follows (7 IBMA at 295-296): 

In light of the foregoing, we hold that an 

inspector should find that a violation of any mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines that the operator involved has failed to 

abate the conditions or practices constituting 

such violation, conditions or practices the operator knew or should have known existed or which it 

failed to abate because of a lack of due diligence, 

1323 
or because of indifference or lack of reasonable 

care. The inspector's judgment in this regard must 

be based upon a thorough investigatiOn and must be 

reasonable. 

In applying the above definition to the first order, No. 

2338185, the Secretary's counsel stated that there was a violation of a mandatory safety standard since there is a provision 

in contestant's roof-control plan which states that there must 

be a posting of conspicuous marking devices. He further noted 

that a violation of the roof-control plan is a violation of a 

mandatory standard, or a violation of section 75.200 because 

that section requires each operator to file and follow the provisions of a roof-control plan. 

I have no reason to disagree with the aforesaid portion of 

the Secretary's argument, but some refinement should be made in 

his conclusion to the effect that any time there is a violation 

of a safety standard, the violation in and of itself constitutes 

ordinary negligence. In Southern Ohio Coal Co., 4 FMSHRC 1459 

(1982) , the Commission distinguished between relying upon the 

acts of a rank and file miner for the purpose of finding that a 

violation occurred as opposed to relying upon the acts of a 

rank and file miner for the purpose of imputing negligence to 

the operator. In other words, an operator is liable for the 

occurrence of a violation without regard to fault (U. s. Steel 

Corp., 1 FMSHRC 1306 (1979)), but the negligence of a rank and 

file miner should not be imputed to the operator for the purpose 

of assessing penalties. 

In any event, the above observations do not quite reach 

the point that I must make a ruling upon because I must determine whether the facts in this proceeding show that contestant's 

failure to hang the required warning devices was caused by a 

lack of due diligence or because of indifference or lack of reasonable care. Contestant's representative made an argument 

based upon the provisions of paragraph 12 of the roof-control 

plan which reads as follows (Exh. 2, page 4): 

12. Before the side cuts are started, the roof in 

the area from which it is turned shall be supported with permanent supports according to 

the approved plan. Except where old workings 

are involved, mine openings shall not be holed 

through into unsupported areas. Before a mine 

opening holes through into a permanently supported entry, room, or crosscut, it shall be 

examined from both sides. The intersection so 

created shall be considered unsupported and be 

immediately dangered off with conspicuous 

markers or signs suspended from the roof at 

1324 
each end of the crosscut and no work shall be 

done in or inby {except for setting two temporary supports and making a gas check) such 

intersection until either; 

A. The newly created opening is permanently 

supported or 

B. The newly created opening is timbered off 

with at least one row of timbers installed 

on not more than 5 foot centers across the 

mouth of the open crosscut. Where crosscuts are driven from both sides and holed 

through, it will not be considered an intersection but conspicuous signs shall be 

suspended from the roof. Once set, the 

jacks or posts shall not be removed until 

other supports are installed in the area. 

C. All places where the roof is not supported 

shall have conspicuous markers or signs or 

reflective sticks suspended from the roof 

placed outby the unsupported roof. 

Contestant's representative argues that paragraph 12 requires 

warning devices to be installed "immediately" in the circumstances 

described in the first part of paragraph 12, but contestant contends that the word "immediately" is not used in subparagraph C 

relied upon by the inspector. Contestant's representative asked 

the inspector about the lack of the word "immediately" in subparagraph C and the inspector agreed that the circumstances described in the first part of paragraph 12 did not exist at the 

time Order No. 2338185 was written. Therefore, the inspector 

said that the word "immediately", as used in the first part of 

paragraph 12, did not apply to the violation of subparagraph C 

which the inspector believed was violated. In the inspector's 

opinion, the installation of the warning devices was required by 

the roof-control plan irrespective of whether the word "immediately" appeared in that subparagraph. 

The Secretary's counsel contradicted contestant's argument 

by pointing out that subparagraph C clearly states that "[a]ll 

places where the roof is not supported shall have conspicuous 

markers, or signs, or reflective sticks suspended from the roof." 

The Secretary's counsel contended that as soon as the company 

sees an unsupported place, no matter where it is, the company 

is required to hang the markers. He argued that it is the existence of the unsupported roof which requires the markers and that 

they are required even if the word "immediately" does not appear 

before the provision requiring the warning devices to be installed. 

I think that the Secretary's counsel is probably correct 

in making the aforesaid argument because subparagraph C definitely 

1325 
requires installation of the warning devices at "all places 

where the roof is not supported". Despite the discussion above, 

I was impressed by the fact that contestant's representative is 

an experienced person in dealing with procedures in underground 

mines, and he stated that it is simply not the practice, for 

example, if they are working at the face, to install warning devices. In fact, he said that at the face, there is no way that 

a person would be likely to walk under unsupported roof when 

there is a roof-bolting machine engaged in putting up roof bolts. 

The important aspect of contestant's argument is that a 

roof-bolting machine was being used in the crosscut at the time 

the inspector wrote the order. Contestant's argument is that 

the roof-bolting machine was there with its lights on and the 

operator was working on the machine. The existence of the roofbolting machine and its operator would, contestant claims, have 

served as a warning that there was unsupported roof in the area 

or the roof-bolting machine would not have been there. 

The inspector's testimony controverted the above argument 

by pointing out that the order was written with respect to a 

different situation from that which prevails at the face because a person can walk through a crosscut, but cannot walk 

through the solid coal which one encounters at the face. Consequently, the possibility does exist, according to the inspector, that even if the roof-bolting machine is operating in a 

crosscut, some miner may walk past the machine without considering whether or not the roof-bolting machine is doing actual 

supporting work in a place which/has been cleaned up but which 

has not yet been permanently sup~orted. The roof-bolting machine operator himself is engaged in important and dangerous 

work and he is not paying any particular attention to other 

persons in the mine who might be ordered to do work which could 

cause them to go past his machine under unsupported roof before 

he would notice that they had exposed themselves to the hazard 

of a possible roof fall. 

The inquiry as to whether contestant showed a lack of due 

diligence or a lack of reasonable care has to be decided on the 

narrow question of whether contestant should have hung the required conspicuous markers in the crosscut as soon as the coal 

was loaded out. The evidence shows that contestant did not intend to send the roof-bolting machine into the crosscut immediately for the purpose of installing permanent supports. The 

work of supporting the roof was eventually done on an idle shift 

and the foreman who sent the miner to do the roof supporting 

treated it as "catch-up" work. The evidence shows, therefore, 

that contestant did not with due diligence hang the conspicuous 

markers which were required to be installed by paragraph 12C of 

its roof-control plan. 

1326 
It is true that there was no foreman on the section when 

the inspector wrote the order, but I think that there must have 

been a foreman on the section when the crosscut was cleaned up 

and when the coal was removed from the mine. It was under that 

foreman's jurisdiction that the required conspicuous markers 

should have been hung. So he was the one who showed a lack of 

due diligence in seeing that the markers were hung. The duty 

of hanging markers should not have been left to the preshift 

examiner who apparentiy did hang some warning devices, or at 

least Exhibit C shows that he did some dangering off in the No. 

5 Unit. The point is that before the preshift examination was 

made, the conspicuous markers should have been installed. 

The language used by the former Board was failure to do 

something because of indifference or lack of reasonable care. 

I do not like to say that contestant has indifference because 

other evidence indicates that contestant is not generally indifferent about safety, but I think that there was a lack of due 

diligence and of reasonable care on the part of the foreman in 

this instance. Therefore, I agree with the inspector that an 

unwarrantable failure occurred when contestant failed to put up 

the conspicuous markers described in Order No. 2338185 which 

will hereinafter be affirmed. 

Docket No. KENT 84-88-R 

The next matter to be considered is whether the violation 

cited in Order No. 2338186 was properly alleged in an unwarrantable failure order because contestant has already stipulated 

that the violation of section 75.200 alleged in the order did 

occur. Therefore, it is again necessary to consider whether 

contestant showed a lack of due diligence or a lack of reasonable care with respect to the inspector's claim that one or more 

persons went under unsupported roof. 

Originally this case raised the question of whether the 

inspector had properly inferred that there was a violation of 

section 75.200 because he saw that a cable had been dragged 

through a crosscut and that tracks of a roof-bolting machine 

appeared in a crosscut under an area of unsupported roof. The 

inspector concluded from his observations that there was no way 

the machine could have gone through the crosscut having unsupported roof without passing beneath the unsupported roof. 

If contestant had not presented its witnesses in this case, 

I would have been confronted with the aforesaid preliminary 

question of whether the inspector's inferences had been properly drawn. Contestant's presentation of Ronnie Presley as a 

witness, however, eliminated any need to decide any question 

about inferences because Presley, as noted in Finding Nos. 6 

1327 
and 7, supra, testified that he, without giving proper consideration to safety regulations or company policy, did inadvertently tram the roof-bolting machine through the crosscut beneath 

unsupported roof. That same day Presley was reprimanded and suspended for 1 day for having violated both section 75.200 and company policy. Presley testified that he had been warned not to 

go under unsupported roof, but that in an effort to get the roofbolting machine into a secure place for maintenance work to be 

performed on it, he had inadvertently forgotten about the fact 

that he was passing under roof in which permanent roof bolts had 

not yet been installed. 

In the circumstances described above, it would be improper 

for me to conclude that management showed a lack of due diligence 

or that the second violation of section 75.200 occurred because 

of indifference or lack of reasonable care. In this instance, I 

am reminded of the Commission's decision in Nacco Mining Co., 3 

FMSHRC 848 (1981). In that case, the Commission held that no 

negligence should be imputed to the operator when a section foreman who had always followed safety regulations and who had always 

been a very careful foreman, for some reason acted in an aberrant 

fashion, and went under unsupported roof which fell and caused 

his death. The Commission stated in that case that it could not 

hold the company to have been guilty of negligence because the 

company could not have anticipated that the foreman would act as 

he did. 

I believe that the events leading up to the writing of Order 

No. 2338186 are very similar to those which existed in the Nacco 

case because in this case Presley acted in a wholly unexpected 

manner by tramming his roof-bolting machine through an unsupported 

area without giving due thought. Contestant reprimanded him for 

his careless act and suspended him for it on the same day that it 

happened. 

Contestant's evidence shows that it did not condone Presley's 

action. If the inspector had known all the facts now in the 

record of this proceeding, he would perhaps not have cited the 

violation in an unwarrantable-failure order. In any event, I believe the facts given above support a conclusio~ that the violation of section 75.200 cited in Order No. 2338186 did not occur 

because of a lack of due diligence or because of indifference or 

a lack of reasonable care. Therefore, the violation of section 

75.200 cited in Order No. 2338186 was improperly alleged as an 

unwarrantable-failure violation pursuant to section 104(d) (1) of 

the Act. Order No. 2338186 will hereinafter be modified to a 

citation. 

Civil Penalty Issues 

Contestant filed a motion for an expedited hearing in this 

proceeding. The motion was granted and a hearing was held on 

1328 
February 28, 1984, which was as early as the parties' schedule 

would permit. The bench decision could not be issued in final 

form until the transcript was received and the transcript was 

not received until May 1, 1984. During the period between the 

hearing and receipt of the transcript, MSHA's Office of Assessment proposed penalties of $1,000 each for the violations of 

section 75.200 cited in Order Nos. 2338185 and 2338186. A copy 

of contestant's answer to the proposed assessment was received 

by me on April 3, 1984. In that letter contestant stated that 

"* * * Order No~ 2338185 was vacated and Judge Steffey indicated 

he would assess the penalty on Order No. 2338186." 

On April 13, 1984, I received a copy of the Assessment 

Office's reply to contestant's interpretation of the outcome of 

the hearing held in this proceeding. The pertinent part of the 

Assessment Office's reply is set forth below: 

As the Administrative Law Judge (ALJ) has vacated 

Order No. 2338185, the civil penalty will be voided. 

Your letter of March 29, will be considered a request to contest the civil penalty on Order No. 

2338186 so that the ALJ has jurisdiction to decide 

on the civil penalty. In the future, you should 

file a separate request (blue card) for a hearing 

on the civil penalty, even though you have previously contested the validity of the order or citation. 

It is obvious from contestant's letter to the Assessment 

Office that contestant did not understand my rulings with respect 

to the civil penalty issues. My order providing for hearing 

issued on February 17, 1984, explained on page 2 that the civil 

penalty issues were being consolidated for purpose of receipt of 

evidence pertaining to the six criteria, but that order and my 

opening remarks at the hearing stated as follows (Tr. 2): 

* * * I have consolidated for hearing with the 

issues raised by the notices of contest the civil 

penalty issues which will be raised when and if the 

Secretary of Labor files a proposal for assessment 

of civil penalty with respect to the two violations 

of section 75.200 alleged in Order Nos.· 2338185 and 

2338186. No decision by me on the civil penalty 

issues, however, will be rendered until such time 

as the operator has had an opportunity to participate in the civil penalty procedures described in 

Part 100 of Title 30 of the Code of Federal Regulations. 

My bench decision contained the following discussion of 

the civil penalty issues (Tr. 156-157): 

1329 
I don't normally in one of these cases convert 

orders to citations because I simply find that no 

unwarrantable failure occurred and therefore it's 

an invalid order. But in this case, the civil penalty portion of the case is still pending because 

the proposal for assessment of civil penalty hasn't 

been filed yet. I want the company to have the benefit of conference before I assess the penalty. 

Therefore, in this instance, when my decision comes 

out, I shall convert the Order 2338186 to a citation, 

checking the S and S portion of the citation. Therefore, unless the Department of Labor appeals my decision and gets me reversed on the conversion of the 

order to a citation, the Secretary will propose a 

penalty for a citation in this instance, instead of 

an order. 

I shall hereinafter explain for contestant's benefit what 

procedures should be followed with respect to the civil penalty 

aspects of the proceeding. Since this was probably contestant's 

first exposure to a consolidated notice-of-contest and civil 

penalty proceeding, I am n·ot surprised that some confusion exists 

as to what my bench decision held, particularly when it is realized that contestant did not have a copy of the transcript or 

bench decision when it wrote its letter to the Assessment Office. 

The first aspect of contestant's letter to the Assessment 

Office which needs to be corrected is the fact that my bench decision stated that I would vacate Order No. 2338186 and would 

convert the order to a citation because the violation survived 

the vacation of the order (Island Creek Coal Co., 2 FMSHRC 279 

(1980), and Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980)). 

