September 1981 

Commission Decisions 

9-22-81 Manuei Palacios 

9-22-81 Pocahontas Fuel Co. 

9-22-81 The Hanna Mining Co. 

9-23-81 Quarto Mining Co., Nacco Mining Co. & The 

North American Coal Corp. 

Administrative Law Judge Decisions 

9-03-81 

9-03-81 

9-03-81 

9-03-81 

9-03-81 

9-09-81 

9-09-81 

9-11-81 

9-14-81 

9-14-81 

9-14-81 

9-14-81 

9-15-81 

9-17-81 

9-17-81 

9-18-81 

9-22-81 

9-22-81 

9-22-81 

9-24-81 

9-24-81 

9-24-81 

9-28-81 

9-28-81 

9-28-81 

9-28-81 

9-28-81 

9-30-81 

Glen Munsy v. Smitty Baker Coal Co. et al 

Canterbury Coal Co. 

Ideal Basic Industries Inc., Cement Div. 

Alexander Brothers Inc., 

Atlantic Cement Co., Inc. 

James L. Reiter v. New Jersey Zinc Co. 

Sun Landscaping & Supply Co. 

El-Bow Mining, Inc. 

Washington Corp. 

Washington Construction Co. 

Centennial Developement Co. 

J. Otto Horvath v. Green Electric Co. & 

Lively Construction Co. 

Massey Sand & Rock Co. 

St. Catherine Rock Co. 

Monterey Coal Co. 

Black River Quarry, Inc. 

C F & I Steel Corp. 

Solar Fuel Co. 

Chester M. Jenkins 

Stafford Construction Co. 

Consolidation Coal Co. 

Consolidation Coal Co. 

Victor McCoy v. Crescent Coal Co. 

Cargill, Inc. 

Cleveland Cliffs Iron Co. 

Brown Brothers Sand Co. 

D & J Coal Co., Inc. 

Beckley Coal Mining Co. 

DENV 76-29-P 

HOPE 75-680 

LAKE 79-103-M 

LAKE 79-119 

NORT 71-96 

PITT 78-127 

SE 79-126-M 

HOPE 79-221-P 

YORK 81-8-M 

PENN 80-171-DM 

WEST 80-69-M 

WEVA 81-318-D 

WEST 80-471-M 

DENV 79-371-PM 

WEST 81-51-DM 

WEST 81-185-D 

WEST 80-271-M 

SE 81-8-M 

WEVA 81-186 

WEST 81-78-M 

WEST 81-134 

PENN 79-142 

WEST. 81-348-RM 

WEST 80-71-DM 

PENN 81-132-R 

PENN 81-92-R 

PIKE 77-71 

CENT 81-111-M 

LAKE 81-27-M 

SE 81-24-M 

VA 81-16-D 

WEVA 80-415 

Pg. 2041 

Pg. 2043 

Pg. 2045 

Pg. 2051 

Pg. 2056 

Pg. 2075 

Pg. 2081 

Pg. 2085 

Pg. 2099 

Pg. 2104 

Pg. 2116 

Pg. 2120 

Pg. 2122 

Pg. 2125 

Pg. 2128 

Pg. 2130 

Pg. 2132 

Pg. 2138 

Pg. 2149 

Pg. 2161 

Pg. 2168 

Pg. 2171 

Pg. 2175 

Pg. 2177 

Pg. 2201 

Pg. 2207 

Pg. 2211 

Pg. 2219 

Pg. 2222 

Pg. 2227 

Pg. 2232 

Pg. 2267 

Commission Decisions 

SEPTEMBER 

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

Secretary of Labor, MSHA v. Shamrock Coal Company, KENT 80-292; (Judge Lasher, 

July 30, 1981). 

Secretary of Labor, MSHA v. Old Ben Coal Company, LAKE 80-399; (Judge Moore, 

July 31, 1981). 

Secretary of Labor, MSHA v. Amax Lead Company of Missouri, CENT 81-63-M; 

(Judge Morris, September 4, 1981 Order Granting Interlocutory Review). 

Secretary of Labor, MSHA v. Medicine Bow Coal Company, WEST 81-163, 164; 

(Judge Morris, August 7, 1981 Opinion, Interlocutory Review). 

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

Johnny Howard v. Martin Marietta Corporation, SE 80-24-DM; (Judge Broderick, 

July 31, 1981). 

Secretary of Labor, MSHA v. Paramont Mining Corp., VA 81-45; (Judge Koutras, 

August 19, 1981 Order, Interlocutory Review). 

Secretary of Labor, MSHA, on behalf of James Miller v. Mine Shaft & Tunnel 

Corporation, WEST 81-226-DM; (Judge Vail, September 2, 1981 Order, Interlocutory Review) • 

Secretary of Labor, MSHA v. Amax Coal Company, LAKE 81-37; (Judge Kennedy, 

August 21, 1981). 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MANUEL PALACIOS 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 22, 1981 

ORDER 

Docket No. DENV 76-29-P 

IBMA 77-45 

The Secretary of Labor's motion for voluntary dismissal and 

respondent's request for dismissal of his cross-appeal are granted. 

2041 
Distribution 

Ann S. Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Michael T. Heenan, Esq. 

Smith, Heenan, Althen & Zanoli 

1110 Vermont Ave., N.W. 

Washington, D.C. 20005 

2042 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 22, 1981 

Docket No. HOPE 75-680 

UNITED MINE WORKERS OF AMERICA IBMA 75-39 

IBMA 75-40 

v. 

POCAHONTAS FUEL COMPANY 

ORDER 

On December 31, 1980, the United States Court of Appeals for the 

District of Columbia Circuit issued its decision reversing the decision 

of the Interior Department Board of Mine Operations Appeals. Pocahontas 

Fuel Co., 7 IBMA 121 (1976), rev'd sub nom. Mullins v. Andrus, No. 

77-1086, D.C. Cir., December 31, 1980. On August 21, 1981, the Court 

issued its mandate. The Court remanded to the Secretary of Interior, 

but acknowledged that further proceedings would take place before the 

Commission pursuant to section 30l(c)(3) of the Federal Mine Safety 

and Health Amendments Act of 1977, 30 U.S.C. §96l(c)(3)(Supp. III 

1979). 

Accordingly, the case is remanded to 

for further appropriate proceedings. 

A. 

~~IA~ Marian Pearlman Nease, Co~ 

~/ Chairman Backley did not participate in the consideration or 

disposition of this matter. 

2043 81-9-11 
Distribution 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

James T. Hemphill, Esq. 

3300 One Oliver Plaza 

Pittsburgh, PA 15202 

Steven B. Jacobson, Esq. 

Decastro, West & Chodorow, Inc. 

18th Floor 

10960 Wilshire Blvd. 

Los Angeles, CA 90024 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Michael McCord, Esq. 

Frederick Moncrief, Jr., Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles C. Moore, Jr. 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2044 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

THE HANNA MINING.COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 22, 1981 

Docket Nos. LAKE 79-103-M 

LAKE 79-137-M 

LAKE 79-139-M 

DECISION 

This civil penalty case is brought under the 1977 Mine Act, 

30 U.S.C. §801 et. seq. (Supp. III 1979). On review the Hanna Mining 

Company contests the administrative law judge's findings of violation 

with respect to five citations issued by an inspector of the Mine Safety 

and Health Administration (MSHA). For the reasons stated below, we affirm 

the judge's decision. 

CITATION 290181 

This citation alleges a violation of 30 CFR §55.9-54, which states: 

Berms, bumper blocks, safety hooks, or similar means 

shall be provided to prevent overtravel and overturning 

at dumping locations. 

The citation was issued after. the inspector observed a large haulage 

truck preparing to dump waste material. The truck had a 100 ton capacity, 

a 1,000 horsepower engine, and its tires were about 9 feet in diameter. 

The cab of the truck was about 5-1/2 to 6 feet high and the driver was 

seated about 20 feet from the back of the truck. The truck's back wheels 

were 1-1/2 to 3 feet from the dump ledge and resting against a 2 to 

3 foot high berm. The ledge was 75 to 80 feet high and the berm was 

constructed of loose, unconsolidated material. The judge affirmed the 

citation finding that the berm "was not sufficient to prevent overtravel 

or overturning," and that "[t]he evidence [did] not establish that other 

means were provided to prevent overtravel or overturning." 

Hanna argues that the finding of a violation was based "solely" 

on a "secret" berm height requirement. This argument is based upon the 

inspector's testimony that, as a "rule of thumb", in order for a berm to 

properly perform its warning and restraining functions it should be equal 

in height to the rear axle of the largest truck on the jobsite. Hanna 

argues that reliance on this requirement not found in the standard's 

language is inappropriate. Hanna submits the evidence establishes that 

a berm was provided at the dumpsite and, therefore, that it was in compliance with the standard. 

We find substantial evidence of record supporting the judge's finding 

of a violation. We find that the record as a whole reveals that the 

2 to 3 foot high berm present at Hanna's dumpsite was inadequate "to 

2045 81-9-12 
prevent overtravel and overturning." Thus, the facts of this case 

establish noncompliance with the standard's plain language. Resort to 

the inspector's asserted "mid-axle" guideline is unnecessary to establish 

a violation. Cf. Clinchfield Coal Co., NORT 78-417-P (1979)(administrative 

law judge)(l MSHC 2027), aff'd, No. 79-1306, 4th Cir., April 18, 1980 (1 

MSHC 2337)(finding of illumination violation not based on agency guidelines). 

The judge's finding that 30 CFR §55.9-54 was violated is therefore 

affirmed. l/ 

CITATION 294629 

This citation alleges a violation of mandatory standard 30 CFR 

§55.11-1, which states: 

Safe means of access shall be provided and maintained to all 

working places. 

The inspector issued the citation based on his observation of an 

area where workers could travel underneath an overhead belt. The judge 

found that this area was an unsafe means of access to a working place, 

and, therefore, that a violation existed. The judge also found that 

there was another means of access to the same working place and that 

this means of access was safe. 

Hanna contends that the standard's mandate was met given the judge's 

finding of one safe means of access to the working place. We disagree. 

We agree with the Secretary and the judge that the standard requires 

that each "means of access" to a working place be safe. This does not 

mean necessarily that an operator must assure that every conceivable 

route to a working place, no matter how circuitous or improbable, be 

safe. For example, an operator could show that a cited area is not a 

"means of access" within the meaning of the standard, by proving that 

there is no reasonable possibility that a miner would use the route as a 

means of reaching or leaving a workplace. 

In the present case, Hanna failed to make such a showing and there 

is substantial evid~nce to support the judge's finding that the cited 

area was an unsafe means of access to a working place. Therefore, we 

affirm the violation. ];_/ 

1/ The judge also found that the evidence failed to establish that 

11other means" were provided to prevent overtravel or overturning. Hanna 

argues that a dumpman was present at the site and that this constituted 

a "similar means" of compliance as provided for by the standard. Hanna 

assumes, and we agree, that the judge implicitly found that no dumpman 

was present at the time of the alleged violation. We conclude that 

substantial evidence of record supports a finding that no dumpman was 

present. Therefore, we need not decide whether such a person, if 

present, would constitute a "similar means" to prevent overtravel and 

overturning within the meaning of the standard. 

]:_/ We note that at the hearing the area where the cited and alternative 

routes were located was depicted through blackboard drawings which were 

not preserved. The use of such evanescent exhibits unnecessarily 

complicates meaningful review and may seriously disadvantage parties who 

later seek to rely upon them. 

2046 
CITATION 294667 

This citation also alleges a violation of 30 CFR §55.11-1 for 

failure to provide a safe means of access. 

The inspector issued this citation based on his observation of a 

large ore spill in an aisle. The spill consisted of a pile of egg-size 

or larger taconite pellets located in an aisle bounded on one side by 

the outside wall of the building and on the other side by a row of 

machines. The accumulation was approximately chest high and extended 

out 15 to 18 feet from the apex of the pile. The spill was caused by a 

mechanical defect in a conveyor belt located above the aisle. The 

innnediate area -around the accumulation was not barricaded, nor was 

notice of the hazard posted to keep persons from entering the area. The 

judge found that the area was a means of access to a working place. He 

held that as a result of the spill, and the fact that material was still 

falling at the time of inspection, the means of access was unsafe and 

violative of 30 CFR §55.11-1. 

Hanna contends that alternative safe means of access were provided 

and that the pile itself presented a barricade blocking travel in the 

aisle so that the aisle was no longer a "means of access." 

Again, we disagree. As we previously stated, 30 CFR §55.11-1 

requires an operator to make each means of access to a working place 

safe. Therefore, if the aisle was a "means of access" Hanna's duty was 

to make the aisle safe regardless of the presence of additional safe 

routes. As with the previous citation, Hanna did not show that there 

was no reasonable possibility that a miner would use the aisle as a 

means of access. Indeed, substantial evidence of record belies Hanna's 

claim that the pile presented a natural barricade to travel. The pile 

was chest high at its apex and became progressively lower. Even if the 

center of the pile had a limited barricading effect due to its size, the 

undisputed testimony was that the spill gradually extended out some 15 

to 18 feet, thus posing a tripping or slipping hazard. Also, the judge's 

finding of violation was based in part on the fact that pellets were 

still falling from the elevated walkway above. 

Thus, we affirm the judge's conclusion that the spill in the aisle 

rendered the aisle an unsafe means of access. 

CITATION 294696 

This citation involves an alleged violation of mandatory standard 

30 CFR §55.11-12, which states: 

Openings above, below or near travelways through which men 

or materials may fall shall be protected by railings, barriers, or 

covers. Where it is impractical to install such protective devices, 

adequate warning signals shall be installed. 

The inspector observed three floor openings along the length of an 

elevated walkway. One floor opening was bordered by a toeboard. The 

other two were not. At the hearing all parties agreed that the openings 

in the floor were small enough that a worker could not fall completely 

through them to the floor below. However, the inspector testified that 

the hazard he foresaw was that a worker's foot or lower leg could fall 

into the openings. In the inspector's view, as a result of the unprotected 

floor openings an accident could result causing broken bones, sprains, 

204? 
lacerations and bruises. Further, the inspector testified that the 

toeboard surrounding the one opening actually presented a stumbling 

hazard since it was not used in conjunction with a railing. 

The judge.found that a person or materials could fall "into or 

through such an opening" and that the toeboard as constructed did not 

provide "sufficient protection" as contemplated by the standard. Hanna: 

contends that the judge erred in interpreting 30 CFR §55.11-12 as 

being violated when men or materials may fall "into" as well as "through" 

an opening. Hanna further argues that the record does not support a 

finding that men or materials could fall "through" the openings in 

question. 

We reject Hanna's arguments and affirm the judge's conclusions. 

In the context of the cited standard we interpret the word "through" 

as encompassing falling into, as well as completely through, a floor 

opening. This construction is in accord with the well-established rule 

that remedial legislation and its implementing regulations are to be 

liberally construed as long as such an interpretation is reasonable and 

promotes miner safety. E.g., Freeman Coal Mining Co. v. IBMOA, 504 F.2d 

741, 744 (7th Cir. 1974). Accord, Cleveland Cliffs Iron Co., Inc., 3 

FMSHRC 291, 293-94 (1981). 30 CFR §55.11-12 is concerned with the hazard 

presented to miners by the presence of unprotected openings on travelways. In this regard, a worker is exposed to the risk of injury whether 

he falls completely through or only into unprotected openings. Furthermore, the reasonableness of this interpretation is well-founded in common 

usage. See Webster Third New International Dictionary, 2384 ( 1971); 

and 86 cT.s. "Through" at 813. Accordingly, the judge's finding of a 

violation of 30 CFR §55.11-12 is affirmed. 

CITATION 294654 

This citation alleges a violation of 30 CFR §55.11-16, which states: 

Regularly used walkways and travelways shall be sanded, salted, or 

cleared of snow and ice as soon as practicable. 

The inspector issued the citation based on his observation of a 

thin accumulation of ice on the bottom step of a metal open-grated 

stairway. The stairway led to the bottom area of the screen house and 

the inspector testified that maintenance people, electricians, mechanics, 

and others would be in that area. At the time of the inspection, however, 

there was no activity in the area, and the inspector could not determine 

how frequently the stairway was used, or how long the ice had been on 

the step; The inspector testified that the source of the ice was a 

leaking water pipe which sprayed down on the step. Ice formed because 

of extreme winter temperatures and the fact that there was a crack in 

the outside wall of the building adjacent to the stairway. 

The judge upheld the violation finding that there was an accumulation of ice on the bottom stairway and that the stairway was a regularly 

used travelway. He acknowledged that it was not clear how long the condition had existed, but inferred that the accumulation had been there for 

some time in view of the source of the ice and the fact the inspector 

discovered the condition three hours after the work shift began. Therefore, he concluded that the ice was not removed "as soon as practicable" as 

required by the standard. 

2048 
Hanna argues that the judge erred in finding that the stairway 

was a regularly used travelway, that the ice was caused by water leaking 

from a pipe, and that the ice had not been removed as soon as practicable. 

We reject each of Hanna's arguments. We affirm the judge's finding 

that the stairway was a regularly used travelway. The inspector's 

uncontradicted testimony was that in performing their duties maintenance 

and other workers would be in the bottom area of the screen house. We 

believe that it is reasonable to infer that the stairway would be used 

by these employees in their regular travel. We note that Hanna, the 

party in the best position to offer evidence respecting the use, or 

lack thereof, of the stairway did not do so. 

We reject Hanna's assertion that the judge erred in accepting the 

inspector's testimony co~cerning the source of the water. The judge's 

finding that the source was a drip or spray from a pipe above the stairway is supported by substantial evidence of record, namely the testimony 

of the inspector as well as Hanna's safety director. In any event, it is 

the presence of the ice that is important rather than its source. 

Finally, Hanna's argument that the judge erred in finding that the 

ice was not removed as soon as practicable is also rejected. We agree 

with the judge that in view of the conditions at Hanna's workplace, i.e., 

the leaking pipe and the cracked exterior wall, and the fact that the 

inspector discovered the ice on the stairway three hours after the 

working shift had begun, the ice was not removed as soon as practicable. 

Therefore, the judge's finding of a violation is affirmed. 

In sum, the decision of the administrative law judge is affirmed. 

2049 
Distribution 

Richard A. Williams, Jr., Esq. 

Hvass, Weisman & King 

715 Cargill Building 

Minneapolis, Minnesota 55402 

Mr. Harry Tuggle 

United Steelworkers of America 

Five Gateway Center 

Pittsburgh, PA 15222 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge 

James A. Broderick 

FMSHRC 

1730 K St., N.W. 

Washington, D.C. 20006 

2050 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA) 

v. 

QUARTO MINING COMP.ANY, 

NACCO MINING COMPANY, 

THE NORTH AMERICAN COAL 

CORPORATION, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

THE NORTH AMERICAN COAL 

CORPORATION, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

NACCO MINING COMPANY, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

QUARTO MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 23, 1981 

ORDER 

Docket Nos. LAKE 79-119 

LAKE 80-190 

LAKE 80-209 

LAKE 80-212 

LAKE 80-246 

LAKE 80-251 

LAKE 80-252 

LAKE 80-182 

Docket No. LAKE 80-276 

Docket No. LAKE 80-290 

Docket Nos. LAKE 80-311 

LAKE 80-360 

LAKE 80-384 

LAKE 80-385 

The issue in each of the above-captioned cases is the same: whether 

the administrative law judge correctly held that a provision of the 

operator's dust control plan, adopted pursuant to 30 C.F.R. §75.316, is 

too vague to be enforced. The dust control provisions at issue in these 

cases are identical. Subsequent to our directing these cases for review, 

2051 81-9-13 
each of the operators adopted, with the Secretary's approval, a new 

dust provision replacing the dust control provision at issue here. 

As a result of that change, we no longer believe that these cases 

present a substantial question of law, policy or discretion. 

Accordingly, the directions for review in the above-captioned cases 

are vacated. 

F 

\~~ \llci&wu\'\Lwe 

Marian Pearlman Nease, Commissioner 

2052 
Distribution 

Michael McCord, Esq. 

Nancy S. Hyde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Timothy Biddle, Esq. 

John T. Scott, III, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Administrative Law Judge Paul Merlin 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2053 

Administrative Law Judge Decisicns 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GLEN MUNSEY, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 .SEP 3 \8 

Applicant 

Application for Review of 

Discharge or Discrimination 

Docket No. NORT 71-96 

SMITTY BAKER COAL COMPANY, INC., 

P & P COAL COMP ANY, AND IBMA 72-21 

RALPH BAKER, 

Appearances: 

Before: 

Respondents 

DECISION 

Stephen B. Jacobson, Esq., Los Angeles, California, for 

Applicant, Glen Munsey; 

J. Edward Ingram, Esq., Knoxville, Tennessee, for Respondents, 

Smitty Baker Coal Company, Inc., and Ralph Baker; 

Joseph E. Wolfe, Esq., Norton, Virginia, for Respondent, 

P & P Coal Company. 

Judge Stewart 

FACTUAL AND PROCEDURAL BACKGROUND 

This is a proceeding on remand by the Federal Mine Safety and Health 

Review Commission (Commission) for additional findings on (1) whether 

appropriate offers of reinstatement have already been made by (i) P and P 

Coal Company or (ii) Ralph Baker, (2) the amount of lost wages due Glen 

Munsey, and (3) the costs and expenses to be awarded. 1_/ 

This case began on April 22, 1971, when Glen Munsey (Applicant) filed 

an application for review of an alleged discriminatory discharge by the 

Smitty Baker Coal Company, Inc., on April 15, 1971. The application sought 

relief under section llO(b) of the Federal Coal Mine Health and Safety Act 

of 1969 (the Act), 30 U.S.C. § 820(b). 

Applicant, a jacksetter, left his job underground at the face of Smitty 

Baker No. 1 Mine along with two other miners due to alleged unsafe roof conditions in the area where he was working. When outside the mine, Applicant 

asked if he could go home and return to work the next day. It was explained 

to him that it would be unfair to allow him to go home while there were other 

miners who chose to stay and work in the area where the roof had been checked 

1_/ Munsey v. Smitty Baker Coal Company, Inc., P & P Coal Company and Ralph 

Baker, 2 MSHC 1052 (1980) (hereinafter, Munsey II). 

2056 
and found to be safe. After Munsey refused to return to his regular duties at 

the face, he was offered the opportunity to do different work sufficiently 

far removed from the allegedly dangerous area to dispel any fear which he may 

have had regarding returning to work setting jacks. 

At a meeting on April 29, 1971, Applicant's union representative made 

Ralph Baker an offer to waive back pay if he put Munsey back to work immediately at Smitty Baker Coal Company. There was also a confrontation involving 

a threat that the operator would be put out of business if the Applicant was 

not rehired. Under these circumstances, Ralph Baker declined to rehire 

Munsey immediately but indicated that he would take Applicant ];_/ back to work 

later. In its first decision remanding the case to the Board of Mine Operation Appeals (Board), the U.S. Court of Appeals, District of Columbia Circuit, 

made it clear that a wrongful failure to rehire could be discriminatory 

action under the Act. It included an order that the Board decide whether the 

refusal to rehire was actuated by a forbidden retaliatory motive. 

Pursuant to a motion by the Applicant, the Board, in the absence of a 

timely objection, added three Respondents, P & P Coal Company, Mr. Ralph 

Baker, and Mr. Smitty Baker to the proceeding without prejudice to the 

presentation of any defenses on the merits by them. 

On July 7, 1975, the Board issued a Memorandum and Order which retained 

jurisdiction over the proceeding but referred it for further hearing and a 

written recommended decision by an Administrative Law Judge. 

In that decision which was issued on June 25, 1976, after the second 

hearing conducted December 2-4, 1975, the Administrative Law Judge made 

recommended findings and conclusions concerning the nine specific issues 

presented on remand and those germane to the case at that time, including 

a finding that the failure to rehire Munsey on April 29, 1971, was in violation of the Act. 

On the second appeal, the United States Court of Appeals for the District 

of Columbia affirmed the Administrative Law Judge's recommended finding that 

Smitty Baker Coal Company and Ralph Baker violated section llO(b) of the 

Federal Coal Mine Health and Safety Act of 1969 but remanded the case to the 

Federal Mine Safety and Health Review Commission (Commission) to consider 

additional issues. '}_/ Since the time that the controversy arose in 1971, 

2/ Munsey was joined in his application by miners Ernest and Arnold Scott. 

They subsequently withdrew from the case, filing affidavits stating that they 

had only participated initially because they were advised that they had to do 

so by officials of the United Mine Workers of America. These two miners were 

later rehired by Ralph Baker. 

3/ These findings were required due to the changed posture of the case. 

Although the Board of Mine Operations Appeals declined to adopt the recommended decision that the failure to rehire on April 29, 1971, was in violation of the Act it specifically indicated that the relevant issues had been 

considered. Glen Munsey v. Smitty Baker Coal Company, Inc., Ralph Baker, 

Smitty Baker, and P & P Coal Company, IBMA 72-21 (June 30, 1977); 8 IBMA 47, 

48, so. 

2057 
Smitty Baker Coal Company has ceased mining operations, including those at 

the No. 1 Mine where Munsey had been employed; P & P Coal Company has 

obtained a lease from Peabody Coal Company and opened a mine on property which 

had been the former Smitty Baker Mine designated as the No. 2 Mine; and Ralph 

Baker has incorporated a new mining company, Mason Coal Company, in a different location from that of the former Smitty Baker Coal Company operation. 

The Commission in its decision issued on December 4, 1980, held that 

Ralph Baker can be ordered to reinstate Munsey at Mason Coal Company; that 

P & P Coal is a successor to Smitty Baker Coal Company; and that Ralph Baker, 

Smitty Baker Coal Company, and P & P Coal Company are jointly and severally. 

liable for the illegal discrimination against Glen Munsey. 

Upon assignment of the case for rehearing, a hearing was set for 

December 16, 1980. When Applicant indicated that he had not yet received 

the Commission's decision and could not be prepared by that date, the hearing was reset for January 13, 1981, and the hearing was held on that date 

in Abingdon, Virginia. Applicant was not prepared to submit evidence concerning earnings, attorney's fees, and costs. The record was left open for 

late filing of statements of attorney's fees, costs and Munsey's earnings 

that were to be obtained from the Social Security Administration. 

At the hearing, the attorneys for the respective parties agreed that, 

with regard to the prior testimony in the two earlier hearings conducted in 

this case, counsel for Respondents would designate within 10 days of the date 

of the latest hearing those portions of the testimony which they deemed to be 

pertinent to the three issues under consideration herein. Thereafter, counsel 

for Applicant would have the opportunity to designate back to counsel for 

Respondents any portion of the record that it deemed pertinent to the issues 

under consideration. At that point, counsel for Respondent would undertake 

the responsibility of reproducing copies of those portions designated and 

would supply them to the Judge for inclusion in the record of this proceeding. 

These materials were filed on March 3, 1981. 

Counsel for the parties agreed to the following schedule for the filing 

of briefs in this matter. Within 25 days from receipt of the transcript from 

the reporter, Respondents would brief the reinstatement issue. 4/ Within 

25 days from receipt of Respondents' brief on the reinstatement-issue and the 

fil.ing of late materials that had been agreed to, Applicant would thereafter 

file its brief as to all issues in the case. Within 10 days from receipt of 

4/ The posthearing brief for Respondents Ralph Baker and Smitty Baker Coal 

Company was filed on March 3, 1981. Counsel for Respondent P & P Coal 

Company requested, and was granted an extension of time in which to file a 

brief on the issue of reinstatement. This brief was filed on April 15, 1981, 

and the time constraints for the filing of subsequent briefs were adjusted 

accordingly. Applicant filed his posthearing briefs on June 25, 1981. 

Respondents Ralph Baker and Smitty Baker Coal Company filed a reply brief 

on July 14, 1981. The Applicant failed to file its final reply brief within 

the prescribed time. 

2058 
Applicant's brief on all issues in the case, Respondents would file a reply 

brief on the reinstatement issue and their principal brief as to the issues 

of back pay and attorneys' fees in this case. Within 10 days of receipt of 

Respondents' briefs orr those matters, Applicant would file a reply brief as 

t6 all issues in the case. 

Proposed findings of fact and conclusions of law in the briefs filed by 

the parties which are immaterial to the issues presented or inconsistent with 

this decision are rejected. 21 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Reinstatement 

In its decision on remand, the Commission noted that the record raises a 

question as to whether Baker may have already made a suitable offer of reinstatement since Baker testified in December, 1975, that he offered Munsey 

employment at Mason Coal Company "maybe a year ago, maybe not that long." In 

his testimony, Munsey mentioned neither an offer of employment from Baker nor 

a request for a job at Mason Coal. The Administrative Law Judge had recommended that Munsey be awarded $2,013.26 for his loss of pay during the period 

from April 30, 1971, until October 30, 1971, when Smitty Baker Coal Company 

ceased operations. After remand by the D.C. Circuit and a finding that P & P 

Coal Company was a successor to Smitty Baker Coal Company and that Ralph Baker 

could be ordered to reinstate Munsey at Mason Coal Company, it became neces- · 

sary to make specific findings on the issue of whether a suitable offer of 

reinstatement had been made. 6/ The Commission, in its decision on remand, 

included findings to the effect that, if a suitable offer was made and refused, 

5/ Parts of the posthearing briefs were devoted to issues which have already 

been resolved by the Commission and the U.S. Court of Appeals D.C. Circuit. 

Respondents Smitty Baker Coal Company, Inc., and Ralph Baker argued that since 

no complaint has been filed charging discrimination on April 29, 1971 (failure to rehire), or at any time other than April 15, 1971 (date of discharge) 

Munsey has failed to complain of discrimination on April 29, 1971, and that 

matter may not now be considered. Respondents also argued that because of 

statement in Munsey's posthearing brief that "Applicant no longer contends 

that Ralph Baker and Smitty Baker as individuals may be held responsible 

* * *" he has waived any claim against either Ralph Baker or Smitty Baker 

by abandoning any contentions against them after the second administrative 

hearing. Respondents further argued that the cessation of operations of 

Smitty Baker Coal Company, Inc., on October 1, 1971, was due to a strike and 

was not a subterfuge, and that Mason Coal Company is not a proper party to 

these proceedings. Since these issues have been previously resolved, they 

were not reconsidered in this proceeding. 

6/ Munsey II at 1053. 

2059 
then the need to offer reinstatement now is moot and that the making of a 

suitable offer would toll the accumulation of lost wages due to Munsey as a 

a result of the violation. 

An offer of reinstatement can be considered "suitable" or "appropriate" 

if it was made unconditionally, unequivocally, and in good faith. Lipman 

Brothers, Inc., 164 NLRB No. 850 (1967). The offer must be one of full 

reinstatement to his former position, or should that position no longer 

exist, to a substantially equivalent position, without prejudice to his 

seniority or other rights and privileges. 

The record on remand establishes that although no appropriate offer of 

reinstatement was made by P & P Coal Company, appropriate offers of reinstatement were made by Ralph Baker at Mason Coal Company. 

Munsey, or someone representing him, discussed reemployment on a number 

of occasions with Clyde Poe, Charlie Poe 7/ or Ralph Baker. Respondents' witnesses related occasions on which offers of employment were made to Munsey. 

At the hearing on remand, Munsey testified that he did not remember such 

offers being made but he did not introduce evidence sufficient to rebut the 

clear and convincing testimony that the conversations concerning the offers 

occurred. 

Munsey related occasions on which Respondents turned down requests for 

employment made by him or on his behalf. Respondent made no attempt to rebut 

much of this testimony. It was established, however, that in the course of 

a number of these conversations, Munsey stated that he already had a good 

job elsewhere. The detailed findings on the issues of whether P & P Coal 

Company or Ralph Baker made a suitable offer of reinstatement are set forth 

below. 

No Suitable Offer of Reinstatement Made by P & P Coal Company 

A suitable offer to reinstate Glen Munsey was riot made by P & P Coal 

Company. Although employment was discussed by Munsey, or someone representing him, and a representative of P & P Coal Company on several occa- . 

sions, at no time did P & P Coal Company make an unconditional, unequivocal, 

good faith offer to hire Munsey. 

1. At the 1981 hearings herein, Clyde Poe testified that on or about 

Friday, March 10, 1972, he and Charlie James Poe met Munsey as they were going 

into a bank. Charlie James Poe asked in a "light-hearted manner" if Munsey 

wanted a job and Munsey replied that he had a job already and did not want a 

7/ Charlie James Poe and Clyde Poe were co-owners of P & P Coal Company at 

the times pertinent herein and remained so at the time of the hearing held 

January 13, 1981. 

2060 
job at P & P. Clyde Poe characterized the conversation as "light-hearted" 

because Charlie James Poe is a very talkative person. He acknowledged that 

it was not a serious conversation. 

Although Munsey testified at the most recent hearing that he did not 

recall this conversation, the clear and convincing testimony of Clyde Poe 

establishes that. the conversation took place. Poe also truthfully admitted 

the circumstances and the manner in which Munsey was asked if he wanted a 

job even though they were such that the conversation cannot be considered an 

appropriate offer of reinstatement. 

2. At the hearing held in 1975, Charlie James Poe testified that he 

had a conversation relating to employment with Munsey on or about Saturday, 

March 11, 1972. He testified that he met Glen Munsey and Fred Coeburn 8/ 

in a parking lot and that Munsey asked him for a job. Poe responded, "Well, 

Glen, I'm hiring men off Ralph's panel and if you're on his seniority list, 

I'll get to you and give you a job." In reply, Munsey laughed and said: 

"No, I don't want no job up there. I got a good job over in Kentucky." Poe 

asserted that Munsey then told him the name of his employer. 

Prior to this testimony by Charlie James Poe, Munsey had testified.on 

cross-examination that he did not remember a conversation of this .nature. 

Although Munsey's testimony might be construed as a denial that the conversation on March 11, 1972, J_/ occurred, it certainly was not as convincing as 

that of Poe who was certain of all aspects of the conversation except the 

exact date on which it occurred. Here again, Poe gave the full details of 

the conversation, including those detrimental to his case. Charlie Poe's 

"of fer" of a job to Glen Munsey on this occasion was made contingent upon 

Munsey being a member of the panel of former Smitty Baker Coal Company 

employees. This panel listed the former employees by seniority and served 

as the basis by which P & P hired its miners. Those miners hired from the 

panel were chosen by seniority without further screening. 

On Sunday, March 12, 1972, a meeting called by Charlie James Poe was 

held in the UMWA hall in St. Charles. At this meeting, P & P hired its 

employees from the panel comprised of the former employees of Smitty Baker 

Coal Company. Munsey went to the meeting but left after he and a number of 

other former employees who had been fired by Smitty Ba~er Coal Company were 

told that they were not on the panel. Munsey did not actually check to see 

if his name was on the panel or not. 

At the 1975 hearing, Charlie James Poe testified that he did not hire 

Munsey at the time because Munsey had informed him that he already had a job 

8/ Fred Coeburn was the section foreman at Smitty Baker Coal Company who 

had allegedly discharged Munsey on April 15, 1971. 

J_/ At the hearing held in 1973, counsel inferred during cross-examination 

that this conversation occurred on March 13, 1972. 

2061 
and did not want to work for P & P. Poe believed that all of Smitty Baker's 

men were on the list but he did not check the panel list used by the union 

and he did not do the actual hiring. The evidence fails to establish that 

Munsey was on the panel comprised of Smitty Baker Coal Company employees at 

the time the company ceased operations. His name was not likely to be on 

such a panel since he had previously terminated his employment with that 

company. Neither Munsey nor Charlie James Poe saw the actual panel list from 

which former employees of Smitty Baker Coal Company were chosen by the union. 

Poe believed that Munsey's name was on his list of panel members and asswned 

that Munsey was included on the union's list. On the other hand, Munsey and 

a nlllllber of other miners were denied employment specifically because they 

were not on the panel. 

The offer of employment made by Charlie James Poe on March 11, 1972, was 

premised on Munsey being a member of the panel of Smitty Baker Coal Company 

employees. The qualification attached to this "offer" rendered it, in effect, 

no offer at all. 