The length of the hearing was considerably reduced by contestant's having stipulated at the commencement of the hearing (Tr. 

4) that both violations had occurred and that both could appropriately be considered as "significant and substantial" violations. In such circumstances, it is especially true in this 

proceeding that the violation would survive my finding that no 

unwarrantable failure existed with respect to Order No. 2338186. 

The quotation from the Assessment Office's reply to contestant's letter shows that the Assessment Office was under the 

erroneous impression that my bench decision had not only vacated 

Order No. 2338185 but had also held that no violation of section 

75.200 had been proven. The Assessment Office's reply is correct, however, in stating that it is necessary for a proposal 

for assessment of civil penalty to be filed with the Commission 

before I have a case before me which gives me jurisdiction to 

assess a penalty on the basis of the record made in this proceeding. 

1330 
In order that no confusion will continue to exist with respect to the civil penalty issues, I shall further explain the 

procedure which I would expect the Assessment Office and contestant to follow in order to dispose of the civil penalty issues. 

The Assessment Office has already proposed penalties with respect 

to Order Nos. 2338185 and 2338186 under Assessment Control No. 

15-13881-03520, but that proposed assessment included proposed 

assessments for Citation Nos. 2074792, 2074793, and 2338327. If 

the Assessment Off ice fails to sever the proposed assessments 

for Order Nos. 2338185 and 2338186 from the other three citations, 

the civil penalty case may end up before me with three alleged 

violations to be considered which were not the subject of the 

hearing held with respect to Order Nos. 2338185 and 2338186. 

Therefore, I would suggest that the Assessment Office propose 

penalties for the violations of section 75.200 alleged in Order 

Nos. 2338185 and 2338186 under an assessment control number which 

would include only those two orders. Additionally, the proposed 

assessment should refer to No. 2338186 as a citation issued under 

section 104(a) of the Act instead of an order issued under section 104(d) (1) of the Act. The new citation designation would be 

with the "significant and substantial" block checked on it. 

If the Assessment Off ice is agreeable to the above suggestion, the amended proposed assessment should be resubmitted to 

contestant for its consideration. Contestant should bear in mind 

that it is entitled to ask for a conference with respect to Order 

No. 2338185 and Citation No. 2338186 just as it would with respect 

to any other proposed assessment. If contestant, however, wishes 

to have me assess a penalty for both Order No. 2338185 and Citation No. 2338186, it should file a "blue card" with respect to 

both the order and the citation. Contestant is also free to pay 

the proposed penalty for either or both the violations. If contestant elects to pay the penalty for one violation, it may do so, 

and then file a blue card with respect to the violation for which 

it wishes to have me assess the penalty. After the Solicitor's 

Office has filed a proposal for assessment of civil penalty with 

respect to one or both of the violations which contestant did not 

elect to pay at the Assessment Office level, contestant should, 

as usual, file an answer to the proposal for assessment of civil 

penalty. In that answer, contestant should state that a hearing 

has already been held by me with respect to the violations alleged in Order No. 2338185 and Citation No. 2338186 and that the 

civil penalty case should be forwarded to me for the purpose of 

assessing a penalty (or penalties) on the basis of the hearing 

record made in this proceeding. 

I believe that the discussion above should enable the Assessment Off ice and contestant to dispose of the procedural steps required for dealing with all civil penalty issues. 

WHEREFORE, it is ordered: 

1331 
(A) The notice of contest filed by Pyro Mining Company in 

Docket No. KENT 84-87-R is denied and Order No. 2338185 issued 

January 24, 1984, pursuant to section 104(d) (1) of the Act, is 

affirmed. 

(B) The notice of contest filed by Pyro Mining Company in 

Docket No. KENT 84-88-R is granted and Order No. 2338186 issued 

January 24, 1984, under section 104{d) (1) of the Act, is vacated 

insofar as it purports to have been issued as an unwarrantablefailure order and is modified to a citation issued under section 

104(a) of the Act with a designation of a "significant and substantial" violation~ 

(C) The civil penalty issues are severed from this consolidated proceeding for disposition under Part 100 of Title 30 of 

the Code of Federal Regulations, with the understanding that if 

Pyre Mining Company files a request for hearing (or blue card) 

with respect to either or both violations alleged in either 

Order No. 2338185 or Citation No. 2338186, the proposal for 

assessment of civil penalty with respect to the request for hearing will be forwarded to me for assessment of a penalty (or penalties) based on the record in this proceeding. 

Richard ~(!.~~ C. Steffey ~ Administrative Law Judge 

Distribution: 

William M. Craft, Assistant Director of Safety, Pyro Mining 

Company, P. o. Box 267, Sturgis, KY 42459 (Certified Mail) 

Darryl A. Stewart, Esq., Office of the Solicitor, u. s. Department of Labor, Room 280, u. S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

yh 1332 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 161984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

GETZ COAL SALES, INC., 

Respondent .. . 

DECISION 

Docket No. LAKE 83-82 

A.C. No. 33-01869-03504 

Getz Strip 

Appearances: Patrick M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for 

Petitioner. 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the 

petitioner against tne 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 four alleged 

violations of certain mandatory safety standards promulgated 

pursuant to the Act. Respondent filed a timely contest and 

requested a hearing. A hearing was convened in Youngstown, 

Ohio, on April 12, 1984. Although the petitioner appeared 

at the hearing, respondent's counsel did not. 

As a result of the failure by respondent's counsel to 

appear, the hearing proceeded without him, and the respondent 

was held to be in default. Further, in view of this 

respondent's past history of failing to appear at scheduled 

hearings, with absolutely no effort on its part to advise 

the court of its non-appearance, and in view of this 

respondent's flagrant disregard and obvi0us contempt for 

the Commission and its Administrative Law Judges, the 

respondent has been certified to the Commission for appropriate disciplinary sanctions pursuant to Commission Rule 

80, 29 CFR 2700.80. In addition, in view of counsel's 

contumacious conduct in failing to appear at the hearing 

pursuant to notice, he too has been certified to the 

Commission for appropriate disciplinary action. 

1333 
Issues 

The principal issue presented in these proceedings are 

(1) whether respondent has violated the provisions of the 

Act and implementing regulations as alleged in the proposal 

for assessment of civil penalty filed, and, if so, (2) the 

appropriate civil penalty that should be asses~ed against 

the respondent for the alleged violations based upon the 

criteria set forth in section llO{i) of the Act. Additional 

issues raised are identified and disposed of where appropriate in the course of this 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 Federal Mine Safety and Health Act of 1977, Pub. 

L. 95-164, 30 U.S.C. § 801 et seq. 

2. Section llO{i) of the 1977 Act, 30 u.s.c. § 820{i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Discussion 

This case concerns four section 104{a) citations issued 

by MSHA Inspector James A. Boyle, during the course of an 

inspection of the respondent's mine on May 16, 1983, and the 

cited conditions and practices follow below. 

Citation No. 2067133, cites a violation of mandatory 

safety standard 30 C.F.R. 77.1710{i), and describes the 

following condition or practice: 

Seatbelts were not provided for the Caterpillar 

D9G bulldozer {Serial No. 66A 11107) where there is 

a danger of overturning and where roll protection 

{ROPS) is provided. Kenny Doren was operating the 

bulldozer at the 002-0 pit, stripping overburden 

under the supervision of Roy Cusick, foreman. 

1334 
Citation No. 2067134, cites a violation of 30 C.F.R. 

77.1606(c), and states the following condition or practice: 

An equipment defect affecting safety was 

present on the caterpillar D9G bulldozer (serial 

#66Alll07) , in that the operator cab doors were 

not maintained in a working condition. The left 

cab door was held closed with a tarp strap, the 

latch was missing. The right cab door was held 

open with a tarp strap, the inside door handle 

was missing. Kenny Doren was operating the bulldozer at the 002-0 pit, stripping overburden. 

Citation No. 2067135, cites a violation of 30 C.F.R. 

77.1710(i}, and states the following condition or practice: 

Seatbelts were not provided for the Caterpillar 90G bulldozer (Serial No. 66Al0646), where 

there is a danger of overturning and where roll 

protection (ROPS) is provided. Dave Henry was 

operating the bulldozer at the 002-0 pit, stripping 

overburden, under the supervision of Roy Cusick, 

foreman. 

Citation No. 2067136~ cites a violation of 30 C.F.R. 

77.1606(c), and states the following condition or practice: 

An equipment defect affecting safety was 

present on the Caterpillar D9G bulldozer (Serial 

No. 66A 10646), in that the operator's cab doors 

were not maintained in a working condition. The 

left cab door latch was missing and the latch was 

bad, had to be held shut with a piece of wire. 

Dave Henry was operating the bulldozer at the 

002-0 pit, stripping overburden, under the supervision of Roy Cusick, foreman. 

Petitioner's Testimony and Evidence 

MSHA Inspector James A. Boyle, testified a~ to his 

background and experience as a surface mining inspector, 

and he confirmed that on May 16, 1983, he inspected the 

Getz Strip Mine, located in the Lisbon, Ohio, area, and 

owned and operated by Roland A. Getz (Tr. 20-22). He also 

confirmed that he inspected two Caterpillar D9G bulldozers 

and that he issued four citations for certain conditions 

which he found which were in violation of the cited mandatory 

safety standards (Exhibits P-3 through P-6; Tr~ 46). 

1335 
Mr. Boyle testified that the bulldozers were operating 

in the 002 pit area stripping overburden, and he described 

the terrain and conditions under which they were operating. 

He confirmed that no seatbelts were provided for the cited 

bulldozers, and that they were both equipped with ROPS 

(Tr. 23-27) • 

Mr. Boyle indicated that the area where the bulldozers 

were observed stripping was "fairly level." However, he also 

indicated that the cited bulldozers were continuously required 

to travel up and down a ramp area in order to dispose of the 

material which they were mining, and that while the area is 

sometimes slippery when wet, on the day he cited the violations, it was dry (Tr. 2S). He described the ramp as being 

lSO to lSS feet long, with an open end, and he stated that 

one side would be against the spoil, and the other side 

would be "open." He also indicated that the distance from 

the top of the ramp down into the pit was SO to 70 feet, but 

that on the day in question it was probably SO feet (Tr. 28). 

Mr. Boyle conceded that while the bulldozers were operating 

in the pit there would be no danger of their overturning. 

However, since they had to travel the ramp area during their 

normal operation, there would be a danger of overturning on 

the ramp (Tr. 29). He went on to describe the conditions he 

cited, and he confirmed that the cited equipment was not 

equipped with the required seatbelts, and that the door on 

one of the bulldozers had a missing latch and was secured 

by a strap, and the doors on the other bulldozers were not 

maintained in proper working order in that the latch and door 

handle was missing and had to be held shut with a piece of 

strap (Tr. 30-32). Although the actual mechanical operation 

of the dozers was not affected, Mr. Boyle believed that the 

cited conditions did affect the safety of the operators 

(Tr. 32-34) • 

In response to further bench questions, Mr. Boyle stated 

that the reason he did not fill in the "negligence" and 

"gravity" blanks on the face of the citations which he issued 

is that since he found that the violations were not "significant 

and substantial," his instructions were that he was not to fill 

out those blanks when he issues "non-S&S" violations (Tr. 36-37) 

With regard to the conditions of the door latches which 

he cited, Inspector Boyle was of the opinion that the operators 

would have difficulty in getting out of the equipment in the 

event it overturned, and since the bulldozers have hydraulic 

1336 
lines which run under the machine in the area where the 

operators are seated, in the event that the transmission got 

hot and the lines ruptured, there could be a fire, and the 

operator wouldn't notice it until it spread to where he was 

seated (Tr. 32-33). 

Findings and Conclusions 

In view of the respondent's failure to appear at the 

hearing pursuant to notice, I have considered this as a 

waiver of his right to be heard on the record and to defend 

against the violations, and I held him in default. While 

Commission Rule 63, 29 C.F.R. 2700.63, requires that a show 

cause order be issued before a party is held in default for 

failing to answer an order by the Judge, under the circumstances of this case, respondent is not prejudiced by my 

not issuing such an order. Rule 2700.63(b) authorizes a 

judge to enter summary civil penalty dispositions where a 

respondent is in default, and based on this respondent's 

long history of ignoring notices, orders, and other Commission 

findings, any further notices to the respondent would simply 

be fruitless. 

Since the respondent failed to appear at the hearing, I 

have decided this case on the basis of the evidence and testimony 

presented by the pet~tioner in support of the citations. After 

consideration of the unrebutted testimony of Mr. Boyle, as well 

as the evidence and arguments made by the petitioner in support 

of its case, I conclude and find that the petitioner has 

established the fact that the violations occurred as stated 

by the inspector in the citations which he issued. Accordingly, 

the citations are all AFFIRMED. 

I take note of the fact that one of the purported reasons 

for the respondent's counsel failing to appear at the hearing is 

that since the four citations were "single penalty assessments" 

totalling $80, counsel apparently believed that it was not 

"worth the litigation effort." However, it is clear that I 

am not bound by MSHA's proposed initial "single penalty assessments" of $20 for each of the violations in question. Pursuant 

to section llO(i) of the Act, penalty assessments imposed by 

the Commission's judges in a contested case docketed before 

the Commission, are based on the judge's de novo consideration 

of all of the facts and circumstances surrounding the cited 

conditions or practices, as well as the six statutory criteria 

set forth in the Act. 

1337 
Even if I were to affirm the inspector's findings that 

these violations were not "significant and substantial," the 

fact that MSHA imposed an "automatic" initial penalty 

assessment in the amount of $20 under its regulatory scheme 

found in Part 100, Title 30, Code of Federal Regulations, is 

not binding on me. I may reject or accept such an assessment depending on the facts and circumstances presented in 

any given case. Further, based on my consideration of the 

evidence and testimony of record, I may also accept or 

reject the findings by the inspector that the violations 

were not "significant and substantial," and may modify the 

citations to reflect these de novo findings. 

When asked to explain why he did not consider the cited 

conditions or practices to be "significant and substantial," 

~.nspector Boyle responded as follows (Tr. 3 7) : 

MR. ZOHN: And I believe, and of course, 

Mr. Boyle could correct me if I'm wrong, he saw 

the bulldozers on the floor of the pit, rather 

than on the ramp. And, that the danger of over.;.. 

turning, in almost all cases, is when they push up 

onto the open, up onto the ramp and as they're 

backing down onto the open side, they have a tendency 

to back down faster, so, that's the greatest danger 

of overturning, is when they are operating on the 

ramp, which is·a common occurrence, or a frequent 

occurrence, operating in the pit. 