4. P & P Coal Company signed a contract with the UMWA on March 11, 

1972, 10/ or thereabouts. Ed Gilbert testified that on the day that the contract was signed, he went to Charlie James Poe at his home and spoke with him 

about the rehiring of Mr. Munsey and the Scotts. 11/ In the course of this 

conversation, Charlie Poe did not say absolutely whether he would hire either 

Munsey or the Scotts. Mr. Gilbert stated the UMWA position and asked Poe to 

put them back to work. According to Gilbert, Mr. Poe responded that he had 

worked out a deal with Smitty Baker whereby Smitty Baker would be responsible 

for anything that would happen and that they were not going to hire them. 12/ 

At the 1975 hearing, Charlie Jamei;; Poe denied the existence of any agreement 

with Ralph Baker to discriminate against Munsey. While the conversation may 

not have included an absolute refusal to rehire Munsey, there was no appropriate offer of reinstatement at that time. 

5. At the 1975 hearing, Munsey testified that he asked P & P Coal 

Company three times for a job and he described two of those occasions. 

His testimony was, in substance, that he spoke with Charlie James Poe 

about 2 weeks after Poe t·ook over the mines. Poe was putting in 

10/ At the hearing held in 1975, Ed Gilbert mistakenly testified that P & P 

signed the UMWA wage agreement on March 13, 1972. 

11/ The Scotts were two miners who had left the employment of Smitty Baker 

Coal Company at the same time as Munsey. 

12/ At the 1975 hearing, Ed Gilbert testified that he told Poe at the time 

of this conversation that the discrimination case was pending. On the other 

hand, Charlie James Poe testified at that hearing that he did not speak with 

Ralph Baker about any agreement not to hire certain of the employees of 

Smitty Baker Coal Company and that the first he heard of the discrimination 

case was when he came into the hearing on that morning. This conflict in 

testimony has already beep effectively resolved in finding that P & P Coal 

Company, Inc., was a successor to Smitty Baker Coal Company, Inc. 

2062 
a crusher at the mines on a Saturday. When Munsey asked him for a job, Poe 

responded "You wouldn't want to work here at this place." Poe did not give 

any reason for this statement. 

Munsey's testimony on this point, although lacking in some detail, was 

given in a straightforward manner. The approximate date, the gist of the 

conversation, and the circumstances surrounding the incident were stated in 

such a manner as to establish that the incident did occur. 

Munsey also testified that "he went back to Charlie James Poe once again 

and asked him about a job and was told by Poe at that time they were not 

doing any hiring." There were no witnesses present. At the 1981 hearing, 

Munsey reiterated that he had asked Charlie James Poe for a job and Poe said 

that he was not hiring anybody. Although Munsey's testimony regarding this 

incident lacked clarity and detail, it was given in such a manner as to 

establish that the conversation did occur. It is clear that no appropriate 

offer of reinstatement was made in the course thereof. 

6. Approximately 9 months to a year after P & P Coal Company 

Munsey asked Ed Gilbert to intercede with Charlie Poe to get him a 

P & P Coal Company. Ed Gilbert spoke with Poe over the telephone. 

Gilbert that he was not hiring because his business was in a slump. 

was clearly no appropriate offer of reinstatement on the occasion. 

opened, 

job with 

Poe told 

There 

7. Approximately 2 years before the December 5, 1975, hearing, Glen 

Munsey's wife went to Clyde Poe's store and asked him for a job on behalf 

of Glen Munsey. Mr. Poe responded that P & P Coal Company was not hiring. 

Again, there was no offer of reinstatement on this occasion. 

Suitable Offer of Reinstatement Made by Ralph Baker 

Smitty Baker Coal Company closed down operations in October, 1971. Ralph 

Baker started the Mason Coal Company early the next year, opened the mine in 

May, 1972, and started running coal in June of 1972. 

The record establishes a pattern by Munsey of requesting employment at 

both P & P Coal Company and Mason Coal Company even though he already had a 

job and had no intention of leaving to accept another. It was not established 

whether this course of conduct was idle conversation between acquaintances or 

a deliberate attempt to make a case for his discrimination proceeding. In any 

event, while P & P Coal Company did not make an appropriate offer, Mason Coal 

Company needed Munsey's services and made more than one suitable offer to 

reinstate him. 

Glen Munsey testified that he did not go to Smitty Baker Coal Company or 

anybody connected with it and request that he be rehired after April 29, 1971; 

that he never spoke with Mr. Baker regarding employment at Mason Coal Company, 

nor had he ever conferred with anyone he knew to be or thought might be a 

foreman or a superintendent at Mason Coal Company about working for that 

company, and that to his recollection, he never had anyone else contact Baker 

for him. Under the circumstances this testimony lacks credibility. 

2063 
Munsey also testified that from 1971 through 1974, he worked for Helen 

Ann Coal Company. His job with that company was "running bridge * * * on a 

miner." The "bridgE,?" is a short conveyor which carries the coal cut by the 

continuous miner back to the main conveyor. Mr. Munsey's station as a bridge 

operator was approximately 90 feet outby the coal face but he had to approach 

the face regularly in the performance of his job. When Munsey was employed 

by Smitty Baker Coal Company, he was a jacksetter, a job which required him 

to work in the immediate vicinity of the coal face. Munsey did not work as· a 

jacksetter at Helen Ann Coal Company. 13/ Munsey testified that he did not 

seek any particular job when he applied for work at Helen Ann Coal Company 

but also that he "wanted out from the face * * * [and so he] learned to 

start running the bridge." 

Munsey admitted that, during the time he was working with Helen Ann Coal 

Company, he had no thought of leaving that company to get a job at Mason Coal. 

He stated that he would have considered working at Mason Coal Company after 

he left Helen Ann Coal Company in 1974 if "they had offered me a job" but 

that he would not have left Helen Ann Coai Company in 1972, 1973, or 1974 to 

work for Mason Coal Company. During the time he worked for Helen Ann Coal 

Company, the company was signatory to the UMWA contract. It is clear that 

Munsey would not have left his job as a bridge operator and forfeited his 

union status with the UMWA to go to work at the face at Mason Coal Company as 

a jacksetter. Munsey stated that he would not have given up a job at a union 

mine for one at a non-union mine. It was later established that Mason Coal 

Company had a contract with the Southern Labor Union. 

Ralph Baker testified that, after establishing Mason Coal Company in 

1972, he was asked by Munsey for a job several times; Baker told Munsey that 

he should come to work but Munsey never did. Baker testified in detail as 

to two occasions on which he offered to hire Munsey. Baker also testified 

that Munsey had asked him for work on four or five other occasions when the 

two passed on the street. Munsey never went in and filled out one of the 

written applications for employment but he had inquired about working at 

Mason Coal Company until the time that Adrian Belcher quit. After Belcher 

quit in 1975, Munsey did not talk to Baker or any of his foremen regarding 

a job. 

Baker's testimony in regard to the first of the two specific occasions 

on which Munsey was offered employment was that Munsey asked for a job 2 or 

3 months after Mason had started running coal in June, 1972. Mason Coal had 

been shipping coal on spot orders to the Tennessee Valley Authority and to 

other utilities. The conversation took place close to the Southern Railway 

Depot in St. Charles. Glen Munsey started the conversation by asking if he 

could have a job. Ralph Baker agreed to give him a job. 

13/ Munsey testified that he never worked as a jacksetter with Helen Ann 

Coal Company but that he had "set jacks at Bee Coal [Company]." 

2064 
Munsey then told Baker that he did not want a job--that he was already 

working. Baker had no idea why Munsey asked him for a job when he did not 

want a job, but did not think this was strange. He stated that people 

frequently asked him for jobs when they did not really want them. 

As noted above, Munsey originally testified that he never conferred with 

anyone at Mason Coal Company regarding employment. On rebuttal, he softened 

his position somewhat. In response to the question whether this conversation 

in· St. Charles occurred, Munsey replied "Not as I can remember." Munsey 

neither explained nor denied the conversation with Baker but rested on a 

general, equivocal denial. 

In June, 1973, Munsey asked for and was given a job by Baker's foreman, 

Adrian Belcher. In summary, Baker's testimony was that Munsey had been 

sitting in a car with Adrian Belcher, a section foreman at Mason Coal 

Company. Baker walked up to the car and was told by Belcher that he, 

Belcher, had hired Munsey as a jacksetter. Baker "told him that was good." 

Mr. Belcher appeared to Baker to have been serious. Baker believed that 

Munsey said something but could not remember what it was. Nothing was said 

about seniority or back pay. 

Munsey testified that Baker came over to the car and spoke with Adrian 

Belcher while he was in the car but does not know or remember what Baker 

and Belcher spoke about. Munsey asserted that Mr. Belcher did not hire him 

to work at Mason Coal Company at that time and that he did not even know 

that Belcher was a foreman at Mason Coal Company. In view of Munsey's 

presence in the car with Mr. Belcher when Mr. Belcher and Mr. Baker were 

talking, it is improbable that he was unaware at the time of the substance 

of the conversation. His assertions that "(he does not) know what they were 

talking about," followed by the assertion that he did not remember what was 

said will not serve to rebut Baker's testimony in this regard. 

The evidence establishes that Ralph Baker agreed to employ Glen Munsey 

2 or 3 months after Mason Coal Company started running coal in June of 1972 

and that he again agreed to employ Glen Munsey in June of 1973. Although 

Ralph Baker had refused to rehire Munsey and the Scotts at Smitty Baker Coal 

Company on April 29, 1971, he conditioned his refusal by stating that he would 

not rehire them "at that time." The record clearly shows that he was willing 

to hire them the succeeding year after establishing Mason Coal Company. Baker 

hired back Arnold and Ernest Scott, former Applicants in this proceeding. They 

made no agreement with Baker when they came back to work to drop their cases 

nor did Baker expect that they would do so when they did come back to work. 

No mention was made of the case nor was seniority given to them at the time. 

No back pay was given. Baker believed that Munsey was a skilled jacksetter 

and his unrebutted testimony was that he would have been glad to have Munsey 

working at Mason Coal in that capacity. 

Surrounding circumstances lend credence to Ralph Baker's testimony. 

Munsey's purported refusal of employment is consistent with his testimony 

that he would not have left his employment as a bridge operator at Helen Ann 

·2065 
Coal Company to work as a jacksetter at Mason Coal Company at the time the 

offer was made. 

Baker was serious about giving Munsey a job on the two occasions related 

above. At no time did he make the acceptance of a job contingent upon dropping any claims for back pay that Munsey might have against him. The offers 

were unequivocal, .unconditional and made in good faith. Under the circumstances of this case, it is clear that the offers of reinstatement were 

suitable even though a specific promise to give back pay was not included. 14/ 

The relief provisions of the Act were intended to compensate for injury 

suffered, not to place Munsey in a better position than he would have otherwise occupied. Therefore, the offers of reinstatement were suitable even 

though no consideration was given to lost seniority or privileges. Mason 

Coal Company, from its inception, had a collective bargaining agreement with 

the Southern Labor Union rather than the United Mine Workers of America, the 

co~lective bargaining agent at the Smitty Baker Coal Company operation. 

Ralph Baker testified that a number of the former employees of Smitty Baker 

Coal Company were hired by Mason Coal Company. These employees were not 

accorded seniority or privileges at Mason Coal Compqny by virtue of their 

prior employment with Smitty Baker Coal Company. This practice was uniformly 

applied. 

It is found that Ralph Baker made Glen Munsey an appropriate offer of 

reinstatement on two separate occasions. The first such occasion occurred 

2 or 3 months afer Mason Coal Company began running coal in June of 1972. 

The second occasion occurred in June, 1973. 

Relief to be Accorded 

Pursuant to the terms of section 110 0£ the Act, Munsey is entitled to 

an order requiring Respondents "to take such affirmative action to abate the 

violation as the Secretary deems appropriate, including, but not limited to, 

the rehiring or reinstatement of the miner * * * to his former position with 

back pay." 

Because a suitable offer of reinstatement has been made and refused, the 

need to offer reinstatement is now moot. Moreover, the making of the suitable offer has tolled the accumulation of lost wages due Munsey as of the 

date the offer was made. Respondent Ralph Baker was unable to establish the 

14/ See N.L.R.B. v. Midwest Hanger Company, 550 F.2d 1101 (8th Cir. 1977). 

The court therein stated at 1103: "It is clear that had the Company's 

offer of reinstatement been conditioned solely on its refusal to give back 

pay** * then the offer of reinstatement would not have been invalidated." 

Citing D'Armigene, Inc., 148 NLRB 2, 15 (1964), enforced as modified, 

353 F.2d 406 (2d Cir. 1965); Reliance-Clay Products, 105 NLRB 135 (1953). 

2066" 
exact date on which the first conversation took place. He was able to testify only that the conversation occurred 2 to 3 months after Mason Coal 

Company began running coal in June, 1972. This failure to provide a specific 

date must be resolved in Munsey's favor. If the operation began at the end 

of June, the offer could have been made as late as October 1. For the purposes of determining the relief to be accorded, the date on which this suitable offer of reinstatement occurred will be taken as October 1, 1972. 

Munsey is entitled to be paid those wages he would have earned but for 

the illegal discrimination against him. It has already been determined that 

$2,013.26 was due Munsey for wages lost through October 1971, when Smitty 

Baker Coal Company ceased operations. P & P Coal Company which has been 

found to be a successor began operations on April 1, 1972. 15/ Respondents 

are, therefore, liable for any wages lost by Munsey from April 1, 1972, until 

October 1, 1972, the date on which the accumulation of wages was found above 

to have tolled. 

The figures provided by Munsey 16/ for the amount of wages he would have 

earned at P & P Coal Company were computed on the assumption that it operated 

on a 5-day work week at a rate of $38.75 per day. If Munsey had been employed 

from April 1, 1972, through the end of the quarter, June 30, 1972,-by P & P 

Coal Company, he would have earned $2,518.75. The figure provided for the 

second half of 1972 was calculated on the basis of 95 days worked at a rate of 

$38.75 and 35 days at a rate of $41.75. An appropriate figure for the third 

quarter wages paid by P & P Coal Company cannot be accurately reached by 

dividing the total half-year figure, $5,412.50, in half. Rather, it is 

appropriate to multiply the number of work days in the third quarter (65) 

times the rate in effect ($38.75). On this basis, Munsey would have earned 

$2,518.75 in the third quarter of 1972 had he been employed by P & P Coal 

Company. ];]__/ 

Munsey appended to his posthearing brief an itemized earnings statement 

provided by the Social Security Administration. His earnings during the 

15/ While the record provides indications that P & P Coal Company may have 

commenced operations in some form as early as March 13, 1972, Munsey 

asserted in his posthearing brief that operations actually began on April 1, 

1972. The figures for lost pay offered by Munsey are calculated as of 

April 1, 1972. 

16/ No objection was made by Respondents to the dollar amounts estimated by 

Munsey for the period of time from April 1, 1972, through September 30, 1972. 

17/ It is arguable that calculations must also be made of the amount of 

wages lost by Munsey because of the failure of Ralph Baker to offer him 

employment at Mason Coal Company until October, 1972. 

The exact date on which Munsey might first have been employed by Mason 

Coal Company has not been established. Ralph Baker stated that the company 

first began running coal in June of 1972, but Respondent's Exhibit No. 2, 

a "Recapitulation/Work Time and Pay Rqt~s" for Mason Coal Company, indicates 

2067 
second (April-June) and third (July-September) quarters of 1972 were indicated thereon as follows: 

April-June, 1972 

July-September, 1972 

$2,446.80 

$1,746.00 

In view of the above, it is found that Munsey is entitled to $72 in lost wages 

for the second quarter of 1972 and $773 in lost wages for the third quarter. 

These amounts reflect the difference between what Munsey would have earned 

had he worked at P & P Coal and his actual earnings during the pertinent 

period of time. 

Costs and Expenses 

Section 110(b)(3) of the Act reads as follows: 

(3) Whenever an order is issued under this subsection, 

at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses (including the 

attorney's fees) as determined by the Secretary to have been 

reasonably incurred by the applicant for, or in connection 

with, the institution and prosecution of such proceedings, 

shall be assessed against the person committing such 

violation. 

fn. 17 (continued) 

that a considerable number of shifts were worked prior to June 30, 1972. No 

indication exists on the record, however, as to the number of employees 

working or the nature of the work performed. 

The computation of earnings which Munsey would have made had he worked 

for P & P Coal Company or Mason Coal Company were both determined on a 

bi-annual basis. The figures provided for Munsey's actual earnings were 

determined on a quarterly basis. 

Mason Coal Company began operations during the second quarter of 1972. 

If Munsey had worked at Mason Coal Company from the day it began operations 

through June 30, 1972, he would have earned $1,557.50. This figure reflects 

the wages due for 44-1/2 shifts at a rate of $35 per shift. 

A total of 62-1/2 shifts were worked at Mason Coal Company at a rate 

of $38 per shift during the entire second half of 1972. In the absence of 

information which would allow a breakdown of this total by quarters, the 

number of shifts ascribed to the third quarter is taken to be one-half of 

the total or 31-1/4. Muney's earnings at Mason Coal Company in the third 

quarter of 1972 would, therefore, have amounted to $1,187.50. 

The amount that Munsey would have earned at Mason Coal Company is less 

than he would have earned at P & P Coal Company. Since this provides an 

inaccurate basis on which to calculate Munsey's loss, the calculations are 

based on his earnings at P and P Coal Company. 

2068 
On the basis of this provision, Munsey asserts that he is entitled to 

attorney's fees of $108,962.50 and costs of $367.16. 

Mr. Munsey testified that he was represented first by Charles Widman, 

then by Willard Owens and finally, by the current attorney of record, Steven 

Jacobson. Charles Widman and Willard Owens were salaried member of the legal 

staff of the UMWA during the time they represented Glen Munsey. Steven 

Jacobson was a salaried member of the UMWA legal staff unt~l September, 1976. 

Thereafter, Mr. Jacobson continued his representation of Glen Munsey in a 

private capacity. 

Munsey stipulated that he had never been charged for expenses and is not 

expected to pay back fees. He testified that he was not obligated to the 

Union for its provision of the services of these three attorneys. Munsey 

also testified that he never discussed fees with any of these attorneys, 

including Mr. Jacobson. 

Section 110(b)(3) is couched in terms which, in pertinent part, provide 

for assessment against Respondents of the costs and expenses, including 

attorney's fees reasonably incurred by the Applicant. As a threshold question, it must be determined whether recovery may be had by Munsey despite 

his stipulation that he did not incur any obligation to pay attorney's fees, 

costs, or expenses. 

Congress enacted the provision for attorney's fees in section 110(b)(3) 

to encourage individuals injured by unlawful discrimination to vindicate 

their private rights under the Act even though the personal recovery anticipated by the Applicant would, in some cases, be far less than the costs and 

expenses incurred ·in maintaining the action. Provision of costs and expenses 

was, therefore, a critical element of the enforcement scheme envisioned by 

Congress. In order to vindicate the right of miners as a class to be free 

from unlawful discrimination, the inherent disincentive presented by costs 

and expenses in excess of anticipated recovery was removed. 

Respondent asserts that the Act specifically limits the recoverable 

costs and expenses to those actually ~ncurred by the Applicant. It was 

argued that Munsey did not incur attorney's fees because he was not 

personally obligated for costs and expenses to those who represented him. 

Respondents' argument is without merit. It places undue emphasis on the 

phrase "incurred by appl ican't," and, if ·adopted, would eviscerate the enforcement scheme envisioned by Congress. It makes no sense to restrict recovery 

of costs and expenses to applicants who have formally agreed to pay these 

costs and expenses when section 110(b)(3) was enacted in recognition of the 

chilling effect that such obligations would have on the assertion of the 

rights afforded by the antidiscrimination provisions of the Act. Munsey did 

not incur a formal obligation to pay costs and expenses because he could not 

afford to meet such an obligation. His situation was precisely that which 

Congress intended to remedy with the enactment of section 110(b)(3). 

2069 
No reason can be found to warrant reduction in the level of enforcement 

afforded by section llO(b) by attaching significance to a formalized.obligation to pay. An attorney providing free legal services in the vindication of 

section llO(b) rights stands in the same position as one to whom a fee is 

owed. 

Compensation for legal services rendered in the absence of legal obligation on the part of the client to pay have been awarded to attorneys in private practice, private legal services organizations, foundations, and 

.public-interest law firms pursuant to statutory provisions for awarding of 

attorney's fees. Applicant has advanced no convincing reason nor any legal 

authority to justify the extension of the right to recover fees or expenses 

under such circumstances to unions or collective bargaining agents. It is 

likewise inappropriate that Mr. Jacobson be awarded attorney's fees personally 

for the legal services he provided while in the employment of the UMWA. 

Recovery of attorney's fees and expenses will therefore be allowed only for 

those services rendered and expenses incurred by Mr. Jacobson while he represented Munsey in the capacity of a private practitioner. 

Respondent argued that attorney's fees had been disallowed in the recommended decision herein, issued June 25, 1976, and that the Board of Mine 

Operations Appeals had overruled Applicant's exception to the disallowance 

in its decision of June 30, 1977 (Glenn Munsey v. Smitty Baker Coal Company, 

et al., 8 IBMA 43 (1977)). The Board found that "Munsey failed to meet his 

prima facie burden consistent with the requirement of section llO(b)" and 

denied "all exceptions not dealt with specifically." The Court of Appeals 

affirmed the Board in part, reversed it in part, and remanded for consideration of specific issues. Glenn Munsey v. Federal Mine Safety and Health 

Review Commission, 595 F.2d 735 (D.C. 1978). The Court did not specifically 

affirm or reverse the Board's denial. of Applicant's exception to the disallowance of attorney's fees. 

The Board did not offer an explanation for its denial of Respondent's 

exception. It is entirely possible that the Board denied the exception 

because recovery of expenses pursuant to section 110 was premised on 

Applicant's prevailing in his claim of discrimination. The Court of 

Appeal's reversal in part on substantive grounds undermines the Board's 

derrial of the exception. 

The basis for disallowing attorney's fees was not made on substantive 

grounds but, rather, was based on the failure of Applicant to submit evidence 

to establish the existence of such expenses. If the disallowance of fees to 

that point in time stands, it would affect provision of attorney's fees 

accrued through June 25, 1976. As noted above, recovery of fees prior to 

that time is denied on other grounds. As a result, Respondent's argument is 

moot. 

The starting point for computation of fees is achieved by multiplying 

a reasonable hourly rate by the number of hours reasonably expended on the 

2070 
lawsuit. 18/ This starting figure has been termed the "lodestar." The 

lodestar fee is then adjusted to reflect a variety of other factors. 

Counsel for Applicant submitted the following information with respect 

to the hours spent representing Mr. Munsey from 1977 through the present. 

This information was contained in Applicant's Exhibit No. 6 which was 

accepted into evidence subject to the filing of available supporting 

materials: 

Preparation of petition for D.C. Circuit review 

Preparation of D.C. Circuit brief and joint 

appendix 

1977 - 89.00 hours at $70/hr. = $6,230.00 

Preparation of opposition to briefing extension 

Preparation of motion to substitute parties and 

reply to opposition thereto 

Preparation of reply brief 

Preparation of motion for expedited oral 

argument 

Preparation of letter to Court 

Preparation for and attendance at D.C. Circuit 

argument 

Preparation of opposition to motion to vacate 

award of costs 

Preparation of materials for Commission on remand 

1978-79 - 143.25 hours at $80/hr. = $11,460.00 

Preparation of July 1980 letter to Commission, 

telphone calls from Commission staff re 

documents 

Preparation for and attendance at 1981 hearing 

and preparation of requests for supplemental 

documents 

Preparation of materials on remand 

1980-81 - 79.25 hours at $110/hr. = $8,772.50 

.so 

88.50 

89.00 

1. 75 

9.00 

53.75 

6.00 

1.75 

27.50 

3.75 

39.75 

143.25 

5.75 

46.00 

27.50 

79.25 

Counsel for Applicant supplemented Exhibit No. 6 with an affidavit 

attached to the posthearing brief filed herein on June 25, 1981. He stated 

18/ The method utilized in setting the attorney's fees due herein has been 

gleaned in large part from Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 

1980) (hereinafter, Copeland). 

2071 
that Exhibit No. 6 reflected the "various tasks I have performed in connection with this case, and the hours I spent in performance." Counsel did not 

state whether the hours claimed were established by daily records, by reconstruction through close examination of the record of the case or by mere 

estimation. 

The submissions of counsel for Applicant, though perfunctory, were 

sufficient to perniit a determination of reasonableness to be made. It is 

found that counsel for Applicant reasonably expended 89 hours 19/ in 1977, 

143.25 hours in 1978-1979, and 79.25 hours in 1980-1981. ~ 

In an affidavit submitted with the posthearing reply brief, Mr. Jacobson 

offered the following information. Mr. Jacobson is a member of the California, 

District of Columbia and Illinois Bars. He graduated from Harvard Law School 

in 1973. From 1973 to 1977, he was a staff attorney for the UMWA with 

responsibility for mine safety litigation; since 1977, he has been in private 

practice. He has argued "numerous precedent-setting cases" in the mine safety 

and health area. 

Mr. Jacobson stated that his billing rate was $70 per hour in 1977, 

$80 per hour in 1978 and 1979, and $110 per hour in 1980 and 1981. It is 

found that these are reasonable rates in the community for similar work. 

It is also found that these dollar amounts accurately reflect the value of 

Mr. Jacobson's time, given his background and, particularly, his expertise 

in matters of this sort. 20/ 

The number of hours reasonably expended by Mr. Jacobson multiplied by 

reasonable hourly rates result in a lodestar figure of $26,462.50. The burden 

of justifying any deviation from this figure rests with the party proposing 

the deviation. Copeland at 892. 

Counsel for Applicant argued that the lodestar amount should be doubled 

in view of the contingent nature of the litigation and the quality and value 

of the work performed. This request is denied. The hourly rate underlying 

the lodestar figure ~eflects an allowance for the contingent nature of 

Mr. Jacobson's compensation. In addition, much of counsel's work was performed after the U.S. Court of Appeals had made it clear that Munsey was to 

19/ Respondent objected to 88.5 hours claimed to have been expended in the 

preparation of the second brief to the D.C. Court of Appeals because "as 

to most of the issues presented by that appeal and brief, he lost." Each 

of these issues was closely related to the cause upon which Applicant has 

ultimately prevailed. Under such circumstances, the failure to prevail on 

specific issues is not a proper basis for denying recovery for time spent 

thereon. 

20/ See Meisel v. Kremens, 80 FRD 419 (E.D. Pa. 1978), citing Lindy 

Brothers Builders, Inc. v. American Radiator and Standard Sanitary 

Corporation, 487 F.2d 161 (3d Cir. 1973). 

2072 
prevail at least in part. An adjustment on the basis of quality and value 

of the representation is appropriate only when the representation is 

"unusually good or bad, taking into account the level of skill normally 

expected of an attorney commanding the hourly rate used to compute" the 

lodestar figure. Copeland at 893. No adjustment for the quality and value 

of the representation is warranted herein. 

The interests at issue and the results obtained are factors to be considered in determining whether a fee is reasonable. The back pay recoverd by 

Munsey is far exceeded by the attorney's fees awarded herein. In succeeding 

on the merits, however, Applicant vindicated not only his personal right but 

the rights of all miners as a class to be free of unlawful, safety-related 

discrimination. A reduction in attorney's fees because the fees exceed 

Mr. Munsey's back pay recovery is not warranted. 

Applicant also claimed compensable expenses in this proceeding as 

follows: 

Duplicating 

Transcript of 1981 hearing 

$200.00 

135 .16 

In view of the extensiveness of this proceeding, the claim for duplicating expenses seems reasonable and will be allowed. Applicant is clearly 

entitled to recover his expenses for a transcript of the 1981 hearings. 

Accordingly, expenses in the total amount of $335.16 are awarded herein. 

In view of the fact that Munsey incurred no formal obligation for 

attorney's fees or expenses, either to the UMWA or Mr. Jacobson, the order 

entered herein will require that payment of the awarded fees be made directly. 

Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 539 (5th Cir. 1970); 

Brandenburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 1974). 

ORDER 

In its decision remanding this case for proceedings necessary to further 

determine the additional amount of lost wages and interest due Munsey, the 

Commission ordered Ralph Baker, Smitty Baker Coal Company, and P & P Coal 

Company, jointly and severally to pay, the amount of $2,013.26 plus interest 

to Munsey. It is further ordered that these Respondents, jointly and 

severally, pay the additional amount of $845.00, which makes a total amount 

of $2,858.26, plus interest within 30 days of the date of this order. 

Interest is to be computed on the total amount at a rate of 8 percent until 

the date of payment. 

It is further ORDERED that the Respondents, jointly and severally, pay 

attorney's fees in the amount of $26,462.50 and expenses in the amount of 

$335.16 to Steven Jacobson, Esq., within 30 days of the date of this decision. 

~~ts~~ Forrest E. Stewart 

Administrative Law Judge 

2073 
Distribution: 

Steven B. Jacobson, Esq., 10960 Wilshire Boulevard, Suite 1800, 

Los Angeles, CA 90024 (Certified Mail) 

J. Edward Ingram, Esq., Fowler & Robertson, Seventh Floor, First 

Tennessee Bank Building, Knoxville, TN 37902 (Certified Mail) 

Joseph E. Wolfe, Esq., Earls, Wolfe & Farmer, P.O. Box 196, Norton, 

VA 24273 (Certified Mail) 

2074 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CANTERBURY COAL COMPANY, 

Applicant 

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. 

CANTERBURY COAL COMPANY, 

Respondent 

Applications for Review 

Docket No. PITT 78-127 

Order No. lAM 

Docket No. PITT 78-128 

Order No. lDEM 

David No. 5 Mine 

Civil Penalty Proceedings 

Docket No. PITT 78-301-P 

A/O No. 36-00813-02012V 

Docket No. PITT 78-302-P 

A/O No. 36-00813-02014 

David No. 5 Mine 

DECISION APPROVING SETTLEMENT 

The Secretary of Labor has filed a motion for an order approving the 

case disposition and settlement agreement in the above-captioned proceedings. 

1./ Sections llO(i) and (k) of the Federal Mine Safety and Health Act of 

1977 (hereinafter the Act), 30 U.S.C. §§ 801-960, provide: 

"(i) The Commission shall have the authority to assess all civil 

penalties provided in this Act. In assessing all civil monetary penalties, 

the Commission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business 6f the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. In proposing 

civil penalties under this Act, the Secretary may rely upon a summary 

review of the information available to him and shall not be required to 

make findings of fact concerning the above factors. 

(k) No proposed penalty which has been contested before the Commission 

under section 105(a) shall be compromised, mitigated, or settled except 

with the approval of the Commission. No penalty which has become a final 

order of the Commission shall be compromised, mitigated, or settled 

except with the approval of the Court." 

2075 

Editor's Note: 

Case on Remand, See 

1 FMSHRC 1311 (1979) 
On July 30, 1981, Petitioner filed its motion for an order approving 

settlements, scheduling time for payment, and dismissing applications for 

review. The settlement agreements were entered into between counsel for 

Canterbury Coal Company (Canterbury) and MSHA on June 4, 1981, as follows: 

§104(c)(l) Notice of Violation No. 1 DEM/AM (7-65), issued 

on September 23, 1977, citing 30 CFR 75.200. The proposed 

penalty is $800.00 and the proposed settlement is $500.00. 

PITT 78-301-P 

§104(c)(l) Order of Withdrawal No. 1 DEM (7-78), issued on 

December 2, 1977, citing 30 CFR 75.200. The proposed 

penalty is $1,500.00 and the proposed settlement is $500.00. 

PITT 78-302-P 

MSHA also moved that a time be set by the Administrative Law Judge upon 

approval of the settlements for payment of the total amount of $1,000.00. 

The parties have also agTeed that the above-captioned applications for 

review be dismissed as part of the settlement. Respondent United Mine 

Workers of America did not object to this disposition. 

The reasons given by MSHA for the Motion are in substance as follows: 

1. Size: The Order of Assessment, dated January 10, 1978 (PITT 78-301-P), 

indicated that the Mining Enforcement and Safety Administration (MESA) 

records on that day showed that the David No. 5 Mine and Canterbury Coal 

Company both produced 486,584 tons of coal in the year preceding 

January 10, 1978. The Order of Assessment, dated February 23, 1978 (PITT 

78-302-P) indicated that MESA records show the mine produced the same 

(486,584) tonnage for the year preceding the latter date but the parent 

company, Aquitaine Incorporated, produced 1,132,587 tons annually for the 

year. A narrative statement concerning the above-mentioned order of withdrawal was attached to the motion and the Assessor's finding therein was 

the annual company production was 1,132,587 tons during 1976. The mine is 

of upper middle range size for assessment purposes. The Company is of 

lower middle range size. 

2. Prior History: A certified computer printout showing only paid 

violations assessed against Respondent indicates that there were 161 violations of all standards during that period for that mine. 

3. NOTICE OF VIOLATION NO. 1 DEM/AM (7-65): If a hearing were to be 

held, two Federal Inspectors would testify that each of them saw the substandard mine roof described in the notice of violation. The inspectors 

observed four locations where the mine roof in the same area has fallen 

between the roof bolts, indicating that the mine strata had shifted and was 

less stable than at the time the roof was bolted (Tr. 224). The area had 

pot holes or cavities indicating that additional support was required (Tr. 250). 

Safety Precaution No. 1 of the approved roof control plan required additional 

roof supports where conditions indicated a need (Tr. 231). In the notice of 

violation the Inspectors cited that part of the plan as not being complied 

2076 
with. Safety Precaution No. 12 of the plan identifies additional supports· 

(Tr. 234) to be longer roof bolts, posts, cribs, or crossbars (Tr. 230). 

The existence of the cutter in the area is further evidence that the mine 

roof was deteriorating. Whether anyone observed the roof condition before 

the Inspectors saw it or not, a violation of 30 CFR 7.5. 200 occurred because 

the Mine Operator should have known of the condition (Tr. 217) if adequate 

examinations in a working place had been made (Tr. 221-222). The Office of 

the Solicitor recognizes that Respondent's witnesses, at a hearing, would 

not agree with all of the foregoing summarization of MSHA's position, but 

the Office of the Solicitor's position is that a violation occurred and can 

be proven. 

a. Gravity: In the Inspector's Statement, the Inspector stated 

he was of the opinion that there would be a hazard to one miner. The 

Inspector was of the opinion that the condition was not serious when he 

observed it because no one was in the area (Tr. 259), but it is a travel 

area (Tr. 260). The Office of the Solicitor respectfully suggests that the 

violation was serious in that death or serious injury to someone could 

reasonably be expected as a result of the condition. 

b. Negligence: The Inspector observed coal dust on the rock 

dust on a rock where the cutter had opened. This caused the Inspector to 

believe that the cutter occurred before the coal was mined in this area 

two shifts previously (Tr. 191-197, 249). The Mine Operator would have 

witnesses testify that the preshift examiner did not see the cutter and 

the type of ventilation system used leaves almost no coal dust. The parties 

agree that a cutter can occur anytime without warning. Accordingly, the 

Office of the Solicitor will agree that the violation was not the result 

of an unwarrantable failure in view of the conflicting testimony and the 

unimportance of this issue since the unwarrantable chain was long ago broken 

by a clean inspection. This was a travel area (Tr. 259) and the roof should 

have been examined before the adverse conditions became so prevalent. The 

section foreman told the Inspector he saw the cavities in the mine roof, 

but did not consider.the roof such as to need additional roof supports 

(Tr. 263). The Office of the Solicitor suggests that ordinary· negligence 

is shown and has taken such into consideration in arriving at the $500.00 

proposed settlement. 

c. Good Faith: The Inspector's Statement shows that the Mine 

Operator assigned extra persons to correct the condition. Although the 

Inspector had to allow more time than was originally determined needed, 

a normal degree of good faith is demonstrated. The area was "dangered 

off" until.the condition was abated, and attention given to the problem 

until abatement was obtained (Tr. 278). The Mine Operator demonstrated 

good faith. 

d. Prior Violations: On page one of the certified computer 

printout mentioned in paragraph 2 above, it is shown that there were 17 

paid 30 CFR 75.200 violations which occurred in this mine prior to 

September 23, 1977 (the date the notice of violation issued). 

2077 
e. The narrative statement prepared by MESA's Office of Assessments 

shows that the Assessor elected to waive the formula provided at 30 CFR 

Part 100.3 and, instead, found special facts by which he suggested a proposed 

penalty of $800.000 for the violation.. At the time the proposed assessment 

was made, the Off ice of Assessments had a policy that unwarrantable violations would be routinely assessed specially. This policy was discontinued 

because excessive proposed penalties sometimes resulted. 

f. The Office of the Solicitor has proposed a settlement of 

$500.00 instead of.the proposed penalty of $800.00 primarily because the 

degree of negligence was less than that found by the Assessor. 

4. ORDER OF WITHDRAWAL NO. 1 DEM (7-78): At a hearing the Federal 

Inspector would testify that the Mine Operator had failed to follow the 

required sequence for pillar removal and had mined the fender of a pillar 

so the fender no longer provided the required protection. The roof support 

was not provided· as required by the roof control plan in that breaker posts 

had not been installed after the pillar had been mined through, there were 

only two breaker posts on the right side, and the roadway was wider than 

the allowed 14 feet but no timbers had been set to narrow it. Canterbury 

witnesses would argue that the area described by the Inspector in the order 

of withdrawal was an abandoned area. Thus, the proceeding would revolve 

around the question of whether the area was active or abandoned, with 

Inspector Dalton and the Canterbury witnesses both adamant as to their 

respective positions. 

a. Gravity: In the Inspector's Statement, he states that, in 

his opinion, a hazard was posed to up to four miners who could be disabled 

(but he would not expect a fatal accident). If Canterbury is correct in 

its assertion that the area had been abandoned, no hazard was posed. 

The violation of the roof control plan was serious, but no miner should 

have been in abandoned area. MSHA does not accept the argument that the 

area was not active, and suggests the violation was serious, but not as 

serious as found by the Assessor. 

b. Negligence: The Office of the Solicitor will agree that the 

violation was not unwarrantable in view of the uncertainty as to whether 

the area was active or abandoned. If abandoned there would still be a 

question as to whether, when active, it had been mined according to the 

roof control plan, or whether the timbers and breaker posts had been removed. 

Canterbury would urge that the plan does not require the sequence the 

Inspector states is required. Mr. Dalton, however, is a roof expert of 

many years experience and certainly can read a roof control plan. The 

Office of the Solicitor suggests that the violation was the result of 

ordinary negligence. 

c. Good Faith: As the Inspector noted in his statement, there 

was no time provided for abatement since an order of withdrawal issued. 

The order of withdrawal was terminated in less than two hours after issuance. 

Good faith was demonstrated since there were several problems to be resolved. 

2078 
d.· Prior Violations: The certified computer printout lists 18 

prior paid 30 CFR 75.200 violations. The September 23rd violation previously 

discussed would bring the total to 19 prior violations of 30 CFR,75.200. 

e. The narrative statement prepared by MESA's Office of Assessments 

shows that the Assessor elected to waive the formula provided at 30 CFR 100.3 

and made special findings pursuant to the policy then in effect which is 

mentioned in paragraph 2-e above. 

f. The Office of the Solicitor deems the proposed penalty of 

$1,500.00 to be excessive considering the conflicting testimony which might 

reduce the gravity and negligence, and the fact that credit was not allowed 

for the rapid abatement. The parties have agreed upon a proposed settlement 

of $500.00 and the Office of the Solicitor deems it reasonable. 

5. The Office of the Solicitor asserts that a civil penalty of $500.00 

for each of the two violations would be reasonable and the best interest of 

the public would be served by the approval of the same. 

6. Thirty days after approval is a reasonable time to allow in which 

to pay the $1,000.00. 

Based on the information furnished and an independent review and 

evaluation of the circumstances, I find the settlement proposed is in 

accord with the provisions of the Act. 

ORDER 

The settlement negotiated by the parties in the above-captioned 

proceedings is APPROVED. 

The above-captioned Applications for Review are hereby DISMISSED. 

Respondent is ORDERED to pay'!:_/ the amount of $1,000 within 30 ·days of 

the date of this order. 

Forrest E. Stewart 

Administrative Law Judge 

2/ Section llO(j) of the Act provides as follows: 

"(j) Civil penalties owed under this Act shall be paid to the Secretary 

for deposit into the Treasury of the United States and shall accrue to the 

United States and may be recovered in a civil action in the name of the United 

States brought in the United States district court for the district where the 

violation occurred or where the operator has its principal office. Interest 

at the rate of 8 percent per annum shall be charged against a person on any 

final order of the Commission, or the court. Interest shall begin to accrue 

30 days after the issuance of such order." 

2079 
Distribution: 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

William Sumner Scott, Esq., Dennis R. Joyce, Esq., Carl H. Shelly, Esq., 

The Grant Building, P. 0. Box 2674, Pittsburgh, PA 15230 (Certified Mail) 

Harrison B. Combs, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

Myrna P. Field, Esq., Attorney for Central Pennsylvania Coal Producers 

Association, Suite 600, 1521 Locust Street, Philadelphia, PA 19103 

(Certified Mail) 

2080 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22o41 SEP 3 198\ 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-126-M 

Petitioner A.C. No. 31-00582-05004 

v. 

IDEAL BASIC INDUSTRIES, INC., 

CEMENT DIVISION, 

Docket No. SE 80-38-M 

A.C. No. 31-00582-05006 

Appearances: 

Before: 

Respondent Docket No. SE 80-57-M 

A.C. No. 31-00582-05007 

Docket No. SE 80-64-M 

A.C. No. 31-00582-05008 

Castle Hayne Plant and Quarry 

DECISION 

Darryl A. Stewart, Esq., Assistant Solicitor, Office of 

the Solicitor, Mine Safety and Health Administration, 

U.S. Department of Labor, Nashville, Tennessee, for 

Petitioner; 

Karl McGhee, Esq., Robert A. O'Quinn, Esq., Ideal Basic 

Industries, Inc., Wilmington, North Carolina, for 

Respondent. 

Judge Lasher 

This proceeding arose under section llO(a) of the Federal Mine Safety 

and Health Act of 1977. A hearing on the merits was held on July 1, 1981. 

After considering evidence submitted by both parties and proposed findings 

of fact and conclusions of law proffered by counsel during closing argument, 

I entered an opinion with respect to Citation No. 103822 on the record. 1/ 

My bench decision containing findings, conclusions and rationale appears-below 

as it appears in the record, aside from minor corrections. 

]:./ Tr. 85-88. Citation No. 103822 was one of three citations involved in 

Docket No. SE 79-126-H. The two remaining citations in Docket No. SE 

79-126-M, together with the five citations involved in the other three 

dockets were resolved by either withdrawal by the Secretary, or the settlement reached by the parties at the hearing (Tr. 89-103). 

2081 
Docket No. SE 79-126-M 

Citation No. 103822 

This matter, which arises upon the filing of a petition 

for penalty assessment by the Secretary of Labor, which was 

filed on October 17, 1979, was heard in Wilmington, 

North Carolina, on July 1, 1981. Both parties were represented by.counsel and evidence was received consisting of 

the testimony of one witness for each side and documentary 

evidence as well. 

The Government seeks that a penalty be assessed for an 

alleged violation of 30 C.F.R. § 56.16-4 as described in 

Citation No. 103822, which was issued by inspector Edwin 

Juso on July 25, 1978, which citation charges that bumper 

blocks for the overhead crane used at the marl storage area 

were not properly maintained. Portions of the bumper blocks 

were missing, causing a twisting effect when contacted by the 

crane. The inspector testified that part of the bumper was 

missing at a point designated as "Y" on Exhibit R-2. The 

bumper that was missing was a unit, consisting of a spring 

with a telescoping cylinder on the inside thereof which was, 

in effect, a shock absorber attached to the bumper block. 

The inspector testified that had the crane contacted the 

bumper (sometimes referred 'to in the record as a crane stop 

and bumper block) that the natur'al tendency would have been 

for the crane to twist, which could have caused the operator 

of the crane to lose his balance. Other evidence in the 

record, primarily from the inspector's notes, which are 

reflected in Exhibit P-2, indicatesthat only minor injuries 

would have been sustained had such an occurrence happened. 

The essential issues were posed as a result of the testimony of Robert W. Pyles, Respondent's plant administrator, 

whose testimony was considerably more detailed than that of 

the inspector,, and who had the benefit of diagrams of the area 

and equipment in question as reflected in Exhibits R-1 and 

R-2. Mr. Pyles indicated that in normal conditions the crane 

would not impact with the bumpers which are set in concrete 

at either end of the track upon which the crane operates. 

Significantly, he pointed out that the purpose of the shockabsorbing device on the bumper was primarily to protect electronic devices on the crane. His evidence indicated that the 

retraction distance of the shock-absorbing device from the 

plate and t; the front at which point impact would occur and 

the point of maximlUTI contraction was 8 inches and that if such 

an impact was received, the deflection of the operator's seat 

2082 
as a result of such impact would be only 1.65 inches as indicated by his computation. Mr. Pyles also indicated that the 

shock-absorbing device would have been fabricated by a private 

company upon the design and specifications of Respondent's, 

based upon the characteristics of the crane, and that Respondent has at its operation other bumpers which do not have such 

shock absorbers. This testimony was not rebutted in a substantial way and I fully credit Mr. Pyles' testimony in those 

respects. 

Mr. Pyles described the bumper which was in place on 

July 25, 1978, at point "Y" on Exhibit R-2, .!.·~·, the place 

where the inspector found a violation of the cited safety 

standard and I likewise find, based upon this unrebutted 

testimony, that there was a bumper in place at that, point, 

albeit devoid of the shock-absorbing device. 

There were no critical conflicts of testimony between 

Petitioner's and Respondent's witnesses which require resolution, although I do find that the disparity between the 

inspector's testimony that he did not observe any "twisting 

effect on the crane" and the language of the citation which 

indicates "portions of the bumper blocks were missing causing 

a twisting effect when contacted by the crane", would represent a significant question of credibility were such a resolution to be necessary. The testimony of Mr. Pyles in the 

respect noted is fully accepted and I must conclude therefrom 

that a bumper was in place at the end of the rail in question 

on July 25, 1978, within the meaning of 30 C.F.R. § 56.16-14 '!:._/ 

and that accordingly no violation occurred. It follows that 

Citation No. 103822 must be vacated and it is so ordered. 

Following rendition of the above bench decision, the parties conferred 

and reached an amicable agreement settling the issues remaining in these 

proceedings. 

Upon motion of counsel for the Secretary (MSHA), Citation No. 111606 

(Docket No. SE 79-126-M) and Citation Nos. 110011 and 110014 (Docket No. 

SE 80-59-M) were withdrawn and ordered vacated at the hearing (Tr. 93, 94, 

96). With respect to the four remaining citations, No. 1052.48 (Docket No. 

SE 79-126-M), No. 110015 (Docket No. SE 80-38-M), No. 110012 (Docket No. 

SE 80-57-M), and No. 110013 (Docket No. SE 80-64), as part of the settlement agreement, Respondent admitted the occurrence of the violations 

alleged and the parties deferred the assessment of appropriate penalties 

to the undersigned (Tr. 89, 90, 94). 

After considering the parties' stipulations and argument (Tr. 90-102) 

with respect to the statutory penalty assessment factors, penalties were 

assessed as reflected in the summary below. 

2/ 30 CFR 56.16-14 in pertinent part provides that "Operator-carrying 

overhead cranes shall be provided with: (a) Bumpers at each end of each 

rail. •• " 

2083 
Docket 

Number 

SE 79-126-M 

SE 80-38-M 

SE 80-57-M 

SE 80-64 

SUMMARY OF DECISION 

Citation/Order 

Number 

103822 

105248 

111606 

3 

110015 

110011 

110012 

110014 

3 

110013 

8 

Original 

Assessment 

ORDER 

$ 52 

170 

90 

$312 

$160 

$ 84 

84 

150 

$318 

$ 90 

$880 

Decision 

Heard and ordered vacated 

$150 

Withdrawn by MSHA and vacated 

$150 

$25 

Withdrawn by MSHA and vacated 

$84 

\lithdrawn by MSHA and vacated 

$84 

$ 75 

$334 

The Respondent is ORDERED to pay to the Secretary of Labor penalties in 

the total sum of $334 within 30 days from the date of the issuance of this 

decision. 

~4~~ ?!! ~~t/f · 

Michael A. Lasher, Jr., Judge 

Distribution: 

Darryl A. Stewart, Esq., Assistant Solicitor, Office of the Solicitor, 

U.S. Department of Labor, 801 Broadway, Room 280, Nashville, TN 

37203 (Certified Mail) 

Karl W. McGhee, Esq., and Robert A. O'Quinn, Esq., Ideal Basic 

Industries, Inc., 409 Wachovia Bank Building, P.O. Drawer 59, 

Wilmington, NC 28401 (Certified Mail) 

2084 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. HOPE 79-221-P 

Petitioner A/O No. 46-05643-03001 

v. 

Whitco No. 1 Mine 

ALEXANDER BROTHERS, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

John H. O'Donnell, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, fo,r 

Petitioner; 

Donald D. Saxton, Esq., Wa~hington, Pennsylvania, 

for Respondent. 

Judge Stewart 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (MSHA), under section 109(a) of the Federal Coal Mine 

Health and Safety Act of 1969, 30 u.s.c. § 801 et seq. (1970) (hereinafter 

the Act),];/ to assess civil penalties against Alexander Brothers, Inc. At 

];/ Section 109(a) of the Act reads in pertinent part as follows: 

"(a)(l) The operator of a coal mine in which a violation occurs of a 

mandatory health or safety standard or who violates any other provision of 

this Act, except the provisions of title 4, shall be assessed a civil penalty by the Secretary under paragraph (3) of this subsection which penalty 

shall not be more than $10,000 for each such violation. Each occurrence 

of a violation of a mandatory health or safety standard may constitute a 

separate offense. In determining the amount of the penalty, the Secretary 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator 

charged, whether the operator was negligent, the effect on the operator's 

ability to continue in business, the gravity of the violation, and the 

demonstrated good faith of the operator charged in attempting to achieve 

rapid compliance after notification of a violation. 

* * * * * * * 

2085 
the hearing held on January 8, 1981, in Charleston, West Virginia, the parties agreed that the hearing would be limited to one contested issue--

whether Respondent was subject to the Act. 

After completing the presentation of their cases as to the jurisdictional issue, the parties proposed a settlement of the remaining issues. 

The citations in this case and the settlement are as follows: 

30 C.F .R. Disposition 

Number Date Standard Assessment Settlement 

7-0012 11/lS/77 77 .1707 $ 30 $ 30 

7-0014 11/lS/77 77 .1103( d) 18 18 

7-00lS 11/lS/77 77 .sos 20 20 

7-0016 11/lS/77 77 .sos 20 20 

7-0017 11/lS/77 77.904 24 24 

7-0018 11/lS/77 77 .sos 18 18 

7-0019 11/lS/77 77.S04 26 26 

7-0020 11/lS/77 77. S06 24 24 

7-0021 11/lS/77 77 .S06 16 16 

7-0022 11/lS/77 77 .sos 20 20 

7-0023 11/lS/77 77 .S08 28 28 

Total $244 $244 

In support of its motion to approve the settlement, Petitioner asserted, 

in substance, as follows: 

The assessment before me has no prior history of payments, so we have no prior history to show. We will so 

stipulate. 

We will stipulate that anything in the record that is 

relevant to any of the criteria will, of course, be considered 

by Your Honor, in determining and approving the settlement. 

-----------·-· --·-·- - fn. 1 (continued) 

''(3) A civil penalty shall be assessed by the Secretary only after 

the person charged with a violation under this Act has been given an opportunity for a public hearing and the Secretary has determined, by decision 

incorporating his findings of fact therein, that a violation did occur, 

and the amount of the penalty which is warranted, and incorporating, when 

appropriate, an order therein requiring that the penalty be paid. Where 

appropriate, the Secretary shall consolidate such hearings with other proceedings under section lOS of this title. Any hearing under this section 

shall be of record and shall be subject to section SS4 of title S of the 

United States Code." 

* * * * * * * Section lOS, section llO(i) and the transfer provisions of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 ~ ~· (Supp. II 1978), 

conferred jurisdiction over these proceedings to the Federal Mine Safety and 

Health Review Commission. 

2086 
We would agree that the operator is a small operator. 

The inspectors have testified that he always demonstrated 

good faith in abating alleged violations and so, we would 

agree that you can find "good faith" for each of them. 

We agreed, at the beginning of the hearing, that he would 

be able to pay the sum of two hundred and forty-four dollars 

($244.00) without adverse effect on his ability to remain in 

business. So, that leaves us with negligence and gravity. 

Referring to the first one, Government's Exhibit No. 1 

(Notice No. 6 RRW, Nov. 15, 1977), we feel taken into consideration would be the fact that the operator either didn't 

know before or didn't believe that he was under the Act and 

therefore, had not familiarized himself with such things as 

what first-aid equipment he needed on there as required by 

the regulations. Upon being informed, of course, he promptly 

got it, so we would say that there is just ordinary negligence 

there. 

As to gravity, of course, once the equipment is needed, 

it is very serious if it is not present. However, 

Mr. Alexander has testified that his home was nearby and we 

assume that he could get much of the equipment there, if he 

needed it in a hurry. 

The proposed assessment of that alleged violation is 

thirty dollars ($30.00) which is the largest one for any of 

the eleven that are in issue and it's the opinion of the 

Solicitor, that considering the unique facts involved in 

this case -- considering it did occur back in 1977 and inflation has changed matters somewhat -- all of these, I might 

say were issued on November 15, 1977, so they are all old. 

And therefo·re, we believe that it is in the best inte.rest of 

the public that the settlement be approved. 

Again, we have covered everything as to all of these 

except negligence and gravity. This one (Notice No. 1 GLS, 

Nov. 15, 1977) involves a citation alleging that the area 

around the transformer was not kept free from grass and dry 

weeds. There would be a danger of possible fire as a result 

of this. Of course, the transformer must malfunction before 

that would occur. And we feel that, although there is a 

certain risk or hazard to the miners, that it is not too 

great, because nobody ordinarily works close to the 

transformer. 

As to negligence, we would suggest an ordinary degree 

of negligence. The proposed assessment for that is 

eighteen dollars ($18.00), which ordinarily would be quite 

2087 
small and unacceptable but in view of the confusion as to 

whether this is or is not under the Act, we feel that we are 

justified in proposing such a settlement. 

We have four 77.505 alleged violations. The first one, 

Government Exhibit No. 5 (N-0tice No. 2 GLS, Nov. 15, 1977), 

is that the power cables entering the fuse box did not have 

the required fittings. The insulation around the power cable 

was adequate, so the danger there would be that possible 

vibration could impair the insulation. We would say that 

· there is a potential hazard, but no present hazard until the 

cable was penetrated. For that one, the proposed penalty is 

twenty dollars ($20.00) and we consider that to be reasonable. 

The next one, which is Government's Exhibit No. 7 (Notice 

No. 3 GLS, Nov. 15, 1977), is another 77.505, because the 

cable entering the breaker compartment did not have the proper 

fitting. My statement would be the same to that, with a proposed penalty of twenty dollars ($20.00). 

The next proposed one is Government No. 9 (Notice No. 4 

GLS, Nov. 15, 1977), which concerns a 77.904 violation that 

the circuit breaker located in the tipple did not show what 

circuits they controlled. For that one, there was a proposed 

penalty of twenty-four dollars ($24.00). The circuit breaker 

should be labeled and so, we consider that there is a hazard 

to the miners by not having it so. The circuit breaker, of 

course, is back-up protection and that would lessen the 

gravity to some extent. 

We still consider that to be serious and consider it to 

be ordinary negligence, in view of the fact that the operator 

was unaware that he was under the provisions of the Act. 

The next one, Government's Exhibit No. 11 (Notice No. 5 

GLS, Nov. 15, 1977), is 30 CFR 77.505. Because the power 

cable on a transformer did not have the proper fittings, my 

statement would be the same and the proposed assessment for 

this one is eighteen dollars ($18.00) instead of the twenty 

(20) as it was previously, but we feel it is reasonable, in 

view of the facts. 

The next one is Government's Exhibit No. 13 (Notice No. 6 

GLS, Nov. 15, 1977). It is a 30 CFR 77.504 violation and the 

proposed penalty is twenty-six dollars ($26.00). It is for a 

splice which was not adequately insulated. 

Of course, whether a splice is insulated or not or adequately insulated and calls for a judgment call, however, 

Mr. Smith is an electrical inspector, and I think, he has 

2088 
sufficient experience that he would spot it, so we do consider there was a hazard there, and so it is serious and is 

a result of ordinary negligence. 

The next one, Government's Proposed Exhibit No. 15 

(Notice No. 7 GLS, Nov. 15, 1977), is an alleged violation 

of 30 CFR 77.506, because the circuit protection was not 

provided with number eight cable, supplying power to a water 

pump. There is a proposed penalty of twenty-four dollars 

($24.00) for that. We consider that, in order for there to 

be a hazard there, there must be a malfunction but we do 

consider it serious and the result of ordinary negligence. 

Considering the next one, Government's Exhibit No. 17 

(Notice No. 8 GLS, Nov. 15, 1977), the proposed penalty is 

sixteen dollars ($16.00) and it is an alleged violation of 

30 CFR 77.506, because short circuit overload protection was 

not provided for a cable supplying power to a pump. What we 

said on the previous one would be true on this one, also, 

except that, again, here you'd have to have a malfunction 

before you would have a hazard, and so, we consider sixteen 

dollars ($16.00) is acceptable and in view of the reasons we 

have stated, although it is very low. 

The next one, Government's Exhibit No. 19 (Notice No. 9 

GLS, Nov. 15, 1977) is a violation of 30 CFR 77.505, because 

of a power cable entering the compartment of a dryer was not 

with the proper fitting. What we've said previously would be 

true with that. We have proposed the same penalty of twenty 

dollars ($20.00). 

The final one, Gqvernment's Exhibit No. 21 (Notice No. 10 

GLS, Nov. 15, 1977) is a 77.508, because lightning arresters 

were not provided for the exposed power conductors and there 

is a proposed penalty of twenty-eight dollars ($28.00) for 

that alleged violation. We consider that it is serious since 

it was high and it is a result of ordinary negligence. 

At the conclusion of the hearing, the settlement agreement was approved, 

contingent on resolution of the jurisdictional issue. In its effort to establif?h that Respondent's operation was a "coal mine" within the meaning of the 

Act, MSHA called four witnesses: Raymond Webb, former MSHA inspector now 

employed by W and C Coal Company; Conrad Spangler, MSHA subdistrict manager; 

John McGann, MSHA inspector; and Frank Alexander, president, Alexander 

Brothers, Inc. Frank Alexander was called as a witness by Respondent. 

Jurisdiction 

The refuse pile from which Respondent took its raw material was comprised of the waste material which the Pond Creek Coal Company (later part 

2089 
of the Island Creek Coal Company) disposed of in the course of mining at 

i·ts Bartley No. 1 Underground Coal Mine from the 1930 's until 196 7. The 

Bartley No. 1 Mine had been sealed prior to the initiation of Respondent's 

operation. 

After the cessation of operations at the Bartley No. 1 Mine, the 

property on which the refuse pile was located was leased from its owner, 

Mr. Henry Warden, by the Whitco and Recco Coal Corporation (Recco). Recco 

engaged in the reclamation of coal from the refuse pile, but did not do so 

profitably. Respondent purchased Recco's equipment 2/ and acquired rights 

to the lease in late 1972 or early 1973. -

The refuse pile from which Respondent took its raw material covered a 

large area on the side of a mountain. It consisted of coarse and fine coal, 

rock dust, garbage, rock, timbers, wood, steel, dirt, tin cans, bottles, 

metal, and general debris. 

Respondent's operation was divided into two "phases." 3/ In the first 

phase, waste material was taken from the refuse pile, loaded into trucks and 

transported to the site at which the initial, rough screening processes were 

carried out. At the site, the material was dumped into a bin and then 

subjected to a number of separation and sizing processes. The phase 1 

processes included the following operations: The waste material was separated by size and the larger size material was passed through a hammer mill. 

A magnet was used to remove scrap metal and "pickers" removed rock and other 

obvious waste from the material. When enough material had been accumulated 

for further processing, the end product of the phase 1 processing was loaded 

into trucks and hauled to the cleaning plant where phase 2 processing was 

carried out. 

At the cleaning plant, the material was loaded into a bin; it was then 

fed from the bin by a belt conveyor into a tank where it was fixed with water. 

After the material passed into a "jig" where non-coal was removed. The larger 

pieces were again separated out, passed through a crusher and broken down to 

1 inch in size. The crushed coarse was again screened to remove larger pieces. 

These larger pieces were passed to Respondent's heavy media washer for further 

ash-control treatment. The fine material was separated into coal and non-coal 

by·a cyclone-washing process. The cleaned coarse and fine coal was remixed 

and loaded into railroad cars for shipment. 

The percentage of coal to waste in the material taken by Respondent from 

the refuse pile varied. At the time of the hearing, Frank Alexander estimated 

2/ Respondent never used the Recco equipment in its operation. 

3/ At the hearing, Frank Alexander referred to a third phase--a cyclone separator. The use of the cylone separation process was included by Mr. Alexander 

in his description of phase 2 of his operation. Subesequent testimony established that cylone separators were also considered to be part of phase 3. 

Respondent's description of its operation in its posthearing brief includes 

reference to the use of a cyclone in phase 2. 

2090 
that the percentage of coal was 20 to 25 percent. In traditional preparation 

facilities, the raw material processed is run-of-mine and, therefore, contains 

a much higher percentage of coal than did the refuse processed in the Alexander 

Brothers' operation. As a consequence, traditional facilities do not resort 

to some of the techniques employed by Alexander Brothers for separation of 

coal and waste, however, in both types of operation, the preparation process 

involved "breaking, crushing, sizing, cleaning, washing, drying, mixing, 

storing, and loading" of coal. Despite the differences in the volume of 

production, the composition of the raw material, and the percentage of coal 

in the raw material fed to the plants, preparation facilities associated with 

ordinary large mines do substantially what Respondent did. Such preparation 

plants operated by the owner of the mine have consistently been inspected by 

MSHA and its predecessors, the Bureau of Mines and the Mining Enforcement and 

Safety Administration (hereinafter collectively referred to as MSHA). 

Section 4 of the Act designates those mines subject thereto as follows: 

"Each coal mine, the products of which enter commerce, or the operations or 

products of which affect commerce, and each operator of such mine, and every 

miner in such mine shall be subject to the provisions of this Act." 

The parties stipulated that the products of Respondent's operation 

entered commerce. The determinative issue, therefore, is whether 

Respondent's operation might be categorized as a "coal mine" within the 

meaning of the Act, thereby subjecting Respondent to the coverage of the 

Act. 

The term "coal mine" was defined in section 3(h) as follows: 

"[C]oal mine" means an area of land and all structures, 

facilities, machinery, tools, equipment, shafts, slopes, 

tunnels, excavations, and other property, real or personal, 

placed upon, under, or above the surface of such land by any 

person, used in, or to be used in, or resulting from, the work 

of extracting in such area bituminous coal, lignite, or 

anthracite from its natural deposits in the earth by any means 

or method, and the work of preparing the coal so extracted, 

and includes custom coal preparation facilities. [Emphasis 

added.] 

At the outset, it is to be noted that the Act was a remedial and safety 

statute, the primary purpose of which was to protect the health and safety 

of the Nation's coal miners. 4/ It is proper to construe the Act liberally 

so as to most fully effectuate the purposes enunciated by Congress. 1./ 

4/ See section 2(a) of the Act, 30 u.s.c. § 801. 

S/ See Magma Copper Company v. Secretary of Labor, 

citing Whirlpool Corporation v. Marshall, 445 U.S. 1, 13, 100 S. Ct. 883, 

891, 63 L.Ed.2d 154 (1980). 

20Hl 
With this premise in mind, three of the phrases of section 3(h) must be 

examined to determine whether Respondent's operation was a "coal mine" within 

the meaning of the Act. The argument could be made that jurisdiction exists 

because (1) the land and property which was the basis of Respondent's operation resulted from earlier coal mining and retained the status of a coal mine, 

(2) that Respondent performed "the work of preparing the coal so extracted," 

or (3) that Respondent operated a "custom coal preparation facility." 

The refuse pile from which Respondent obtained its raw material was an 

area of land or property "resulting from" the work of extracting coal from 

its natural deposit in the earth. It remained a coal mine within the meaning of the Act despite its having been abandoned by the original operator, 

Pond Creek Coal Company. An operator remains responsible for such abandoned 

refuse piles and must comply with the requirements of the Act, including the 

extinguishing of fires in the pile. Kessler Coals, Inc. v. Mining EnforceMent and Safety Administration and United Mine -workersC>f America, Docket 

No. HOPE 76-235 (March 18, 1975). In that case the site had been abandoned 

as a depository for the by-products from mining; Kessler Coals, Inc. did 

not dispose of debris from its preparation plant on the refuse pile which 

had been created by the predecessor, Glogora Coal Company. 

Thus, at least so~e of the property on which Alexander Brothers operated retained the status of a "coal mine" under the Act. While Respondent's 

operation might be held subject to the Act on this a basis alone, it has 

been clearly enunciated in cases, which will be discussed later, by a U.S. 

Court of Appeals and a U.S. District Court that such operations are subject 

to the Act on a different theory. Respondent's operation was a "coal mine", 

subject to the Act, because Respondent engaged in the work of preparing coal. 

In construing the phrase "and the work of preparing the coal so extracted," 

the pivotal question herein is whether coverage of the 1969 Act may extend 

to a person !j_/ en3aged in the preparation of coal which was previously 

extracted from its natural deposit in the earth by a different person. 

While recourse to legislative history of the Act is unhelpful for the 

most part, ]_/ the intent of Congress with respect to section 3(h) can be 

6/ Section 3(f) of the Act provfdes--that "'person' means any individual, 

partnership, association, firm, subsidiary of a corporation, or other 

organizat..i.on." 

7/ The legislative history does not contain an express explanation of the 

congressional intent in enacting sections 3(h) or 3(i). 

In its report on the 1977 Act, the Senate Committee on Human Resources 

stated the following re~arding the amendment to section 3(h): 

"(The 1977 Act) enlarges the definition of "mine" in section 3(h) to 

include those mines previously covered by the Federal Metal and Non-Metallic, 

Mine Safety Act. This definition is also expended [sic] to include facilities 

for the preparation of coal, except that the Secretary is to give due consideration to the convenience of giving one Assistant Secretary all authority 

2092 
gleaned from a reading of the language of the section in light of the purposes of the Act. On the surface, the language of section 3(h) is broad 

enough to encompass persons who engage in the work of preparing coal previously extracted from its natural deposit by another person. Furthermore, 

nowhere in the Act is there any indication that Congress intended to exclude 

such persons from the coverage of the Act. 

Respondent clearly engaged in the "work of preparing the coal" as 

defined in the Act. Donovan v. Tacoma Fuel Company, Civil Action No. 

77-0104D (D.W. Va., June 29, 1981). :§._/ The "work of preparing the coal" 

is defined in section 3(i) as follows: "'[W]ork of preparing the coal' 

means the breaking, crushing, sizing, cleaning, washing, drying, mixing, 

storing, and loading of bituminous coal, lignite, or anthracite, and such 

other work of preparing such coal as is usually done by the OJ?erator of the 

coal mine." Each of these processes was carried out in some fashion in 

Respondent's operation. The concluding phrase of section 3(i) does not 

restrict "the work of preparing the coal" to processing undertaken by the 

person who extracted the coal from its natural deposit in the earth. This 

broad, descriptive phrase is a clear expression of congressional intent that 

the processes specifically listed in the definition are not exclusive. In so 

finding, Respondent's argument that section 3( i) restricts the scope of "the 

work of preparing the coal" to persons who extract coal from its natural 

deposit is expressly rejected. 

There is no basis for Respondent's argument that it processed refuse 

rather than coal. Respondent's raw material was comprised of up to 25 percent coal. The fact that run-of-mine is of a much higher percentage of coal 

fn. 7 (continued) 

with respect to health and safety of miners employed at one physical establishment." Report of the Senate Committee on Human Resources No. 95-181, 

May 16, 1977, p. 59. 

Respondent's argument that this passage was an expression by Congress 

of its understanding that the 1969 Act did not extend to facilities for the 

preparation of coal where such facilities were not located "at the site of 

a coal mine" is without foundation. The passage addresses the expansion of 

MSHA's jurisdiction over coal preparation facilities under the 1977 Act but 

was not intended to convey and does not convey any clue to congressional 

understanding of the scope of the jurisdiction conveyed to MSHA by the 1969 

Act. Rather, the passage addresses the vehicle for intra-agency resolution 

of the problems presented by partially coextensive statutes. 

:§._/ The court in Tacoma found that the crushing and mixing operation carried 

out by Tacoma Fuel Company was the "work of preparing the coal" as defined 

in section 3(h) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq., despite the fact that Tacoma Fuel Company did not engage in 

the extraction of coal from the ground but merely purchased coal from various 

miners of coal f.o.b. its plant. The definition of the "work of preparing 

the coal" contained in the 1977 Act is identical to that contained in the 

1969 Act. 

2093 
is of no consequence. The purpose of Respondent's operation was the separation of the marketable coal from previously deposited waste. The useless 

waste material was then discarded. Only in the most roundabout sense could 

it be said that it was the refuse rather than coal that was prepared. It 

was clearly coal that was prepared throughout Respondent's operation. 

A memorandum from the Assistant Solicitor of MSHA's predecessor dated 

March 31, 1972 (the Geisler Memorandum), improperly interpreted the Act by 

expressing the opinion that the Geisler Coal Company which prepared coal 

purchased from other operators was not subject to the Act. This interpretation was subsequently corrected when in October, 1976, the Assistant 

Solicitor issued a memorandum (hereinafter, the 1976 memorandum) expressly 

rescinding that conclusion of the Geisler Memorandum. In the 1976 memorandum, the Assistant Solicitor stated that he was of the opinion that the 

person who performs the "work of preparing the coal so extracted" need not 

be the same person who "extracts the coal from its natural deposits in the 

earth." Although such policy memoranda by MSHA and its predecessor are not 

binding on this Commission or the courts, a U.S. District Court, in Tacoma, 

further discussed below, approved the view of the Assistant Solicitor 

expressed in the 1976 memorandum. 2_/ 

It has recently been held that operations similar to those of 

Respondent are subject to the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (hereinafter, the 1977 Act). In pertinent part, a 

coal mine is defined in that Act to be "an area of land * * * or other 

property * * * used in, or to be used in, or resulting from, * * * the 

work of preparing coal." 10/ As noted above in footnote~/, the section 

9/ Petitioner acknowledged that such policy memoranda did not have the 

11force and effect of a legal decision." The 1976 memorandum was followed 

by MSHA even though Conrad Spangler, an MSHA subdistrict manager, testified 

that, without regard to the 1976 memorandum, it was his opinion that the 

Alexander Brothers' operation was not a coal mine. Mr. Spangler did not 

explain the basis for his opinion but he believed that the processing of 

refuse piles was a valuable cleanup operation. It is clear that the 

administrative law judge is not bound by the opinion of MSHA personnel as 

to matters of law, especially when they were actually following the 1976 

memorandum by inspecting reclamation operations and issuing citations for 

violations of the Act. 

10/ Section 3(h) of the 1977 Act reads as follows: 

- "(h)( 1) "coal or other mine" means (A) an area of land from which 

minerals are extracted in nonliquid form or, if in liquid form, are 

extracted with workers underground, (B) private ways and roads appurtenant 

to such area, and (C) lands, excavations, underground passageways, shafts, 

slopes, tunnels and workings, structures, facilities, equipment, machines, 

tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or 

resulting from, the work of extracting such minerals from their natural 

deposits in nonliquid form, or if in liquid form, with workers underground, 

or used in, or to be used in, the milling of such minerals, or the work of 

preparing coal or other minerals, and includes custom coal preparation 

2094 
3(i) definition of "the work of preparing the coal" is the same under both 

the 1969 Act and the 1977 Act. Two relevant cases have upheld the authority of MSHA to inspect coal preparation facilities even though the person 

processing the coal is not the same person who extracted the coal from its 

natural deposit sometime in the past. In Marshall v. Stoudt's Ferry 

Preparation Company, 602 F.2d 589 (3d Cir. 1979), cert. denied, 444 U.S. 