JUDGE KOUTRAS: All right. Now, if that's the 

case, then, again, why wouldn't these be significant 

or substantial? 

MR. ZOHN: Well, that was one of my questions, 

following up. 

BY MR. ZOHN: 

Q. If you had to cite thes~ conditions over again, 

would you have cited them as non S and S, or would 

you have given them a higher degree of danger? 

A. Well, there again, if those two bulldozers 

were working where there was a definite time that 

there would be an overturn, say both of them were 

coming down the ramp, you could make them S and S, 

then, yeah. 

Q. So, in operating on--

1338 
A. See, that was one of the biggest things when 

we went to this non S and s, is where do you draw 

the line. We've been criticized because we cited 

a bulldozer out, doing reclamation, that there was 

no other equipment or persons around. 

JUDGE KOUTRAS: I may have been the Judge that 

did that to you; but, anyway go ahead. 

THE WITNESS: But, anyhow, they say, well, 

you cited them for say, a backup alarm, and there 

was no one in the area, there was never a hazard, 

and you made it S and S. But a lot of inspectors 

base that, the afternoon shift, he may be working 

in an area where's six people involved. So we cited 

him in the spoils for a non S and S citation, and 

that afternoon, he'd be in an area where there would 

be other equipment and people involved. So, you 

have to draw the line, and see where this equipment 

is working and the potential, that, afternoon you 

definitely know he'll be in another area. So 

there's where, I think, this whole thing on this 

S and S, and non S and S, has really confused a lot 

of us. 

BY MR. ZOHN: 

Q. I, another question, in that respect, of the 

classification of these violations; do you, in fact, 

now have the opportunity to inspect this mine as 

frequently as you did, say--

A·. No. See, there's another thing that certain 

type mines are getting in, what we refer to, as a 

pattern·on these two inspections a year now. They'll 

look at their calendar and say, well, it's April, 

he's due, and we'll fix things up; where the other 

five months of the year, he won't. And it's really 

hurt the safety and health part of it, on these 

only two inspections. 

* * * * * * 

BY MR. ZOHN: 

Q. Okay. So were these bulldozers operating on 

the ramp, during the course of that day? Would they 

be operating on--

1339 
A. Yes. One would. And see when you have--

JUDGE KOUTRAS: Excuse me, you say one would? 

THE WITNESS: One was, and then, the other was 

ripping, and then, when he gets so much ripped, then 

they'd both be pushing off this. 

JUDGE KOUTRAS: Okay. 

BY MR. ZOHN: 

Q. Did you see them operating up on the incline, 

at all? 

A. Yeah. 

Q. All right. Based upon your observations of 

them operating on the incline, would you have 

issued them now as S and S citations? 

A. I'd have to check the area first, and see how 

much of a danger there was. Now, these can be, 

these ramps can be anywhere from forty foot wide 

to seventy foot wide, and if they're both going up 

the middle, there is no danger there, but one time 

or another, the ones on the edge, there is a danger 

there then. 

MR. ZOHN: I don't have any further questions, 

your Honor. 

JUDGE KOUTRAS: Okay. What the, do you recall 

what the widths of the ramps were, on these days? 

THE WITNESS: I think those, the ramps, that day, 

were in the neighborhood of forty to fifty feet wide. 

Significant and Substantial 

On the facts of this case, I conclude and find that the 

violations cited by Inspector Boyle were significant and 

substantial. His testimony is that the two bulldozers 

operated on a daily basis in the pits, and while it is true 

that at the t_ime he observed them they were running on fairly 

level terrain, he also indicated that they traveled up and 

down an inclined ramp, and that there was a danger of overturning. Further, in the event of an accident, or overturning, 

Mr. Boyle further testified that the condition of the cab 

134,0 
doors, the lack of proper latches, and one or more missing 

handles, would likely trap the operators in the cabs in 

the event the equipment overturned, and that they would 

have difficulty in getting out of the equipment. Given 

these circumstances, I conclude and find that it was 

reasonably likely that an injury would result from the cited 

conditions or practices. Accordingly, the violations are 

modified to reflect that they were significant and substantial, 

and the inspector's initial findings to the contrary are 

rejected. 

Gravity 

I find that all of these citations constitute serious 

violations. Failure to provide seatbelts and the lack of 

door handles on the operator's cab, presented a serious 

hazard to the equipment operator in the event of an accident. 

If the bulldozers were to overturn, the lack of seatbelts 

would likely throw the operators out of the cab, and the lack 

of adequate door handles would prevent their escape from the 

vehicles in the event of an emergency, particularly if the 

overturned equipment were to come to rest on the one "goodside" of the cab. 

Negligence 

Inspector Boyle believed that the respondent's negligence 

with.respect to the condition of the doors on the cited bulldozers was moderate. He stated that with the older bulldozers, 

while it was difficult to obtain parts such as door handles, 

he still allowed them to be operated (Tr. 34; 36). Mr. Boyle 

also confirmed that the foreman was aware that seatbelts were 

required (Tr. 29). I conclude and find that the violations 

resulted from ordinary negligence on the part of the respondent. 

Good Faith Compliance 

Inspector Boyle confirmed that abatement was achieved in a 

timely manner by the respondent, and the door handles were 

replaced (Tr. 29; 34-36). He also confirmed that seatbelts 

were installed. Under the circumstances, I conclude and find 

that the respondent timely abated the cited conditions and 

practices, and insofar as the citations are concerned, abated 

them in good faith. 

1341 
History of Prior Violations 

Exhibits P-1 and P-2, are computer print-outs of the 

respondent's history of prior violations for the period 

May 16, 1981 through May 15, 1983, and prior to May 16, 

1981. Prior to May 16, 1981, the respondent was assessed 

for a total of 17 citations, two of which were paid. For 

the period May 16, 1981, through May 15, 1983, respondent 

was assessed for two citations, and they remain unpaid. 

Based on the respondent's past compliance record, as 

reflected in the print-outs, I cannot conclude that it is 

per se a bad record of compliance warranting additional 

increases in the civil penalties which I have assessed for 

the four violations which have been affirmed. What I have 

difficulty comprehending is why this respondent, with an 

otherwise good compliance record, consistently ignores and 

flaunts the law after he has abated the conditions, and seeks 

to be heard through the hearing process. 

Size of Business and Effect of Civil Penalties on The 

Respondent's Ability to Continue in Business 

The record reflects that the respondent is a small strip 

mine operator. Absent any evidence to the contrary, and in 

view of the respondent's failure to appear and argue otherwise, I cannot conclude that the civil penalties assessed 

by me for the citations which have been affirmed will adversely 

affect the respondent's ability to continue in business. 

During his closing argument on the record, petitioner's 

counsel requested a substantial increase in the initial penalty 

assessments proposed for these violations, and he did so on the 

basis of the evidence and testimony which indicated that the 

bulldozers in question were operating in areas where there 

was a danger of overturning, that no seatbelts at all were 

provided, and that the lack of adequate door handles and 

latches would entrap the operators if the vehicles were to 

overturn. Counsel also agreed that I was not bound by the 

initial MSHA assessments made for these violations, and he 

alluded to the fact that the respondent has a history of 

flaunting the law (Tr. 47-48). 

Petitioner's counsel also moved that in view of the 

failure of the respondent or his counsel to appear in this 

proceeding, that I refer the matter to the Commission forappropriate disciplinary action pursuant to the Commission's 

rules. In support of his motion, counsel argued that the 

respondent has an obvious contempt for these proceedings, that 

this is not the first time he has failed to appear at a 

hearing, and that in each instance where other Commission 

1342 
Judges have ordered payments of civil penalties, or that 

respondent answer show-cause or other orders, he has 

flagrantly disregarded them. Counsel also stated that the 

respondent has made no payments for any civil penalties 

ordered by the Commission Judges in past proceedings, and 

that the Department of Labor has sought injunctions against 

the respondent for non-payment of penalties in the United 

States District Court (Tr. 12-15; 48-50). Petitioner's 

counsel also stated that the respondent and his foremen 

treat MSHA inspectors with general disrespect and that the 

respondent attempts to avoid the law rather than obey it 

(Tr. 16) • 

In support of his assertion that the respondent has 

flagrantly disregarded the authority and jurisdiction of 

the Commission, petitioner's counsel alluded to several 

prior decisions and orders issued by me, by Chief Judge 

Merlin, and Judges Broderick and Melick, and a discussion 

of these follow below: 

In MSHA v. Getz Coal Sales,Inc., VINC 79-60-P, decided 

by me on August 7, 1980, 2 FMSHRC 2172, respondent Roland 

Getz failed to appear at a hearing convened in Warren, Ohio, 

and he did so without prior notice that he would not appear. 

He simply ignored the notice, and my personal telephone call 

to him the morning of the hearing. In that case, he specifically requested a hearing, and did not even give me the courtesy 

of a telephone call that he would not appear. He was defaulted, 

and an order was entered that he pay the assessed civil penalty 

of $75. 

In MSHA v. Getz Coal Sales, Inc., LAKE B0-396, Judge 

Broderick entered a default order on February 9, 1981, 

requiring the respondent to pay a penalty of $26 for his 

failure to file an answer or otherwise respond to the Judge's 

show-cause order. Judge Merlin issued a similar default 

order on May 13, 1983, in MSHA v. Getz Coal Sales, Inc., 

LAKE 83-4, and ordered the respondent to make an immediate 

payment of $46. 

In MSHA v. Getz Coal Sales, Inc., LAKE 83-86, Judge 

Melick approved a settlement motion calling for the respondent 

to pay a $30 assessment in satisfaction of a citation 

initially assessed as $42, and in that case, as well as the 

others noted above, petitioner's counsel states that respondent 

has made absolutely no payments, and has simply ignored the 

orders issued by the Judges. 

1343 
Respondent's Failure to Appear at T,he Hearing 

The record in this case reflects that both the respondent 

and his counsel received notice of the hearing scheduled in 

this case, and the postal certified mailing receipts which 

are part of the record attest to that fact. Respondent received 

my original hearing notice issued on January 16, 1984, and his 

counsel received the amended notice issued March 22, 1984, 

advising him of the specific hearing site. These notices were 

issued well in advance of the scheduled hearing on April 12, 

1984. 

In addition to the written notices served on the 

respondent and his counsel, petitioner's counsel advised me 

that he personally spoke with respondent's counsel on the day 

before the hearing and advised him that he should appear. 

When counsel failed to appear the morning of the hearing, I 

personally telephoned his off ice and was advised by his 

clerical staff that he was away, but that he was aware of 

the fact that this matter was scheduled for hearing. Given 

these circumstances, it seems clear to me that respondent and 

its counsel had ample notice of the hearing, yet they 

flagrantly ignored the notices and orders. 

Although responoent Roland Getz has a history·of obvious 

contempt for these legal proceedings, and apparently derives 

some vicarious pleasure by thumbing his nose at the Department 

of Labor, as well as the Commission, I fail to understand and 

comprehend counsel Neal s. Tostenson's conduct in ignoring the 

notices served on him in this proceeding. As a member of the 

Bar, I would think that he would be cognizant of his ethical 

responsibilities as counsel of record in these proceedings, and 

act accordingly. If counsel conducted his practice in this 

manner while before a United States District Court, he would 

more than likely find himself in contempt of court. Lacking 

such contempt powers, I do have the discretion to certify the 

matter to the Commission for possible disciplinary action under 

its rules, and I may also consider referring the matter to the 

local bar where counsel is admitted to practice. 

After careful consideration of the motion made by 

petitioner's counsel to certify this matter, IT IS GRANTED, 

and the matter will be certified to the Commission for consideration of appropriate disciplinary action under 29 C.F.R. 

2700.80. 

.1344 
Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and considering the statutory criteria found in section llO(i) 

of the Act, I conclude and find that the following civil 

penalties are reasonable and appropriate for the violations 

which have been affirmed. 

Citation No. Date 30 CFR Section Assessment 

2067133 5/16/83 77.1710(i) $135 

2067134 5/16/83 77.1606(c) 175 

2067135 5/16/83 77.1710(i) 135 

2067136 5/16/83 77.1606{c) 175 

$620 

ORDER 

Respondent IS ORDERED to pay the civil penalties in the 

amounts shown above within thirty (30) days of the date of this 

decision, and payment is to be made to MSHA. 

IT IS FURTHER ORDERED THAT: 

In view of the circumstances surrounding the 

respondent's apparent flagrant disregard for the 

authority and jurisdiction of the Commission, and 

in view of Counsel Neal S. Tostenson's failure to 

appear at the scheduled hearing pursuant to notice 

duly served on him, the matter is ref erred to the 

Commission pursuant to Rule 80, 29 CFR 2700.80. 

See: Secretary of Labor ex rel. Roy A. Jones v. 

James Oliver & Wayne Seal, FMSHRC Docket No. NORT 

78-415, March 27, 1979; Canterbury Coal Co., 1 FMSHRC 

335 (May 1979);· Secretary of Labor v. Co-Op Mining 

Company, 1 FMSHRC 971 (July 1979) {Disciplinary 

Proceeding No. D-79-2). 

/li~.4ali~ Administrative Law Judge 

1345 
Distribution: 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office Bldg., 1240 E. 9th St., 

Cleveland, OH 44199 (Certified Mail) 

Neal S. Tostenson, Esq., Georgetown Bldg., Georgetown Rd., 

P.O. Box 447, Cambridge, OH 43725 (Certified Mail) 

Mr. Roland A. Getz, President, Getz Coal Sales, Inc., 

8310 Hoffee Road, Lisbon, OH 44432 (Certified Mail) 

/ejp 

1346 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 171984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE PITTSBURG & MIDWAY COAL 

MINING CO., 

Respondent 

. . 

Docket No. CENT 83-65 

A.C. No. 29-00096-03506 

McKinley Mine 

DECISION 

Appearances: 

Before: 

Jordana w. Wilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; 

John A. Bachmann, Esq., Denver, Colorado, for 

Respondent. 

Judge :Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for one alleged violation of a mandatory standard, that contained in 30 C.F.R. 

§ 77.202. Pursuant to notice, the case was heard in Albuquerque, 

New Mexico on April 17, 1984. Forester Horne and Harold Shaffer 

testified on behalf of Petitioner, and Petitioner called Frank 

Scott, a representative of Respondent as a witness. Frank Scott 

and Gary Cope testified on behalf of Respondent. At the conclusion of the testimony, counsel orally argued their respective 

positions on the record, and waived their right to file post-

. hearing 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 a surf ace coal mine in McKinney 

County, New Mexico, known as the McKinney Strip Mine. 
2. Respondent is a large operator. 