1015 (1980) (hereinafter, Stoudt's Ferry), it was held that the word 

"mine" 11/ as us·ed in the 1977 Act included the Stoudt Ferry Preparation 

Company'$ preparation plant which separated a low-grade fuel from sand and 

gravel dredged from a riverbed. The court found that "the work of preparing coal * * * is included within the 1977 Act whether or not extraction is also being performed by the operator." Id. at 592. 

In Tacoma, the court found that "the work of preparing coal is, by 

itself, sufficient to place Tacoma Fuel Company's operation within the section 3(h) definition of a 'coal mine'." Tacoma Fuel Company neither owned 

nor operated mines. The company purchased coal from various miners of coal 

f.o.b. its plant. It then mixed and crushed the coal and sold it to various 

customers. The jurisdiction asserted by MSHA in following its 1976 memorandum was expressly upheld. 

With regard to the relevant facts upon which the finding of jurisdiction rests, the instant case cannot be distinguished from Stoudt's Ferry and 

Tacoma. Respondent's operation constitutes the work of preparing coal and, 

as such, would be subject to the provisions of the 1977 Act even though 

Respondent does not extract coal from its natural deposit in the earth. 

fn. 10 (continued) 

facilities. In making a determination of what constitutes mineral milling 

for purposes of this Act, the Secretary shall give due consideration to 

the convenience of administration resulting from the delegation to one 

Assistant Secretary of all authority with respect to the health and safety 

of miners employed at one physical establishment; 

"(2) For purposes of titles II, III, nd IV, "coal mine" means an area 

of land and all structures, facilities, machinery, tools, equipment, shafts, 

slopes, tunnels, excavations, and other property, real or personal, placed 

upon, under, or above the surface of such land by any person used in, or to 

be used in, or resulting from, the work of extracting in such area bituminous 

coal, lignite, or anthracite from its natural deposits in the earth by any 

means or method, and the work of preparing the coal so extracted, and 

includes custom coal preparation facilities; * * *·" 

11/ The court in Stoudt's Ferry noted that "[a]lthough it might seem 

incongruous to apply the label "mine" to the kind of plant operated by 

Stoudt's Ferry the statute makes clear that the concept that was to be 

conveyed by the word is much more encompassing than the usual meanings 

attributed to it--the word means what the statute says it means." 

Stoudt's Ferry at p. 592. The point is equally well taken in"the 

instant case. 

2095 
There is no difference material herein between the language used in the 

1969 Act relating to coal preparation and that used in the 1977 Act. 12/ The 

definition in the 1969 Act includes "the work of extracting * * * coal* * * 

from its natural deposits in the earth by any means or method, and the work 

of preparing the coal so extracted." The definition in the 1977 Act includes 

"the work of extracting (coal) from (its) natural deposits * * * or the work 

of preparing coal." 13/ The breadth of the language in thel969 Act indicates that such language was intended to be descriptive rather than limiting. 

In drafting and adopting section 3(h) of the 1969 Act, Congress left no doubt 

that the Act was to apply to the entire coal mining industry. There is 

nothing in section 3(h) which would permit the exclusion of Respondent from 

the coverage of the Act. That is, there is no language therein which would 

permit the categorical exclusion of a person who does not extract the coal 

from its natural deposit but performs the work of preparing coal; nor is 

there language which would categorically exclude a person performing the work 

of preparing coal unless such preparation was performed contemporaneously 

with the extraction of the coal from its natural deposits. 

12/ A case can be made that Congress intended that even the specifically 

enumerated impoundments, retention dams, and tailings ponds were covered by 

this definition of "mine" in the Coal Act. This legislative history of the 

1977 Act states: 

"Title I of S. 717 contains amendments to the definitions in the Coal 

Act, which reflect both the broader jurisdiction of that Act, and makes 

refinements which nearly seven years of experience with the administration 

and enforcement of the Act have indicated are necessary. 

"Thus, for example, the definition of "mine" is clarified to include the 

areas, both underground and on the surface, from which minerals are extracted 

(except minerals extracted in liquid form underground), and also, all private 

roads and areas appurtenant thereto. Also included in the definition of "mine" 

are lands, excavations, shafts, slopes, and other property, including impoundments, retention dams, and tailings ponds. These latter were not specifically 

enumerated in the definition of mine under the Coal Act. It has always been 

the Committee's express intention that these facilities be included in the 

definition of mine and subject to regulation under the Act, and the Committee 

here expressly enumerates these facilities within the definition of mine in 

order to clarify its intent. The collapse of an unstable dam at Buffalo Creek, 

West Virginia, in February of 1972 resulted in a large number of deaths, and 

untold hardship to downstream residents, and the Committee is greatly concerned that at that time, the scope of the authority of the Bureau of Mines 

to regulate such structures under the Coal Act was questioned. Finally, the 

structures on the surface or underground, which are used or are to be used 

in or resulting from the preparation of the extracted minerals are included 

in the definition of "mine.'"' Senate Report No. 95-181. 

13/ In both Acts, the phrases are clearly stated in the alternative. In 

context, no material distinction attaches to the use of the words "and" in 

the 1969 Act and "or" in the 1977 Act. 

2096 
In its brief, Petitioner asserted that Respondent's operation constituted a "custom coal preparation facility" within the meaning of the Act 

and argued that the pertinent language of section 3(h) was properly interpreted by MSHA in its 1976 memorandtnn in which the Assistant Solicitor 

stated: 

We are of the view that Congress did not intend the word 

"custom" to be used in a restrictive sense but in a broad 

sense. Thus, a coal preparation plant operator who pursues 

a common course of action or practice of preparing coal to 

meet the customary requirements of the electric utility 

market or the coal coking market, directly or indirectly, 

without a "personal order or specifcation" but which meets 

the customary requirements or specifications of the purchasers and users of the coal, also falls within the term 

"custom coal preparation plant." [Emphasis added.] 

In section 3(h), "custom" is used as an adjective modifying the phrase 

"custom coal preparation facilities." It is accepted that Congress intended 

"custom" to be interpreted in a broad sense but the interpretation urged by 

MSHA is at odds with the traditional definition of the word. There is no 

need herein to resolve the meaning of "custom" or to determine the scope of 

the phrase "custom coal preparation facilities" given the alternate basis 

for jurisdiction enunciated above. 

Respondent also argued that section 3(h) of the 1969 Act was void for 

vagueness because it was not "definite and certain enough to enable every 

person, by reading the law, to know what his rights and obligations are and 

how the law will operate when put into execution * * * and it did not 

"provide clearly ascertainable and well defined standards to guide the 

ministerial officers charged by law with its implementation and administration" (citing Weissinger v. Boswell, 330 F. Supp. 615 (M.D. Ala. 1971)). 

The due process clause of the Fifth Admendment to the United States 

Consitution requir~s that a statute be of a reasonable degree of certainty 

and definiteness. A statute which is non-criminal and does not impinge upon 

a fundamental right is unconstitutionally vague only if it is written so 

that "men of como.on intelligence must necessarily guess at its meaning." 

See 16A Am. Jur. 2d Consitutional Law § 818 n. 20. Section 3(h) passes 

constitutional muster under this standard. Respondent's perplexity is 

undoubtedly due to the broadness of the Act; not its vagueness. It is 

clear that Respondent's operation is subject to the Act. 

Respondent also argued that the notices and orders at issue herein are 

"void and of no effect and should be rescinded" because MSHA violated its 

internal procedures by failing to give Alexander notice and a warning that 

it had reconsidered its position and changed its opinion with respect to 

inspecting Respondent's operation. The internal procedures to which 

Respondent referred were instructions contained a memorandum dated 

2097 
December 1, 1976, from Petitioner's Assistant Solicitor-Regulations and 

Procedures-to MSHA District Manager's requiring notification be given to 

operators prior to the first inspection conducted pursuant to the 1976 

memorandum. Respondent admitted in its final posthearing brief that it 

had received such notice on October 12, 1977. At that time, a notice of 

violation was issued to Respondent. No opinion is expressed as to the 

validity of the notice of violation issued on October 12, 1977. The notices 

of violation at issue herein were dated November 15, 1977, more than a month 

after MSHA' s first .exercise of jurisdiction. At least with regard to the 

notices at issue herein, MSHA complied with the internal procedures required 

of its personnel in the memorandum dated December 1, 1976. 

Proposed findings of fact and conclusions of law in the briefs filed by 

the parties which are immaterial to the issues presented or inconsistent with 

this decision are rejected. 

ORDER 

The approved settlement negotiated by the parties in the above-captioned 

proceeding is AFFIRMED. 

Respondent is ORDERED to pay the amount of $244 within 30 days of the 

date of this order. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Donald D. Saxton, Esq., 63 South Main Street, Washington, PA 15301 

(Certified Mail) 

2098 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 3 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ATLAi~TIC CEMENT· COMPANY, INC., 

Respondent 

DECISION 

Docket No. YORK 81-8-M 

A/O No. 30-00006-05012 

Ravena Quarry & Plant 

The above-captioned case is a civil penalty proceeding pursuant to 

Section 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

801 et~., (hereinafter, the Act). The case was submitted by the parties 

for decision on a stipulated record. 

The following facts were stipulated by the parties regarding the 

citation at issue herein, Citation No. 204374: 

Respondent, Atlantic Cement Co., operates a quarry and 

cement manufacturing facility in Ravena, New York. At the 

times relevant herein the size of the facility for the 

purposes of the act were slightly over seven hundred thousand 

man hours per year. On August 6, 1980, MSHA inspector 

Hopkins, on a routine inspection of Respondent's facility, 

issued a citation to Respondent for a violation of §56.15-5 

because Hopkins observed an employee of Respondent working 

on top of the number two kiln and descending the side of the 

kiln to a ladder without the use of a safety belt and line. 

The top of the kiln was approximately twenty-two feet from 

the floor. A safety belt and line had been provided but 

it was not being worn by the employee. The department in 

which the employee was working holds, and at that time 

held, short safety meetings at the start and end of each 

shift where the use of safety belts and lines was repeatedly 

discussed. Because of said safety meetings, the mine 

inspector concluded the Respondent could not have known or 

predicted that the employee would not have been wearing a 

safety belt. The top of the kiln is a fairly smooth surface 

and a person would have to slip, fall or trip before an 

accident could occur. At the time of the alleged violation 

the kiln was wet due to a slight rain shower. Employees 

are rarely on top of the kiln. 

The citation was terminated by Respondent and the 

inspector explaining to the employee the importance of 

wearing a safety belt and line. Respondent gave the 

2099 
employee a three-day disciplinary suspension, which was 

subsequently reduced to one day. Respondent has a well 

established past practice of enforcing its safety rules 

through disciplinary measures. 

Citation No. 204374 was issued pursuant to Section 104(a) of the Act 

by Inspector Hopkins upon his observation of the following condition or 

practice: 

An employee was observed working on top of #2 Kiln 

and descended the side of the kiln to a ladder, which 

gave him access to the floor. The top of the kiln was 

elevated approx(imately) (22) twenty-two feet from the 

floor. A safety belt and line (were) provided but not 

being worn by the workman. 

The citation was terminated within 15 minutes after the "hazard of 

not wearing a safety belt and line was explained to the employer." 

The inspector cited 30 CFR §56.15-5 which requires in pertinent part 

that "Safety belts and lines shall be worn when men work where there is a 

danger of falling." The parties' stipulation of facts clearly establishes 

the occurrence of a violation of the mandatory standard as alleged. The 

employee failed to wear safety belt or lines while working on the curved 

surface of a kiln, 22 feet "from the floor" -- a location where there was 

a danger of falling. 

Respondent argues that it cannot be held to have violated section 56.15-5 

because the failure of the employee to wear a safety belt and line was in 

violation of the company's regularly enforced safety rules. Respondent 

contended that the imposition on it of liability for the employee's failure 

was improper where the safety equipment had been provided, the employee had 

been instructed regularly in the need to wear the equipment, the employee 

had acted in direct contravention of Respondent's rules without Respondent's 

knowledge, and Respondent regularly enforced its safety rules through the 

use of disciplinary measures. Respondent contended, in short, that it had 

done everything within its power to provide for the safety of its employees 

in this regard. 

The question whether an operator can be held liable for a violation of 

a mandatory standard regardless of fault has already been answered in the 

affirmative by the Commission. Secretary of Labor v. El Paso Rock Quarries, 

Inc., 2 MSHC 1132 (1981) (hereinafter, El Paso). In El Paso, the 

administrative law judge had vacated a citation alleging violation of 30 

CFR §56.9-87 (failure to provide automatic reverse signal alarm on heavy 

duty mobile equipment) because the Secretary of Labor failed to establish 

that the mine operator knew or should have known of the condition. The 

Commission reversed, holding that, unless the standard itself so requires, 

an operator's negligence has no bea~ing on the issue of whether a violation 

2100 
occurred. The Commission noted that it had previously rendered this holding 

in U.S. Steel Corporation v •. Secretary of Labor, 1 MSCH 2151 (1979) (hereinafter, U.S. Steel) with respect to the Federal Coal Mine Health and Safety 

Act of 1969, 30 U.S.C. §801 et~ (1976) (amended 1977). The factual 

situation in U.S. Steel is closely analogous to the one at hand. Notices of 

violation were issued to U.S. Steel on two separate occasions after Federal 

inspectors observed a total of 3 employees of U.S. Steel neither wearing 

nor carrying a self-rescue device as required by §75.1714-2(a). U.S. Steel 

advanced the argument that it had complied with the standard by "establishing 

a program designed to assure that self-rescue devices are available to all 

employees, by training employees in the use of the devices, and by enforcing 

its program with due diligence." The Commission rejected the argument on 

the grounds that an operator is liable for violations without regard to 

fault. 

It is found, therefore, that Respondent may be held liable in the 

instant case as a matter of law for the failure of its employees to wear 

safety belt and line where there was a danger of falling. 

In issuing citation no. 204374, Inspector Hopkins found that the 

violation was "significant and substantial" within the meaning of the Act. 

Respondent contends that this finding is improper in light of the test 

enunciated by the Commission in Secretary of Labor v. Cement Division, 

National Gypsum Company, 3 FMSHC 822, (1981) (hereinafter, National Gypsum) 

The Commission held therein that a violation is of such a nature as could 

significantly and substantially contribute to the cause and effect of a 

mine,safety or health hazard if, based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. 

The Commission stated further that: "(A) violation 'significantly and substantially' contributes to the cause and effect of a hazard if the violation 

could be a major cause of a danger to safety and health •..• Our interpretation of the significant and substantial language as applying to violations 

where there exists a reasonable likelihood of an injury or illness of a 

reasonably serious nature occurs falls between these two extremes -- mere 

existence of a violation, and existence of an imminent danger." It was 

Respondent's contention that the violation herein did not "present a 

reasonable likelihood of causing an injury or illness which will be of a 

reasonably serious nature." 

Respondent asserted that the inspector found that the occurrence of an 

accident was improbable "because the surf ace on which the employee was 

working was smooth and slightly rounded." This assertion is not supported 

by the record. The alleged finding by the inspector was not included in 

the stipulation by the parties nor was it in the text of the citation which 

charged a significant and substantial violation. The stipulated record 

establishes that the violation was significant and substantial. Even if 

·it had been established in the record that MSHA's proposed assessment, 

results of initial review, or the background material used in the preparation of those documents used the word "improbable" in referring to the 

likelihood of occurrence of an accident, said word would not be determinative 

2101 
of the issue in this proceeding. Hearings before the Commission are de ~· 

The conclusions of the inspector or those of Petitioner's Office of Assessments 

are not binding herein. 

It is found that, on the facts of this case, there existed a reasonable 

likelihood that a fall resulting in injury would occur because of the failure 

to wear belt and line. As is readily apparent from the photographs of the 

kiln, designated exhibits "A" and "B", the kiln at its highest point was 

22 feet above the "floor" and curved downward at an increasing contour. The 

kiln was exposed.· Its surface was fairly smooth and slightly wet. Each of 

these factors increased the likelihood that an accident and injury would 

occur. 

Respondent argued that an injury expected to result in lost work days 

or restricted duty could not be considered of a reasonably serious nature. 

Again this argument is rejected since the allegations are not supported by 

the record. Even a fall on the smooth wet surface of the kiln could cause 

serious injury. A fall of 22 feet under the conditions established by the 

record would very likely result in an injury of such magnitude as to be 

clearly one of a reasonable serious nature. 

Respondent's argument that the failure to wear a safety belt and line 

could not be the cause of an injury is completely meritless. The failure 

to wear belt and line increased the likelihood that the injury suffered as 

a result of a fall would be serious. Said failure could be a major cause 

of an injury suffered in a fall. 

In view of the above, the violation is found to have been of such a 

nature as could significantly and substantially contribute to the cause 

and effect of a mine safety hazard. 

Assessment: 

Section llO(a) of the Act requires that the operator of 

which a violation occurs shall be assessed a civil penalty. 

fact pertinent to each of the six statutory criteria follow. 

a mine in 

Findings of 

The gravity of the violation is determined to be moderate. As noted 

above in the discussion regarding the ruling that the inspector properly 

found the violation to be significant and substantial, the surface of the 

kiln was curved, fairly smooth and slightly wet. If the employee had 

fallen, he undoubtably would have suffered serious injury. Even though a 

serious injury would have occurred, the overall gravity of the situation 

was reduced to moderate because employees rarely had occasion to be on top 

of the kiln and the violation was an instance of isolated misconduct on 

the part of Respondent's employee. 

The employee hqd been provided with belt and line, and had been 

instructed to use them. Respondent had no knowledge, actual or constructive, 

of the employee's failure to use the belt and line. It is found that 

Respondent was not negligent. 

2102 
The violation was abated innnediately. The employee was reinstructed 

on the need to use belt and line. He was also given a suspension. 

Slightly over 700,000 man hours per year were worked at the Ravena 

Quarry and Plant. Respondent had a good history of prior violations. In 

the absence of evidence to the contrary, it is found that the penalty 

assessed herein will not adversely a~fect Respondent's ability to remain 

in business. 

In view of the above, Respondent is assessed a penalty of $100.00. 

ORDER 

It is ORDERED that Respondent pay the sum of $100,00 within 30 days of 

the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Jithender Rao, Esq., Office of the Solicitor, U.S. Department of Labor, 

1515 Broadway, Room 3555, New York, NY 10036 (Certified Mail) 

Richard K. Muser, Esq., Clifton, Budd, Burke & DeMaria, 420 Lexington 

Avenue, New York, NY 10170 (Certified Mail) 

2103 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 9 1981 

JAMES L. REITER, Complaint of Discharge 

Complainant 

v. Docket No. PENN 80-171-DM 

NEW JERSEY ZINC COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

James L. Reiter, Summitt Hills, Pennsylvania, pro se at the 

hearing; and Charles W. Elliott, Esq., Thomas and Hair, 

Allentown, Pennsylvania on the Brief for Complainant. 

Robert W. Frantz, Esq., and Brian C. Murchison, Esq., Hamel, 

Park, McCabe & Sanders, Washington, D.C., for Respondent. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This proceeding was commenced by James L. Reiter (hereinafter 

"Complainant") against New Jersey Zinc Company (hereinafter "New Jersey Zinc") 

by an allegation that Complainant was discharged from his employment at 

New Jersey Zinc on October 1, 1979, because of activity protected under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 815(c) (hereinafter "the Act"). On November 13, 1979, Complainant filed a 

discrimination complaint with the Secretary of Labor, Mine Safety and Health 

Administration (hereinafter "MSHA"). On January 25, 1980, MSHA notified 

Complainant that it determined that no violation of section 105(c) had 

occurred but that Complainant had 30 days to file his own action with the 

Federal Mine Safety and Health Review Commission (hereinafter "the 

Commission"). This action was filed on February 15, 1980. Complainant was 

represented by counsel from September 24, 1980 until May 11, 1981, the day 

prior to the date of the hearing. On May 11, 1981, Complainant discharged 

his counsel and elected to represent himself at the hearing. After the hearing, he again retained counsel to prepare his brief. 

Upon completion of prehearing requirements, a hearing was held in 

Philadelphia, Pennsylvania on May 12-13, 1981. At the hearing, testimony was 

received from the following witnesses: Gerald L. Beam, Michael Trobetsky, 

Wilson G. Dunlap, Jr., James L. Reiter, Charles W. McNeal, William Smith, 

Kenneth R. Cox, Donald Habersberger, Milton Gould, Steven Trimper, and Walter 

Toepfer. After the hearing, both parties filed briefs in support of their 

positions. 

2104 
OBJECTIONS TO THE TRANSCRIPT 

On August 13, 1981, counsel for New Jersey Zinc raised a content.ion that 

the following three errors existed in the transcript: 

Review of the transcript in this case reveals that it 

contains some errors, which I bring to your attention: 

Volume I, page 35, line 9: 

Should read: 

Volume I, page 136, line 16: 

Should read: 

"and confined me ••• " 

"and come find me 

"I wouldn't say • 

"I would say • • • " 

Volume I, page 149, line 13: "Yes." 

Should read: "No." 

II 

II 

On August 17, 1981, counsel for Complainant, who was not present at the 

hearing, objected to the last two alleged errors. 

While none of these alleged errors is material to the outcome of this 

case, I agree with counsel for New Jersey Zinc that the transcript of the 

hearing is in error and it will be corrected. 

ISSUES 

Whether New Jersey Zinc violated section lOS(c) of the Act in discharging 

Complainant and, if so, what relief shall be awarded to Complainant. 

APPLICABLE LAW 

Section lOS(c) of the Act, 30 U.S.C. § 815(c) provides in pertinent part 

as follows: 

(1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject to 

this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or because 

such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 or 

because such miner, representative of miners or applicant for 

2105 
employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant 

for employment on behalf of himself or others of any statutory 

right afforded by this Act. 

(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any 

person in violation of this subsection may, within 60 days 

after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to 

the respondent and shall cause such investigation to be made 

as he deems appropriate. Such investigation shall commence 

within 15 days of the Secretary's receipt of the complaint, 

and if the Secretary finds that such complaint was not 

frivolously brought, the Commission, on an expedited basis 

upon application of the Secretary, shall order the immediate 

reinstatement of the miner pending final order on the 

complaint. 

(3) Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in writing, 

the miner, applicant for employment, or representative of 

miners of his determination whether a violation has occurred. 

If the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice of 

the Secretary's determination, to file an action in his own 

behalf before the Commission, charging discrimination or 

interference in violation of paragraph (1). The Commission 

shall afford an opportunity for a hearing (in accordance with 

section 554 of title 5, United States Code, but without regard 

to subsection (a)(3) of such section), and thereafter shall 

issue an order, based upon findings of fact, dismissing or 

sustaining the complainant's charges and, if the charges are 

sustained, granting such relief as it deems appropriate, 

including, but not limited to an order requiring the rehiring 

or reinstatement of the miner to his former position with 

back pay and interest or such remedy as may be appropriate. 

Such order shall become final 30 days after its issuance. 

Whenever an order is issued sustaining the complainant's 

charges under this subsection, a sum equal to the aggregate 

amount of all costs anrl expenses (including attorney's fees) 

as determined by the Commission to have been reasonably 

incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution 

and prosecution of such proceedings shall be assessed against 

2106 
the person committing such violation. Proceedings under this 

paragraph shall be subject to judicial review in accordance 

with section 106. Violations by any person of paragraph (1) 

shall be subject to the provisions of sections 108 and llO(a). 

STIPULATIONS 

The parties stipulated the following: 

1. At all times relevant to this proceeding, New Jersey 

Zinc operated the Friedensville Mine in Center Valley, 

Pennsylvania. 

2. The Friedensville Mine is subject to the jurisdiction 

of the Act. 

3. The Administrative Law Judge has jurisdiction over 

this proceeding pursuant to Section 105(c) of the Act. 

4. Complainant, James L. Reiter, was last employed by 

the New Jersey Zinc Company from July 22, 1976, up to 

October 1, 1979. 

5. Mr. Reiter received his license as a blaster by the 

Commonwealth of Pennsylvania in August, 1977 pursuant to 

regulatory requirements of the Commonwealth of Pennsylvania, 

Department of Environmental Resources (Title 25, Rules and 

Regulations, Part I, Subpart D, Article IV, Sections 207.33, 

210.5, 211.31, 211.51). 

6. The New Jersey Zinc Company provided Mr. Reiter the 

necessary training to obtain a blaster's license. The Company 

paid the State all fees associated with applying for, obtaining, and twice renewing Mr. Reiter's license. 

7. On September 24, 1979, the Company was notified by 

the Office of Deep Mines of the Department of Environmental 

Resources, Commonwealth of Pennsylvania, that Mr. Reiter and 

another employee, Mr. Wilson Dunlap, had returned their 

blaster's licenses to the Department. 

8. On September 25 and 27, 1979, Mr. Reiter, acting in 

his capacity as miner's representative, accompanied an 

·inspector from MSHA on a general inspection of the mine. No 

citations were issued by MSHA as a result of this inspection. 

9. On September 28, 1979, Mr. Walter Toepfer, Mine 

Superintendent of the Company, had several discussions with 

Mr. Reiter and Mr. Dunlap, on the subject of the blaster's 

licenses. 

2107 
10. The Complainant was engaged in activities protected 

under the Act in his attendance at safety meetings between 

Company representatives and employees in his capacity as 

miner's representative, in his accompanying MSHA mine inspector, John D'Augustine, in an inspection of the mine on 

September 25 and 27, 1979; and in his participation in a 

safety meeting as described aforesaid, on September 28, 1979. 

11. The Complainant was trained for, able to perform, 

and had performed ·the following tasks as part of his job 

classification of miner which do not require a blaster's 

license under the laws of the Commonwealth of Pennsylvania; 

lead scaler, roof bolter, grout operator, jack leg, and 

service truck operator. 

12. At no time was the Complainant or any other miner 

with the Complainant's job classification required to detonate 

explosives. 

13. It is the policy of New Jersey Zinc Company that 

only supervisory personnel are authorized to detonate 

explosives. 

14. On October 1, 1979, Wilson Dunlap informed 

Mr. Toepfer that he would request the return of his license 

from the Department of Environmental Resources. Mr. Dunlap 

subsequently requested and obtained his license from the 

Department. 

15. On October 1, 1979, Mr. Reiter informed Mr. Toepfer 

that he would not request the return of his blaster's 

license. On October 1, 1979, Mr. Reiter was discharged from 

his job. 

16. At the time of the Complainant's discharge, Wilson 

Dunlap, who was a licensed blaster, was working on the blasting crew that the Complainant was working with. 

17. On November 13, 1979, Mr. Reiter filed a Complaint 

with the Mine Safety and Health Administration, alieging that 

he was discharged for his safety-related activities in 

violation of Section 105(c) of the Act. 

18. Following investigation of the Complaint, the Mine 

Safety and Health Administration determined that a violation 

of Section l05(c) did not occur, and so informed Mr. Reiter 

by letter on January 25, 1980. 

19. On February 15, 1980, Mr. Reiter filed with the 

Federal Mine Safety and Health Review Commission a Complaint 

of discrimination under Section 105(c) of the Act. 

2108 
20. On August S, 1980, the Company filed with the 

Federal Mine Safety and Health Review Commission an answer 

de~ying Mr. Reiter's allegations. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. New Jersey Zinc is the operator of the Friedensville Mine, an underground mine located in Center Valley, Pennsylvania. 

2. Complainant was first hired by New Jersey Zinc in 1972 as an underground laborer. He quit this job on June 5, 1973, but was rehired on 

August 22, 1973. He again quit this job on February 7, 1974, but was rehired 

on April 2, 1974. On June 10, 1974, he was promoted to "mine utility" but 

again quit this job on August 31, 1974. His final period of employment at 

New Jersey Zinc began on July 22, 1976, when he was rehired as an underground 

laborer. He was promoted to "mine utility" on January 10, 1977, and promoted 

to "miner" on May 1, 1978. He was discharged on October 1, 1979. 

Complainant's duties as a "miner" included, among other things, leading in 

the loading of explosives. 

3. Pennsylvania law requires that a blaster's license is necessary for 

distributing, charging or blasting explosives underground. 

4. In 1977, Complainant applied to the Office of Deep Mine Safety, 

Pennsylvania Department of Environmental Resources to take the examination 

for a blaster's license. Complainant passed the examination and received 

a blaster's license. 

S. In August, 1978, Complainant's blaster's license was renewed by the 

State of Pennsylvania without objection by Complainant. 

6. On August 14, 1978, Complainant sustained an inguinal hernia. He 

filed a claim for workmen's compensation with the State of Pennsylvania. 

New Jersey Zinc opposed this claim, but on June 12, 1979, the Pennsylvania 

Bureau of Occcupational Injury and Disease Compensation ordered New Jersey 

Zinc to pay Complainant $2,169.43 less 20 percent attorney's fee. Complainant 

was unhappy that New Jersey Zinc was not ordered to pay his attorney's fee in 

the workmen's compensation case. 

7. In early August, 1979, New Jersey Zinc mailed the application to 

renew blaster's licenses for .28 employees, including Complainant and Wilson 

Dunlap, to the Pennsylvania Office of Deep Mine Safety together with a check 

for the cost of the renewal fees. The State processed the applications and 

sent new license cards to each of the 28 employees. 

8. On August 31, 1979, Milton Gould, a foreman and shift boss at New 

Jersey Zinc, asked Complainant to bring in his new blaster's license since 

the old license expired on August 31, 1979. Complainant said he would do 

so. 

2109 
9. On September 1, 1979, Complainant sent a letter to the State 

·enclosing his new blaster's license and stating: "I did not send ·for this 

blaster's license and I do not wish to have one. Please refund the money 

forwarded by the New Jersey Zinc Company." At approximately the same time, 

Wilson Dunlap, one of the three license blaster's on Complainant's shift, 

also returned his blaster's license to the State. 

10. Complainant was on vacation and did not work during the first 

2 weeks of September, 1979.· 

11. After Complainant returned to work in mid-September, 1979, he was 

asked by foreman Gould why he had not produced his blaster's license. Complainant responded that he had returned the license to the State. Complainant further stated that he would request the return of his license if 

New Jersey Zinc would reimburse him for the $400 attorney fees in his workmen's compensation claim. Complainant also agreed to get his license back 

if New Jersey Zinc would buy him a new pair of boots. 

12. On September 24, 1979, the State advised New Jersey Zinc that Complainant and Dunlap had returned their blaster's licenses. New Jersey Zinc 

then attempted to get a determination from the State whether Complainant and 

Dunlap could continue to work as licensed blasters. 

13. On September 25, 1979 and September 27, 1979, MSHA Inspector 

John D'Augustine conducted a regular inspection of the mine and New Jersey 

Zinc selected Complainant, a miner's representative for United Steelworkers 

of America, Local 5485 (hereinafter "USWA"), out of four possible men to be 

the union walkaround on this inspection. The operator's representative during this inspection was Donald Habersberger, the mine's safety and industrial 

engineer. During this inspection, Complainant complained to the inspector 

about the following conditions or practices: failure to scale loose ground 

in active workings; drilling into bootleg holes; and inexperienced employees 

performing complex jobs. Complainant also asked the inspector to check out 

a miner complaint concerning a "giraffe" or aerial platform. No crew was 

present in the area and permission was not obtained to operate the equipment 

so that it could be checked. No citations or orders were issued by the MSHA 

inspector during this inspection of the mine. However, the MSHA inspector 

recommended that New Jersey Zinc improve its maintenance of ribs and scaling 

of loose material. 

14. On September 27, 1979, State Inspector William Smith visited the 

mine and advised mine management that he would issue a closure order for 

the mine and prosecute mine management if it used lead blaster's who did not 

have current State blaster's licenses. 

15. On Friday, September 28, 1979, Complainant and Wilson Dunlap were 

called to a meeting in Mine Superintendent Walter Toepfer's office. At that 

time, Complainant and Dunlap stated that they had returned their blaster's 

licenses to the State. Toepfer advised them of the consequences if either 

of them worked as a lead blaster without a blaster's licenses. Although 

2110 
Complainant initially agreed to seek the return of his blaster's license, he 

subsequently stated that he had changed his mind and would not request the 

return of his license because the license was a violation of his personal 

rights and he did not need the license. Superintendent Toepfer told 

Complainant and Dunlap that they had until the close of business on Monday, 

October 1, 1979, to get their blaster's licenses back or there would be no 

further work for them. 

16. On October 1, 1979, Wilson Dunlap signed a letter to the State 

requesting the return of his license. Dunlap was not disciplined for this 

incident and is still employed at New Jersey Zinc. 

17. On October 1, 1979, Complainant advised Superintendent Toepfer that 

he would not request the return of his blaster's license. Complainant was 

advised that this action .would result in his discharge. Complainant alleged 

that New Jersey Zinc was discriminating against him because the license was 

not needed to perform his job. Complainant was discharged on October 1, 1979, 

for his refusal to request the return of his blaster's license. 

18. For approximately 8 months prior to his discbarge, Complainant was 

a member of the USWA safety committee and, in that capacity, filed safety 

complaints with New Jersey Zinc. Complainant's safety complaints included 

problems with loose ground and drilling through bootleg holes. 

19. At no time prior to his discharge, did Complainant notify New Jersey 

Zinc that his refusal to renew his blaster's license was motivated by a 

concern about safety. 

20. Complainant's grievance concerning his discharge was denied by 

New Jersey Zinc. The USWA did not request arbitration. 

21. Complainant's claim for unemployment benefits was denied. 

22. Complainant earned $6.97 per hour at the time of his discharge by 

New Jersey Zinc. Since the date of his discharge on October 1, 1979, 

Complainant's income has been as follows: 1979 - wages $252.92; 1980 

wages $5,204.36 and unemployment benefits $2,949.00; and 1981 to May -

wages $2,126.13 and unemployment benefits $1,935.00. 

23. From September 19, 1980 to May 11, 1981, and from June 29, 1981, 

to date, Attorney Charles w. Elliott represented Complainant and spent 

80-1/2 hours on this matter. Attorney Elliott requests approval of attorney's 

fees of $60 per hour for a total of $4,830. 

DISCUSSION 

During the course of the hearing and in his posthearing brief, Complainant asserted several different claims concerning his allegation that he was 

discharged in violation of section 105(c) of the Act. He alleged the following claims: (1) he made safety complaints concerning loose ground and drilling into bootleg holes; (2) he complained to the MSHA inspector about 

2111 
insufficient safety training and other safety problems; and (3) his refusal 

to renew his blaster's license was a refusal to work under unsafe conditions. 

In Secretary of Labor on behalf of David Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786 (October 14, 1980) (hereinafte~ Pasula), the 

Commission analyzed section lOS(c) of the Act, the legislative history of 

that section, and similar anti-retaliation issues arising under other Federal 

statutes. The Commission held as follows: 

We hold that the complainant has established a prima 

facie case of a violation of Section lOS(c)(l) if a preponderance of the evidence proves (1) that he engaged in a 

protected activity, and (2) that the adverse action was 

motivated in any part by the protected activity. On these 

issues the complainant must bear the ultimate burden of persuasion. The employer may affirmatively defend, however, by 

proving by a preponderance of all the evidence that, although 

part of his motive was unlawful, (1) he was also motivated by 

the miner's unprotected activities, and (2) that he would 

have taken adverse action against the miner in any event for 

the unprotected activities alone. On these issues, the 

employer must bear the ultimate burden of persuasion. It is 

not sufficient for the employer to show that the miner 

deserved to have been fired for engaging in the unprotected 

activity; if the unprotected conduct did not originally concern the employer enough to have resulted in the same adverse 

action, we will not consider it. The employer must show that 

he did in fact consider the employee deserving of discipline 

for engaging in the unprotected activity alone and that he 

would have disciplined him in any event. Id. at 2799-2800. 

In Pasula, supra, the Commission held that the miner's refusal to work 

was protected under the Act. The evidence in Pasula established that the 

miner refused to perform work he believed to be unhealthful after contacting 

management to obtain corrective action and requesting an MSHA inspection. 

The Commission further found that the miner's "good faith belief was reasonable, and was directed to a hazard that we consider sufficiently severe 

" Id. at 2793. 

A. Safety Complaints to New Jersey Zinc 

As a member of the USWA safety committee, Complainant filed written 

safety recommendations with management on February 17, 1979 and August 16, 

1979. The former dealt with scaling loose ground and the latter dealt with 

drilling through bootleg holes. While both of these complaints constitute 

protected activity under section lOS(c) of the Act, Complainant has failed 

to produce any evidence that the determination to discharge him was motivated 

in any part by the safety complaints. Moreover, in light of the other evidence discussed infra, no inference can be drawn which would satisfy 

Complainant's burden under Pasula. 