3. Respondent's history of previous violations is small. 

A penalty otherwise appropriate should not be increased because 

of the history. 

4. A penalty in this case will not have any effect on 

Respondent's ability to continue in.business. 

5. On June 9, 1983, Federal Mine Inspector Forester Horne 

inspected the subject mine and issued Citation No. 2071336 

alleging a violation of 30 C.F.R. § 77.202. 

6. The tipple control room at the subject mine i~ on the 

top floor of the coal transfer building and is about 80 feet 

from the surface. The coal comes in the transfer building and 

its transferred to the stacker belt. Coal dust results from 

this operation. 

7. The tipple control room is about 20 feet by 15 feet. 

It contains two panels or boxes, one known as the main crusher 

panel or main breaker box, and the other called the heat trace 

box or panel. 1The former is about 6 feet high and 2 feet wide. 

The latter is about 2 feet by 2 feet. 

8. The main crusher panel contains a motor starter, with 

an overload relay, a transformer and numerous wires. · 

9. The heat trace panel contains a number of circuit 

breakers. 

10. On June 9, 1983, there was an accumulation of coal 

dust in the main crusher panel and the heat trace panel. The 

dust on the base of each panel measured approximately one~eighth 

of an inch. It was black in color. There was dust on the 

equipment within each box although most of it had settled to the 

base. The dust was not in suspension. 

11. The dust had come up through the floor of the room and 

around the conduits under the panels. 

12. The condition described in Finding No. 10 was such 

that it would have taken 2 to 3 days to accumulate. It was 

apparent to visual observation. 

13. In the normal operation of the main crusher panel and 

the heat transfer panel, no ignition source, arc or spark is 

created. 

1348 
14. In the event of a phase to phase or phase to ground 

fault within one of the panels, an ignition could be created. 

If an ignition occurred, it could put the dust accumulation in 

suspension and an explosion could result. 

REGULATION 

30 C.F.R. § 77.202 provides as follows: "Coal dust in the 

air of, or in, or on the surfaces of, structures, enclosures, 

or other facilities shall not be allowed to exist or accumulate 

in dangerous amounts." 

ISSUES 

1. Whether Respondent allowed coal dust to exist or 

accumulate in dangerous amounts in the panels in the tipple 

control room of the subject mine on June 9, 1983? 

2. If so, what is the appropriate penalty for the 

violation? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the 

subject mine, and I have jurisdiction over the parties and 

subject matter of this nroceeding. 

2. The condition described in Finding of· Fact No. 10 

constituted a violation of the mandatory safety standard contained in 30 C.F.R. § 77.20~. 

DISCUSSION 

The critical issue in .this case is whether the coal dust 

accumulations existed "in dangerous amounts." There are few 

cases interpreting this phrase. But see Consolidation Coal 

Company, 3 FMSHRC 318 (1981) (ALJ); Secretary v. co-op Mining 

Company, 5 FMSHRC 1041 (1983) (ALJ). Whether an accumulation 

is dangerous depends upon the amount of the accumulation and 

the existence and location of sources of ignition. The greater 

the concentration, the more likely it is to be put into suspen~ 

sion and propagate an explosion. I accept the inspector's 

testimony as to the amount of the accumulation and conclude that 

it was significant. It is true that there were no bare wires 

or any equipment that would cause arcing or sparking without 

some equipment failure or defect. But there was energized 

electrical facilities present and faults or failures in such 

facilities are common occurrences.. I conclude that if the 

extent of the accumulation is such that it is black in color, 

and if potential ignition sources are present, the accumulation 

exists in a dangerous amount. 

1349 
3. The violation was moderately serious. An ignition was 

unlikely to occur, but if it did, serious injuries would result. 

4. The violation resulted from Respondent's negligence. 

Respondent knew or should have known of its existence and 

cleaned it up. 

5. The violation was abated promptly and in good faith. 

6. Considering the criteria in section llO(i) of the Act, 

I conclude that an appropriate penalty for the violation is 

$400. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, Respondent is ORDERED to pay the sum of $400 within 30 days 

of the date of this decision for the violation found herein to 

have occurred. 

l~ )46~&dvvie/l James A. Broderick < Administrative Law Judge 

Distribution: 

Jordana w. Wilson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square Building, Suite 501, 

Dallas, TX 75202 (Certified Mail) 

John A. Bachmann, Esq., The Pittsburg & Midway Coal Mining 

Company, 1720 South Bellaire Street, Denver, CO 80222 

(Certified Mail) 

/fb 

1350 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAY 171984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-248 

A. C. No. 15-13881-03504 

Docket No. KENT 84-72 

A. C. No. 15-13881-03514 

Pyro No. 9 Slope 

William Station 

Docket No. KENT 84-71 

A. C. No. 15-11408-03518 

Pride Mine 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

William M. Craft, Assistant Safety Director, 

Sturgis, Kentucky, for Respondent. 

Before: Judge Steffey 

A hearing was convened in the above-entitled proceeding on 

February 28, 1984, in Evansville, Indiana, pursuant to section 

105 (d) , ·30 U.S. C. § 815 (d), of the Federal Mine Safety and 

Health Act of 1977. 

The parties were given an opportunity to discuss settlement prior to the convening of the hearing. As a result of 

their discussion, a settlement of all issues was achieved. Under the parties' settlement agreement, respondent will pay reduced penalties totaling $734 instead of the penalties totaling 

$1,684 proposed by the Mine Safety and Health Administration. 

Some aspects of the parties' settlement agreement are unique in 

that the parties asked me to modify a citation issued under section 104(d) (1) to a citation issued under section 104(a), as 

hereinafter fully explained. 

Section llO(i) of the Act lists six criteria which are required to be considered in determining civil penalties. The 

proposed assessment sheets in the official files show that 

1351 
respondent produces approximately 2,813,000 tons of coal annually. That production figure supports a finding that respondent 

operates a relatively large coal business and that penalties 

should be in an upper range of magnitude insofar as they are 

determined under the criterion of the size of the operator's 

business. 

Respondent did not present any evidence at the hearing pertaining to its financial condition. The Commission held in 

Sellersburg Stone Co., 5 FMSHRC 287 (1983), that if an operator 

fails to introduce any data pertaining to its financial condition, a judge may presume that the operator is able to pay pen~ 

alties. In the absence of any information in the record to support a contrary conclusion, I find that payment of penalties 

will not cause respondent to discontinue in business and that it 

is unnecessary to reduce any penalties because of the operator's 

financial condition. 

All of the proposed assessment sheets indicate that, during 

the 24 months preceding the citing of the violations alleged in 

this consolidated proceeding, respondent was cited for such a 

few violations of the mandatory health and safety standards, 

that MSHA assigned zero penalty points under the penalty assessment formula described in 30 C.F.R. § 100.3(c). Therefore, no 

penalty assessed in this proceeding needs to be increased under 

the criterion of respondent's history of previous violations. 

Each of the proposed assessment sheets shows, with one exception, that all assessments proposed by MSHA have been reduced 

by 30 percent pursuant to section 100.3(f) because respondent 

. demonstrated a good-faith effort to achieve compliance within 

the time for abatement given by the inspectors in their citations. The one exception occurred with respect to Citation No. 

2337388 and special circumstances pertain to that citation as 

hereinafter explained. 

. The above discussion of four of the six criteria is applicable to all penalties proposed by MSHA in this proceeding. The 

remaining two criteria of negligence and gravity are hereinafter 

considered in an evaluation of each violation alleged in each 

docket number. 

Docket No •. KENT 83-248 

The proposal for assessment of civil penalty in Docket No. 

KENT 83-248 seeks to have penalties assessed for three alleged 

violations. Citation No. 2217774 alleged a violation of section 

75.202 because the roof in the vicinity of the air shaft had 

been resupported after the occurrence of a roof fall, but the 

inspector believed that additional supports in the form of cribs 

1352 
were needed because of the adverse conditions which existed in 

the area. The Assessment Office considered the violation to 

have been moderately serious, to have been associated with a 

low degree of negligence, and proposed a penalty of $50 which 

respondent has agreed to pay in full (Tr. 4). Inasmuch as the 

roof had been resupported after the roof fall, but had not been 

supported as well as the inspector believed to be desirable, it 

appears that the Assessment Office proposed a reasonable penalty 

and that respondent's agreement to pay the full amount should be 

approved. 

Citation No. 2217821 alleged a violation of section 75.1303 

because a misfired shot had not been removed from the left rib 

of the No. 1 entry before mining was conducted inby the misfired 

shot. The Assessment Office considered the violation to have 

been moderately serious, to have been associated with a low degree of negligence, and proposed a penalty of $50 which respondent has agreed to pay in full (Tr. 4). I would normally expect 

the failure to remove a misfired shot to be a more serious violation than it was considered to be in this instance, but the 

Assessment Office assigned penalty points under section 100.3 

for the criteria of negligence and gravity exactly as those criteria had been evaluated by the inspector who wrote the citation. 

The inspector was present when the misfired shot was removed and 

was in a position to observe the circumstances~surrounding the 

violation better than anyone else~ In such circumstances, I 

find that the penalty.. was properly proposed and that respondent's 

agreement to pay the full amount should be approved. 

Citation No. 2217824 alleged a violation of section 75.202 

because brows in the vicinity of overcasts in the track, belt, 

and return entries needed additional support. The Assessment 

Office considered the violation to have been moderately serious, 

to have been associated with ordinary negligence, and proposed 

a penalty of $74 which respondent has agreed to pay in full (Tr. 

5). The Assessment Office assigned penalty points in accordance 

with the evaluation made by the inspector who wrote the citation. 

He was in a position to determine the seriousness of the violation and to appraise the operator's degree of negligence. Therefore, I find that the penalty was properly proposed and that respondent's agreement to pay the penalty in full should be 

approved. 

Docket No. KENT 84-71 

The proposal for assessment of civil penalty filed in Docket No. KENT 84-71 seeks assessment of a penalty for a single 

violation of section 75.604 which was alleged in Citation No. 

2337395 because five splices in the trailing cable attached to 

the cutting machine were not effectively insulated and sealed 

1353 
to exclude moisture. The Assessment Office assigned.penalty 

points in accordance with the inspector's evaluation of negligence and gravity. Therefore, I find that the penalty of $85 

was properly proposed and that respondent's agreement to pay 

the penalty in full (Tr. 5) should be approved. 

Docket No. KENT 84-72 

The proposal for assessment of civil penalty filed in Docket No. KENT 84-72 seeks assessment of penalties for six alleged 

violations of the mandatory health and safety standards. Two 

of the citations (Nos. 2337926 and 2337927) alleged violations 

of section 75.400. The Assessment Office assigned penalty 

points in accordance with the inspector's evaluation of negligence and gravity. The inspector considered the violation alleged in Citation No. 2337927 to be more serious than the one 

alleged in Citation No. 2337926 because he believed that the 

loose coal accumulations described in Citation No. 2337927 exposed more persons to injury than the accumulations described 

in Citation No. 2337926. The inspector considered that both 

violations were associated with ordinary negligence. Respondent 

has agreed to pay in full the proposed penalties of $74 and $91 

for the violations alleged in Citation Nos. 2337926 and 2337927, 

respectively. I find that the penalties were properly proposed 

and that respondent's agreement to pay the penalties in full 

should be approved. 

Citation No. 2337929 alleged a violation of section 75.517 

because the insulation on the trailing cable to the cutting 

machine had been damaged sufficiently to expose bare conductor 

wires. The inspector considered the violation to have been 

serious and to have been associated with a high degree of negligence. His evaluation resulted in a proposed penalty of $112 

under the assessment formula in section 100.3. Respondent has 

agreed to pay the proposed penalty in full (Tr. 8). I find that 

the penalty was properly proposed and that respondent's agreement to pay the penalty in full should be approved. 

Respondent's answer to the Secretary's proposal for assessment of civil penalty filed in Docket No. KENT 84-72 withdrew 

respondent's request for a hearing with respect to the violation 

of sections 75.604 and 75.701 alleged in Citation Nos. 2337944 

and 2337945, respectively. Respondent's withdrawal of its request for hearing has the technical effect of leaving the matter 

before me for approval because section llO(k) of the Act provides that a proposed penalty which has once been contested so 

as to bring it before the Commission cannot be compromised, 

mitigated, or settled without the approval of the Commission. 

Both of the violations pertained to creation of shock hazards 

because of poor insulation in one instance and lack of a frame 

1354 
ground in the other instance. The inspector considered both 

violations to have been moderately serious and to have been 

associated with ordinary negligence. His evaluations resulted 

in proposed penalties for each violation of $74 which respondent has agreed to pay in full (Tr. 7). I find that the penalties were properly proposed and respondent's agreement to pay 

the penalties in full should be approved. 

The final violation to be considered in Docket No. KENT 

84-72 is a violation of section 75.316 alleged in Citation No. 

2337388 which was written pursuant to the unwarrantable-failure 

provisions of section 104(d) (1) of the Act. The Assessment 

Office waived application of the penalty formula described in 

section 100.3 with respect to the violation alleged in Citation 

No. 2337388 and proposed a penalty of $1,000 on the basis of 

narrative findings written pursuant to section 100.5. At the 

hearing, counsel for the Secretary of Labor stated that he had 

discussed with the inspector who wrote Citation No. 2337388 the 

conditions surrounding his writing of the citation and the Secretary's counsel said that the citation incorrectly implies 

that the cutting machine was not equipped with water sprays 

when, in fact, it was so equipped. The Secretary's counsel 

also stated that respondent's mana~ement was in the process of 

advancing the waterline at the tim~ the citation was written. 

Additionally, the Secretary's couns~l stated that, while the 

ventilation and dust control plan does specify that the cutting 

machine has to be equipped with four water sprays, the plan 

does not specifically state that the machine can be used only 

if the waterline is connected to the machine. 

The Secretary's counsel stated that even though it would 

make little sense to have water sprays on a machine without 

having them connected to a waterline, he believed the ambiguous 

wording of the plan had caused the violation to be rated as 

much more serious than it was. In such circumstances, the Secretary's counsel moved that I modify the citation to a citation 

written pursuant to section 104(a) of the Act and that the modified citation should be written without checking the block on 

the face of t~e citation indicating that the violation was a 

significant artd substantial violation (Tr. 9-11). 