2112 
B. Safety Complaints to MSHA inspector 

On September 25, 1979 and September 27, 1979, Complainant served as 

the miner's representative during the MSHA regular inspection of this mine. 

In that capacity, Complainant told the inspector of conditions and practices 

which he believed to be in violation of the law. The fact that the MSHA 

inspector did not issue any citations or orders is irrelevant to this issue. 

If ·complainant's complaints to the MSHA inspector played any part in the 

operator's decision to discharge him, then he has established a prima facie 

case under Fasula, supra. Even though there is no direct evidence to connect 

these protected activities with the subsequent discharge, such a connection 

may be established by inference. While these protected activities occurred 

during the week prior to discharge, a consideration of all the evidence 

shows that Complainant's discharge was based solely upon his refusal to 

request the return of his blaster's license. Thus, his activities during 

the MSHA inspection played no part in the determination to discharge him. 

C. Refusal to Request Return of Blaster's License 

Pennsylvania law requires that at least one licensed blaster be present 

when explosives are distributed or charged underground. Complainant first 

obtained his blaster's license from the State in 1977. At the hearing, he 

alleged that one of his incorrect answers was erased by the person giving the 

examination and that he was given another opportunity to answer that question. 

This assertion, even if true, is irrelevant to the instant proceeding. Complainant did not protest or object to the renewal of his license in August, 

1978. In fact, when Complainant returned his renewed blaster's license for 

1979-80 to the State on September 1, 1979, he did not complain to the State 

or New Jersey Zinc about any safety concerns. The evidence clearly establishes that at no time prior to his discharge on October 1, 1979, did Complainant ever allege that he returned his blaster's license for safety 

reasons. Rather, it was Complainant's position that he had the personal 

right to refuse such a license and that his job did not require such a 

license. The issue of whether a blaster's license was required to perform 

the job classification of "miner" on October 1, 1979 is not a health or 

safety matter protected under section 105(c) of the Act, but is a contractual 

matter over which I have no jurisdiction. The issue before me is whether 

Complainant's refusal to request the return of his blaster's license is a 

refusal to work under unsafe conditions which constitutes protected activity 

under section 105(c) of the Act. On this issue, Complainant also'fails. At 

no time did Complainant refuse to work. In fact, he insisted that he was, at 

all times, ready and able to work as a "miner". 

While it might be possible that a good faith, reasonable refusal to 

request the return of a blaster's license could constitute protected activity 

under section 105(c), such a refusal would have to be preceded by specific 

complaints to the mine operator or governmental authorities concerning the 

safety hazards faced by the licensee. Moreover, such a refusal must be reasonable and made in good faith. In the instant case, Complainant fails on 

each of the above criteria. He never made any specific safety complaint to 

2113 
New Jersey Zinc concerning the hazards he faced because of his blaster's 

license. His apparent willingness to be employed without a blaster's license 

belies his safety claim. Likewise, he made no such complaint to the State or 

MSHA. I find that'his refusal to seek the return of his blaster's license 

was not made in good faith because he admitted that he would have requested 

the return of his license if New Jersey Zinc would have bought him a new pair 

of boots. Moreover, there was other credible testimony that Complainant 

offered to request the return of his blaster's license if New Jersey Zinc 

would have reimbursed him for the $400 attorney fee paid in connection with 

his earlier workmen's compensation claim. These facts indicate that despite 

his protestations of safety matters, Complainant was attempting to use the 

blaster's license for an additional pecuniary gain. Thus, Complainant's 

refusal to seek the return of his blaster's license was not a good faith 

refusal to work under unsafe conditions. 

The evidence establishes that Complainant was discharged by New Jersey 

Zinc solely for his refusal to request the return of his blaster's license. 

Complainant's assertion that he would have been discharged because of his 

safety activities, even if he had requested the return of his license, is 

based on speculation an<l conjecture and is entitled to no weight. Complainant failed to establish that New Jersey Zinc violated section 105(c) of the 

Act in connection with his discharge. 

CONCLUSIONS OF LAW 

1. At all times relevant to this decision, Complainant and New Jersey 

Zinc were subject to the Act. 

2. This Administrative Law Judge has jurisdiction over the parties and 

subject matter of this proceeding. 

3. Prior to October 1, 1979, Complainant engaged in the following 

activities which constitute protected activities under section 105(c) of the 

Act: (1) Safety complaints to New Jersey Zinc management concerning ~caling 

loose ground and drilling into bootleg holes; and (2) service as a safety 

commiteeman for the USWA and as miner's representative during the MSHA 

inspection of September 25, 1979 and September 27, 1979. 

4. Complainant's return of his blaster's license to the State and his 

refusal to request a return of his blaster's license from the State are 

unprotected activities under section 105(c) of the Act. 

5. Complainant failed to establish that his discharge by New Jersey 

Zinc was motivated in any part by his protected activities. 

6. New Jersey Zinc established that it discharged Complainant solely 

for his refusal to request a return of his blaster's license. 

7. New Jersey Zinc did not violate section 105(c) of the Act in 

discharging Complainant. 

2114 
8. Complainant's Complaint of Discharge is dismissed. 

ORDER 

WHEREFORE, IT IS ORDERED that Complainant's Complaint of Discharge is 

DISMISSED. 

Distribution Certified Mail: 

J~ A •. Laurenson, Judge 

v 

Mr. James L. Reiter, 34 East Ridge Ave., Summit Hills, PA 18250 

Charles W. Elliott, Esq., Thomas and Hair, Suite 101, 123 North Fifth 

Street, Allentown, PA 18102 

Robert W. Frantz, Esq., and Brian c. Murchison, Esq., Hamel, Park, 

McCabe and Saunders, Suite 700, 888 16th St., N.W., Washington, DC 

20006 

Special Investigations, MSHA, U.S. Department of Labor, 4015 Wilson 

Blvd., Arlington, VA 22203 

2115 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

SEP 9 \qe, 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, ) 

) 

v. ) 

) 

SUN LANDSCAPING AND SUPPLY COMPANY, ) 

) 

Respondent. ) 

Appearances: 

Marshall P. Salzman, Esq. 

Office of the Solicitor 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

For the Petitioner 

W. T. Elsing, Esq. 

34 West Monroe, Suite 202 

Phoenix, Arizona 85003 

For the Respondent 

Before: Judge Jon D. Boltz 

) 

DECISION 

DOCKET NO. WEST 80-69-M 

A/C No. 02-01915-05003 

MINE: White Marble 

STATEMENT OF THE CASE 

The Petitioner filed a petition for assessment of proposed civil 

penalties against the Re~pondent for alleged violations on April 4, 1979, 

of regulations promulgated by authority of the Federal Mine Safety and 

Health Act of 1977 (hereinafter "the. Act"). The Respondent denied that the 

White Marble Mine operation was subject to the jurisdiction of the Act and 

alleged that the operation was terminated before it ever got ipto 

production. ' 

FINDINGS OF FACT 

1. Respondent's business is a small operation. 

2. The imposition of the proposed penalties would not affect 

respondent's ability to remain in business. 

3. Respondent has no history of prior violations. 

2116 
4. The two citations at issue were duly served on April 4, 1979, by 

an MSHA inspector who was an authorized representative of the Secretary of 

Labor. 

5. Respondent's operation consisted of blasting white marble in the 

pit area and hauling the material to the main highway in order to 

transport it to the crusher and screening plant. There, the material was 

processed and laid in stock piles awaiting shipment to Phoenix by truck. 

6. On the date of the inspection, April 4, 1979, the MSHA inspector 

observed crushed white marble material 1n piles of up to 15 tons each. 

7. Sometim~ after the inspection on April 4, 1979, the Respondent 

moved its operation to a different location in Arizona. 

8. Some of the equipment purchased by the Respondent for use in its 

business operation was manufactured outside the State of Arizona. 

Specifically, the Caterpillar loader, dri 11 and compressor were produced or 

manufactured in Illinois. 

JURISDICTION 

The act of setting up Respondent's business, including the processing 

of the marble into stock piles for sale, and ~he purchase of the equipment 

as described in the Findings of Fact, affects commerce. It has previously 

been held in a case involving this same Respondent that the setting up of 

mining facilities with the intent to mine marble, crush it, and sell it in 

the future affects commerce and, thus, places the operator under 

jurisdiction of the Act. Secretary of Labor, Mine Safety and Health. 

Administration (MSHA) v. Sun Landscaping and Supply Company, 2 FMSHRC 975 

(1980). 

In the instant case, there were no facts presented by the Respondent 

upon which a different conclusion could be reached. Accordingly, I find 

that Respondent's mining operation was subject to the jurisdiction of the 

Act. 

CITATION NO. 381381 

Petitioner alleges that the operator of the Caterpillar bulldozer was 

exposed to 206% of the permissible noise level and that feasible 

engineering or administrative controls were not being used to reduce this 

level in order to eliminyte the need for hearing protection, in violation 

of 30 C.F.R. 55.5-50(b). / The bulldozer operator was wearing personal 

hearing protection. -

1/ · [Mandatory.] When employees' exposure exceeds that listed in the above 

table, feasible admin~strative or engineering controls shall be utilized. 

If such controls fail to reduce exposure to within permissible levels, 

personal protection equipment shall be provided and used to reduce sound 

levels to within levels of the table. 

2117 
The evidence is undisputed that, during a sampling time of 360 

minutes, the bulldozer operator was exposed to 206% of the permissible 

noise exposure or 97 dBA. The maximum permissible noise exposure for 360 

minutes is 92 °dBA, according to the cited regulation. Therefore, feasible 

administrative or engineering controls must be utilized to reduce the 

exposure to within permissible levels. If these controls fail to reduce 

the noise exposure to within permissible levels, personal protection 

equipment shall then be used. 

The Petitioner introduced evidence as to feasible engineering or 

administrative controls. These controls included installation of a 

windshield at a cost of between $50.00 and $150.00. The MSHA inspector 

testified that the windshield alone would have been sufficient to reduce 

the noise exposure· to within acceptable limits. 

The burden of going forward with evidence showing that the utilization 

of feasible controls would not reduce the exposure to within permissible 

levels then shifted to the Respondent. The President of Respondent 

corporation testified that it would cost several thous.and dollars to' 

construct a frame for the windshield and that the glass alone would cost in 

excess of $400.00. In addition, the bulldozer would be out of operation 

two to four days for the installation, and the value of the dozer was 

$100.00 per hour. He concluded that "by adhering to the regulation [the 

cost] would have been in the thousands of dollars, not hundreds." 

I find the evidence of the Petitioner to be more credible and 

convincing than that of the Respondent in regard to evidence concerning 

feasible controls. On rebuttable, the MSHA inspector testified that it had 

been his experience that the windshield could have been installed for 

$150.00. Even if the installation were to cost three times that amount, 

it was a feasible control and a long way from "thousands of dollars." 

I therefore conclude that the citation should be affirmed. 

CITATION.NO. 381382 

Again, alleging a violation of 30 C.F.R. 55.5-50(b), the Petitioner 

states that the drill operator was exposed to 332% of the permissible noise 

exposure and that feasible engineering or administrative controls were not 

being utilized to reduce this level in order to eliminate the need for 

personal hearing protection. 

The evidence is undisputed as to the noise exposure recorded by th~ 

dosimeter during the 360 minute sampling period. According to the chart 

received into evidence, this exposure amounted to 100 dBA. 92 dBA is the 

maximum permissible noise exposure level. Therefore, the issue is whether 

or not feasible administrative or engineering controls were being utilized 

to reduce the exposure to within permissible levels. The drill operator 

was wearing personal hearing protection. 

2118 
The Petitioner introduced evidence that a muffler system could have 

been utilized. The manufactured cost would be $550.00 and a "prefab" one 

would cost $-150.00 to $350.00. At the time of the inspection, an MSHA 

inspector discussed with Respondent's employee b.oth sound proofing with 

shields and a "homem~de" muffler system. 

The Respondent failed to go forward with any evidence that feasible 

controls had been utilized or that such controls would not reduce exposure 

to within permissible noise levels. The only testimony offered was hearsay 

evidence that the earplugs and earmuffs were approved by a State mine 

inspector and were also reconnnended to the President of Respondent 

corporation by his "eye, ear, and nose doctor" as being sanitary and 

helpful. Under these circumstances, the Petitioner has proven his case to 

a preponderance of the evidence and is entitled to a favorable decision on 

his petition. Accordingly, the citation should be affirmed. 

Considering the factors set forth in section llO(i) of the Act in 

regard to both citations, I find that the amount of penalty assessed should 

be the amount prayed for in the petition. 

CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parti~s and subject matter of these proceedings~ 

2. The Petitioner has proven, by preponderance of the evidence, two 

violations of 30 C.F.R. 55.5-50(b), as alleged in Citation Nos. 381381 and 

381382. 

ORDER 

Citation Nos. 381381 and 381382 are affirmed and the penalties 

assessed are $28.00 each. Respondent is ordered to pay total civil penalties in the sum of $56.00 within 30 days of the date of this Decision~ 

Distribution: 

M.arshall P. Salzman, Esq. 

Office of the Solicitor 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

W. T. Elsing, Esq. 

34 West Monroe, Suite 202 

Phoenix, Arizona 85003 

I/ Jon D. Sol~7 ~-

. Admini strati Ve Law Judge 

2119 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'SEP 1 1 \9\\, 

SECRETARY OF LABOR, Complaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF JACK HATTER, 

Complainants 

v. 

EL-Bow-MINING, INC., 

Respondent 

Docket No. WEV.A 81-318-D 

Lick Branch No. 1 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

Statement of the Case 

This is a discrimination proceeding filed by the complainant 

against the respondent pursuant to section lOS(c) of the Federal Mine 

Safety and Health Act of 1977, for an alleged act of discrimination 

which purportedly occurred sometime in November, 1980. The matter 

was scheduled for hearing on September 16, 1981 in Bluefield, West 

Virginia, but the hearing was continued at the request of the parties 

so that a proposed settlement could be submitted for my consideration. 

By joint motion filed August 18, 1981 0 complainant filed a motion 

to withdraw its complaint and the parties submitted their proposed 

settlement disposition, the terms of which are as follows: 

1. Upon execution of this agreement, respondent will 

post immediately on the mine bulletin board, or 

in a conspicuous place where notices to employees 

are customarily posted and maintain for a period 

of 14 consecutive days from the date of posting, 

the Notice attached hereto and made a part hereof. 

Said Notice is to be signed by a responsible official 

of the respondent and the date of actual posting is to be 

shown thereon. 

2. Respondent will comply with the terms and provisions 

of said Notice. 

3. Applicant will, upon respondent's execution and completion of performance of this agreement, withdraw. 

El-Bow Mining Inc. 's complaint of discrimination filed 

with the Department of Labor. 

Respondent agrees to pay a civil penalty in the amount 

of $200. 

2120 
4. The execution of this settlement agreement by the 

res.ponde~t shall not be construed as an admission 

of violation of the Federal Mine Safety and Health 

Act of 1977. 

Discussion 

The parties are in agreement that the proposed settlement disposition 

of this matter is in their interest, and after review and consideration 

of all of the pleadings filed in this matter, including the terms of the 

settlement, I conclude that the settlement disposition is a reasonable 

and fair resolution of the dispute and that approval of same is in the 

public interest. 

ORDER 

In view of the foregoing the motion to withdraw is GRANTED and 

the proposed settlement is APPROVED, and upon full compliance and 

completion with the terms thereof as set forth above, this matter is 

DISMISSED. 

Distribution: 

/I'-? A' ~ P-- -~;p.Ko~a./U--z-t/~ 

j/Administrative Law Judge 

David E. Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Thomas L. Woolwine, Labor Consultant, J.T. Associates, Box 4234, Bluefield, 

WV 24701 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

WASHINGTON CORPORATION, d/b/a ) 

WASHINGTON CONSTRUCTION COMPANY, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

SEP 14 1981 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-471-M 

ASSESSMENT CONTROL NO. 

10-00556-05009 

MINE: Dry Valley 

BENCH DECISION AND ORDER 

Appearances: 

Robert A. Friel, Esq. 

Office of the Solicitor 

United States Department of Labor 

8003 Federal Office Building 

Seattle, Washington 98174 

for the Petitioner 

Mr. James A. Brouelette, 

EEO/Safety Officer 

Washington Corporations 

P. O. Box 8989 - 500 Taylor 

Missoula, Montana 59807 

for the Respondent 

Before: Judge Jon D. Boltz 

This proceeding is brought by the petitioner, Secretary of Lqbor, 

on a petition for assessment of civil penalty against the respondent for an 

alleged violation of 30 C.F.R. 55.3-1 • .!/The cited regulation is 

promulgated by authority of the Federal Mine Safety and Healttt Act of 

1977. 

1/ Mandatory. Standards for the safe control of pit walls, including the 

overall slope of the pit wall, shall be established and followed by the 

operator. Such standards shall be consistent with prudent engineering 

design, the nature of the ground and the kind of material and mineral 

mined, and the ensuring of safe working conditions according to the degree 

of slope. Mining methods shall be selected which will ensure wall and bank 

stability, including benching as necessary to obtain a safe overall slope. 

2122 
The peti~.oner specifically·alleges in Citation No. 345076 that the 

regulation.was violated in that the high wall in the respondent's mine was 

approximately 100 feet high and had an original vertical angle of approximately 3/4 to 1, that. this high wall was developing an overhang approximately 20 feet down from the crest, and that there were also fractures 

visible in the cap rock. 

At the conclusion of the hearing the· parties waived the filing of 

post-hearing briefs and agreed that a bench decision could be rendered at 

this time. 

I make the following findings of fact: 

1. The respondent had no significant history of previous violations. 

2. The respondent 1s a moderate sized operator. 

3. The payment of proposed penalty will not affect the respondent's 

ability to continue in business. 

4. The respondent demonstrated good faith in achieving rapid compliance after notification of the violation. 

5. The MSHA inspector who issued and served the citation involved was 

a 9uly authorized representative of the Secretary. 

6. The respondent's products enter commerce and the mine involved 1s 

subject to the jurisdiction of the Act. 

It is undisputed that a bulldozer operator had been working near or 

under the overhang described in the citation. The MSHA inspector testified 

that he issued the citation because of loose overhanging material on the 

wall itself. He testified that the overhanging material protruded 

approximately three feet out from the wall and there must have been 

something wrong with the mining method or the overhang would not have 

developed. ·However, there is no evidence that the slope of the pit wall 

was not in conformity with prudent engineering design. 

Respondent's exhibit R-2 is the mining plan followed by the Respondent 

and establishes standards for the safe control of the pit walls including 

the overall slope of the wall. The plan states that the high wall will be 

excavated at a slope of 60 degrees. It also states that no catch benches 

are specified in the design, but alterations for their additiqn, if 

required, will be made to conform to sound engineering and mining 

practices. There is no evidence that this was not a proper standard. 

The question presented is whether there was a violation of the cited 

regulation because of the subsequent development of overhanging material 

which the respondent had not taken down. The MSHA inspector testified that 

in his opinion the bank was dangerous, and it has already been shown .that 

miners had been working near or under the bank. 

2 ··~3 
I find th~t the respondent had established standards for safe 

control of the pit wall, including the slope of the wall. The evidence of 

the petitioner shows that there may have been a violation of 30 C.F.R. 

55.3-5, !:./ in that men were working near or under dang~rous banks, but 

I do not find evidence that the respondent failed to adopt standards for 

safe control of pit walls including their overall slope. Accordingly, 

Citation No. 345076 is vacated. 

ORDER 

The foregoing bench decision is AFFIRMED. 

Distribution: 

Robert A. Friel, Esq. 

Office of the Solicitor 

United States Department .of Labor 

8003 Federal Office Building 

Seattle, Washington 98174 

Mr. James A. Brouelette, 

EEO/Safety Officer 

Washington Corporations 

P. 0. Box 8989 - 500 Taylor 

Missoula, Montana 59807 

2/ Mandatory. Men shall not work near or under dangerous banks. 

Overhanging banks shall be taken down immediately and other unsafe 

ground conditions shall be corrected promptly, or the areas shall 

be barricaded and posted. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 

SEP 14 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, DOCKET NO. DENV 79-37l~PM 

v. A/C No. 10-00634-05003 

WASHINGTON CONSTRUCTION COMPANY, MINE: Monsanto Quartzite Quarry 

Respondent. 

BENCH DECISION AND ORDER 

Appearances: 

Robert A. Friel, Esq. 

Office of the Solicitor 

United States Department of Labor 

8003 Federal Office Building 

Seattle, Washington 98174 

For the Petitioner 

James A. Brouellette 

EEO/Safety Officer 

Washington Corporations 

500 Taylor 

P.O. Box 8989 

Missoula, Montana 59807 

For the Respondent 

Before: Judge Jon D. Boltz 

This proceeding is brought by the Petitioner, Secretary of Labor, Mine 

Safety and Health Administration (MSHA), on a petition for assessment of 

civil penalties against the Respondent for alleged violations of a 

regulatio·n promulgated by authority of the Federal Mine Safety and Health 

Act of 1977 (hereinafter "the Act"). 

At the conclusion of the hearing, the parties agreed to waive the 

filing of post hearing briefs and agreed that a Bench Decision could be 

issued. 

I make the following findings of fact: 

I. The Respondent has no significant history of previous violations. 

2. The Respondent is a moderate sized operator. 

2125 
3. The payment of the proposed penalties will not affect the 

Respondent's ability to continue in business. 

4. The Respondent demonstrated good faith in achieving rapid 

compliance after notification of the violations. 

5. The MSHA inspector who issued and served the citations involved 

was a duly authorized representative of the Secretary. 

6. The Respondent's products enter commerce and the mine involve<l is 

subject to the jurisdiction of the Act. 

The citations at issue, Nos. 345023, 345024, and 345025, were dated 

July 12, 1978, and w~re s~bsequently. served on thy Respondent. Each 

citation alleges a violation of 30 C.F.R. 56.5-5. I The Respondent 

contends that the citations should be dismissed because of the long time 

between their issuance and this hearing on August 6, 1981. The records 

in the file disclose that· the Secretary filed a petition within the time 

prescribed by the regulations and, although it did take possibly an unusual 

length of time before a hearing could be scheduled, there is no showing 

that the Respondent's case was prejudiced. Mr. Brouelette stated during 

the course of the hearing that he had testified as to all bf the facts that 

individuals who are no longer with the Respondent company would have 

testified to had they been present. Mr. Brouelette also stated that the 

Secretary had lost pleadings filed in response to the petition filed by the 

Petitioner. In this regard, I should point out that a procedμral rule of 

the Commission requires that responsive pleadings be filed with the 

Commission and not with the Secretary. Accordingly, I find that there is 

no merit in Res.pondent' s contention. 

The evidence is undisputed that the results of the sampling ~f three 

miners in regard to airborne contaminants revealed that they were subjected 

to harmful exposure based upon threshold limit values duly adopted in 

accordance with the regulation. The employee referred to in Citation No. 

345023 received approximately ten times the allowable amount. In Citation 

No. 345024, the employee received approximately six times the allowable 

amount. In Citation No. 345025, the employee re~eived approximately three 

times the allowable amount. Thus, there was a violation of the regulation 

cited unless it is shown that the regulation would allow the use of 

respiratots. It is undisputed that the miners involved were using 

respirators· or that respondent issued respirators for their use. 

1/ Mandatory. Control of employee exposure to harmful airborne 

contaminants shall be, insofar .as feasible, by prevention of contamination, 

removal by exhaust ventilation, or by dilution with uncontaminated air. 

However, where excepted engineering control measures have not been 

developed .•• employees may work for reasonable periods of time in 

concentration of airborne contaminants exceeding permissible levels if they 

are protected by appropriate respiratory protective equipment ••.• 

2126 
The Petitioner presented evidence that it would have been feasible to 

lower the amount of silica in the air by use of water-spraying nozzles 

installed on hoses. The Respondent claimed that it did not have sufficient 

water pressure for that purpose. However, after completion of its mining 

season, ~espondent did in the Spring of 1979 dig its .well 65 feet deeper 

and install a submersible pump and other equipment which ultimately reduced 

the airborne contaminants to an acceptable level. The evidence shows that 

accepted engineering control measures could have been applied in order to 

control the amount of airborne contaminants, thus, allowing the Respondent 

to be in compliance with the regulation without the use of respirators. 

Respondent also contends that it was not convenient to shut down the 

operation to make the needed engineering changes until the completion of 

the mining season in October 1978. However, as long as there are accepted 

engineering control measures available which when utilized will alleviate 

the problem as shown in this case, a violation of the regulation is 

necessarily proven, and the Petitioner has established a prima facie case. 

I find that the Pet it ioner has proven by a preponderance of the 

evidence that the three citations should be affirmed. The penalties are 

assessed in amounts of $30.00, $30.00 and $24.00 for Citation Nos. 345023, 

345024 and 345025, respectively~ as prayed for in the petition. 

ORDER 

The foregoing Bench Decision is affirmed and the Respondent is ordered 

to pay a total civil penalty of $84.00 within 30 days of the date of this 

Decision. 

Distribution: 

Robert A. Friel, Esq. 

Office of the Solicitor 

United States Department of Labor 

8003 Federal Building 

Seattle, Washington 98174 

James A., Brouelette 

EEO/Safety Officer 

Washington Corporations 

500 Taylor, P.O. Box 8989 

Missoula, Montana 59807 

2127 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 SEP 14 1981 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), on ) 

BEHALF OF CALVIN M. BIGELOW, ) 

) 

Complainant, ) 

) 

v. ) 

) 

CENTENNIAL DEVELOPMENT COMPANY ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 81-51-DM 

MINE: FMC Mine 

DECISION AND ORDER 

On September 4, 1981, the parties to the proceeding filed with the 

Connnission a Stipulation of Settlement, Consent and Motion seeking an 

agreed disposition of the case. 

Under the terms of the stipulation, the parties agree that respondent 

shall compensate Calvin M. Bigelow in the amount of $8,000.00 in settle~ 

ment of his claim against respondent resulting from this discharge and that 

respondent shall expunge the employment record of Calvin M. Bigelow of any 

adverse references relating to his discharge. 

By joint motion, the parties seek an order providing: that respondent 

tender the agreed upon sum to Calvin M. Bigelow wi.thin 40 days and that 

respondent expunge from his employment record any adverse references 

relating to his discharge. 

Given the complainant's consent to the terms of the settlement and 

finding that such settlement will effectuate the purpose of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., it is 

ORDERED: that the settlement agreed to by the parties is hereby 

APPROVED, that the joint motion is hereby GRANTED in full, that the 

respondent tender to the complainant the sum of $8,000.00 within 40 days 

from August 19, 1981, the date he signed the stipulation, and that this 

case is hereby DISMISSED WITH PREJUDICE. 

Administrative Law Judge 

2128 
Distribution: 

James H. Barkley, Esq·. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Ronald F. Sysak, Esq. 

Prince, Yeates & Geldzahler 

Third Floor, Mony Plaza 

424 East 5th South 

Salt Lake City, Utah 84111 

2129 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUI':, SUITE 400 

DENVER, COLORADO 80204 SEP 14 198\ 

J. OTTO HORVATH, 

Complainant. 

v. 

GREEN ELECTRIC COMPANY; AND 

LIVELY CONSTRUCTION COMPANY, 

Respondent. 

) 

) COMPLAINT OF DISCHARGE, 

) DISCRIMINATION OR INTERFERENCE 

) 

) DOCKET NO. WEST 81-185-D 

) 

) MSHA CASE NO. DENV CD 81-3 

) 

) MINE: Fork Union Coal Company 

) 