I believe that the Secretary's counsel provided sufficient 

reasons to justify the grant of his motion that I modify Citation No. 2337388 from one issued pursuant to section 104(d) to 

a citation issued pursuant to section 104(a). The inspector 

who wrote the citation did not consider the violation to have 

been very serious because he evaluated the gravity of the violation to be the same as has previously been discussed above when 

penalties of $50 have been proposed by the Assessment Office 

for violations in citations written pursuant to section 104(a). 

1355 
The only reason the Assessment Office waived the provisions 

of section 100.3 and proposed a penalty of $1,000 under section 

100.5 was that the inspector believed that a high degree of negligence was involved. The explanation given by the Secretary's 

counsel, however, indicates that respondent's ventilation and 

dust control plan is ambiguous as to the question of attachment 

of the waterline to the cutting machine in the face area. Since 

the ventilation and dust control plan contains ambiguous language which makes it inappropriate to find that respondent's 

management was necessarily indifferent or showed a lack of due 

diligence in having the cutting machine connected to the waterline, I believe that the citation was improperly issued under 

the unwarrantable-failure provisions of the Act and that the 

citation should be modified, as hereinafter ordered, to a citation issued under section 104(a) of the Act. 

When the parties stated that they had not agreed upon a 

specific penalty for the alleged violation of section 75.316, 

but had only agreed that the citation should be modified to a 

citation issued pursuant to section 104(a) without a designation of significant and substantial, I noted that I had written 

a decision 1/ in which I held that the Commission and its judges 

are not bound by the provisions of section 100.4 2/ so as to be 

required to assess a penalty.of only $20 if we have before us a 

civil penalty proceeding involving a citation issued under section 104(a) without a designation that the violation is significant and substantial.· 3/ 

Citation No. 2337388, as modified, cites a violation of 

section 75.316 because the cutting machine was being used without having the waterline connected to it. The parties have 

stipulated that the violation was not significant and substantial, 

1/ U. S. Steel Mining Co., Inc., Docket Nos. WEVA 82-390-R, et 

al., issued April 30, 1984, pages 19-25. 

27 30 C.F.R. § 100.4 provides, in pertinent part, as follows: 

"An assessment of $20 may be imposed as the civil penalty where 

the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time 

set by the inspector. * * *" 

3/ The Commission held in Consolidation Coal Co., 6 FMSHRC 

189 (1984), that MSHA's inspectors may designate on a citation 

written pursuant to section-104(a) of the Act that a violation 

is "significant and substantial". That phrase is derived from 

section 104(d) (1) of the Act which specifies that an inspector 

must find that any violation cited pursuant to section 104(d) 

"* * * 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 * * *" 

1356 
or of a nature which could have been expected to cause an injury of a reasonably serious nature as the term "significant 

and substantial" has been defined by the Commission in National 

Gypsum Co., 3 FMSHRC 822 (1981). In such circumstances, only a 

very small portion of the penalty should be assessed under the 

criterion of gravity. Most of the penalty should be assessed 

under the criteria of the operator's size and the fact that ordinary negligence must be considered to have been associated 

with failure to. attach the waterline prior to using the machine 

even if the ventilation plan did not specifically state that 

attachment of the waterline was a prerequisite for using the 

machine to cut coal. I have previously stated above that no 

penalty in this proceeding should be increased under the criterion of history of previous violations. The penalty should 

not be increased under the criterion of good-faith abatement because the violation was corrected within the 30-minute period 

allowed for abatement by the inspector. Therefore, I believe 

that a penalty of $50 should be assessed for the violation of 

section 75.316 alleged in Citation No. 2337388. 

WHEREFORE, for the reasons hereinbefore given, it is 

ordered: 

(A) The parties' motion for approval of settlement is 

granted and the settlement agreement is approved. 

(B) The motion made by counsel for the Secretary of Labor 

for modification of Citation No. 2337388 is granted and Citation No. 2337388 dated August 19, 1983, is modified to a citation issued under section 104(a) of the Act without a designation of significant and substantial. 

(C) Pursuant to the parties' settlement agreement and the 

grant of the parties' other requests in this proceeding, Pyre 

Mining Company shall, within 30 days from the date of this decision, pay civil penalties totaling $734.00 which are allocated 

to the respective alleged violations as follows: 

Docket No. KENT 83-248 

Citation No. 2217774 4/18/83 § 75.202 .•••.•. 

Citation No. 2217821 4/20/83 § 75.1303 •••••• 

Citation No. 2217824 4/22/83 § 75.202 •••••• 

Total Settlement Penalties in Docket 

No. KENT 83-248 •••••.•••••••••••••.•••.•••• 

Docket No. KENT 84-71 

Citation No. 2337395 9/27/83 § 75.604 

Total Settlement Penalties in Docket 

$ 50.00 

50.00 

74.00 

$174.00 

$ 85.00 

No. KENT 84-71 ••.••••••••••••••••••••••••• $ 85.00 
Docket No. KENT 84-72 

Citation No. 2337388 8/19/83 § 75.316 ....... $ 50.00 

Citation No. 2337926 10/25/83 § 75.400 . ..... 74.00 

Citation No. 2337944 10/25/83 § 75.604 . . . . . . 74.00 

Citation No. 2337927 10/26/83 § 75.400 . ..... 91. 00 

Citation No. 2337945 10/27/83 § 75.701 . ..... 74.00 

Ci ta ti on No .• 2337929 10/28/83 § 75.517 ...... 112.00 

Total Settlement and Assessed Penalties 

in Docket No. KENT 84-72 . . . . . . . . . . . . . . . . . . $475.00 

Total Settlement and Assessed Penalties 

in This Proceeding •••••••••••••••••••••••• $734.00 

~ e.rrJGjfe Richard c. Steffey7'-

Administrative Law Judge 

Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, u. s. Department of Labor, Room 280, u. S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

William M. Craft, Assistant Safety Director, Pyro Mining Company, 

P. O. Box 267, Sturgis, KY 42459 (Certified Mail) 

yh l.358 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

MAY 221984 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

DUVAL CORPORATION, 

Respondent 

. . 

. . 

Docket No. CENT 80-312-M 

A.C. No. 29-00166-05005 

Nash Draw Mine 

DECISION 

Appearances: Eloise v. Vellucci, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Lina s. Rodriguez, Esq., ·Bilby, Shoenhair, 

Warnock & Dolph, Tucson, Arizona, 

for Respondent. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

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

"Act"), arose from an inspection of respondent's Nash Draw Mine. 

The Secretary of Labor seeks to impose civil penalties because 

respondent allegedly violated two safety regulations promulgated 

under the Act. 

Respondent denies that any violations occurred. 

After notice to· the parties, a hearing on the merits was 

held in Carlsbad, New Mexico on November 2, 1983. 

The parties filed post trial briefs. 

Issues 

The issues are whether respondent violated the regulations; if so, what penalties are appropirate. 

Stipulation 

The parties stipulated as to certain evidence and they 

further agreed that the size of respondent's Nash Draw mine is 

179,041 man hours. The company's total size is 5,773,849 annual 

man hours (Tr. 10). 

1359 
The two" citations here allege respondent violated Title 30, 

Code of Federal Regulations, Section 57.19-120 and Section 

57.11-50. 

Citation 162288 provides as follows: 

57.19-120 Mandatory. A systematic procedure of 

inspection, testing, and maintenance of shaft and 

hoisting equipment shall be developed and followed. 

If it i~ found or suspected that any part is not 

functioning properly, the hoist shall not be used 

until the malfunction has been located and repaired 

or adjustments have been made. 

Citation 162289, provides as follows: 

57.11-50 Mandatory. Every mine shall have two or 

more separate, properly maintained escapeways to the 

surface from the lowest levels which are so positioned 

that damage to one shall not lessen the effectiveness 

of the others. A method of refuge shall be provided 

while a second opening to the surf ace is being developed. A second escapeway is recommended, but not required, during the exploration or development of an ore body. 

In addition to separate escapeways, a method of refuge 

shall be provided for every employee who cannot reach 

the surf ace from his working place through at least 

two separate escapeways within a time limit of one hour 

when using the normal exit method. These refuges must 

be positioned so that the employee can reach one of 

them within 30 minutes from the time he leaves his workplace. 

Summary of the Evidence 

MSHA's evidence: Sidney Kirk, a supervisory mine inspector, 

testified for MSHA (Tr. 14-17). 

At approximately 11:30 a.m. on January 9, 1980 Inspector 

Kirk received a call from Marvin Nichols, his supervisor. The 

supervisor advised him that respondent was having hoisting 

control problems on the No. 5 hoist at the Nash Draw mine. 

Nichols had told the company the oncoming miners should not go 

underground until the malfunction was corrected (Tr. 18). In the 

interim the company was directed to inform the MSHA off ice in 

Carlsbad of any developments (Tr. 18). 

About 3:30 p.m., respondent's representative Merle Elkins 

called Inspector Kirk. He indicated the electrical malfunction 

was continuing. Elkins stated he was familiar with sections 

1360 
57.19-120 and 57.11-50 (Tr. 19). Kirk said they should consider 

the impact of the regulations before putti~g any miners 

underground. Kirk also inquired about the 3 p.m. shift. When 

he learned the miners had gone underground, he immediately went 

out to the mine (Tr. 19). 

At the mine Kirk learned from supervisor MaGraw, and others, 

that the No. 5 hoist would operate on man speed but not on ore or 

automatic speeds (Tr. 20, 22, 50). Ore speed is automatic and 

much faster. Man speed requires manual control. The hoist 

control system permits the operator to twist a handle to convert 

to man from ore speed (Tr. 20). Man speed runs about 650 feet 

per minute. This is about 200 to 250 feet per minute slower than 

ore speed (Tr. 19, 20). McGraw felt he was in compliance with 

the regulations because there were ladderways in each shaft. 

They could be used as an escape device from the 900 foot level 

(Tr. 21). 

At Kirk's request the skif was automatically loaded. When 

the hoistman applied power to raise the skif it started creeping 

down. Brakes were required. In the meantime the company 

electricians continued checking various components in the control 

box cabinet (Tr. 22, 23). 

MaGraw declined to bring the miners out without an MSHA 

order. Kirk obliged. The citation issued at 1737 hours states 

respondent was in violation of Section 57.19-120 CTr. 23-25, 

Exhibit C2). The company was cited because if a fire or a 

blowout occurred underground, a second escapeway was not 

available. After the inspector arrived at the mine the company 

contended the hoist would operate on manual. But it went 

backwards instead of coming up the shaft (Tr. 26, 27). 

The hoisting logs reflected these malfunctions had been reoccurring since about 2 a.m., on January 8. (Tr. 27, 28). There 

had been a full shift on January 9 and the company was 3 to 4 

hours into the afternoon shift when the imminent danger order was 

issued (Tr. 27, 28). 

The other mine shaft, the regularly used man shaft, incorporates the exhaust ventilation system. In the event of an 

underground catastrophe, such as a detonation, fire, or smoke accumulation or blowout the 13 or 15 miners could not exit via the 

intake shaft because of the hoist malfunction (Tr. 28, 29, 35). 

Citation 162289 was issued because respondent did not have a 

second escapeway since the hoist was inoperative (Tr. 30-33). 

Management contended the ladders furnished the second escapeway. 

1361 
But the inspector felt that was insufficient. This is because 

Section 57.11-55 provides that an incline in excess of 300 feet 

shall be provided with emergency hoisting equipment CTr. 33) 

Inspector Kirk returned to the mine about 1:00 p.m. but, 

contrary to expectations, the hoist was not then functioning 

correctly. The inspector modified the citation to permit some 

miners to go underground to load the skif so it could be tested. 

The citation was terminated at 2 a.m. the following day (Tr. 39, 

40, 64, 67). 

The inspector did not observe any miners being hauled out by 

the No. 5 hoist. Nor was any attempt made to do so. The workers 

were brought out via the No. 6 shaft after the imminent danger 

order was issued {Tr. 53, 62). The statutory definition of 

imminent danger is contained in 30 U.S.C. 802Cj). The withdrawal 

order was issued here because of the electrical problems. While 

the miners were underground there was but a single exit CTr. 55). 

MSHA's policy is this: If a malfunction occurs, they will 

allow the shift below to stay underground provided the miners do 

not open any new ground. But the policy prohibits the next shift 

from going underground. The miner's representative must concur 

in any decision of the miners to remain underground (Tr. 69). 

Norman Gonder, John Solar, John Magraw, Jack Hunt, and Harry 

Awbrey testified for respondent. 

The Nash Draw mine, an underground potash mine, is mined by 

the roof and pillar method. The potash exists in a salt 

formation. The formation is relatively safe since the potash is 

in a noncombustible ore body. In addition the formation is 

non-gassy, is without water, and requires no timbers for support. 

While the mine has won safety awards there have been roof falls, 

blowouts and fatalities at the mine (Tr. 77, 78, 100, 101). 

The hoists (No. 5 and No. 6) are in separate shafts about 

300 feet apart. The No. 5 is a counterbalance system with two 

separate hoist conveyances (Tr. 87-89, 95, 96, Exhibit R2A, R4). 

The No. 6 shaft is large enough to accommodate a vehicle (Tr. 92, 

93). 

The shafts extend as deep as the 900 foot level. To reach 

the ore a miner goes down two more slopes, an additional 170 

vertical feet (Tr. 98). 

In July 1983 Warren Traweek, the 40 year old assistant 

safety director climbed out of the mine via the ladders. The 

climb took 39 minutes. He stated that he took his time and 

didn't hurt himself (Tr. 99, 103). In an emergency you could 

1362 
climb out in about 20 to 25 minutes (Tr. 105). If the hoist was 

operating on man speed a miner coμld get up the shaft in about a 

minute (Tr. 104-105). 

John Solar, respondent's electrician, and others started 

working on the No. 5 hoist when it broke down. He worked all day 

and part of the next night to correct the malfunction (Tr. 

110-112). The malfunction of No. 5 did not affect the No. 6 

hoist. The hoists are controlled by separate motors (Tr. 

111,112). In checking the system Solar had to occasionally turn 

off the power. Solar never permitted anyone to operate the 

equipment while they were checking it (Tr. 113-115, 124). 

Escapeways include the No. 6 hoist and the ladders in the No. 5 

and No. 6 shafts (Tr. 114). 

On the day the citation was issued there was no fire 

underground nor were any miners in danger (Tr. 115, 116). 

identified respondent's weekly maintenance log on the No. 

(Tr. 117, 118, 123, Exhibit R9). The hoistman checks out 

ment and Solar performs the maintenance. A mechanic also 

performs various periodic equipment checks (Tr. 119, 120). 

Solar 

5 hoist 

equipThe No. 5 hoist would still run by hand controls and miners 

could be brought out with that control. But the hoist wouldn't 

run right on automatic (Tr. 125). If a malfunction occurred when 

on automatic you could turn it off by hand (Tr. 125). Miners 

could still be brought out if you were operating it by hand (Tr. 

125, 128). The hoist was not malfunctioning other than when it 

was in the automatic mode (Tr. 128). 

John Magraw, respondent's manager for mine development, did 

not prohibit the 3 p.m. shift from going underground (Tr. 134). 

He felt there was no danger to the miners (Tr. 134, 135). 

Jack H. Hunt, respondent general superintendent, was aware 

they were having intermittent hoist problems. He called the MSHA 

Dallas office about 11:00 a.m. (Tr. 142-145). Marvin Nichols 

CMSHA} told Hunt it ~s normal procedure to finish the shift being 

worked but not to lower the next shift (Tr. 146). About 3:15 

p.m. Hunt directed that Sid Kirk, at MSHA's local office, be 

advised of the situation (Tr. 147). Hunt and Kirk discussed the 

hoist problem. Kirk was displeased that the second shift had 

gone underground (Tr. 149). 

At no time did Hunt see any miners being hauled by the No. 5 

hoist (Tr. 153). 

After Kirk arrived he indicated he would not abate the 

citation unless he tested the skif with a load. Accordingly, 

Kirk modified his order to permit a foreman and a few workers to 

go underground to place some ore in the pocket CTr. 153, 154). 

1363 
If the No. 6 hoist malfunctioned while the miners were 

underground the miners could have used the ladders in the No. 5 

and No. 6 shafts (Tr. 156, 157). Hunt was not aware of any 

miners using the No. 5 hoist after the malfunction (Tr. 159). 

Harry Awbrey, respondent's chief electrician, didn't find 

too much wrong with the electrical equipment. He checked the 

directional relays and latched them back. Except for low voltage 

the equipment seemed normal (Tr. 182, 183). 

The No. 5 hoist operates on DC current. This automatic 

static regulated hoist is exceedingly complicated. In contrast, 

the No. 6 hoist operates on AC current and requires lower voltage 

than the No. 5 hoist CTr. 184). 

It was established that the problem was not with the hoist 

but with the incoming Public Service Company voltage from a 

temporary transformer. The No. 5 hoist is so sensitive that it 

triggered out from the voltage drop when the current fluctuated. 

Hoist No. 6 is not as sensitive. Public Service Company replaced 

the temporary transformer with a permanent one (Tr. 186-188). 

Discussion 

As a threshold matter respondent contends that by virtue of 

30 C.F.R. § 57.19 no violation of § 57.19-120 can be sustained. 

In short, respondent claims that Citation 162288 must be vacated. 

The regulation relied on by respondent reads: 

§ 57.19 Man hoisting. 

The hoisting standards in this section apply to 

those hoists and appurtenances used for hoisting 

persons. However, where persons may be endangered 

by hoists and appurtenances used solely for handling 

ore, rock, and materials, the appropriate standards 

should be applied. 

Emergency hoisting facilities should conform to 

the extent possible to safety requirements for other 

hoists, and should be adequate to remove the persons 

from the mine with a minimum of delay. 

Respondent's argument lacks merit. While the No. 5 hoist is 

primarily a production hoist it is uncontroverted that the hoist 

had been identified as a "second escapeway" in the company's 

escape plan (Tr. 51, 82-83). This causes the No. 5 hoist to be 

an apparatus "used for hoisting persons" within the meaning of 30 

C.F.R. § 57.19. 

1364 
A credibility issue focuses on whether the hoist was used 

before the malfunction was repaired. On this issue I credit 

Inspector Kirk's testimony. His review of the hoisting logs 

indicated that the hoist began to malfunction on January 8, 

continued through the night of January 9, and when he issued the 

MSHA withdrawal order the company was 3 to 4 hours into the 

afternoon shift (Tr. 27, 28). 

This evidence is further confirmed by the obvious fact that 

a production crew and a preparation crew were underground when 

the withdrawal order was issued. But when Inspector Kirk wanted 

to test the hoist at 9 p.m. on January 9 there was no available 

ore. It was then necessary to modify his withdrawal order to 

permit four employees to go below to muck the ore so the hoist 

could be loaded and retested. The ore had no doubt been removed 

by the No. 5 production hoist. In view of this finding I 

necessarily reject the company electrician's testimony to the 

contrary (Tr. 108, 112-114). 

Exhibits R9, RlO, and Rll do not assist respondent's 

position. These exhibits are copies of entries from notebooks 

entitled "5 and 6 Hoist Log Book Electrical"i "Hoist Safety" and 

"Hoist and Ropes-Log." Respondent's case is not aided because 

none of these exhibits reflect the use or non-use of the No. 5 

hoist during this incident. I particularly note that the 

inspector as well as the company's chief electrician referred to 

the hoisting logs. The "records would show that it hoisted ore" 

(Tr. 27, 28, 195, 196). 

Respondent's post trial brief pivots on certain facets. 

Initially, it is asserted that at no time during this incident 

did any miners use the No. 5 hoist. I completely agree with 

respondent's statement of the evidence. However, Section 

57.19-120 applies to any malfunction regardless of whether the 

hoist lifted miners. 

Respondent's brief further asserts once it became apparent 

that the hoist was malfunctioning it was not used for any purpose 

other than testing. This point has been reviewed and ruled 

against respondent. 

For the foregoing reasons I conclude that the hoisting 

regulation applies to respondent's production hoist. In 

addition, I find that the hoist was used in production before the 

malfunction was located and repaired. 

Citation 162288 should be affirmed. 

Civil Penalty 

The six criteria for assessing a civil penalty are set forth 

in 30 u.s.c. § 820Ci>. 

1365 
Following the statutory directives I find that the evidence 

reflects that in the two years before this citation respondent 

was assessed 18 violations at the Nash Draw Mine (Exhibit Cl). 

The penalty, as proposed, appears appropriate in relation to the 

stipulated size of the respondent. The negligence of the 

operator was high inasmuch as it continued to use the hoist 

after the malfunctioned occurred. When a company fails to 

introduce any financial data a judge may presume that payment of 

a penalty will not cause the company to discontinue in business. 

Buffalo Mining Company 2 IBMA 226 (1973)~ Associated Drilling, 

Inc., 3 IBMA 164 (1974). The gravity of the violation was not 

severe since no miners used the No. 5 hoist. The Secretary's 

Off ice of Assessments did not credit respondent with any 

statutory good faith. I concur in the disallowance of that 

credit. Respondent's evidence indicates that the hoist was 

malfunctioning the day after the inspection. Further, the 

records would show they hoisted ore during this time (Tr. 195, 

196). 

On balance I deem that the proposed penalty of $395 is 

appropriate and it should be affirmed. 

Citation 162289 alleges a violation of Section 57.11-50. 

In essence the regulation requires that an operator shall 

maintain at least two separate escapeways. In addition, such 

escapeways shall be so positioned that damage to one shall not 

lessen the effectiveness of the other. 

The evidence established that there were two separate ladde1 

escapeways in each shaft. The shafts were not interconnected anc 

they were 300 feet apart. Accordingly, damage to one could not 

lessen the effectiveness of the other. 

The Secretary's post trial brief asserts that Section 

57.11-50 must be construed in conjunction with Section 57.11-55, 

which provides: 

57.11-55 Mandatory. Any portion of a designated 

escapeway which is inclined more than 30 degrees 

from the horizontal and that is more than 300 feet 

in vertical extent shall be provided with an emergency hoisting facility. 

The Secretary's argument runs along these lines: Section 

57.11-50 requires that the escapeways be "properly maintained." 

This means they must have an emergency hoisting facility. Since 

the hoisting facility in the No. 5 shaft was not operative a 

violation occurred. 

I disagree with the Secretary's theory. The requirements of 

Section 57.11-55 cannot be transposed as a requirement for 

Section 57.11-50. If the Secretary .had wished to do so he could 

1366 
have charged respondent with violating Section 57.11-55. 

Possibly he did not do so because no evidence deals with the 

incline of the escapeway from the horizontal, an essential 

feature of Section 57.11-55. 

The cases relied on by the Secretary do not support his 

position. In Peggs Run Coal Co., Inc., 5 IBMA 144 (1975) and 

Consolidated Coal Co. v. Mine Workers, 3 FMSHRC 405 (1981) the 

designated escapeways were inadequate because of accumulated 

water, a faulty roof, and minimal clearance in the passageway. 

No such situation exists here. 

The Secretary has failed to establish a violation of Section 

57.11-50. Accordingly, Citation 162289 and all proposed 

penalties should be vacated. 

Briefs 

The solicitor and respondent's counsel have filed excellent 

detailed briefs which have been most helpful in analyzing the 

record and defining the issues. 

In connection with Citation 162289 respondent's brief 

contains an extensive recital of the regulatory and legislative 

history of 30 C.F.R. 57.11-50. Since I do not find a violation 

of that regulation I do not reach that particular issue. 

To the extent that the briefs here are inconsistent with 

this decision, they are rejected. 

Order 

Based on the findings of fact and conclusions of law stated 

herein, I enter the following order: 

1. Citation 162288 and the proposed penalty of $395 are 

affirmed. 

2. Citation 162289 and all proposed penalties therefor are 

vacated. 

V"'~d~lnist;~: Q;;~Ma-~ ~ Law Judge 

1367 
Distribution: 

Eloise v. Vellucci, Esq., Office of the Solicitor, Department of 

Labor, 555 Griffin Square, Suite 501, Dallas, Texas 75202 

(Certified Mail) 

John A. Robertson, Esq., Bilby, Shoenhair, Warnock & Dolph 

Ninth Floor Valley National Building, P.O. Box 871, Tucson, 

Arizona 85702 (Certified Mail) 

/blc 

1368 

I 

I 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 221984 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

. . Docket No. PENN 83-115 

A.C. No. 36-03425-03518 

v. 

U.S. STEEL MINING COMPANY, 

Docket No. PENN 83-116 

A.C. No. 36-03425-03519 

INC., 

Appearances: 

Before: 

Respondent Docket No. PENN 83-148 

: A.C. No. 36-03425-03525 

. 

. 

: Docket No. PENN 83-155 

: A.C. No. 36-03425-03526 

. . 

Docket No. PENN 83-156 

A.C. No. 36-03425-03527 

Docket No. PENN 83-157 

: A.C. No. 36-03425-03528 . . Maple Creek No. 2 Mine 

DECISION 

Thomas A. Brown, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., United States Steel 

Corporation, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Melick 

These cases are before me upon the petitions for civil 

penalty filed by the Secretary pursuant to section 105Cd> of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq., the "Act," for violations of regulatory standards. The general issues before me are whether U.S. Steel 

Mining Company, Inc., (U.S. Steel), has violated the regulations as alleged, and, if so, whether those violations are 

of such a nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or 

health hazard i.e. whether the violations are "significant 

and substantial." If violations are found, it will also be 

necessary to determine the appropriate penalty to be 

assessed. 

1369 
Docket No. PENN 83-115. The one citation in this case, 

No. 2013930, charges a violation of the standard at 30 C.F.R 

§ 75.701-5 and specifically alleges as follows: 

Separate clamps were not provided for 

the electrical and frame grounds to attach 

the grounds to the DC grounding medium (mine 

rail), which were serving the two Ricks water 

pumps located along the Cherokee haulage at 

40 split; the pumps were receiving power from 

the energized 550 volt DC trolley system. 

All four ground wires were attached to one 

clamp. 

The cited standard provides as follows: "The attachment of grounding wires to a mine track or other grounded 

power conductor will be approved if separate clamps, suitable for such purpose, are used and installed to provide a 

solid connection." 

Respondent does not dispute that a violation occurred 

as charged, but argues that the violation was not "significant and substantial." In order to establish that a violation of a mandatory safety standard is "significant and 

substantial" the Secretary must prove: (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 violations, (3) a reasonable likelihood that the hazard contributed to will result in an 

injury, and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. Secretary 

v. Mathies Coal Company, 6 FMSHRC 1 (1984). 

According to Inspector Okey Wolfe of the Federal Mine 

Safety and Health Administration, (MSHA), the cited ground 

wires were attached to a single clamp which was, in turn, 

attached to the rail. Wolfe observed that such clamps may 

loosen from normal rail traffic and that in the event of a 

derailment would easily separate. He observed that should 

the clamp come off of the rail, the frames of both water 

pumps would become energized and an individual could be 

shocked or electrocuted. The hazard was increased by the 

wet conditions in the vicinity of the pumps. 

Gary Stevenson, an electrical engineer for U.S. Steel 

testified that so long as all of the grounds were connected, 

there would be no hazard, but conceded that if any of those 

connections came loose, there would indeed be a hazard. 

Within this framework of evidence, I have no difficulty 

concluding that the violation meets the "significant and 

1370 
substantialn criteria set forth in the Mathies decision. 

Accordingly, I find the violation was nsignificant and 

substantial" and constituted a serious hazard. 

Inasmuch as it required an affirmative act to connect 

the wires onto one clamp, and that this type of violation 

had been previously cited at this mine, I find that the 

operator was also negligent. 

Docket No. PENN 83-116. Two citations were brought ~~...,......~~....,--~~~,,___~~ within this docket. Citation No. 2000148 charges a violation of the standard at 30 C.F.R. § 75.503 and specifically 

alleges as follows: 

Changes required to be made on six 

service machine 115 V.8.C. single phase 

control cable connector to maintain 

permissibility for the longwall mining system 

have not been made. A letter from Service 

Machine Company dated June 28, 1982, was sent 

to the mine advising them of the changes to 

be made. It cannot be verified whether 

management received notification or not. 

MSHA Inspector James Potiseck conceded that he could 

not verify that the mine operator had received notice of the 

necessary modification either from MSHA or from the Service 

Machine Company prior to the issuance of his citation. 

Indeed, Potiseck admitted that the letter in evidence 

(Government Exhibit No. 9) supposedly informing U.S. Steel 

of the required changes was sent to the wrong address. The 

district electrical engineer for U.S. Steel, Gary Stevenson, 

testified that af~er receiving the citation, he had been 

unable to locate anyone who had received the noted letter. 