) 

~~~~~~~~~~~~~~~~~~~~-) 

DECISION AND ORDER 

Pursuant to a notice of hearing dated June 29, 1981, a hearing in the 

above-entitled proceeding was held in Giilette, Wyoming, on August 25, 1981. 

At the hearing, counsel for the respondent presented a stipulation and 

release of claim signed by complainant. The release states that complainant 

agrees to a dismissal of the complaint he has filed against Green Electric Company 

and Lively Construction Company (Docket No. WEST 81-185-D) with prejudice and 

agrees not to bring any further complaint against either respondent arising out 

of his employment relationship with said parties. 

Complainant's release of all claims made in this proceeding is based on a 

settlement agreement between him and the two respondents dated August 25, 1981. 

That agreement shows that respondent jointly agreed to pay complainant $4,000.00 

in settlement of any and all claims, known or unknown, which complainant may 

have against the two respondents. 

The complainant and counsel for both respondents appeared at the hearing 

and all stated for the record their agreement and satisfaction with the settlement. 

Having received the complainant's consent to the terms of the settlement 

and finding that such settlement will effectuate the purposes of the Federal Mine 

Safety and Health.Act of 1977, 30 U.S.C. § 801 ~~., it is 

ORDERED: That the settlement agreed to by the parties is ~ereby APPROVED 

and that as to both respondents, this case is hereby DISMISSED WITH PREJUDICE. 

Administrative Law Judge 

2130 
Distribution: 

Thomas Padget, Esq. 

Thomas, O'Neil & Padget 

202 Warren Avenue 

Gillette, Wyoming 82716 

John H. Shepard, Esq. 

Morman, Smit, Shepard, Hughes & Wolsky 

P. 0. Box: 29 

Sturgis, South Dakota 57785 

Howard Burnett, Esq. 

Box 338 

Glen White, West Virginia 25849 

2131 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, ) DOCKET NO. WEST 80-271-M 

) 

v. ) A/O No. 04-01854-05004 

) 

MASSEY SAND AND ROCK COMPANY, ) MINE: Indio Sand & Rock Pit 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~ 

DECISION 

Appearances: 

Theresa Kalinski, Esq., Office of the Solicitor, United States Department 

of Labor, 3247 Federal Building, 300 N. Los Angeles Street, Los Angeles, 

California 90012 

For the Petitioner, 

Mr. Jack Corkill, Compliance Officer, Massey Sand and Rock Company, 43850 

Monroe Street, P.O. Box 1767, Indio, California 92201 

For the Respondent 

Before: Judge Virgil E. Vail 

I. Procedural Background 

The above-captioned civil penalty proceeding was brought pursuant to 

Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a) [hereinafter referred to as "the Act"] . 

. Pursuant to notice, a hearing on the merits was held at Indio, 

California on January 22, 1981. Cosme Gutierrez, federal mine inspector, 

appeared on behalf of the petitioner. Respondent offered the testimony of 

Richard P. Edens, David Holliday and Frank Pease. Neither party elected to 

file a post-hearing brief. 

2132 
II. Findings of Fact 

CITATION NO. 380866 

1. On October 24, 1979, during an inspection, Coseme Gutierrez 

noticed that the Hough front-end loader was leaking hydraulic fluid. (Tr. 

6). 

2. While the front end loader was on a 4 to 5% incline, Gutierrez 

requested that the operator turn off the machine and test the emergency 

brake. The test was conducted and it was found that the brake would not 

hold the roll. (Ti. 6-7)~ Prior to the test the operator of the loader 

had told the inspector that the brake was not working. 

3. The front end loader was approximately 16 to 19 feet high, 22 to 

25 feet in length and 10 to 12 feet wide. (Tr. 6). 

4. The loader had a ten yard bucket in front and was being used to 

load materials onto trucks or to stockpile materials. (Tr. 6 and 51). 

CITATION NO. 380865 

5. The respondent keeps a pile of material that is approximately 60 

to 90 feet high. This material is continually being pushed into a hopper 

by rubber tired bulldozers. (Tr. 20). 

6. The operator at the hopper sits on a work platform that is 12 feet 

high. (Tr. 21). His job is to use the backhoe to keep the large rocks out 

of the grid and to watch the plant. (Tr. 35-36). 

7. Six to eight feet to the right-hand side of the operator's 

platform there is a control panel. (Tr. 21 and 40). The purpose of the 

control panel is so the operator can start and stop the conveyor belts and 

the feeder. (Tr. 38). 

8. On October 24, 1979, the control panel had been disconnected 

because recent heavy rains had caused flooding. Since the control panel 

·11as in a low lying area, the wires were under water and the respondent had 

been forced to deenergize the control panel. (Tr. 23 and 37). 

9. Since the control panel had been disconnected, the operation had 

to be started by another employee at the control shack, which was located 

approximately 1000 feet from the work platform. (Tr. 23). 

10. The operator was unable to see the control shack, nor could the 

miner at the shack see the work platform where the operator was because 

there were materials stacked 30 to SO feet high between the two locations. 

(Tr. 22 and 36). 

11. There was a two-way radio provided so the operator and the miner 

at the control shack could communicate with one another. (Tr. 36). 

2133 
Ill. Discussion and Conclusions 

CITATION NO. 380866 

Citation no. 380866 1/ alleges a violation of mandatory safety 

standard 56.9-3 which provides that, "Powered mobile equipment shall be 

provided with adequate brakes. 1

·

1 

It is uncontradicted that the emergency brake was not in good working 

condition. Frank Pease, the respondent's heavy equipment repair foreman, 

testified that after the citation was issued he was sent to work on the 

emergency brake. He found that the lining was off the brake shoes. (Tr. 

SO). 

Respondent offered an operator's manual, pertaining to this piece of 

machinery, in order to prove that the emergency brake is only to be used to 

hold the machine in a stationary position after it has come to a stop. 

(Respondent's Exhibit 2). I do not disagree with respondent's argument, 

but it is of no value in deciding the issue now before us. 

The test was conducted while the machine was stopped and in a 

stationary position. The fact is that the emergency brake was defective in 

that it would not stop the machine from rolling when it was in a 

stationary position. 

Respondent's second argument is that the petitioner never proved that 

the hydraulic fluid leaking from the machine came from the brakes. The 

inspector testified that the leakage was the reason he conducted the test 

on the brakes, however the origin of the fluid is not an essential element 

in proving a violation. 

Finally, respondent contends that standard 56.9-3 does not comport 

with due process requirements because it does not give fair warning a• to 

what conduct is required or prohibited. Respondent raised this issue in 

its answer, however neither party chose to address it at the hearing. 

This issue has already been addressed in the case of Secretary of 

Labor v. Concrete Materials, Inc. 2 FMSHRC 3105 (1980). In that case the 

operator challenged standard 56.9-3 as violating due process requirements 

because of vagueness. The Administrative Law Judge stated that_: 

The question in this case is whether the operator ~new 

that the operation of the cited trucks with the then 

existing brakes would be hazardous or whether a con1/ Citation ho •. 380866 states that: "The emergency brake on the ff596 front 

end loader when set would not hold machine. This machine was also leaking 

a substantial amount of hydraulic fluid. These condition(s) could cause 

equipment operator to lose control and injury (sic) people in immediate 

area or the operator himself." 

213-4 
scientious safety expert would have protected against 

the brake conditions because they presented a reasonably 

foreseeable hazard. 

The judge went·on to reject the due process argument. 

In· the present case the govenment proved that the defective emergency 

brake presented a safety hazard. Furthermore, a witness for the respondent 

testified that the brake was defective. Under such circumstances, I find 

it difficult to believe that respondent felt the loader was equipped with 

"adequate brakes." 

For the reasons stated above, I conclude that the citation should be 

affirmed. 

Penalty Assessment 

The respondent has had only a small number of prior violations. Since 

there is nothing contrary contained in the record, I assume that the 

imposition of a penalty will not affect respondent's ability to remain in 

business. 

I conclude that the respondent knew or should have known of the 

violation. It is a relatively easy procedure to test the ~mergency brake 

and if this had been done respondent ~ould have discovered the defect. 

The defect could have led to a serious injury for either the operator 

or anyone in the immediate vicinity. Also, the respondent did not abate 

the citation when he became aware of the defect. An order of withdrawal 

was issued on October 31, 1979 because the brakes had not yet been fixed. 

(Order no. 380860). For these reasons, I find that the gravity of the 

violation was severe and that respondent failed to act in good faith. 

Under the circumstances, as they have been described above, I find 

that a penalty in the amount of $275.00 is appropriate. 

CITATION NO. 380865 

Citation no. 380865 2/ states that: 

The control s~·:itches to the feed hopper, 

primary belt conveyor were inoperable. 

These switches did not work when belt 

operator was asked to start and shut off 

equipment. An employee could easily fall 

into moving equipment resulting in serious 

injury and no one in the immediate area 

would have control of shutting off equipment. 

2/ Citation 380865 alleges a violation of mandatory safety standard 56.9-2 

which provides that, "Equipment defects affecting safety shall be corrected 

before the equipment is used." 

2135 
Respondent did not attempt to refute the allegation that the switches 

at the control panel were inoperative. Rather, respondent argued that this 

did not constitute a violation of the Act. Respondent points to 56.9-6 

which provides that: 

When the entire length of a conveyor is visible from the starting 

switch, the operator shall visually check to make certain that al.l 

persons are in the clear before starting the conveyor. When the 

entire length of the conveyor is not visible from the starting switch, 

a positive audible or visual warning system shall be installed and 

operated to warn persons that the conveyor will be started. 

The company had an audible warning system and therefore, the respondent 

contends it was 1n compliance. 

I disagree. Safety standard 56.9-6 applies only to conveyors. In 

this case not only are we concerned with the conveyor belt system, but the 

hopper and the back hoe also. I agree with the inspector that.since the 

operator had no way of stopping the equipment because the switches had been 

disconnected, this constituted a defect in the equipment. 

Secondly, respondent argues that the second set of switches which were 

provided were sufficient for co~pliance. There were two switches, one for 

the feeder and one for the first conveyor. These switches were located 10 

to 15 feet from where the operator sat. (Tr. 40). 

I conclude that the presence of the second set of switches was 

insufficient to correct the equipment defect. First of all, in order for 

the operator to get to the switches he had to climb down a ladder. This 

would take up valuable time in case of an emergency. Most importantly 

though is the fact that the on-off switches were unreliable. Richard 

Edens, the electrician for the plant, testified that the switches were 

working on the day the citation was issued, but could not remember if they 

were actually tested to see if they were operable. (Tr. 40 and 44). 

Furthermore, he stated the presence of iron ore at the site sets up a 

magnetic field between the wires so that at times the switches will not 

stop the equipment. (Tr. 44). 

There is no other logical conclusion but to find that Citation no. 

380,865 should be affirmed. Operating equipment of this nature from a point 

where the person who has control of starting and stoppi~g the equipment 

cannot even see the operator clearly violates 56:9-3. 

Penalty Assessment 

The negligence of the respondent was slight since the switches at the 

control panel had to be disconuected because of the recent flooding and 

normally they would have been energized. However, the seriousness of this 

violation is such that I cannot approve a reduction of the proposed penalty 

assessment. If an employee were to slip and fall into the machine it would 

not be known innnediately by other employees and when it was discovered it 

is unlikely that the equipment could be stopped before serious inJury 

resulted. For these reasons, I assess a penalty of $75.00 for the 

violation. 

2136 
ORDER 

Respondent is hereby ORDERED to pay the amount of $350.00 within forty 

days of this decision. 

Distribution: 

Theresa Kalinski, Esq. 

Office of the Solicitor 

~d·f.~ Virg. E. Vail 

AdmiiStrative Law judge 

United States Department of Labor 

3247 N. Los Angeles Street 

Los Angeles, California 90012 

Mr. Jack Corkill, Compliance Officer 

Massey Sand & Rock Company 

43850 Monroe Street 

P. 0. Box 176 7 

Indio, California 92201 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 EP 17 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 81-8-M 

Petitioner A.O. No. 08-0075-05005F 

'V. 

St. Catherine Quarry 

ST. CATHERINE ROCK COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Ken W. Welsch, Attorney, U.S. Department of Labor, Atlanta, 

Georgia, for the petitioner; 

David A. Davis, Esq., Bushnell, Florida, for the respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty filed 

by the petitioner against the respondent on January 5, 1981, pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 820(a), charging the respondent with two alleged violations issued pursuant 

to the Act and the implementing mandatory safety and health standards. 

Respondent filed a timely answer in the proceedings and a hearing was held on 

July 7, 1981, in Tampa, Florida and the parties appeared and participated 

therein. The parties waived the filing of posthearing arguments, but were 

afforded the opportunity to make argtnnents on the record and those have been 

considered by me in the course of this decision. 

Issues 

The principal issues presented in these proceedings are (1) ·whether 

respondent violated the provisions of the Act and implementing regulations as 

alleged in the proposals for assessment of civil penalties filed in these 

proceedings, and, if so, (2) the appropriate civil penalties that should be 

assessed against the respondent for the alleged violations based upon the 

criteria set forth in section llO(i) of the Act. Additional issues raised by 

the parties are identified and disposed of in the course of 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 oper~ 

ator's history of previous violations, (2) the appropriateness of such penalty 

2138 
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 ~ seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.l et seq. 

Stipulations 

The parties stipulated as to jurisdiction, agreed that the respondent is 

a sma~l crushed stone operator employing approximately seven employees, that 

the mine operates one daily 8-hour production shift 5 days a week, and that 

the respondent has no previous history of paid or assessed violations (Tr. 

6-7). 

Respondent's counsel raised an objection to proceeding with the hearing 

on the ground that respondent was not afforded an opportunity for .a trial by 

jury. The objection was denied, and my ruling in this regard is herein 

reaffirmed. It seems clear to me that civil penalty proceedings pursuant to 

the Act are civil rather than criminal, and that the respondent has not been 

deprived of any Sixth Amendment right to a trial by jury in a criminal matter, 

or of any right conferred by the Seventh Amendment to a jury trial in a civil 

penalty assessment case. The rights to which respondent is entitled are 

those specifically provided for in the Act, namely an APA hearing before a 

Commissi'on Judge, with the opportunity to participate fully therein, including the right to confront and cross-examine the inspectors who issued the 

citations. 

In a case under the Occupational Safety and Health Act (OSHA), the 

Supreme Court, on March 23, 1~77, ruled that the Seventh Amendment guarantee 

of a jury trial in suits at common law does not apply to hearings before the 

Occupational Safety and Health Review Commission in contested civil penalty 

proceedings. Atlas Roofing Co., and Frank Irey, Jr., Inc. v. Occupational 

Safety and Health Review Commission et. al., 1977-1978 OSHD, 21,615, affirming decisions of the third and Fifth Circuit Appeals Courts, reported at 

1975-1976 OSHD 19,878 and 20,002. In Mohawk Excavating, Inc., the Second 

Circuit Court of Appeals ruled on February 8, 1977, that civil penalties 

under OSHA are civil rather than criminal because Congress characterized them 

as such, and the only consequence of a judgement is a money penalty, 1976-1977 

OSHD, 21,537. Under the circumstances, I conclude that these precedents are 

applicable in civil penalty proceedings brought under the Mine Act and 

respondent is not entitled to a trial by jury. 

2139 
Discussion 

The citations which issued in this case were the result of an investigation conducted by MSHA into the causes of a fatality which occurred at the 

mine site on July 2, 1980, when a front-end loader operator (Henry Quarterman) 

was drowned after the loader he was driving jumped a berm and went into a 

body of water adjacent to a pit loading area. The citations which were issued 

are as follows: 

Citation No. 091484, July 9, 1980, 30 C.F.R. § 56.9-2. 

A Michigan 175B front end loader serial No. 427B253 owned 

and operated by St. Catherine Rock Co. was not maintained in a 

safe condition in that; the transmission forward and revers~ 

shift lever had been bent and would not stay engaged in forward gear, allowing the loader to become free wheeling. This 

loader was involved in a fatal accident on July 2, 1980. 

Citation No. 091485, July 9, 1980, 30 C.F.R. § 56.9-3. 

A Michigan 175B front end loader serial No. 427B253 own.ed 

and operated by St. Catherine Rock Co. was being operated with 

defective brakes. Following a fatal accident that occurred on 

July 2, 1980, an inspection of the loader revealed the front 

master cylinder empty of brake fluid, the left braking caliper 

frozen, and the emergency air locks system inoperable. 

Testimony and Evidence Adduced by Petitioner 

·Edward Rooth, son of the owner of St. Catherine Rock Quarry, described 

the circumstances surrounding the fatal acc·ident of July 2, 1980. He stated 

that at 4:00 p.m., the accident victim Henry Quarterman returned to the shop 

to add brake fluid to the end loader, and that Mr. Quarterman and Mr. J. D. 

Hadley also bled the brakes. Mr. Booth did not remember telling the inspector that they had also added brake fluid around 3:00 p.m, and he thought it 

unlikely that the brakes would have needed fluid after only 45 minutes since 

it was usually needed only every three to four months. He testified that on 

July 2, fluid was put in both front and back cylinders and he did not recall 

informing the inspector that brake fluid was put in only the rear cylinder. 

Mr. Booth testified that the forward/reverse lever on the loader had 

been bent for almost a year due to a rock falling on it. He stated that he 

was not involved with the repair work and was not sure whether the lever had 

been repaired although he did remember telling the inspector that the machine 

had not been repaired. He admitted that the machine sometimes slipped into 

neutral but stated that it could easily be put back into forward without taking one's hands off the steering wheel. He indicated that sometime after 

4 o'clock he watched Mr. Quarterman drive the loader down the pit ramp, stand 

up in the seat, and then go into the water. He did not know how fast the 

loader was going although he admitted having told the inspector that it was 

about 25-30 miles per hour. (Tr. 8-22). 

2140 
On cross-examination, Mr. Booth testified that both he and 

Mr. Quarterman tested the machine after adding brake fluid, and that the 

brakes and the shift lever were working properly. After adding the fluid, 

Mr. Booth got into his truck and went down to the pit, which the parties 

stipulated was around 390 feet from the top of the ramp. J. D. Hadley was in 

his bulldozer, stripping overburden approximately 500 yards away and was 

unable to see Mr. Quarterman as he headed down the ramp. Mr. Booth saw 

Mr. Quarterman stand up as he came down the ramp and yelled for him to jump 

off, but he could. not be heard over the noise of the motor. (Tr. 22-31). 

In response to bench questioning, Mr. Booth stated that the water in 

the pit was 30 to 35 feet deep, and that the loader usually stopped near· the 

stack of material located by the water. He believed that Mr. Quarterman 

could not stop the machine while he was standing up, but thought that he 

could have dropped the bucket to slow down or driven the loader into the 

bank. The machine was also equipped with a manually operated emergency 

brake. He noted that Mr. Quarterman had been employed with the company for 

over 20 years and was considered an experienced machine operator. (Tr. 33-42). 

MSHA Inspector Harry Verdier, confirmecl that he investigated the .. fatal 

accident on July 3, 1980, and testified that he had more than 20 years of 

experience operating pit trucks, front end loaders, and dozers, and had 

perfonned minor maintenance work on them. 

Mr. Verdier stated that he inspected the front end loader after it had 

been retrieved from the water, and noticed that the forward/reverse_ lever was 

in neutral. Through his conversation with Edward Booth, he learned that 

there hacl been a problem with the selector lever causing it to slip out of 

forward gear, and Mr. Booth told him that a rock had fallen on the lever a 

year earlier and damaged it. The steering wheel, but not the lever, had been 

replaced. Mr. Booth told Hr. Verdier that when the lever flew out of gear 

during operation, he could reposition it by using his foot. 

Mr. Verdier testified that in checking the brake system, he and George 

Long, a mechanic, unlocked the back seat, checked the rear master cylinder, 

and found it to be half full of brake fluid. They stuck their fingers in the 

front master cylinder and found no fluid. They could find no broken hoses. 

In speaking with Edward Booth, Mr. Verdier learned that brake fluid had been 

added at 3 o'clock and at 4 o'clock on the day of the accident. Mr. Booth 

told him that .no fluid was put in the front because they had not had brakes 

in the front of the loader for some time. Mr. Verdier testified that on 

July 9, 1980, Edward Booth stated to his father, "come on dad, you knew those 

brakes were bad, they been bad for some time," and that his father had 

replied, "you' re just young, you don't understand." 

Mr. Verdier stated that when he inspected the loader he noticed that the 

back rear disc near the brake pad was rusty, and that the right rear one had 

some rust and some shiny spots. The rust proved that the pads were not 

rubbing against the disc properly. He also found a frozen left caliper, and 

observed that the air pressure gauge measured zero. This being the case, he 

2.141 
believed that the emergency air lock system should have come on automatically 

because the system activates when pressure goes below 60 pounds. He also 

noticed that the wheels on the loader were turning freely when it was pulled 

from the water, demonstrating to him that it had no brakes. (Tr. 42~53). 

On cross-examination, Mr. Verdier explained that he checked the air 

pressure gauge on July 3 after the loader had been pulled from the water. He 

believed that even though it had been in the water, if it ·was perfectly air 

locked, pressure would not have leaked. He believed that the brakes did not 

lock because of a defective check valve. (Tr. 62-64). 

In response to bench questioning, Mr. Verdier stated that if the gear 

lever switch was in neutral the loader would roll on an incline, but if it 

was in forward, it would tend to hold still. He thought that since 

Mr. Edward Booth had seen Mr. Quarterman half standing, trying to steer the 

machine, that possibly the engine had stalled. If the machine was not running, there would be no power steering thereby making it nearly impossible to 

steer. With the gear in neutral, the front master cylinder dry of brake. 

fluid, and the left rear caliper frozen, the operator would be less able to 

control his equipment on an incline. Mr. Verdier conceded that he performed 

only visual testing and that the machine was not started because the engine 

was full of water and it would have been ruined. (Tr. 68-79). 

On redirect examination, Mr. Verdier stated that the battery was missing 

when the machine was pulled out of the water, and he believed that the rear 

brakes were not adequate to stop the machine although he agreed with 

Mr. Edward Booth that an operator could push the lever from neutral to 

forward with his foot while in a seated position. (Tr. 82-88). 

Testimony and Evidence Adduced by Respondent 

J. D. Hadley, an employee at St. Catherine Rock Company for 11 years, 

testified that he worked with Mr. Quarterman nearly every day and that he was 

an excellent worker. On the day of the accident, Mr. Hadley was at the shop, 

where he assisted Mr. Quarterman and Hr. Edward Booth in bleeding the brakes 

and adding fluid. Mr. Hadley stated that all four brakes were bled and then 

were tested for their stopping efficiency. He then went down one .ramp with 

his dozer while Mr. Quarterman went down another with the loader. Within 

10 minutes, Mr. Edward Booth approached him, yelling that Mr. Quarterman and 

the loader had gone into the water. (Tr. 92-94). 

On cross-examination, Hr. Hadley testified that Mr. Quarterman had complained that his brakes were going out, and to remedy the problem, Mr. Edward 

Booth bled the plugs and added fluid. Only the back cylinder needed fluid 

since the front one was half full, and Mr. Hadley could not recall anyone 

having mentioned that the cylinder had been filled earlier that day. (Tr. 

95-97). 

_In response to bench questioning, Mr. Hadley stated that he had operated Mr. Quarterman's lo-ader the day before the accident and had not had al)y 

2142 
problems with it. He had heard Mr. Quarterman complain about the loader in 

the past because fluid would empty out and the lines.would have to be bled, 

and he had no idea why the master cylinder emptied out while the loader was 

immersed in the water since he discovered no leaks in the system (Tr. 97-99). 

Mr. George Bowman, a field mechanic for Lender Machinery Company for 

23 years, testified that he delivered the loader in question to St. Catherine 

Rock Company, and had repaired the machine for the past 6 years and inspected 

it after the accident. The engine had been removed by the time he arrived to 

examine the machine, and he believed that the brake fluid could not have 

leaked out of the· machine after leaving the shop unless there had been a 

massive rupture. He thought the fluid could have escaped through a hole in 

the reservoir cap while the loader was in the water. 

Mr. Bowman testified that after inspecting the machine, he d·etermined 

that the bent lever and brake calipers did not need to be replaced. Since 

the lever did not interfere with shifting, he though the gear problem was 

probably due to a weak spring or worn grooves. The only possible malfunction 

he saw was in the compensator valve which operates as a shock, easing the 

impac't of the disc on the brake. He noticed water on the compensator· indicating a possible leak, which would cause the fluid to run out onto the 

ground. He stated that the compensators were repaired after the accident 

because they could affect the safety of the machine. 

Mr. Bowman testified that the reason the air pressure gauge r.ead zero 

when Inspector Verdier looked at it was because it was electrical and no 

current was in the system while the battery was out of the machine. He 

stated that the emergency air system automatically activates when there is 

a loss of air pressure. In his opinion, even if only one half of the brakes 

were working, it would have been adequate to stop the machine. (Tr. 101-117). 

On cross-examination, Mr. Bowman admitted that he is one of 13 field men 

who regularly repair this machine. He verified that one of his delivery men, 

a Mr. Long, had told him that there was no brake fluid in the front cylinder, 

but he did not know whether Mr. Long had only examined the reservoirs for 

fluid or had checked the entire brake system. Mr. Bowman explained that the 

emergency brake system is activated by a valve which releases air pressure 

when there is a loss of air, and if there was a massive air leak, there would 

be no air for the emergency system. He could find no holes in the hoses 

which would have caused such an air leak. 

Mr. Bowman conceded that if the rear brake system had been operating 

properly, the disc would be shiny with no rust on it. Although he believed 

that the pistons and calipers were not frozen, he agreed that if they were, 

they would have kept the brakes from functioning, and indicated that this 

problem could have caused the rust on the rear disc. (Tr. 117-138). 

In response to bench questioning, Mr. Bowr.ian stated that the bent lever 

did not contribute to the gear prohlems. He also thought that the master 

cylinder could be dry even when there was brake fluid behind the piston. 

2143 
This fluid would be enough to stop the machine, but he conceded that the 

fluid might not be adequate for a braking distance of 390 feet, the length of 

the incline from the shop to the water. Mr. Bowman stated further that the 

emergency brake system could be operated both manually and automatically, and 

after completing his repairs of the machine, the hand brake was working 

properly. (Tr. 140-154). 

Inspector Verdier was recalled and admitted that he had not been aware 

that the system was electric and that the absence of power caused the gauge 

to measure zero. He still believed that the brakes were not functioning 

since the wheels turned freely when the machine was removed from the water 

and he disagreed with Mr. Bowman's conclusion that the amount· of brake fluid 

behind the master cylinder would be sufficient to operate the brakes 

(Tr. 158-162). 

Findings and Conclusions 

Citation No. 091484 

Fact of Violation 

This citation alleges a violation of 30 C.F.R. § 56.9-2, which states 

that "equipment defects affecting safety shall be corrected before the equipment is used." The equipment defect discovered by the inspector was a bent 

lever on the forward and reverse transmission shift lever. The con~ition 

affecting safety was the fact that the lever would not stay engaged in forward gear and would slip into neutral causing the machine to become free 

wheeling. 

The evidence presented at the hearing indicates that the respondent knew 

that the lever was bent and that there was a problem in keeping the lever in 

gear. The lever had been bent for nearly a year, the result of a rock having 

fallen on the steering wheel. While the steering wheel had been replac~d, 

nothing had been done to repair the gear lever. Both Mr. Booth and Mr. Bowman 

testified, however, that the bent lever did not contribute to the gear 

slippage problem. Mr. Rowman concluded that the lever did not need to be 

replaced to abate the cited condition because its bent shape did not interfere 

with shifting. He testified that the gear slippage problem was more likely 

caused by a bad dent, a weak spring, or some worn parts, which were apparently 

not visible. 

While I agree that the described cited equipment defect (bent lever) is 

not the defect affecting safety, I do find that the evidence establishes an 

unsafe condition. Mr. Booth admitted that the machine slipped into neutral 

causing it to become free wheeling. Inspector Verdier testified that just a 

slight tap caused the lever to disengage from its forward position. This 

indicates that even a small bump in the road would trigger the condition. 

Although Mr. Bowman felt that the lever could be easily slipped back into 

gear while the operator remained in a seated position by keeping his hands 

on the steering wheel and using his foot to move the lever, the sensitivity 

2144 
of the lever demonstrates that the condition could arise suddenly and without 

the operator's knowledge. As the situation here illustrates, this could pose 

a danger if the machine was travelling on an incline. 

Inspector Verdier testified that when the machine was pulled from the 

water, the forward/reverse lever was in neutral. If the loader had stalled, 

as he surmised, and the brakes had not worked properly, the machine would 

roll freely with the transmission in neutral. While the loader may not have 

stopped if the lever had been in forward, it may have slowed it sufficiently 

to have prevented the resulting accident. 

In view of the foregoing, I conclude and find that petitioner has established a violation of section 56.9-2. The condition of the lever, which 

allowed it to slip from forward into neutral was a condition affecting 

safety. When a lever suddenly slips into neutral, it poses a danger to the 

unsuspecting operator who should be in full control of the vehicle, and 

respondent should have been alerted to the fact that this condition was abnormal. Even if the defective condition did not cause the accident, and even if 

the accident had not occurred, I would still find a violation of the cited 

safety standard. The question of whether a violation of a cited standard has 

occurred is not dependent on the occurrence or non-occurrence of an accident. 

Additionally, although the inspector cited the bent lever as the source of 

the problem, the unsafe condition was adequately described to apprise the 

respondent of the specific violation, and the respondent was not prejudiced. 

The citation states that the gear lever would not stay engaged in forward 

gear and allowed the loader _to become free-wheeling, see Secretary of Labor 

v. Jim Walters Resources, Inc., 8 FMSHRC 1827, 1 BNA MSHA 2233 (1979). The 

citation is AFFIRMED. 

Citation No. 091485 

This citation alleges a violation of 30 C.F.R. § 56.9-3, which requires 

that powered mobile equipment be provided with adequate brakes. The inspector determined that the front end loader involved in the accident had defective brakes because his examination revealed that the front master cylinder 

was without brake fluid, the left braking caliper was frozen, and the 

emergency air lock system was inoperable. 

The inspector testified that he found no brake fluid in the front master 

cylinder while the rear cylinder was only half full. Although a field mechanic 

thought that the amount of fluid in the back would be enough to stop the 

loader, he admitted that it might not be adequate if the operator continually 

had his foot on the brake for the entire length of the 390 foot incline. The 

inspector concluded that the amount of fluid was not sufficient to stop the 

loader. 

Although Mr. Booth stated that some brake fluid was added to both the 

front and rear brake cylinders on the day of the accident, he also stated 

that one cylinder already had some and the inference is that he may not have 

added fluid to both cylinders on that day. (Tr. 11). This inference is 

2145 
bolstered by the inspector's testimony that Mr. Booth told him that fluid was 

added to only the rear cylinder since the front brakes had been bad for some 

time, and Mr. Hadley stated that the front cylinder was half full and no 

brake fluid was added. When the inspector checked the machine after the 

accident, he found the front cylinder to be completely dry of fluid, and 

since no holes were found in the brake lines, consideration must be given to 

other evidence which might explain this dramatic loss of fluid in the front 

cylinder. According to Mr. Hadley, Mr. Quarterman had complained about the 

brakes in the past; and had indicated that the fluid would empty out of the 

system. Further, the inspector testified regarding Mr. Booth's statement to 

his father, acknowledging that they had known for some time that the brakes 

were bad. Evaluation of these facts leads me to conclude that the front 

brakes had not been working properly for some time, and that brake fluid had 

to be added periodically. Further, even though Mr. Hadley stated that he had 

operated the loader the day before the accident, the fact remains that he did 

not add more brake fluid to the front cylinder on the day of the accident and 

the cylinder was only half full. 

Although Mr. Bowman determined that the brake calipers and pistons were 

not f'rozen, he agreed that the rusty discs indicated that the rear brake 

system was not operating properly. The inspector testified that.the discs 

would be shiny if the brake pads were rubbing against the discs. Since they 

were rusty, he concluded that the calipers.were not working properly and were 

frozen. 

Although the inspector found the air pressure gauge measuring zero after 

the loader had been retrieved from the water, this does not indicate that the 

emergency air lock system was not operating. Further testimony revealed that 

the gauge was electrical, and since the battery had been removed from the 

loader, the inspector's reading was inaccurate. Although the inspector based 

his finding that the emergency air brake system was inoperable on the gauge 

reading of zero, and the fact that the wheels spun freely as the machine was 

lifted from the water, there is no conclusive evidence establishing whether 

the entire system was working properly on the day of the accident. However, 

I conclude that the preponderance of the evidence adduced establishes that 

the brakes were not working properly on the day of the accident and were 

therefore, not adequate. Accordingly, I find that p~titioner has established 

a violation of section 56.9-3, and the citation is AFFIRMED. 

Negligence 

With regard to the forward/reverse lever, the evidence establishes that 

the respondent knew that the lever had a tendency to slip out of forward gear 

and into neutral. Mitigating the fact that the respondent knew it was using 

equipment with a defective part, is the respondent's argument that the driver 

could easily put the lever back in gear with his foot without taking his 

hands off the steering wheel. Although this technique may have worked adequately on level ground, it did not provide a viable method when the machine 

was running on an incline with poor brakes. The respondent knew where the 

2146' 
machine was operating and it knew that there were brake problems. I, therefore, find a high degree of negligence on the part of the respondent with 

regard to Citation No. 091484. 

I also find that the respondent knew that there was a problem with the 

front brakes, and unjustifiably permitted the loader to be operated with 

reliance on the rear brakes to stop the vehicle. Mr. Hadley had heard 

Mr. Quarterman previously complain about the brakes in the past, and even so, 

on the day of the accident, brake fluid was put only in the rear master 

cylinder. William Booth's undisputed statement to his father shows knowledge 

of the bad brakes, and even though the senior Mr. Booth was present at the 

hearing, he did not testify or refute the statement. The testimony and evidence lead me to conclude that the front brakes were not working and this 

same testimony and evidence leads me to conclude that the respondent was 

fully aware of the problems with the brakes. 

Respondent seems to argue that the rear brakes could have stopped tbe 

vehicle if the accident victim had lowered the bucket, pulled the manual 

emergency brake, or steered into the bank. Respondent apparently attempts 

to share some of the responsibility for the accident with the deceased, 

because Mr. Quarterman did not use these alternative methods of ~raking. 

I cannot conclude that the evidence establishes that Mr. Quarterman was 

contributorly negligent in operating the loader. The loader was regularly 

operated on the incline between the shop and the pit, and respondent was 

aware of the defective brakes and knew or should have known that an- emergency 

situation could have arisen~ No evidence was offered showing that respondent 

instructed its loader operators on the use of emergency braking procedures. 

In addition, Mr. Quarterman was an experienced machine operator, having been 

employed with the company for over 20 years. This experience leads me to 

believe that he would have tried every feasible method of stopping the loader 

when the brakes went out, and the fact that he was seen standing suggests an 

attempt to steer the machine to safety. I, therefore, find that respondent 

was extremely negligent in permitting this loader to be operated when it was 

fully aware of the braking problems. 

Gravity 

In this case, the defective front-end loader resulted in the death of 

the operator, and I believe it is reasonable to conclude that both violations 

may have contributed to the accident. I therefore find that the violations 

were extremely serious. 

Good Faith Compliance 

The inspector issued a withdrawal order after making his post accident 

inspections. Petitioner states that the violations were abated in good 

faith and the evidence of record supports this conclusion (Tr. p. 176, Exh. 

G-5). As a matter of fact, the loader was practically overhauled, and I 

have considered this fact in assessing the penalties. 
Size of Business and Effect of Civil Penalties on Respondent's Ability to 

Remain in Business 

The parties stipulated that respondent is a small crushed stone operator 

employing approximately seven employees and that the mine operates one daily 

8-hour production shift 5 days a week. The parties offered no evidence on 

the effect of a civil penalty on respondent's ability to remain in business. 

Accordingly, I cannot conclude that the civil penalties assessed will 

adversely affect the respondent's ability to remain in business. 

History of Prior Violations 

Respondent has no previous history of paid or assessed violations, and 

I have taken this into consideration in assessing the penalties for the 

citations which have been affirmed. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, and taking into 

account the requirements of section llO(i) of the Act, I conclude and find 

that the following civil penalties are reasonable and appropriate in the 

circumstances and they are irnpose<l by me for each of the citations which have 

been affirmed. 

Citation No. 

091484 

091485 

Date 

07/09/80 

07/09/80 

30 C.F.R. Section 

ORDER 

56.9-2 

56.9-3 

Assessment 

$1,500 

2,500 

The respondent IS ORDERED to pay civil penalties in the amounts shown 

above, totalling $4,000 within thirty (30) days of the date of this decision 

an<l or<ler, and upon receipt of the same by MSHA, this matter is DISMISSED. 

1ft~.~~t~ Administrative Law Judge 

Distribution: 

David A. Davis, Esq., Davis & Skidmore, P.O. box 127, Bushnell, FL 

33513 (Certified Mail) 

Ken W. Welsch, Esq., Offic~ of the Solicitor, U.S. Department of Labor, 

1371 Peachtree Street, N.W., Room 339, Atlanta, GA 30367 

(Certifie<l Mail) 

2148 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 17 &\\ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 81-186 

Petitioner A/O No. 46-05121-03038F 

v. 

Wayne Mine 

MONTEREY COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION APPROVING SETTLEMENT 

AND 

ORDERING PAYMENT OF CIVIL PENALTY 

Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for the Petitioner; 

Timothy M. Biddle, Esq., Crowell & Moring, 

Washington, D.C., for the Respondent. 

Judge Cook 

On January 22, 1981, the Secretary of Labor (Petitioner) filed a petition for assessment of civil penalty in the above-captioned case pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et ~· (Supp. III 1979) (Act). The petition charges Monterey Coal 

Company (Respondent) with a violation of mandatory safety standard 30 C.F.R. 

§75.1726(b) in that: 

It was revealed during the investigation of a fatal accident, based upon sworn testimony and evidence observed at the 

scene of the accident that the victim and continuous miner 

operator were performing the work of evaluating damage 

sustained to the miner under the ripper head that was not 

blocked in the elevated position in the No. 2 entry, on the 

Intake Mains Section (001), being developed in the direction 

of the Intake Airshaft. 

An answer was filed, the case was consolidated with the associated 

notice of contest proceeding in Docket No. WEVA 80-322-R, a prehearing 

order was issued, and the matter was scheduled for hearing. Various 

motions seeking approval of settlement were filed on May 8, 1981, 

2149 
September 1, 1981, and September 8, 1981. The settlement proposed in 

the September 8, 1981, filing is identified as follows: 

Order No. 

675312 

Date 

3/19/80 

30 C.F.R. 

Standard 

75.1726(b) 

Assessment Settlement 

$1,000 $1,000 

Information as. to the six statutory criteria contained in section 110 

of the Act has been submitted. This information, found in Docket Nos. WEVA 

80-322-R and WEVA 81-186, has provided a full disclosure of the nature of 

the settlement and the basis for the original determination. Thus, the 

parties have complied with the intent of the law that settlement be a 

matter of public record. The various filings submitted by the parties 

are set forth below. 

On May 8, 1981, the Petitioner filed a motion requesting approval of a 

$500 settlement which stated, in part, as follows: 

This case involves one violation of 30 CFR 75.1726(b) 

which was originally assessed a penalty of $1,000. The 

Secretary has determined, based on the attached letter filed 

by counsel for Monterey, that a voluntary penalty payment of 

$500 is an appropriate resolution of the conflict involved in 

this matter. 

As a condition of the settlement Monterey has agreed to 

withdraw its notice of contest involving this citation in 

Docket No. WEVA 80-322-R. 

The violation involves the fatality of a maintenance 

foreman who, knowing repair work was being done on the 

hydraulic hose, failed to block a miner ripper head before 

reaching under the ripper head. The victim apparently did 

not believe the ripper head would fall when the hose was 

disconnected. Blocking material was present in the immediate area, and the victim, being a foreman, should have been 

the individual most responsible for complying at that instant 

with the standard cited in the citation involved in this 

proceeding. 

While the Secretary does not adopt the contents of 

counsel's letter, it is clear to the Secretary that the 

settlement is consistent with the remedial purposes of the 

Federal Mine Safety and Health Act of 1977, and is in the 

range of a penalty the Seeretary would expect to be assessed 

if the case proceeded to a hearing on the merits. 

The attached letter from counsel for the Respondent stated, in part, as 

follows: 

2150 
The deceased, John Groves, was a maintenance foreman at 

Monterey's Wayne Mine in West Virginia. On March 19, 1980, 

at about 10:45 p.m., Groves and a miner operator named Wilbur 

were changing bits on the ripper head of a continuous mining 

machine which was de-energized and parked in an intersection. [l/] The ripper head was elevated approximately 3-

4 feet as they performed that task. At the same time, two 

repairmen were preparing to change an O-ring at a fitting on 

a hose which was part of the hydraulic system for the right 

support jack of the ripper head. As they changed bits, Groves 

and Wilbur noticed some fluid leakage under the ripper head. 

Groves began to peer under the ripper head to figure out where 

the fluid was coming from. 

According to the testimony given during the MSHA accident 

investigation, one of the repairmen, Robert Burress, walked 

around to the front of the miner prior to disconnecting a 

hydraulic hose to replace the O-ring and told Groves that he 

was going to have to take the hose off. He recalls specifically telling Groves that he was afraid the jack would let 

the ripper head down when he disconnected the hose. According 

to Burress, Groves told him to go ahead and disconnect the 

hose because a safety valve would hold the ripper head in an 

elevated position. Burress returned to the side of the 

machine and disconnected the hose. When he disconnected it, 

the ripper head fell on Groves who had inexplicably crawled 

part way under the ripper head, apparently to get a closer 

look at the fluid leak. It was clear from the testimony of 

the witnesses that Groves did not believe the ripper head 

would fall when Burress disconnected the hose. Unfortunately, 

Groves was wrong and paid for the mistake with his life. 

Several factors suggest a lower penalty would be more 

appropriate than the $1,000 assessed. First, Groves was a 

maintenance foreman who had an impeccable safety record and 

who was characterized by the witnesses as being "safety 

conscious." Monterey has records to show that Groves was 

trained specifically in the requirement for blocking raised 

equipment. Groves signed a statement of company policy to 

that ·effect. Moreover, Groves himself had instructed miners 

in blocking procedures. Witnesses confirmed that Groves knew 

how to block equipment; in fact he had demonstrated this by 

using blocking procedures only three days prior to the accident. On the day of the accident, there was no impediment 

to blocking the elevated ripper head. Wooden blocks provided 

for that purpose were located near the scene of the accident. 

1_/ The fatal accident investigation report prepared by the Mine Safety and 

Health Administration states that the accide11t occurred on March 17, 1980. 

2151 
The inspector who issued the Order following the investigation stated on MSHA Form 7000-4 (his "worksheet"): 

"It is relevant to note that the victim was 

a supervisor of equipment maintenance and was 

trained in hydraulics, block [sic] of equipment, etc. and has instructed miners in the 

aforementioned at this mine. Also, it was 

reyealed during the investigation that the 

victim assisted other mechanics in blocking 

up the ripper head of the miner a few shifts 

prior to the accident, which indicated that 

he was knowledgeable of the related hazards. 

* * * The fatal act committed by the victim 

was strictly contrary to the company policy 

in effect, the instructions he had been given 

and instructions and/or training he had given 

the miners. * * * The management personnel 

and miners demonstrated an outstanding attitude 

and was [sic] very cooperative in helping to 

obtain all the surrounding.facts of this fatal 

accident." 

The circumstances of this tragic fatality indicate truly 

idiosyncratic conduct on the part of the foreman who was 

killed. I cannot discern anything Monterey could have done 

differently to prevent the accident. The accident occurred 

because of the inexplicable conduct of an experienced and 

safety conscious maintenance foreman who was trying to do' 

his job and apparently believed he was doing it safely. 

While we recognize the Act mandates strict liability, under 

the peculiar circumstances of this accident no legitimate 

purpose would be served by penalizing the company with a 

penalty assessment of $1,000. 

On July 23, 1981, an order was issued denying the Petit.ioner' s May 8, 

1981, motion for approval of settlement. The order stated, in part, that: 

[T]he information contained in the official case files in 

Docket No. WEVA 81-186 and Docket No. WEVA 80-322-R, the 

associated notice of contest case, presently indicates 

that the continuous miner operator was under the raised 

ripper head of the machine, and thereby exposed to danger, 

while under the direct supervision and control of the 

maintenance foreman shortly prior to the occurrence of the 

accident which claimed the maintenance foreman's life. 

On September f, 1981, the Respondent filed a motion for reconsideration 

of settlement denial stating, in part, as follows: 

2152 
Respondent Monterey Coal Company respectfully submits 

this Motion to provide the presiding Judge with additional 

information about the actions of the continuous miner operator immediately prior to the accident. 

As explained in the Solicitor's Motion to Approve 

Settlement, Monterey was cited for a violation of 30 C.F.R. 

§ 75.1726(b) after the occurrence of an accident at Monterey's 

Wayne Mine which killed a maintenance foreman. The information provided herewith supplements the information provided 

in the Solicitor's Motion to Approve Settlement. 

In an effort to provide the presiding Judge with complete 

information with respect to the activities of the miner operator, who was helping the deceased maintenance foreman determine the location of a fluid leak under the continuous mining 

machine, counsel for Monterey has reviewed Monterey's 'transcripts of the accident investigation interviews conducted by 

MSHA shortly after the accident, reviewed MSHA and State of 

West Virginia accident reports, studied Monterey's reports of 

the accident and, on August 28, 1981, interviewed the miner 

operator who witnessed the accident, Mr. David Wilbur. 

Both the Order of Withdrawal and the MSHA Form 7000-4 

(Inspectors Statement) reflect the issuing inspector's belief 

that Hr. Wilbur was under the ripper head (the ripper head 

was elevated approximately 40" off the mine floor before it 

fell) with the maintenance foreman immediately prior to the 

accident. The Order of Withdrawal reads, in part: 

It was revealed during the investigation of 

a fatal accident, based upon sworn testimony 

and evidence observed at the scene of the 

accident that the victim and continuous miner 

operator were performing the work of evaluating 

damage sustained to the miner under the ripper 

head that was not blocked in an elevated position. 

The inspector's statement reads, in part: 

It is worthy to note the miner operator was 

under the miner ripper head with the victim 

prior to the occurrence of the accident, in 

that the helper stepped out from under the 

head immediately prior to the accident. 

Monterey believes the inspector who issued the order and 

who made the statement on Form 7000-4 concluded that the miner 

operator was under the ripper head based on the interviews 

2153 
conducted of the miner operator shortly after the accident. 

Prior to interviewing Mr. Wilbur, the MSHA accident investigation team interviewed several other crew members who were 

present when the accident occurred. None of those crew 

members were located in a position to see what the deceased 

maintenance foreman and Mr. Wilbur were doing immediately 

prior to the accident. For instance, the repairman who disconnected a hose coupling which caused the head of the mining 

machine to fall testified as follows: 

DAVIS [MSHA]: Q. Did you see [Mr. Groves, the 

maintenance foreman] at any 

time prior to the accident 

looking in that area where 

the hose coupling was to be 

disconnected? 

BURRESS: A. No, sir. He was in front of 

the miner all the time that I 

was up there at the miner 

performing that work. 

* * * 

DAVIS: Q. Immediately prior to this acciBURRESS: 

DAVIS: 

BURRESS: 

dent did you verbally inform 

Mr. Groves and Mr. Wilbur who 

was working with him in front of 

the miner of what you intended to 

do in removing the hose coupling? 

A. Yes, sir. I didn't speak directly 

to David Wilbur, I spoke directly 

to John Groves, but I spoke loud 

enough so David Wilbur should have 

heard it because he was standing 

close to John Groves and Lemasters 

heard what I said to him and he was 

back at the jack which is probably 

12' ••• from it. 

Q. What did you tell them exactly, 

do you remember? 

A. Yes, sir, I said, "John, I tightened 

t?at fitting and the leak won't stop, 

the oil ring's broke, I'm going to 

have to take the hose off to replace 

the oil ring and I'm afraid the head 

might come down because we don't trust 

2154 
those safety valves or anything in 

those heads." And John says, "O.K., 

it'll stay there." That's exactly 

what he said, "O.K., it'll stay there." 

A few questions later, Burress made the following statement: 

DAVIS: 

BURRESS: 

Q. You·did not observe their location or 

work or whatever they were observing 

and so forth after you had looked up 

and seen Mr. Groves shining his light 

over top of the ripper head? 

A. No, sir, I didn't. The only way I 

could have seen what, you know, they 

might have been doing was to have quit 

what I was doing and walked around the 

edge of the head there. As far as I 

knew they were through because they 

had set all the bits, they were through 

setting the bits and I guessed they 

observed that cut place in there and 

wanted to get a closer look at it. 

That's the only thing I could figure 

out, it was something that wasn't 

planned to do, you know, they just 

went ahead and done it, went ahead 

and looked at it. 

When David Wilbur was interviewed, Investigator Davis 

read into the investigation record a written statement prepared by Mr. Wilbur following the accident. After reading 

into the record part of Mr. Wilbur's account of the events 

leading up to the accident, the following exchange took 

place: 

DAVIS: 

WILBUR: 

DAVIS: 

[reading statement of David Wilbur] 

*** 'I trammed the continuous miner 

down the number 2 entry to its 

present location, which is the 

accident scene. Me and John Groves 

started removing a broken bit holder 

and removed a broken bit.' 

The holder wasn't broken, just had a 

broke bit in it. We took it out. 

Thank you. We observe that it was a 

bit. Now let me stop just a minute. 

2155 
WILBUR: 

DAVIS: 

WILBUR: 

DAVIS: 

DAVIS: 

WILBUR: 

DAVIS: 

As I am going through this [Wilbur's 

written statement], anything that 

should happen to come to your mind that 

you've forgotten or is different, you 

interrupt me would you? 

[continuing to read Wilbur's statement] 

We observed that a bit had damaged the 

transmission gear case. Lemasters 

and Burress were working on the right 

side of the miner, that's the operator's 

side, replacing and [sic] "O" ring to 

the right head jack ("O" ring to the 

staplelok fitting".) John and I were 

up under the ripper head about one minute 

prior to the accident. I called out and 

then the head fell.' 

No, I don't think we were all the way 

up under it. We were just ••• we 

were more or less leaning under. I 

don't know e~actly how far we was up 

under, but we wasn't crawled up under. 

We more or less leaning there and kind 

of leaned down under it looking at it. 

Q. But you were, were you positioned 

under the confines of the head itself, 

your body? 

A. I guess we was, yeah, I guess we was, 

not all the way but we was under it. 

Q. Partially? 

[no response] 

[continuing to read Wilbur's statement] 

'I called out and then the head fell 

(at 10:50 p.m.).' 

I don't know if I called out then or if 

I was behind it, I just ain't real 

clear about where, I don't know if I 

was exact behind him or maybe to the 

side of him, I don't know exactly what 

I seen, I remember turning and calling 

at him, reaching for him. 

O.K., we will proceed. [continuing to 

read Wilbur's statement] 'John Groves 

2156 
told me as he was leaning down under 

the head that it was going to have to 

be welded up. When I seen it fall I 

was located to the rear of him and 

about three feet from him.' 

Later in the Wilbur interview, the following exchange 

took place: 

DAVIS: 

WILBUR: 

DAVIS: 

WILBUR: 

DAVIS: 

WILBUR: 

DAVIS: 

WILBUR: 

DAVIS: 

WILBUR: 

Q. And, Mr. Wilbur, at the time that you 

were seated under the ripper head 

that was the ripper head? 

A. I didn't crawl up under it all the way, 

I just more or less leaned up under it, 

I raised up and kind of looked up under 

it to see what needed to be fixed. 

Q. Would that have been from the operator's side that you maybe have leaned 

under the ripper head? 

A. Yes. 

Q. How much did your body did you project 

under the head? 

A. I don't know, I don't know exactly, I 

just more or less looked up under it 

to see if it was broke, the arm was 

broke or just needed a bolt or, you 

know, something like that. 

Q. Did you position, do you recall 

[whether] you positioned your head 

or shoulder or any portion thereof 

up under it or just maybe your·arm? 

A. I don't know, I could have had my 

head under it or something, I don't 

know. 

Q. You're not for sure though, are you? 

A. No, I'm not. 

Mr. Wilbur's oral statement given to undersigned counsel 

on August 28, 1981, and which presumably would reflect his 

testimony if this matter must go to trial, confirmed his 

statements during the accident investigation interview. 

215? 
Mr. Wilbur ·said that shortly before the accident occurred, 

he and the maintenance foreman were bending down side by 

side trying to locate the source of a leak under the ripper 

head near the chassis of the machine. He described their 

position as "leaning up under" the ripper head. When asked 

to describe his exact position when they were "leaning up 

under" the ripper head, Mr. Wilbur said that he believed that 

his head might have moved siightly under the foremost part of 

the ripper head, but not his body. He said that at no time 

was his body under the ripper head. When asked whether he 

would have been killed or injured if the ripper head had 

fallen when he was in that position, Mr. Wilbur said that he 

wasn't sure but that it was possible that his head would have 

been grazed. Immediately prior to the accident, Mr. Wilbur 

moved back a short distance from the ripper head; Mr. Groves, 

the deceased, apparently decided to crawl up and get a closer 

look at the leaking transmission case when the head fell on 

him. 

From the series of events which occurred immediately prior 

to the accident, it is clear that the maintenance foreman 

believed that the ripper head had a ~heck valve which would 

prevent it from falling. No "work" in the usual sense of the 

word was being perfonned under the ripper head by the maintenance foreman or by Mr. Wilbur. Instead, the two of them 

were simply trying to figure out where a leak was coming from. 

The maintenance foreman apparently wanted a closer look, so 

he crawled under the ripper head to see better; Mr. Wilbur 

was standing close by awaiting his report. At that moment 

several feet away, Mr. Burress disconnected a hose on the 

mining machine which released enough hydraulic pressure to 

cause the ripper head to fall on Mr. Groves. Mr. Wilbur was 

not injured. 

Monterey believes the facts set forth above are accurate. 

Monterey also believes that it would serve little purpose to 

assess a high civil penalty to deter it from future violations 

of this nature. As recognized by the MSHA investigation team 

(and stated specifically on the Inspector's statement), 

Monterey had a specific company rule which prohibited work on 

raised equipment unless it was blocked and had repeatedly 

instructed its maintenance personnel to that effect both 

orally and in writing. Material to block the ripper head was 

located nearby the scene of the accident. The deceased maintenance foreman was described by both crew members and the 

company as being highly skilled and safety conscious. He 

obviously believed that the ripper head had a check-valve 

which would not permit the ripper head to fall, and said so 

specifically to Mr. Burress, who was preparing to disconnect 

the hydraulic hose. 

2158 
Given all these circumstances, Monterey believes there 

would be nothing gained by going to trial.to explore the 

uncontested facts associated with this accident. In its 

view, the only issue in such a proceeding would be the 

amount· of civil penalty that should be assessed based on 

the six statutory factors under § llO(i) of the Act. The 

two most important factors in this case are gravity and 

negligence. The gravity of the violation is clear: a 

fatality occurred. Negligence is the remaining factor and 

Monterey believes it is the sole factor for consideration 

in this case. The Congressionial purpose for requiring 

assessment of civil penalties on a strict liability basis 

is to deter future violations and to remind operators of 

the high degree of care owed the miners. Monterey is well 

aware of its obligation to the miners and the requirement of 

complying with the mandatory standards under the Act. No 

violation of this nature had occurred at the mine before, 

according to MSHA's computer records. Monterey had a 

specific and communicated rule prohibiting the activity 

which killed the maintenance foreman. The deceased foreman was experienced and had been thoroughly trained. He 

made a mistake and paid for it with his life. 

Under these circumstances, Monterey believes that the 

amount agreed to by MSHA and by Monterey is appropriate and 

consistent with the public interest. It is the presiding 

Judge's duty to assure that a settlement was not reached 

for improper reasons violative of the Mine Safety Act's 

objectives. Davis Coal Co., 2 FMSHRC 619 (1980). Monterey 

believes the facts presented justify approval of the settlement as consistent with the objectives of the Act. 

The foregoing statements did not materially change the foundation upon 

which the determination was made that the proposed $500 settlement could not 

be approved. Therefore, an order was issued on September 2, 1981, denying 

the Respondent's motion for reconsideration of settlement denial. 

On September 8, 1981, the Petitioner filed a motion requesting approval 

of a $1,000 settlement. The motion states, in part, as follows: 

Following the Administrative Law Judge's Order Denying 

Respondent's Motion for Reconsideration of Settlement Denial, 

issued on September 2, 1981, counsel for the parties discussed 

this matter anew on September 3, 1981. 

The Respondent has now proposed that these matters be 

resolved by the full payment of the original assessment in 

this matter, and the voluntary withdrawal of their notice 

of contest proceeding (WEVA 80-322-R) upon approval of the 

resolution of the civil penalty proceeding. 

2159 
As the terms of the proposed settlement have been 

changed, the Secretary now submits this new proposal for 

settlement. 

The reasons given above by counsel for the parties have been reviewed 

in conjunction with the information submitted as to the six statutory criteria contained in section 110 of the Act. After according this information 

due consideration, -it has been found to support the proposed $1,000 settlement. It therefore appears that a disposition approving the settlement will 

adequately protect the public interest. 

ORDER 

Accordingly, IT IS ORDERED that the proposed $1,000 settlement, as outlined above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that the March 2, 1981, order consolidating the 

proceedings in Docket Nos. WEVA 80-322-R and WEVA 81-186 for hearing and 

decision be, and hereby is, DISSOLVED. 

IT IS FURTHER ORDERED that the Respondent, within 30 days of the date 

of this decision, pay the agreed-upon penalty of $1,000 assessed in this 

proceeding. 

Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

N.W., Washington, DC 20036 (Certified Mail) 

Administrator for Metal and Nommetal Mine Safety and Health, 

U.S. Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

2160 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

) 

SEP 18 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

BLACK RIVER QUARRY, INC., 

Respondent. 