Within this framework of evidence, it is clear that 

U.S. Steel did not receive notice of the change in the permissibility requirements for the cited longwall mining unit. 

Without such prior notice, there can be no violation. 

Accordingly, the citation is vacated. 

Citation No. 2102668 alleges a violation of the standard at 30 C.F.R § 75.517 and charges specifically as 

follows: 

The trailing cable serving the Fletcher 

twin boom roof bolter at the 6 Flat 19 room 

section CID013) was not adequately insulated 

and fully protected. There had been damage 

to the cable and the outer jacket had been 

cut open for a distance of 23 inches of which 

1371 
4 inches was not taped at all and the 

remainder of the area had four places where 

the tape had deteriorated and the ground 

wires were exposed. 

The cited standard requires, as here relevant, that 

power wires and cables shall be insulated adequately and 

fully protected. According to Inspector Okey Wolfe, the 

ground wires could be seen inside of the cable jacket for 

the 4 inches that had not been taped. In addition, within 

the taped area, one of the phase wires was exposed. The 

tape itself had also deteriorated exposing the ground wires. 

According to Wolfe, the wires carried 440 volts alternating 

current and posed a shock hazard to persons handling the 

cable. Ordinarily~ it would be necessary for a person to 

handle the cable as the roof bolter is moved to a new entry. 

According to U.S. Steel electrical engineer Gary 

Stevenson, no hazard exists so long as the inner insulation 

is intact. He also pointed out that the ground wires alone, 

even if exposed, posed no hazard. Stevenson conceded, however, that he did not know whether the inner insulation in 

the exposed area was in fact intact. Under the circumstances I accept the testimony of Inspector Wolfe, who 

actually observed the exposed wires and the deteriorated 

condition of the trailing cable and I accordingly find that 

there was a "significant and substantial" violation of the 

cited standard. Mathies, supra. The testimony of Inspector 

Wolfe that the condition was not difficult to observe is 

undisputed and accordingly, I also find that the operator 

was negligent in failing to detect and correct the 

violation. 

Docket No. PENN 83-148. U.S. Steel does not challenge 

the existence of the violations charged in the two citations 

at issue in this case, but contests only the "significant 

and substantial" findings associated therewith. Citation 

No. 2011291 charges a violation of the operator's ventiltion 

plan under the standard at 30 C.F.R. § 75.316. The citation 

reads as follows: 

There was a violation of the approved 

ventilation, methane, and dust control plan 

in No. 29 room of 6 Flat 28 room section. 

There were no jacks or boards and posts 

installed behind the canvas check in 29 room. 

The check (temporary stopping) was loose and 

not reasonably air tight and was not 

directing all of the air to the working face 

of No. 31 room. 

1372 
The cited provisions of the operator's roof control 

plan provide as follows: "Approved brattice cloth spadded 

or nailed to the roof and sides with supporting framework 

consisting of brattice, boards, posts, two by fours, or roof 

jacks [shall be] used to direct air towards the working 

places." Samuel Cortis, U.S. Steel's district chief mine 

inspector, conceded that the cited temporary stopping was 

not supported as required by the plan and that some air was 

indeed escaping under the canvas curtain. He observed, however, that 8,400 cubic feet per minute of air was reaching 

the working face of the No. 31 room when only 5,000 cubic 

feet per minute was required by the ventilation plan. 

MSHA Inspector Robert Swarrow conceded that although 

air was leaking through the cited stopping, more than the 

legally required amount of air was ventilating the working 

faces. Swarrow further conceded that any temporary stopping 

will leak some air and that stoppings are not required to be 

airtight. He nevertheless concluded that the violation was 

"significant and substantial" because "you might not get 

sufficient ventilation to clear the faces of methane gas." 

Methane testing at the time revealed no more than .5 percent 

methane present. 

While there was admittedly a violation of the ventilation plan, since the amount of air reaching the working 

faces exceeded the requirements of the plan by 3,400 cubic 

feet per minute, I cannot find that the violation was either 

serious or "significant and substantial." If indeed more 

than 8,400 cubic feet per minute of air is deemed to be 

necessary for ventilating the working faces, then MSHA 

should require that the ventilation plan be amended to 

require that amount of air. The failure of the mine operator to have detected and corrected this violation during 

preshift examinations, demonstrates, however, that it was 

negligent. 

Citation No. 2104283 alleges a violation of the standard at 30 C.F.R. § 75.503 and reads as follows: "The 

Kersey battery powered tractor at the 6 Flat 28 room section 

(ID002) was not being maintained in permissible condition. 

Locks were not being used to prevent the plugs from coming 

loose from the battery case." The parties stipulated and 

agreed at hearing that the facts concerning this alleged 

violation were nearly identical to the facts relating to a 

violation charged in another case pending before the undersigned judge (Docket No. PENN 83-166, Citation No. 2102678) 

and that the decision in that case should govern the disposition of the instant citation. The determination in that 

case that the violation was "significant and substantial" 

1373 
and caused by the operator's negligence is accordingly incorporated herein by reference. 

Docket No. PENN 83-155. Citation No. 2103162 charges a 

violation of the standard at 30 C.F.R. § 75.516 and alleges 

as follows: "The power wires serving power to the car 

spotter at 2 Flat tipple A track were in contact with combustible material as they were hung on wooden header blocks and 

wooden cribs [and were] also in contact with coal ribs and 

wires were energized." Respondent does not dispute that a 

violation occurred as charged but argues that it was not 

"significant and substantial." 

According to MSHA Inspector Alvin Shade, there were no 

breaks in the wire insulation and no tension in the wire. 

There was, in addition, about 3 feet of clearance between 

the rail cars and the roof were the wire was strung. According to U.S. Steel District electrical engineer Gary 

Stevenson, the insulation on the wire was rated for 600 

volts, whereas the wire itself was carrying only 120 volts. 

In addition, according to Stevenson, there was such low 

current in the wire that even assuming that the insulation 

had been removed, the heat generated would be about the same 

as an ordinary light bulb and therefore would be unlikely to 

ignite either coal or wood. This evidence is not disputed 

by MSHA and, accordingly, I find that the hazard associated 

with the admitted violation was minimal. The violation was 

not "significant and substantial." Mathies, supra. I find, 

however, that the mine operator was negligent since the violation required an affirmative act and was plainly visible 

to a preshift examination. 

Citation No. 2103073 alleges a violation of the standard at 30 C.F.R. § 75.503 and, more particularly, charges 

as follows: "The chain drive conveyor for the longwall in 

the 6 Flat 11 room section MRVOOl was not maintained in permissible condition. There was an opening in excess of .005 

in present between the plain flange joint of junction box 

for the electrical drive motor of the chain drive conveyor." 

The Respondent again does not dispute that a violation 

occurred as charged but argues that the violation was not 

"significant and substantial." 

According to the undisputed testimony of MSHA Inspector 

Francis Wehr, there was indeed an opening in the junction 

box in excess of .005 of an inch. The box was located 8 to 

10 feet from the longwall shear. According to his undisputed testimony, the Maple Creek No. 2 Mine is classified as 

a "gassy mine" because it emanates 1,000,000 cubic feet of 

methane over a 24-hour period. With the cited opening in 

the junction box, methane could leak inside and, assuming an 

1374 
arc or spark, could explode. At the tim~ of the citation, 

there was ample intake air in the area and only .1 percent 

of methane detected. No mining operations were being performed at the time. 

Mine foreman and longwall coordinator Joseph Hann testified for the operator that ordinarily 18,000 to 20,000 cubic 

feet of air per minute flushes the cited area of any methane. 

In addition, according to Hann, there had never been any 

methane reported at the cited location. He also pointed out 

that if the ventilation fan would fail, the longwall 

machinery would stop automatically. 

In essential respects the testimony of Inspector Wehr 

is not disputed. It is clear that the existence of methane 

is unpredictable and that the cited mine was considered to 

be "gassy." The hazard of an explosion or fire and associated injuries under the circumstances, was therefore reasonably likely. The violation was accordingly, "significant 

and substantial" and serious. Mathies Coal Company, supra. 

I further find that the operator was negligent in failing to 

detect the violation. 

Citation No. 2103078 alleges a violation of the standard at 30 C.F.R. § 75.200 and more particularily charges as 

follows: 

There were three 6 foot conventional 

[roof bolts] along the B track haulage road 

of Cherokee that were missing or dislodged. 

Cl) Between 61-62 chute a[n] 8 foot by 

8 foot area of unsupported roof that was 

loose and drummy, (2) At 47 chute an area of 

unsupported mine roof of 6 feet by 8-1/2 feet 

of mine roof th.at the roof was loose and 

drummy, (3) At 47 chute an area of 6 feet by 

9-1/2 feet of unsupported mine roof that was 

solid when tested." 

The cited standard provides in part that 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. 

The Respondent again does not dispute that a violation 

occurred as charged but argues that the violation was not 

"significant and substantial." 

Indeed, the facts as alleged in the citation are not 

disputed. According to MSHA Inspector Francis Wehr, the 

roof in two of the cited areas was loose and drummy sounding 

and this indicates that the roof strata is not tightly 

1375 
laminated and there may be gaps in the strata. According to 

Wehr, loose conventional roof bolts allow the strata to 

separate and create a hazard roof falls. The cited roof 

conditions were in the busy haulage area. 

According to Wayne Croushore, mine foreman, it was 

unlikely that the roof would fall "right away." He observed 

that he and the inspector stood beneath the cited conditions 

to take measurements and that accordingly, he thought the 

condition was not unsafe. Croushore also pointed out that 

the preshift examination is performed while moving on a jeep 

and it is therefore difficult to see loose and/or missing 

roof bolts. 

Within this framework, I conclude that the violation 

was "significant and substantial" Mathies, supra. I also 

find the operator to have been negligent in failing to 

detect the cited conditions. It is no defense that the 

conditions were difficult to observe while moving in a jeep. 

The proffered defense only points out the need for a more 

thorough preshift examination. 

Citation No. 2104446 alleges a violation of the standard at 30 C.F.R. § 75.701-5 and charges as follows: 

"Separate clamps were not provided for the frame ground and 

the electrical return ground for the lights in the dinner 

hole of the 8 Flat 6 RN section 001. Both wires were on 

same clamp." The cited standard provides as follows: "The 

attachment of ground wires to a mine track or other grounded 

power conductor will be approved if separate clamps, suitable for such purpose, are used and installed to provide a 

solid connection." 

The Respondent again does not dispute that a violation 

occurred as charged but argues that the violation was not 

"significant and substantial." According to Inspector Wehr, 

if the clamp separates from the rail, either from a derailment or vibration, there is a potential for shock, electrocution or burns to miners touching metal baskets in the dinner 

hole. According to electrical engineer Gary Stevenson, 

there would be no hazard if the wires attached to the clamp 

became separated. In his opinion, if there were a derailment, the wires would most likely separate or break. 

Stevenson did not, however, deny that there would be a shock 

hazard should the wires remain connected upon the separation 

of the clamp. Under the circumstances, I find that the violation was "significant and substantial" and serious. 

Mathies, supra. Based on the undisputed testimony of 

Inspector Wehr that the cited condition was highly visible 

and that it required an affirmative act to place both wires 

on a single clamp, I also find that the operator was 

negligent. 

1376 
Citation No. 2104449 alleges a violation of the standard at 30 C.F.R. § 75.503 and charges more particularly as 

follows: 

The Joy continuous mini11g machine SNJM274 

was not maintained in permissible condition 

in the 6 Flat 28 room section MNV002. One of 

the left headlights was not securely fastened 

to frame of the machine and the other 

headlight was provided with a locking device, 

but did not lock the screw type lens cover in 

place. 

Respondent again does not dispute .that a violation 

occurred as charged but alleges that the violation was not 

"significant and substantial." The hazard associated with 

the violation was described by Inspector Wehr as allowing 

the lens to loosen through vibration and allow methane into 

the light compartment. The methane could explode from an 

arc or spark inside the compartment and allow the flame path 

to escape. Clearly such an explosion could cause fatalities. 

Wehr also observed that high levels of methane have been 

liberated in the vicinity of the area cited ·and indeed the 

operator had previously been cited for an "imminent danger" 

having 1.5 percent levels of methane in the No. 28 room section. Wehr also observed that it is not unusual for arcing 

and sparking to occur within the light compartments because 

of vibration from the continuous mining machine. Wehr 

pointed out that although he charged two separate violations 

in the citation, he was asserting that only the loose lens 

was "significant and substantial" and that only it presented 

an explosion hazard. 

The mine foreman did not dispute Wehr's assessment of 

the hazard and conceded that the continuous mining machine 

has "quite a bit of vibration while mining coal." According 

to electrical engineer Gary Stevenson, there "should be" no 

arcing or sparking in the headlights of the continuous miner 

because there is ordinarly a "firm and ti~ht connection." 

Stevenson admitted, however, that if the lens cover did back 

off and there was arcing in the presence of methane at combustible levels, there would indeed be a hazard. 

Within this framework of evidence, I conclude that the 

violation was indeed "significant and substantial" and a 

serious hazard. I agree, moreover, with the undisputed 

testimony of Inspector Wehr that the cited condition should 

have been discovered during the required electrical examinations. Accordingly, I also find the operator negligent. 

1377 
Docket No. PENN 83-156. Citation No. 2103100 alleges a 

violation of the standard at 30 C.F.R. § 75.503 and more 

particularly charges as follows: "The Kersey batfery 

powered tractor Serial No. 76158 at the 6 Flat 19 room section CID013) was not being maintained in a permissible condition. Locks were not provided to prevent the plugs from 

coming loose from the battery box receptacles." 

At hearing the parties agreed and stipulated that the 

facts surrounding this alleged violation were nearly identical to another violation presently before the undersigned 

judge in Docket No. PENN 83-166, Citation No. 2102678. The 

parties further agreed that the determination in that proceeding should be incorporated by reference and be determinative of the disposition of this citation. Since I have 

found that the violation charged in Citation No. 2102678 was 

"significant and substantial" and caused by the operator's 

negligence those findings are likewise incorporated herein 

by reference. 

Docket No. PENN 83-157. At hearing, the Secretary 

requested to withdraw Citation No. 2104224 based on the discovery that a suitable lifting jack had indeed been provided 

for the No. 65 eight ton locomotive being operated at the 

105B track and that accordingly, there was no violation of 

the standard at 30 C.F.R. § 75.1403. Based on the 

Secretary's representation, the undersigned approved of.the 

withdrawal. Accordingly, Citation No. 2104224 is vacated. 

The Secretary also moved at hearing for a settlement of 

Citation No. 2104225 and the operator agreed to pay the proposed civil penalty of $91 in full. Based on the representations and documentation presented at hearing, I find that 

the proposal for settlement is in accord with the provisions 

of section llOCi> of the Act, and, accordingly, I approve 

the settlement. 

In determining the appropriate penalties to be assessed 

in the various cases before me, I am also considering the 

evidence that the operator abated all of the cited conditions in a timely manner and in good faith, that the operator is large in size, and that the operator had a fairly 

substantial history of violations, including violations of a 

number of the standards cited herein. 

ORDER 

The U.S. Steel Mining Company, Inc., is ordered to pay 

the following civil penalties within 30 days of the date of 

this decision: 

1378 
Docket No. PENN 83-115 

Citation No. 2013930 

Docket No. PENN 83-116 

Citation No. 2000148 

Citation No. 2102668 

Docket No. PENN 83-148 

Citation No. 2011291 

Citation No. 2104283 

Docket No. PENN 83-155 

Citation No. 2103162 

Citation No. 2103073 

Citation No. 2103078 

Citation No. 2104446 

Citation No. 2104449 

Docket No. PENN 83-156 

Docket No. PENN 83-157 

Citation No. 2104224 

Citation No. 2104225 

$ 250 

vacated 

250 

100 

206 

126 

400 

400 

126 

400 

206 

vacated 

91 

$2,555 

rJ, \ 

Gary ,ME\lick 

!~ \Jl .. ~~ ASsista~t Chie Administrative Law udge 

Distribution: \ 

Thomas A. Brown, Esq., bffice of the Solicitor, U.S. 

Department of Labor, Robm 14480 . ateway Building, 3535 

Market Street, Philadelphia, PA ,:19104 C Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant 

Street, Room 1580, Pittsburgh, PA 15230 {Certified Mail) 

/fb 

1379 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 221984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA}, 

Petitioner 

Docket No. PENN 83-151 

: A.C. No. 36-00970-03520 

v. . . 

U. S. STEEL MINING COMPANY, 

INC., 

: Docket No. PENN 83-166 

: A.C. No. 36-00970-03518 . . 

Appearances: 

Before: 

Respondent Docket No. PENN 83-167 

A.C. No. 36-00970-03523 

Maple Creek No. 1 Mine 

DECISION 

Thomas Brown, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., United States Steel 

Corporation, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Melick 

These cases are before me upon the petitions for civil 

penalty filed by the Secretary, pursuant to section 105Cd} 

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

§ 801 et seq., the "Act" for violations of regulatory standards. The general issues before me are whether U.S. Steel 

Mining Company, Inc., (U.S. Steel}, has violated the regulations as alleged, and, if so, whether those violations are 

of such a nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or 

health hazard i.e. whether the violations are "significant 

and substantial." If violations are found, it will also be 

necessary to determine the appropriate penalty to be 

assessed. 

DOCKET NO. PENN 83-151. As amended at hearing, Citation 

No. 2102679 charges a violation of the standard at 30 C.F.R. 

§ 75.1714-2Cc} and specifically alleges as follows: "Gary 

Gamon shuttle car operator was observed on the seven flat 

eight room section ID014 without the 1 hour filter type 

self-rescue device which was determined to be approximately 

140 feet away." The cited standard provides as follows: 

"Where the wearing or carrying of the self-rescue device is 

hazardous to the person, it shall be placed in a readily 

1380 
accessible location no greater than 25 feet from such 

person." 

Respondent does not dispute that a violation occurred 

as charged, but argues that the violation was not "significant and substantial." In order to establish that a violation of a mandatory safety standard is "significant and 

substantial," the Secretary must prove: Cl) the underlying 

violation of a mandatory safety standard; (2) a discrete 

safety hazard--that is, a measure of danger to safety--

contributed to by 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. Secretary v. Mathies 

Coal Company, 6 FMSHRC 1 (1984). 

Inspector Okey Wolfe of the Federal Mine Safety and 

Health Administration (MSHA) testified that during the 

course of his inspection of the Maple Creek No. 1 Mine on 

January 24, 1983, he observed the shuttle car operator, Gary 

Gamon, 140 feet from his shuttle car without his one-hourfilter-type-self-rescue device. Gamon had left it on the 

shuttle car. It is not disputed that under the cited standard the self-rescue device could properly have been removed 

from the miner's belt and placed on the shuttle car (because 

of its potential for bruising the miner while working the 

shuttle car) so long as the device remained within 25 feet 

of the miner. The violation was "significant and substantial" according to Wolfe, because of the hazard to the miner 

of suffocation from carbon dioxide resulting from fire and 

smoke. He thought it reasonably likely that a fire could 

occur anywhere outby the cited section from sources such as 

coal, pumps or trolley wires and noted that protective 

measures must be taken quickly in the presence of carbon 

dioxide. 

Joseph Ritz, ventilation foreman, accompanied Wolfe 

during this inspection. Ritz thought it "highly unlikely" 

for fire or smoke to occur at the mine. According to Ritz, 

the shuttle car operator left his machine to assist with 

line brattice and could be expected to have been away from 

his equipment for only 10 minutes. Ritz opined, moreover, 

that it would have taken the operator only 10 to 15 seconds 

to return to his shuttle car for his self-rescue device and 

that would have been as fast as retrieving it from his belt. 

Even assuming, however, that the miner could have 

sprinted the 140 feet to his shuttle car as fast he could 

have removed the self-rescuer from its container on his 

belt, it is reasonably likely that, as a result of an explosion, fire or dense smoke the miner's path to his shuttle 

1381 
car could very well be obstructed. Under these circumstances, the failure to have his self-rescuer readily accessible could prove fatal. Under all the circumstances, I find 

that the violation was "significant and substantial." 

According to Inspector Wolfe, Respondent had never 

previously been cited for a violation of the cited standard 

and in his opinion, the individual miner had forgotten to 

take his self-rescuer with him. Wolfe's determination of 

relatively low negligence is accordingly appropriate. 

CITATION NO. 2103095. The operator does not dispute that 

the cited violation did in fact occur. The parties agreed 

and stipulated at hearing that the same hazard existed concerning this citation as existed with respect to Citation 

No. 2102678 in Docket No. PENN 83-166. Since I have found 

infra that the latter violation was indeed "significant and 

substantial" the violation herein is also "significant and 

substantial" and constituted a serious hazard. Relying upon 

the negligence findings relating to Citation No. 2102678 I 

find correspondingly that the operator was also negligent 

herein. 

DOCKET NO. PENN 83-166 

CITATION NO. 2012691. At hearing, the Secretary requested 

to withdraw and vacate this citation because the inspector 

who cited the conditions had died and alternative evidence 

was deemed insufficient to support the citation. Under the 

circumstances, the request was granted and the citation is 

accordingly vacated. 

CITATION NO. 2102678. The operator does not dispute the 

existence of the violation cited herein, and challenges only 

the "significant and substantial" findings associated therewith. The citation charges a violation of the standard at 

30 C.F.R. § 75.503 and more particularly alleges as follows: 

"The Kersey battery powered tractor, serial No. 76-153, 

approval No. 26-2213-11 was not being maintained in a permissible condition at the seven flat eight room section 

ID014. The plugs to the battery tray were not locked to 

prevent the plugs from coming loose." 

The cited standard requires that the "operator of each 

coal mine shall maintain in permissible condition all electric face equiment required by sections 75.500, 75.501, 

75.504 to be permissible which is taken into or used inby 

the last open crosscut of any such mine." The Secretary 

contends, and the operator does not dispute, that the provisions of 30 C.F.R § 18.4l(f) are incorporated by reference 

into this citation. Section 18.4(f) states as follows: 

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"For a mobile battery-powered machine, a padlock to the 

receptacle will be acceptable in lieu of an interlock provided the plug is held in place by a flouted ring or an 

equivalent mechanical fastening in addition to the padlock. 

A connector within a padlock enclosure will be acceptable." 

MSHA Inspector Okey Wolfe testified that during the 

course of his inspection of the No. 1 Mine, on January 24, 

1983, he observed the cited battery-powered tractor without 

the padlock specified in the cited regulation. Wolfe 

observed that if the threaded plugs powering the tractor had 

become unthreaded, the 250 volt cable could pull out of the 

machine thereby creating an arc. He noted that the No. 1 

Mine was subject to section 103Ci), spot inspections under 

the Act because of its high liberation of methane. Wolfe 

accordingly opined that there was a reasonable likelihood 

for such an arc to result in a methane explosion. 

The operator's witness Don Basile, conceded that if the 

plug connection should become loose while the equipment was 

operating under load, then an arc could indeed occur. He 

thought, however, that since the arc would have to travel 6 

or 7 inches before entering the outside atmosphere, the 

chances of an explosion were remote. Basile further stated 

that he had never seen a sleeve or collar loosen suff iciently to permit the plug to become disconnected. 

Particularly in light of the gassy classification of 

the Maple Creek No. 1 Mine, I find that the arcing hazard 

presented by the unsecured plug was quite serious and constituted a "significant and substantial" violation. I find 

that I must also agree with Inspector Wolfe's assessment of 

negligence in this case, inasmuch as it was obvious in this 

case that the padlocks had not been secured in an appropriate manner and that this was a frequent type of violation at 

this mine. 

DOCKET NO. PENN 83-167 

CITATLON NO. 2104362. This citation alleged a violation 

of a safeguard notice issued pursuant to 30 C.F.R. § 75.1403 

on July 31, 1973. It charges that "the No. 31 eight ton 

locomotive being operated by Bill Wiles on the eight flat 

56 room track was not provided with a suitable lifting jack." 

The specific safeguard notice dated July 31, 1973, (Government Exhibit No. 2) stated in part that a 13-ton locomotive 

was not equipped with a suitable lifting jack and bar in the 

eight flat section and that all locomotives in the mine 

shall be equipped with suitable lifting jacks and bars. It 

is not disputed that the locomotive cited in this case did 

not in fact have a suitable lifting jack or bar. 

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According to MSHA Inspector Francis Wehr, Sr., the 

locomotive and rail cars used in the No. 1 Mine frequently 

derailed. Individual rail cars weighed 2 or 3 tons empty 

and up to 12 tons loaded. He observed that in the event of 

a derailment and the absence of an available jack and bar, a 

person pinned beneath a car or the locomotive could not 

readily be rescued. Wehr observed that although a 

"rerailer" was available on the locomotive, it is necessary 

to move the cars and locomotive for it to operate. With a 

jack and bar, it is not necessary that the locomotive or 

cars be moved horizontally--an important distinction. The 

jack in this case was located about 1,000 feet from the 

locomotive. Wehr opined that even if the location of the 

jack were known, it would have taken at least 10 minutes to 

have retrieved it. 

According to transportation foreman, Ira Seaton, the 

.ainer assigned to the locomotive told him that the jack was 

only five blocks away (estimated at 425 feet). The miner 

said he had used the jack at that location and intended to 

retrieve it after loading coal. 

Particularly in light of the frequent derailments at 

the No. 1 Mine, and the grave dangers posed by the heavy 

equipment used on the track, I find the cited violation to 

be "significant and substantial." Particularly in light of 

the history of derailments and other similar violations at 

this mine, I find that the operator was negligent in failing 

to enforce its policy of requiring jacks and bars on the 

locomotives. · 

CITATION NO. 2011298. This citation alleges a violation of 

the standard at 30 C.F.R § 75.503 and specifically charges 

as follows: "The Fletcher roof bolting machine operating in 

nine flat left straight was not maintained in permissible 

condition in that the hose conduit and the outer jacket for 

the f luorscent lights was damaged, exposing the insulated 

power wire securing electrical power to the lights." It is 

not disputed that to meet the "permissibility" requirements 

of the cited standard the operator must maintain the cited 

equipment in compliance with the standards set forth in 

30 C.F.R. Part 18. 

In this case the cited roof bolter had been the subject 

of an MSHA approved field modification under 30 C.F.R. 

§ 18.81. (Operator's Exh. No. 1). These modifications must 

conform to the requirements of Subpart B of Part 18 of the 

regulations. See 30 C.F.R. § 18.81Cb). Subpart B of Part 

18, and specifically section 18.39 (i.e. 30 C.F.R. § 18.39) 

requires in part that "hose conduit shall be provided for 

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mechanical protection of all machine cables that are exposed 

to damage." Apparently in keeping with that requirement, 

U.S. Steel requested, and MSHA approved, in the field modif ication the use of "MSHA approved conduit" (Operator's Exh. 

No. 1, p. 5) for the power cable between the junction box 

and the light here cited. According to the undisputed evidence, however, the hose conduit for that power cable had 

been damaged thereby exposing the insulated power wire 

inside. Since the required h~se conduit was not being maintained in a "permissible" condition a violation of 30 C.F.R. 

§ 503 therefore existed. 

I must agree, however, with the Secretary's position at 

hearing, that the violation was not "significant and substantial." It is undisputed that the entire illumination system 

on the roof bolter was deemed "intrinsically safe" by MSHA. 

Accordingly, even should the cable become severed, there was 

no capability of a methane ignition. The violation is 

accordingly also of low gravity. I find that the operator 

was, however, negligent in failing to detect the violation 

in light of the undisputed evidence that the condition had 

existed for at least a week. 

In determining the appropriate penalties to be assessed 

in this case, I am also considering evidence that the operator abated all of the cited violations in a timely manner, 

that the operator is large in size, and that the operator 

had a fairly substantial history of violations, including 

violations of several of the standards cited. 

ORDER 

Citation No. 2012691 is vacated. The U. s. Steel 

Mining Company, Inc., is ordered to pay the following civil 

penalties within 30 days of the date of this decision: 

DOCKET NO. PENN 83-151 

Citation No. 2102679 

Citation No. 2103095 

DOCKET NO. PENN 83-166 

Citation No. 2102678 

1385 

$ 200 

220 

220 
DOCKET NO. PENN 83-167 

Citation No. 2011298 

Citation No. 2104362 

l

11 I 

. / 

} I 

Gary ,M 

100 

250 

$ 990 

Assist Administrative Law Judge 

Distribution: I 

Thomas Brown, Esq.,\of ice of the Solicitor, U.S. Department 

of Labor, Room 14480 G1ateway Building, 3535 Market Street, 

Philadelphia, P~ 19104 (Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant 

Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

/fb 

~u.s. GOVERNMENT PRINTING OFFICE• 1984-42t·ss9/13602 

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