~~~~~~~~~~~~--'-'~~~~~~ 

DECISION 

Appearances: 

DOCKET NO. WEST 81-78-M 

ASSESSMENT CONTROL NO. 

45-00006-05006F 

MINE: Black River Quarry 

Ernest Scott, Jr., Esq., Office of the Solicitor 

United States Department of Labor 

8003 Federal Office Building, Seattle, Washington 

James L. Hawk, President, 

Black River Quarry, Inc. 

for the Petitioner 

6808 South One Hundred Fortieth, Seattle, Washington 

for the Respondent 

Before: Judge Virgil E. Vail 

DECISION AND ORDER 

STATEMENT OF THE CASE 

This proceeding was brought by the Secretary of Labor pursuant to 

Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801, ~ ~· (hereinafter the Act), for assessment of a civil penalty for 

an alleged violation of a mandatory safety standard. A hearing was held on 

April 29, 1981 at Seattle, Washington. The respondent was no~ represented 

by counsel, however, James L. Hawk, President of the respondent company, 

appeared on its behalf. 

At the conclusion of all of the evidence, the parties agreed to waive 

the filing of post hearing briefs and argued their respective positions 

relative to this case. 

2161 
STIPULATIONS 

The parties stipulated as follows: 

1. That a proposed assessment was issued to the ~espondent and that 

respondent received a copy thereof. 

2. Respondent admits paragraphs I and II in the petition for 

assessment in this case, ~hich relate to jurisdiction. 

FINDINGS OF FACT 

1. Respondeni operates a rock quarry business involved in drilling 

and blasting rock, which is crushed and sold primarily for road use. 

2. Citation No. 586066 was issued to the respondent subsequent to a 

fatal accident which occurred on October 1, 1980, involving Clyde Knerson, 

(hereinafter referred to as "Knerson"). 

3. At. the time that the above citation was issued, respondent 

employed approximately 23 to 24 employees and produced approximately a 

quarter of a million tons of material per year •. The gross sales from 

production was approximately $1,000 ,000 (Tr,· 12). 

4. Knerson was employed by the respondent in the capacity of a 

working foreman. He had worked for respondent for 30 years at various jobs 

including mechanic and crusher man (Tr. 26). Knerson also served as 

respondent's safety man (Tr. 35 and 45). 

5. On October 1, 1980, Knerson was attempting to replace a defective 

right hydraulic cylinder on one of respondent's off-road trucks a 1963 

Euclid, 16 cubic yard capacity, off-road, dump truck numbered 103 

(Exhibits P-1 and R-A and Tr. 16). 

6. The defective hydraulic cylinder was one of two which raises the 

box. To replace the cylinder, it is necessary to raise the box and remove 

the two pins from the respective ends of the cylinder (Tr. 22)~ 

7. The box on the truck is counter-weighted so that when it is fully 

raised it is necessary to power it back down with the hydraulic cylinders 

(Tr. 20). 

8. On the day of the fatal accident, Raymond Ballard drpve the truck 

involved herein, to the respondent's yard to have the hydraul'ic cylinder 

repaired. He raised the box on the truck to its full height and left it 

that way to be repaired (Tr. 58). 

9. Proper procedure for working on a truck with the box raised is to 

put a pin into a hole provided in the truck's frame and the box which 

prevents the box from falling (Tr. 20 and Exhibit R-C). 

2162 
10. Knerson was assisted in the repair work on the truck by John 

Calistro, a truck driver for the respondent. 

11. Knerson first removed the hydraulic fluid hoses to the cylinders 

and then assisted Calistro in removing the top pin on the defective 

cylinder. 

12. Knerson then hooked a "come-along" from the frame of the truck to 

the raised box. When the "come-along" is operated, it pulls down the 

raised box and releases pressure on the cylinder so that the bottom pin can 

be removed (Tr. 33). 

13. Knerson stood on the frame of the truck under the box, and 

operated the "come-along" while Calistro went underneath to remove the pin. 

When Knerson applied pressure with the "come-along" the box fell crushing 

him between the box and frame and causing his death (Tr. 34). 

14. The pin had not been placed in the frame of the truck to prevent 

the box from falling (Tr. 34). 

15. Knerson was considered a competent, conscientious and safe worker 

by fellow employees (Tr. 48 and SO). 

ISSUES 

Two basic issues are involved in the assessment of a civil penalty: 

(1) did a violation of a mandatory safety standard occur, and (2) what 

amount should be assessed as a penalty if a violation is found to have 

occurred. 

In determining the amount of civil penalty that should be assessed for 

a violation, the law requires that six factors be considered: (1) history 

of previous violations; (2) appropriateness of the penalty to the size of 

the operator's business; (3) whether the operator was negligent; (4) effect 

of the penalty on the operator's ability to continue in business; (S) 

gravity of the violation; and (6) the operator's good faith in attempting 

rapid abatement of the violation. 

DISCUSSION 

Citation No. 586066 .!:./ charges the respondent with having violated 

mandatory safety standard 56.14-30. The standard provides that: 

56.14-30 Mandatory. Men shall not work on or from 

a piece of mobile equipment in a raised position until 

it has been blocked in place securely. This does n~t 

preclude the use of equipment specifically designed as 

elevated -mobile work plat forms. 

1/ On October 1, 1980 about 12:45 p.m. an employee of Black River Quarry, 

Inc. was crushed to death while changing the right hydraulic cylinder 

on a 16 cubic yard capacity 1963 model T0-63 Euclid dump truck numbered 

103. The victim was positioned between the raised, unblocked dump bed 

and the truck frame when the le ft hydraulic cylinder failed and the 

truck bed fell. 

2163 
The facts in this case are undisputed. All of the evidence shows that 

Knerson worked under the raised truck box without putting the pin that is 

provided to prevent or block the box from falling in place. I find that 

Knerson's act'ions were in violation of mandatory safety standard 56.14-30. 

Respondent argues that they should not be held responsible for the 

negligent actions of its employees when such actions are contrary to its 

safety training and instructions. Further, the deceased employee was 

respondent's safety instructor, had an excellent safety record during his 

past 30 years of employment with the respondent and never evidenced this 

type of aberrant and unpredictable action. Also, respondent argues that 

the government cannot expect businesses to have employees who are totally 

infallible. · 

A careful review of all of the evidence in this case shows that the 

respondent was not negligent in this case. The deceased employee had been 

furnished safety instructions through courses given by the Mine Safety and 

Health Administratibn and had reviewed fatalgrams with his supervisor 

pertaining to the exact type of accident involved herein (Exhibit R-E). He 

had been asked prior to the accident by both Ballard and Calistro about 

placing the pin in the truck box to keep it from falling (Tr. 33 and 58). 

However, the fact that the evidence fails to establish any negligence 

on the part of the respondent in this case does not result in a lack of 

liability on respondent's part for the violation of mandatory safety 

standard 30 C~F.R. 56.14-30. The Federal Mine Safety and Health Review 

Commission has held that an operator is liable for violations of the 

mandatory safety standards without regard to fault. United States Steel v. 

Secretary of Labor, 1 BNA MSHC 2151 (1979) and Secretary of Labor v. 

Marshfield Sand and Gravel, 1 BNA MSHC 2475 (1980). 

Further, I concur with the decision reached by Judge Cook in Secretary 

of Labor v. Ben M. Hogan Company, Inc., 3 FMSHRC 1121 (1981). Judge Cook 

considered a similar set of facts to the case here under consideration. An 

employee, while sitting on the tire of a loader was attempting to work on 

the engine with the transmission in gear and the bucket raised. The loader 

was not blocked or turned towards a bank and started ahead pulling the 

employee into the machine causing his death. Judge Cook found that the 

respondent demonstrated no negligence in that case. However, he found that 

this does not result in a lack of liability for the violation of a 

mandatory safety standard. He pointed out that it has consistently been 

held that a mine operator may be held liable for a violation of a mandatory 

safety standard regardless of fault. El Paso Rock Quarries, Inc., 3 FMSHRC 

35, 2 BNA MSHC 1132 (1981), United States Steel Corporation, 11 FMSHRC 1306, 

1 BNA MSHC 2151, 1979 CCH OSHD par. 23,863 (1979)! ' 
As to assessing a penalty in such a case as this where the respondent 

is found not to have been negligent, the Act has addressed the question in 

Section 110 which contains the Act's major penalty provisions. In 

mandatory terms~ section .llO(a) directs the Secretary, who has enforcement 

responsibility under the Act, initially to assess a penalty for each 

violation; section llO(i) similarly provides that the Connnission, which has 

ajudicative responsibilityJ "shall have authority to assess all civil 

penalties in (the) Act." l 

The language of the two sub-sections --- under the language of all of 

section 110 --- is plainly based on the premise that a penalty will be 

assessed for each violation at both the Secretarial and Connnission levels. 

Secretary of Labor v. Tazeo, Inc. Docket No. VA 80-121 (1981). The Mine 

Act's legislative history shows that Congress intended a mandatory penalty 

structure. Congress consistently described penalties as mandatory. In 

general, see Senate Subconnnittee on Labor, Comm. on Human Resources, 95th 

Cong. 2nd-sess., Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 85,. 88, 375-376, 600-601, 629, 910, 1167, 1211-12, 1364-65 

0978) ("Leg. Hist."). The Review Commission stated in Tazeo, Inc., supra, 

that both the text and legislative history of section 110 make clear that 

the Connnission and judges must assess some penalty for each violation 

found. 

2/ Section llO(a) provides in relevant part: 

The operator of a coal or other mine in which a violation occurs of a 

mandatory health or safety standard or who violates any other provision of 

this Act, shall be assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such violation •.•• 

Section llO(i) provides: 

The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the 

Commission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. In proposing 

civil penalties under this Act, the Secretary may rely upon a,isununary 

review of the information available to him and shall not be required to 

make findings of fact concerning the above factors. 

2165 
Accordingly, the respondent is found to be liable for .the violation of 

mandatory safety standard 30 C.F.R. § 56.14-30. 

In determining the amount that should be assessed as a civil penalty, 

I find as follows: 

A. History of Prior Violations 

Although there was no direct proof as to the number of prior 

violations acquired by the respondent, there was testimony by its president 

that there were some payments made (Tr. 13). I conclude that the history 

of prior violations did not warrant any increased civil penalty assessment 

in this case. 

B. Size of Business 

The parties agreed that the mine in question employed 23 to 24 people 

at the time of the violation and had sales of a gross amount of $1,000,000. 

However, at the time of the hearing, the employees were reduced in numbers 

due to a depressed demand for its products from the construction industry. 

In 1980 the respondent's size in terms of production was a quarter of a 

million tons. I conclude that the respondent was a small to medium sized 

operator. 

C. Good Faith Compliance 

The respondent demonstrated good faith in this instance by inunediately 

calling all employees together after this accident and instructing them on 

the proper method of blocking dump trucks before working on them. 

D. Negligence 

The record supports a finding that the respondent was not negligent in 

causing this accident. The MSHA inspector testified that he did not give 

them much for negligence because he was convinced it was respondent's 

policy to pin the raised truck beds before working on them (Tr. 47). 

However, as stated above, the lack of negligence on the respondent's part 

does not avoid the assessment of a penalty. 

E. Gravity· 

In view of the fatal accident which resulted , it is found that the 

violation was extremely serious. Further, with the other employee, 

Calistro, working under the truck the possibility of his injur~ or death 

existed. 

2166 
F. Effect on Operator's Ability to Continue in Business 

The respondent's president testified that paying a penalty would not 

affect their ability to continue in business (Tr. 13). I find that a 

penalty properly otherwise assessed in this proceeding will not impair the 

operator's ability to continue in business. 

Penalty Assessed 

Upon consideration of the entire record in this case, I find that 

assessment of a penalty of $400.00 is warranted. 

ORDER 

The respondent is ORDERED to pay a civil penalty of $400.00 within 

30 days of the date of this decision. 

Distribution: 

Ernest Scott, Jr., Esq. 

Office of the Solicitor 

United ~tates Department of Labor 

8003 Federal Office Building 

Seattle, Washington 98174 

Mr. James L. Hawk, President 

Black River Quarry, Inc. 

6808 South One Hundred Fortieth 

Seattle, Washington 98178 

Vir~Vail 

Administrative 

~~L~ Law Judge 

216'7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINIStRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

C F & I STEEL CORP-ORATION, ) 

) 

Respondent, ) 

) ~~~~~~~~~~~~~~~~~~ 

SEP 22 111 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 81-134 

ASSESSMENT CONTROL NO. 

05-00296-03055 

MINE: Allen Mine 

DECISION 

Appearances: 

Katherine Vigil, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Build{ng 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Respondent 

Before: John A. Carlson, Judge 

This case, heard under provisions of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq [the "Act"], arose out of an 

inspection of respondent's underground CO'al mine near Weston, Colorado. 

The Secretary of Labor seeks a $66.00 civil penalty for an alleged 

violation of a mandatory safety standard . ..:./ 

1/ At the outset of the hearing petitioner moved to withdraw a second 

citation,number 1014217, which was a part of this docket. The Secretary 

represented that he lacked sufficient evidence to establish violation. The 

motion was granted and the petition as to that citation was dismissed. The 

dismissal is reaffirmed here. 

2168 
Specifically,' the citation alleges that respondent failed to provide 

adequate protection to a t~ailing cable furnishing electrical power to a 

continuous mining machine. / The matter was tried in Denver, Colorado on 

July 23, 1981. The parties agreed to waive briefs and submitted the matter 

after closing arguments. 

DISCUSSION 

The Secretary's inspector issued the citation because he believed a 

piece of mobile equipment, a battery utility trailer (BUT car), had run 

over the trailing cable furnishing power to a continuous miner. He based 

this belief upon dust marks he observed on the cable as it lay in a haulage 

way. 

Respondent concedes that the cited standard is violated where an 

operator permits equipment such as a BUT car to move across a cable. It 

denies, however, that the evidenc·e shows that the cab le was in fact run 

over. 

The issue for decision here is whether the circumstantial evidence 

presented justifies a conclusion that the markings on the cable were left 

by the wheels of the car. For the reasons which follow, I hold that it 

does not. 

Based upon the undisputed evidence, I find that the car in question 

weighs several tons. The 440 volt cable, which lay on the soft, moist 

floor of the haulage way is 2 1/2 inches in diameter and the top of its 

cover displayed at least one dust mark. I further find that the cable, 

beneath the mark, was imbedded in the floor a distance of about 1/3 of its 

diameter; and that subsequent examination disclosed that the cable was 

undamaged. 

As to further particulars, most of the testimony is in conflict, The 

Secretary's inspector first spoke of a single mark which he believed was 8 

or 10 inches wide but did not measure. He said he saw no others, but then 

revised his testimony to suggest that he saw "two sets of tire marks, one 

on each side." (Tr. 19-20.) 

Respondent's own mine inspector, who was present during the 

government's inspection, insisted that he was shown but a single mark. He 

also maintained, contrary to the government's inspector, that the mark was 

solid with no distinctive tread pattern. In his view, the mark was left by 

the feet of miners who had simply stepped on the cable on their way to work 

stations. 

Both witnesses, of course, rely wholly upon inferences drawn from a 

few observed facts. The respondent's inferences are more persuasive than 

those of the government. I must agree with respondent, for example, that 

2/ The standard involved is 30 CFR § 75.606 which provides: "Trailing 

cables shall be adequately protected to prevent damage by mobile 

equipment." 

2169 
had the heavy BUT car actually crossed the cable, it would have press~d 

the cable more deeply into the soft floor. That the cable sustained no 

damage lends further .credence to respondent's theory. 

In short, the inspector's inferences are too speculative and 

fragmentary to serve as the 'basis for a finding of violation. I therefore 

conclude that no violation was proved. 

ORDER 

In accordance with the findings and conclusions embodied in the 

narrative portion of their decision, it is ORDERED that the Secretary's 

petition for assessment of penalty in connection with citation number 

1014211 is vacated, and this present proceeding is dismissed. 

It is further ORDERED, pursuant to the Secretary's withdrawal motion, 

that the petition filed in connection with citation ·number 1014217 is 

likewise vacated and that proceeding is dismissed. 

Distribution: 

Katherine Vigil, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

2170 

Judge 
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 I.ABOR, Civil Penalty Proceeding 

Petitioner 

v. Docket No. PENN 79-142 

A.C. No. 36-06100-03004 

SOLAR FUEL COMPANY, 

Respondent Solar No. 9 Mine 

DECISION 

Appearances: Susan L. Olinger, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for Petitioner; 

Charles E. Sliter, Esq., Hamel, Park, McCabe & Saunders, 

Washington, D.C., for Respondent. 

Before: Judge James A. Laurenson 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA) under section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereinafter the Act), 

to assess a civil penalty against Solar Fuel Company (hereinafter Solar) for 

two violations of a mandatory safety standard. Pursuant to cross motions 

fil~d by the parties, I issued a summary decision on July 3, 1980, in favor 

of Solar. Thereafter, on June 23, 1981, the Commission reversed my decision 

and remanded the case to me for disposition consistent with its decision. 

On August 3, 1981, a hearing was held in Falls Church, Virginia on the 

ahove matter. In light of the Commission decision which held that 30 C.F.R. 

§ 75.503 applies to equipment which is intended to be or is habitually taken 

or used inby the last open crosscut, the parties agreed to my ent~ring 

summary decision on behalf of MSHA with regard to the fact of violation. On 

the issue of the amount of civil penalty which should.be assessed, Inspector 

Earl L. Miller testified on behalf of MSHA. Both parties presented arguments 

and waived the filing of briefs. 

part: 

APPLICABLE LAW 

Section llO(i) of the Act, 30 U.S.C. § 820(i) provides in pertinent 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operator's 

history of previous violations, the appropriateness of such 

2171 
penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 C .F .R. § 75.503 provides as follows: "The operator 

of each coal mine shall maintain in permissible condition 

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

75.502 to be permissible which is taken into or used inby 

the last open crosscut of any such mine." 

STIPULATIONS 

1. On May 3, 1979 and May 4, 1979, duly authorized representative of 

the Secretary of Labor, coal mine inspector Earl Miller, performed a regular 

quarterly inspection at the Solar Fuel Company's Solar No. 9 Mine. 

2. During the course of his inspection on May 3, 1979, Inspector Miller 

observed that a Jeffrey mining machine located in an intake air course outby 

the last open crosscut, was not in permissible condition (see Citation No. 

0617857, received in evidence as Exh. No. G-1). He also observed a roof 

bolting machine, in non-permissible condition in an intake air course outby 

the last open crosscut, on May 4, 1979, at the same mine in the same working 

section. (See Citation No. 0617859, attached hereto as Exh. No. G-2). 

3. The section of the mine in question was being prepared for mining 

operations which were scheduled to begin shortly after the issuan~e of the 

subject citations. The operator intended to use both pieces of equipment 

inby the last open crosscut while performing these mining operations. 

4. On May 3, 1979, mining activities at this section of the mine, 

during the shift in which Citation No. 0617857 was issued, produced 105 tons 

of coal after the citation was issued. 

5. On May 4, 1979, mining activities at this section of the mine, 

during the shift in which Citation No. 0617859 was issued, produced 285 tons 

of coal after the citation was issued. 

6. Solar Fuel Company is the owner and operator of the subject mine. 

7. Solar Fuel Company and Solar No. 9 Mine are subject to the Federal 

Mine Safety and Health Act of 1977. 

8. The Administrative Law Judge has jurisdiction over the parties in 

the subject matter of this proceeding. 

9. Copies of the citations are authentic and were properly served 

upon the Respondent. 

2172 
DISCUSSION 

Solar stipulated that it intended to use the equipment, which was not 

in pennissible condition, inby the last open crosscut. The Commission's 

Decision in this matter, therefore, mandates a fin·ding of a violation of 

30 C.F.R. § 75.503 in connection with both citations. Solar does not oppose 

MSHA's motion for partial summary decision. 

The remaining issues concern the amount of civil penalties to be 

assessed for thes.e violations. Citation No. 0617857 alleged that the Jeffrey 

Miner was not maintained in permissible condition in that the ballast box f9r 

the lighting system had an opening in excess of .005 of an inch. Citation 

No. 0617859 .alleged that the roof bolting machine was not in permissible 

condition because a bolt was broken off the lid of the ballast box for the 

lighting system. Additionally, two conduits were cut off the packing glands 

on the roof bolts. MSHA Inspector Earl Miller testified that he did not 

consider either of these violations to be significant or subst,antial at the 

time the citations were written. He did not believe that Solar was aware of 

either violation. Re stated that an accidental occurrence was improbable in 

each case. The inspector's statements were premised upon the fact that he 

found no methane reading on his methane detector and that the area was well 

rock dusted and damp. However, bottle samples of air were later analyzed to 

to show .01 to .02 percent methane. He cop.ceded that this was a very low 

level of methane and did not present any danger to persons in the area. MSHA 

initially proposed civil penalties in the amounts of $38.00 and $40.00 for 

these two citations. At the hearing, counsel for MSHA requested "the 

assessment of a substantial penalty. • • • " 

Solar attempted to show that a Draft Electrical Manual prepared by MSHA 

constituted MSHA's enforcement policy at the time these two citations were 

issued. Inspector Miller denied this fact and stated that he had not seen 

the Draft Electrical Manual until shortly before the hearing. Moreover, he 

testified that, to his knowledge, it had always been MSHA policy to cite 

permissibility violations found outby the last open crosscut where the 

equipment was intended to be used inby the last open crosscut. In any event, 

Solar never asserted or established that it relied on the Draft Electrical 

Manual at any time prior to the dates of these citations. Of course, any 

statement in the Draft Electrical Manual is not a rule of law binding upon 

the Commission. Old Ben Coal Co., 3 FMSHRC 2806, 2809 (1980). I find that 

this case is distinguishable from King Knob Coal Co., 3 FMSHRC 1417 (1981) 

where the Commission agreed that the operator was not negligent because the 

MSHA Manual caused confusion concerning the appropriate standard of care. 

There is no evidence herein of any confusion attributable to statements in 

the Draft Electrical Manual. Hence, I find that the statements in the 

Draft Electrical Manual are irrelevant to the criteria for assessment of a 

civil penalty pursuant to section llO(i) of the Act. 

In assessing a civil penalty, the six criteria set forth in section 

llO(i) of the Act shall be considered. As pertinent here, Solar's prior 

history of 13 violations in the previous 2 years is noted. I also note that 

2173 
5 of these 13 violations were for the same section in controversy here: 

30 C.F.R. § 75.503. On the other hand, Solar received an MSHA safety award 

at this mine in 1979. In any event, the assessment of civil penalties 

herein will not affect the operator's ability to continue in business. 

Contrary to the statements of the MSHA inspector, I find that Solar 

knew or should have known of these violations. This is so because a bolt 

was missing from the cover of a ballast box. This condition should have 

been apparent to Solar. The other cited violations should have been 

detected by Solar. I find Solar chargeable with ordinary negligence. The 

gravity of these conditions is slight. The almost nonexistent level of 

methane indicates that the possibility of an explosion was extremely remote. 

Both citations were abated in good faith. 

Based upon all of the evidence of record and the criteria set forth in 

section llO(i) of the Act, I conclude that civil penalties should be imposed 

for the violations as follows: 

Citation No. 0617857 

Citation No. 0617859 

$ 38.00 

$ 40.00 

It should be noted that Citation No. 0617858 was vacated by MSHA on 

February 8, 1980, because it was issued in· error. 

ORDER 

WHEREFORE, IT IS ORDERED that Respondent Solar pay civil penalties 

within 30 days for the violations as follows: 

Citation No. 

0617857 

0617859 

Regulation 

30 C.F.R. 75.503 

30 C.F.R. 75.503 

Distribution Certified Mail: 

Civil Penalty 

$38.00 

40.00 

Susan I.. Olinger, Esq., Office o'f he Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Charles E. Sliter, Esq., Hamel, Park, McCabe & Saunders, Suite 700, 

888 Sixteenth Street, N._w., Washington, DC 20006 

James L. Custer, Manager, Safety and Health, Solar Fuel Company, 

P.O. Box 488, Somerset, PA 15501 

2174 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CHESTER M. JENKINS, 

v. 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

EP 22 \98\ 

Contest of Citation 

Contestant 

Docket No. WEST 81-348-RM 

Citation No. 354435 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Republic Unit Mine 

Respondent 

DECISION AND ORDER OF DISMISSAL 

On July 15, 1981, Mr. Chester M. Jenkins, a miner employed at Day 

Mines, Inc., filed a notice of contest under section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act," J:./ 

seeking to contest the issuance to Day Mines, Inc., the mine operator, of 

Citation No. 354435, a citation issued under section 104(a) of the Act. 

The operator itself has not filed a notice of contest within the 30 days 

required by section 105(d) of the Act. On Sep·tember 1, 1981, the Secreta~y filed a motion to dismiss the miner's contest on the grounds that 

the miner is "barred from challenging" the subject citation under section 

105(d). 

]:./ Section 105(d) of the Act provides: 

"If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or 

(b) of this section, or the reasonableness of the length of abatement time 

fixed in a citation or modification thereof issued under section 104, or 

any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order 

issued under section 104, or the reasonableness of the length of time set 

for abatement by a citation or modification thereof issued under section 

104, * * * the Commission shall afford an opportunity for a hearing * * * " 

(Emphasis added.) 

2175 
Under section 105(d), an operator may challenge the issuance or modification of citations and certain orders, the notification of a proposed 

assessment of penalty, and the reasonableness of the time set for abatement. 

Under the plain language of that section, the miner and representative of 

miners are given authority to challenge only the issuance, modification or 

termination of certain orders and the reasonableness of time set for abatement. Where the language of a statute is plain and admits of no more than 

one meaning, there is no need for interpretation and no need to resort to 

the rules of construction. Caminetti v. U.S., 242 U.S. 470 at 485, 61 L.Ed 

442, 37 S. Ct. 192 (1916). Accordingly, I find that there is no authority 

under the provisions of section 105(d) of the Act for a miner to contest 

the issuance of a section 104(a) citation. ]:_/ 

The Secretary's motion to dismiss is therefore GkANTED and it is 

ORDERED that the captioned proceeding be DISMISSED. '}../ '\ "· 

t ,. 

I ~ II ! 

/{\{../L-:\ J '-i( . / t,-, /\.· G y M 'Tick ,_, -. ...._,., . ..'~ 

Ajmini trative · aw Judge 

. I \ 

Distribution: I.) i 

! •I 

Mr. Chester M. Jenkins, 787 Knob Hill Tr{jut Creek Road, Republic, 

Washington 99166 (Certified Mail) 

Robert Mullen, General Counsel, Day Mines, Inc., P.O. Box 1010, 

Wallace, Idaho 83873 (Certified Mail) 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

2/ See United Mine Workers of America v. Secretary of Labor, CENT 81-223-R 

(August 28, 1981); Council of the Southern Mountains v. Donovan, No. 99-2982 

(D.D.C. 1981), 2 BNA MSHC 1329, 1322, n. 8. . 

~../ If the operator should later contest the proposed assessment, the miner 

in question may nevertheless participate· as a party to the civil penalty proceeding. 29 C.F.R. § 2700.4. 

2176 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), on ) 

behalf of STEPHEN SMITH, DONALD HANSEN,) 

THOMAS SMITH, AND PATRICIA ANDERSON, ) 

) 

Complainants, ) 

v. ) 

) 

STAFFORD CONSTRUCTION COMPANY, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~~-

Appearances: 

APPLICATION FOR REVIEW OF 

DISCRIMINATION 

DOCKET NOS.· WEST 80-71-DM 

WEST 80-155-DM 

WEST 80-156-DM 

WEST 80-165-DM 

(Consolidated) 

James H. Barkley, Esq., Office of Henry C. Mahlman, Associate 

Regional Solicitor, United States Department of Labor, 

Denver, Colorado 80294, 

for Complainants 

Richard D. Alaniz, Esq., Pate, Br~ckner & Sipes, Attorneys at Law, 

Houston, Texas 77056, 

for Respondent 

Before: Judge John J. Morris 

DECISION 

STATEMENT OF THE CASE 

The Secretary 9f Labor of the United States, the individual charged 

with the statutory duty of enforcing the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq., (the Act) brings this action on behalf of 

four complainants. He asser~the workers were illegally discharged from 

their employment by Stafford Construction Company (Stafford) in violation 

of § 815(c)(l) of the Act. 

The statutory provision, now codified at § 30 U.S.C. 815(c)(l), 

provides as follows: 

§ 105(c)(l) No person shall discharge or in any 

manner discriminate against or cause to be discharged 

or cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in 

any coal or other mine subject to this Act because such 

miner, representative of miners or applicant for employment 

has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's 

agent, or the representative of the miners at t.he coal or 

217? 
other mine of an alleged danger or safety or health 

violation in a coal or other mine, or because such 

miner, representative of miners or applicant for 

employment is the subject of medical evaluations 

and potential transfer under a standard published 

pursuant to section 101 or because such miner,. 

representative of miners or applicant for employment has instituted or caused to be instituted any 

proceeding under or related to ~his Act or has 

testified or is about to testify in any such 

proceeding; or because of the exercise by such 

miner, repres~ntative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

After notice to the parties, a hearing on the merits cormnenced in 

Canon City, Colorado in May 1980. The hearing was concluded in September, 

1980. The parties filed extensive post trial briefs. 

ISSUES 

The issues are whether complainants were discharged as a result of 

engaging in a protected activity. Further, if the finding is affirmative, 

what relief, if any, should be granted. Additional issues arise from the 

affirmative defenses of respondent. 

APPLICABLE CASE LAW 

The Connnission has ruled that to establish a prima facie case for a 

violation of § lOS(c)(l) of the Act a complainant must show by a 

preponderance of the evidence that (1) he engaged in a protected activity 

and (2) that the adverse action was motivated in any part by the protected 

activity. The employer may affirmatively defend, however, by proving with 

a preponderance of all the evidence that, although part of his motive was 

unlawful, (1) he was also motivated by the miner's unprotected activities, 

and (2) that he would have taken adverse action against the miner in any 

event for the unprotected activities alone. Consolidation Coal Company, 

(David Pasula) 2 FMSHRC 2786 (1980), petition for review filed, No. 80-2600 

(3d Cir. November 12, 1980). 

The four cases herein were consolidated. The acts of alleged 

discrimination are essentially diverse and accordingly, each case is 

discussed separately and in the same order as presented at the hearing. 

l 

The four persons allegedly discriminated against were: Stephen Smith, 

a heavy equipment operator; Thomas Smith, the brother of Stephen Smith and 

a heavy equipment operator; Patricia Anderson, the Stafford office 

secretary, and Donald Hansen, at various times a heavy equipment operator, 

assistant project manager, and safety officer. All of the cases involve 

credibility determinations. 

2178 
DOCKET NO. WEST 80-156-DM 

STEPHEN SMITH 

INTRODUCTION TO THE CASE 

Stephen Smith claims he was discharged because he complained about 

unsafe conditions at the Cotter Mill site. After various oral complaints 

to Stafford officials he contacted MSHA on December 19 and filed a written 

complaint on December 20. He was not allowed to work on December 20 and he 

was terminated that evening. 

Stafford ass.erts it did not discriminate against Smith. It's affirmative defense is that Smith was terminated because the company was reducing 

its work force in anticipation of a shut down. 

FINDINGS OF FACT 

The evidence is conflicting. I find the following facts to be 

credible: 

1. Stephen Smith was hired by Stafford on July 7, 1978 and terminated 

December 20, 1978. Smith operated a pusher cat in breaking rock and 

cutting new roads (Tr. 17, 18). 

2. Stafford was building a retention dam for Cotter Mill. Staffordis 

answers in two cases admit it is an operator and that its products enter or 

affect commerce, (Tr. 18, 68, Answer in WEST 80-156-DM and in WEST 

80-71-DM). 

3. During Smith's employment he complained verbally to Stafford 

officials concerning safety. His verbal complaints involved lighting in 

the dump and borrow areas as well as lighting and brakes on the machines. 

Whenever he felt something was unsafe he would speak to someone about it. 

He complained about 10 times from July to December (Tr. 19, 71-75, 79). 

4. Smith asked for illumination because it was dark during half of· 

his shift. (Tr. 19). 

5. There were no brakes on Smith's #351 scraper. To stop the 

equipment it was necessary to drop the pan and drag it. This condition 

existed throughout a three week period when Smith operated the #351 (Tr. 

79). 

6. His safety complaints, which Smith considered serious, were 

directed to Rick Auten, Mark Jackson and Richard Schneider, re~pectively 

Stafford's superintendent, foreman and maintenance foreman. (Tr. 21, 80). 

7. Other operators were complaining of safety conditions such as the 

condition of the tires on the equipment, lack of working lights, lack of 

back-up lights, no illumination on the cat itself, lack of seat belts and 

back-up alarms (Tr. 72-80). 

2179 
8. In November, Smith told Auten and Jackson that he was going to 

request an MSHA inspection. Auten and Jackson did not reply. Prior to 

December 20, MS·HA had been on the plant site quite a few times (Tr. 22, 

241, 681-685). MSHA showed up about every month. When Hansen took over as 

safety engineer there were 20 to 30 MSHA citations on the board dated 

·between September 1978 and January 1979. (Tr. 22, 241, 681-685). 

9. Smith called the MSHA office on December 19, 1978, and he met with 

two MSHA inspectors the following morning. The morning of December 20, 

Smith presented a written complaint signed by himself and his brother, 

Thomas Smith. The written complaint had been made out by Smith and his 

brother at home. Smith took the complaint to work with him on December 20, 

had other operators sign it, and delivered it to MSHA after he was sent 

home. (Tr. 22, 23, 140-144, Exhibit P~l). 

10. On December 20, Smith showed his handwritten complaint to Auten 

and Jackson on the jobsite at 12:30 p.m. The shift was to begin in 30 

minutes. Smith wasn't allowed to work that day. Smith's failure to work 

came about in this manner: It was the custom to assemble the operators and 

then drive them to their respective equipment. Jackson, according to 

Smith, was a hot rodder with the truck; further, Smith previously had a bad 

experience while riding in the back of a pickup. He, accordingly, asked 

Jackson if he could ride in the front seat. Since the front seat was 

already occupied Jackson said he'd return to pick him up. When Jackson 

returned he told Smith he wasn't needed that day (Tr. 25, 31-34). 

11. The equipment normally assigned to Smith was operated on this 

particular shift on December 20 ; no equipment was idle that was capable of 

running. (Tr. 34, 59). 

12. Smith didn't work his shift on December 20. He next appeared on 

the jobsite at 9:30 p.m. on the same date to pick up his brother. At that 

time Mark Jackson gave Smith his paycheck ahd termination slip (Tr. 52, 

P~2). The pay slip showed the termination was due to a reduction in 

force. However, Smith had no knowledge of any such reduction, and Stafford 

was working two shifts per day (Tr. 57-58, Exhibit P-2). 

13. On December 19, Patricia Anderson was asked to fill out a 

termination slip for Stephen Smith (Tr. 244, 249). 

14. At the time of the MSHA investigation of the Stephen Smith 

discharge, Pat Anderson, the Stafford secretary, was directed by management 

to prepare a documentation from the personnel records showing that a 

reduction in force had occurred. Anderson could not prepare such a report 

because so many men had been hired. On December 20, 1978, StaEford was 

hiring new employees (Tr. 173, 183, 184). ' 

15. Prior to December 20, Stephen Smith had never been suspended in 

any way by Stafford (Tr. 18). 

2180 
16. Before December 20, Pat Anderson participated in and overheard 

conversations between Harold Stafford (President) and Richard Schneider 

(held various managerial positions), and others in management where they 

stated that they had determined it was Stephen Smith who was informing MSHA 

of the accidents and problems on the jobsite. They stated that Stephen 

Smith was to be fired (Tr. 189, 192-199, 208, 212-213, ~OS, 341). 

17. On or about December 1, 1978, when Donald Hansen was promoted to 

assistant project manager, Hansen was involved in conversations with 

Poynter (project manager) and Harold Stafford about employees turning in 

complaints to MSHA. Stafford said if they found out who these individuals 

were they were to. find a reason to terminate them inunediately (Tr. 671-

673) 

18. On or about December 22, Poynter, in a conversation with Hansen, 

identified Smith as the one who'd been making the complaints to MSHA. He 

further stated that Harold Stafford had wanted him fired and for that 

reason he was terminated (Tr. 672-673). 

19. Stafford officials were concerned about time constraints in 

their contract, and they planned on working through the winter if the 

weather permitted. {Tr. 425). 

20. Harold Stafford, president of the company, planned on working 

through the winter if the weather permitted. (Tr. 173, 176, 183, 425). 

21. The daily reports of foreman Mark Jackson indicate the weather 

was good for the most part from December 18 through December 28, (Exhibit 

P-5, R-13). 

22. The job was shut down January 5, 1979 when the ground froze (Tr. 

181). 

DISCUSSION 

The credible facts establish that Stephen Smith was engaged in a 

protected activity and he was terminated for engaging in such activity. 

Stafford's defense seeks to establish that Stephen Smith was 

discharged due to a reduction in the working force. For the following 

reasons, I do not find Stafford's evidence to be persuasive. 

Pat Anderson was in a posit ion to know the facts concerning a 

reduction in force since she was in charge of issuing pay checJ<s and 

termination not ices. She testified that Stafford, on December' 20, 1978 

was operating two shifts per day and was not in the process of reducing its 

work force (Tr. 172-174, 182, 244). Stafford and Hansen had prior to 

December 20 stated to her that they would work through the winter. (Tr. 

176-183). Anderson had been instructed to indicate "reduction in force" on 

all termination slips unless the worker quit or moved away (Tr. 322-326, 

R-4, R-5). As ma~y men were hired as were fired in November and December 

(Tr. 302). Anderson had only prepared a list of those fired, not those 

workers hired (Tr. 391). 

2181 
In December Stafford had approximately 160 employees (Tr. 252). Its 

asserted reduction in force as shown by its own evidence, consisted of the 

following terminations: 

December 19 - Smith and Baun 

December 21 - May 

December 22 - Auten and Spier 

A reduction of five, in these circumstances hardly constitutes a 

quantitative persuasion of a reduction in force. 

Additionally, .I do not find it credible that Stephen Smith was 

selected to be part of any anticipatory reduction in force due to his 

alleged tardiness and general incompetence as an operator. The exhibits 

show that Stephen Smith worked every week beginning with his initial 

employment in July 1978 (R-7). Prior to December 20, 1978 he had riever 

been reprimanded for any alleged tardiness, absenteeism or incompetence. 

Schneider, who held various managerial positions with Stafford, 

testified that the company planned to work through the winter. Further, he 

agreed that Stephen Smith's absenteeism wasn't greater than any other 

employee's. (Tr. 428 -430). Schneider concluded that a reduction in 

force caused Smith's termination. However, I find the reduction in force 

took place on January 5, 1979 when the job was shut down by the project 

engineers, Wahler and Associates, due to the ·weather. (Tr. 609). 

One matter requiring discussion is the evidence that the termination 

slip was made out by Pat Anderson on December 19, 1978. Stafford argues 

that this establishes the fact that the decision to lay off Smith was made 

prior to Stafford's knowledge of Smith's written complaint to MSHA. 

Stafford's position then is that if the complaint to MSHA is the protected 

activity at issue, it played no part in the decision to terminate Smith. 

Stafford's position overlooks several factors. The termination slip 

was not delivered to Smith until December 20, after Stafford was aware of 

Smith's complaints to MSHA. Further, prior to December 19, respondent had 

concluded that Smith was informing MSHA of accidents and safety problems on 

the job. As a result of this conclusion, Stafford decided to terminate 

Smith. 

The evidence does not show that Smith had contacted MSHA prior to 

December 19, 1978. However, Smith's verbal safety complaints to management 

officials must have given rise to Stafford's suspicions and supported 

respondent's conclusion that Smith had been discussing safety matters with 

MSHA. Therefore, Smith's expressed concern for safety was th~ basis for 

his termination. Accordingly, I find that Stephen Smith was fired for 

engaging in protected activity, and, thus he was discriminated against in 

violation of the Act. 

BACK WAGES 

Stephen Smith~s regular rate of pay was $11.50 per hour, and his 

overtime pay was $16.32. Overtime was paid after eight hours per day or 40 

hours per week. (Tr. 59-61). Stephen Smith was discharged on December 20, 

1978 and reinstated on May 16, 1978. During the above period the project 

was shut down due to weather from January 5, to early March (Tr. 838). 

2182 
Between December 20 and January 5, Smith contends he missed 65 days of 

work. He asserts that his back wages are $8,101.60 ($124.64 x 65). 

I find the Stafford records, because they are records, are more 

reliable than Smith's oral testimony on the back wage issue (Tr. 61, R-7). 

The wage sunnnary indicates Stephen Smith did not work any overtime in 

December or November, 1978. An award including overtime·would in this case 

be speculative because the record fails to offer any evidence that overtime 

was worked during the period Smith was laid off. Accordingly, any back 

wages would be calculated at $92.00 per day ($11.50 x 8). 

Smith urges he is entitled to wages for 65 days, but I calculate that 

there are 66 days of lost wages involved. Accordingly, Stephen Smith's 

back wages are $6,072.00 ($92.00 x 66). Smith testified that between his 

termination and reinstatement he had gross income totaling $2,050.00 (Tr. 

63, 64). This is to be deducted from the total back wages. Smith is due 

the amount of $4,022.00 in unpaid back wages, less amounts withheld 

pursuant to state and federal law. 

DOCKET NO. WEST 80-165-DM 

TOM SMITH 

INTRODUCTION TO THE CASE 

Tom Smith asserts he was fired because he and his brother Stephen 

filed a written complaint with MSHA. 

Stafford denies it discriminated against him. It contends he was 

fired on January 5, 1979, because he negligently broke a lift arm; further, 

Stafford claims he could have prevented such damage. 

FINDINGS OF FACT 

The evidence is conflicting. I find the following facts to be credible. 

1. Tom Smith, the brother of complainant Stephen Smith, was employed 

by Stafford between August 20; 1978 and January 3, 1979. Tom Smith 

operated dozers and pulled a disc (Tr. 745, 747). 

2. Tom Smith made four or five oral complaints concerning safety to 

management representatives Auten, Jackson and Schneider during the months 

of September, October and November. Specifically, he complained about a 

lack of lights on his dozer and that a short stack was causing smoke to 

blow in his face (Tr. 746-747). 

3. On December 20 Tom Smith and his brother, Stephen, filed a written 

complaint with MSHA concerning safety at the Stafford site (Tr. 745-747, 

Exhibit P-1). 

2183 
4. On January 3, while operating a 16 motorgrader Smith struck a 

.partially buried rock. The impact broke the lift arm on the blade. 

Usually when equipment is damaged in this manner the operator helps the 

welder or mechanic make the repairs and then goes back on the job as it 

takes about an hour to weld the break. On this date Smith was sent home. 

(Tr. 749). 

5. On January 3, after the incident involving the grader·Smith saw a 

D-8 dozer which he'd operated before pulled off to the side and shut down. 

He pointed this machine out to Schneider, but Schneider replied that his 

machine was broken. He was told to go home. (Tr. 779, 780). 

6. Smith called in to work on January 4. He was told that his machine 

was still down. On January 5 he came in to pick up his payroll check. At 

this time Donald Hansen gave him his termination notice and two payroll 

checks. (Tr. 749, 750, 753). 

7. The Stafford termination notice to Tom Smith contains three main 

headings, namely, "Lay off", "Discharge", and "Voluntary Quit". Under 

"Voluntary Quit" the box "Dissatisfied" had been scratched over. Under 

"Discharge" the box of "other" was marked. The explanation written on the 

slip was that "Subject operated a blade in a manner that broke a lift arm 

per witnesses costing company money". (Exhibit P-9). 

8. Prior to this occurrence Tom Smith hadn't damaged any Stafford 

equipment (Tr. 743). 

9. Operators who had damaged Stafford equipment and who were not 

terminated included: Larry Provost (motor blown up); Loren Pennington 

(broke an arm); Richard Gangler (broke a track); Gary Hust (broke a left 

arm); Steve Smith (not a relative of complainants), (rolled a scraper). 

10! After December 20 and a few days before Smith's termination, Donald 

Hansen / was driving Harold Stafford across a field and upon seeing 

Smith,-Stafford said "there is that SOB who is causing us a lot of -- whose 

brother is causing us a lot of problems, and if you get a chance, fire 

him." (Tr. 848). 

11. Hansen fired Tom Smith because he broke a blade and because Harold 

Stafford wanted him fired. (Tr. 849, 851). 

12. Hansen said Tom Smith was the only one ever fired for breaking a 

lift arm. (Tr. 852). 

DISCUSSION 

The credible facts establish that Tom Smith was engaged in a protected 

activity and he was terminated for engaging in that activity. 

1/ Complainant in Docket No. WEST 80-71-DM 

2184 
Stafford asserts Tom Smith was fired because he carelessly damaged 

company equi_pment. The company policy was that it would let a man go if 

through his negligence he broke company equipment, and it was obvious he 

could have prevented the damage. (Tr. 873). 

Respondent's evidence shows that certain workers were terminated and 

respondent's reasons therefor were as follows: 

Norman Coulter, discharged in September 1978, was let go because he 

was rough in handling equipment. (Tr. 876, 877). 

Jack McCullough, was let. go in October 1978. McCullough walked away 

from the oiling truck after.turning the oil on. He was responsible for the 

loss of about 400 gallons of oil. (Tr. 878, 879). 

John Smith, (not related to complainants), on November 1978, was 

instructed that the hydraulic was out on the disc and that as a result it 

could only turn one way. Smith ignored the instructions. This tore the 

disc up, and pulled the tongue off. (Tr. 880). 

Bill Ryball, (November 1978), who claimed he was a top mechanic, broke 

each sprocket tooth when he installed a double flange roller rather than a 

single flange. (Tr. 882). 

Randall K. Jones, (November 1978), fell asleep and as a result he was 

involved in a head-on collision with a 651 scraper. (Tr. 883). 

Clarence Harding, (March 1979), was "terribly hard" on equipment. 

He'd go forward and "throw it" in reverse. He was warned but continued to 

abuse the equipment. (Tr. 884-886). 

John Jones, (June 1979), was let go because he abused equipment. (Tr. 

886). 

Steve McGinnis, (June 1979), a grader operator, ignored instructions 

given to all operators to check their oil and water. The engine froze. 

(Tr. 886). 

Ron Durham, (August 1979), was on the water wagon apparently involved 

in a head-on collision (Tr. 886). 

Al Sanchez, (May 1979), was operating a scraper and he sideswiped a 

641 water wagon. Sanchez had been warned several times about being 

careless. (Tr. 888, 948). 

2185 
Stafford's evidence does not establish its defense. Rather, the facts 

indicate a worker will be terminated if his activity approaches a 

deliberate disregard of instructions or gross negligence rather than mere 

carelessness. 

It is interesting to note that none of those terminated in the 

Stafford list (R-12), except for Tom Smith, were involved in the breaking 

of a lift arm. Additional positive evidence of the weakness of Stafford's 

argument is that Schneider confirms Hansen's testimony that he broke a lift 

arm but was not terminated. (Tr. 852). 

Additional persuavise evidence against respondent's affirmative 

defense is that Schneider, after investigating the Smith accident did not 

recommend that Smith be fired. Schneider, as maintenance supervisor, 

normally would terminate an operator if he believed he was negligent in the 

operation of equipment. He testified at length concerning his reputation 

for this policy. The workers had also given him a nickname (unstated) in 

this regard. (Tr. 873, 874). With that background, Schneider investigated 

the Tom Smith accident, but he was not involved in the decision to 

terminate him. (Tr. 906, 921, 938). Based on the above, if credence is to 

be given to respondent's contentions, one would expect that Schneider would 

have recommended that Tom Smith be fired. 

Smith contends he should have been treated like workers Provost, 

Pennington, Gangler (also called Gekler), Hust, and Steve Smith (not 

related). These workers damaged company equipment but were not terminated. 

(Finding of Fact, , 9). Stafford seeks to destroy this evidence by showing 

that the workers were basically not at fault and for this reason they were 

not terminated. I am not persuaded. A careful analysis of that evidence 

establishes factual situations which are more akin to Tom Smith's accident 

than are those situations where the workers were terminated. Respondent's 

account of these incidents is as follows: 

Respondent does not address the Provost accident. 

Pennington had done slope work which caused the ball joints on the 

motor grader to snap off (Tr. 889-890). Probably 20 such ball joints were 

broken during the Cotter project. Pennington wasn't terminated because 

Schneider, then the maintenance manager, didn't feel he was abusing the 

equipment (Tr. 891). 

Richard Geckler :ran the tracks off of a push cat thr·ee times. They 

were trying to keep this particular equipment going until the track could 

be rebuilt. (Tr. 891-893). 

Gary Hust damaged a #494 while working rocks. He had a rock go off 

his dozer and push in the radiator guard. (Tr. 893-894). 

Steve Smith (not complainant) while operating a 651 scraper (#351) had 

a rock come out from under his left rear tire. This knocked the scraper 

2186 
off of the embankment and caused it to roll. This happened to several 

scrapers. (Tr. 895-896). 

A final issue to be addressed concerns the.statement of Harold 

Stafford that Tom Smith should not have been in the area when the accident 

occurred. (Tr. 962-968). The evidence is uncontroverted· that Smith was 

instruct·ed by a supervisor to operate his blade in this area; further, he 

had been there about two hours when the accident occurred. I find from the 

credible uncontroverted evidence that Smith had been instructed to operate 

in the zone where he was located. (Tr. 753, 768, 770). 

In summary,- I conclude that Stafford has not established its 

affirmative defense. 

I find Smith's termination arose from the "problems" created for 

Stafford by the submission of the safety complaints to MSHA on December 20, 

1978 by Stephen and Tom Smith. Donald Hansen alone fired Smith. He 

testified that he terminated Smith because of the instructions from Harold 

Stafford to find an excuse to fire Smith because his brother had caused 

trouble for Stafford. I find from the record taken as a whole that the 

"trouble" attributable to Stephen Smith was the safety complaint. 

The submission of the safety complaint was a protected activity. 

Therefore, I conclude that Tom Smith was discharged for engaging in a 

protected activity in violation of the Act. 

BACK WAGES 

Tom Smith was terminated January 3, 1979. His straight time rate of 

pay was $11.50 per hour, or $92.00 per day. (Tr. 760). The uncontroverted 

evidence shows the ground froze and the work stopped on January- 5, 1979, 

and resumed in.early March, 1979 (Tr. 838). Smith was reinstated on May 

16, 1979. Smith's days of lost wages would be as follows: 

January 1979 

February 

March 

April 

May 

Total 

2 days 

None 

20 days 

30 days 

11 days 

63 days 

Complainant calculates 56 lost working days, but he does not detail those 

calculations. Based on 63 working days at $92.00 per day, Tom Smith is 

entitled to a gross award of $5,796.00. Smith earned $348.00 ~hile he was 

laid off. This amount is to be deducted from his gross award. Accordingly, he is due $5,448.00 in unpaid back wages, less amounts withheld 

pursuant to state and federal law. 

CROSS EXAMINATION OF WITNESS HANSEN 

Respondent refused to cross examine witness Donald Hansen in the Tom 

Smith case. The basis of respondent's objection is that MSHA had not pro2187 
vided them with a statement purportedly given by Hansen on January 31, 

1979. An extensive inquiry was conducted on the record by the Judge to 

establish the whereabouts of the purported statement. 

It is uncontroverted that Donald Hansen gave MSHA three statements all 

of which were transcribed and signed by Hans·en. Two statements dealt with 

his own case and one related to Patricia Anderson's case·. (Tr. 1219). The 

possibility of the existence of an additional Donald Hansen statement 

arises from the following events: a round t;<ible discussion between MSHA 

inspectors and Stafford officials occurred on the morning of January 31, 

1979. On the same afternoon Harold Stafford, respondent's president and 

MSHA officials talked in private to Donald Hansen. Stafford and the MSHA 

official had recorders but the MSHA official inadvertently failed to turn 

on his recorder. (Tr. 1234). On discovering that MSHA had no transcription 

of the conversation with Hansen MSHA requested and received the tapes made 

by Harold Stafford. These tapes had only a buzzing background and no 

transcriptions could be made. (Tr. 1221). The Stafford tapes were returned 

to the Stafford attorneys. (Tr. 1221). No statements were available from 

Hansen in either of the Smith brothers' cases. (Tr. 1220). C~pies of all 

available statements that were taken that day were provided to Stafford 

attorneys. (Tr. 1223). 

On these facts I conclude that the motion to produce the Hansen 

statement in the Tom Smith case was improvidently granted. There was no 

statement of witness Donald Hansen that could. have been transcribed for 

cross examination in the case. Therefore, I vacate my prior order to 

produce. 

DOCKET NO. WEST 80-71-DM 

DONALD HANSEN 

INTRODUCTION TO THE CASE 

There are several possible reasons for Stafford's decision to fire 

Donald Hansen. Among them are (1) he told Harold Stafford not to change 

witness statements; (2) he called a superintendent a son-of-a-bitch;(3) a 

combination of (1) and (2); then he was rehired and terminated a second 

time when Harold Stafford had a flare up of temper over Hansen's MSHA 

discrimination complaint; (4) he was not discharged at all but he quit. 

Hansen contends the evidence supporting the views that he quit and that he 

was initially fired for his comment regarding a superior is not credible. 

Stafford denies it discriminated against Hansen. It's affirmative 

defense is that Hansen quit. 

FINDINGS OF FACT 

The facts are conflicting. I find the following facts to be 

credible. 

2188 
1. Donald Hansen was employed by Stafford Construction Company on May 

15, 1978. (Tr. 1039). 

2. Hansen was originally hired as an equipment operator and later he 

was placed in charge of maintenance. In October 1978 he went back to 

operating a bulldozer. In December he was assistant project manager. (Tr. 

1040). 

3. Hansen was not involved in the discharge of Stephen Smith, but he 

supervised the discharge of Tom Smith. (Tr. 1040-1041). 

4. When Jim Fritz was installed as superintendent in February 1979, 

Hansen assumed various other duties including that of safety engineer. 

Conflicts between Fritz and Hansen began at that time. (Tr. 1086-1087, 

ll93). 

5. Hansen was in daily contact with Fritz. 

relationship with Fritz as "one day good and the 

1098). 

Hansen describes his 

next day bad". (Tr. 

6. Hansen and Fritz had several arguments concerning company 

activities. (Tr. 1099-1100). 

7. One dispute began on March 6 when Hansen asked Fritz why the sand 

trucks weren't running. Fritz didn't answer then but on the following day, 

Fritz told Hansen it wasn't any of Hansen's business. [Hansen agreed it 

wasn't his business.] Hansen and Fritz swore at each other. Shortly 

thereafter, about 10:00 a.m., Hansen went to Harold Stafford's office. He 

told Stafford there was a problem between Fritz and himself. (Tr. 

1.101-1104). 

8. While Hansen was in Stafford'~ office he observed Harold Stafford 

writing on MSHA statements. These statements had been taken from various 

supervisors involved in the discharge of Steve and Tom Smith. There were 

little pieces of yellow paper or tabs attached to the statements. Hansen 

only recognized foreman Mark Jackson's statement. Everett Poynter, who was 

present, was adding to his written statement because the recorder had not 

been working all of the time when the statement was taken. (Tr. 1103-1106, 

1249-1255, Exhibits R-15, R-16). 

9. Hansen questioned Harold Stafford about the statements. Stafford 

indicated he was going over the statements as he had been instructed to do 

by his attorney. The statements had yellow stickers advising him of 

changes to be made. (Tr. 1248, 1249, Exhibit R-15). 

l 10. Hansen stated he didn't think it was right for Staffotd to be 

changing the statements. He stated that any changes should be a matter for 

the person who wrote the statement. Harold Stafford told Hansen not to 

worry about it. (Tr. 1254~1255). 

11. After 15 or 20 minutes Stafford and Hansen left the office 

together and made the six or seven minute drive to the job site. After 

leaving the office Hansen said "I am tired of Jim Fritz's shit and I don't 

want to work with him anymore, and I'm going to quit." Stafford then 

2189 
stated that the problem between Hansen and Fritz involved a difference of 

opinion and a personaiity conflict. (Tr. 1104, 1109, 1110, 1258). 

12. On the jobsite Stafford and Hansen immediately met with Fritz, 

who spoke first. He said, "Don, you got to keep your nose out of my 

business. You are going out there and talking to the foreman and accusing· 

me and calling me a son-of-a bitch, and a dumb one, and I can't put up with 

that. You are under my authority and you are undermining my authority, and 

pretty soon nobody is going to listen to me. I just can't put up with it. 

I don't want you running down and sticking your nose in my business like 

you did with the sand and whatever." As .the meeting concluded Stafford 

asked the two men to shake hands. This occurred on March 7. (Tr. 1112-

1113, 1261). 

13. On March 8 Fritz confronted Hansen about changes Hansen had made 

on a company organizational chart. Hansen had redrawn the chart to show 

that he was directly responsible to Harold Stafford rather than to Fritz. 

Hansen denies this was a "heated" argument, but he concedes that Fritz 

seemed "very irritated." (Tr. 1117, 1118, 1195). 

14. On March 9 about 7:30 or 8:00 o'clock in the morning Hansen 

talked to foreman Potter about hauling rock. After a brief conversation 

Potter said (referring to Fritz) "We 11, that dumb son-of-a-bitch doesn't 

know nothing." Hansen replied: "Well, he may be a son-of-a-bitch but the 

thing about it, you are going to have to talk to him, not to me." (Tr. 

1120-1121). 

15. At an undetermined time on March 9 Fritz terminated Hansen. He 

stated as his reason that the foreman said that Hansen had called him a 

son-of-a-bitch. (Tr. 1116). 

16. On or about March 20 Hansen filed a discrimination complaint with 

MSHA. The basis for his complaint was that he had been fired for 

disagreeing with the act ions of Harold Stafford in changi'ng the MSHA 

statements. (Tr. 1050). 

17. On March 29 Harold Stafford found out about the discrimination 

complaint. He called his attorney and was advised to rehire Hansen because 

there were too many other lawsuits going including Rippy's, the NLRB, and 

the trust suits. (Tr. 1267, 1268). 

18. Fritz called Hansen on March 29 and said maybe they'd made a 

mistake in firing him. Hansen was offered his old job as blade operator. 

(Tr. 1125-1126). 

19. On April 2, the following Monday, Hansen returned to the jobsite 

but didn't work. He spent the entire shift riding in the pickup with 

foreman Chuck Luther. Luther and Schneider told Hansen there was no 

available equipment for him to operate. (Tr. 1055, 1061). 

20. On the same day Hansen asked Fritz about back pay and Fritz said 

he (Hansen) would have to talk to Harold Stafford about that. Hansen told 

2190 
Fritz that his return to work was conditioned on his rece1v1ng his back 

pay, and he would talk to Stafford about the pay. Stafford was not present 

at the jobs.ite on April 2. (Tr. 1128, 1134). 

21. On the night of April 2 Hansen went to Stafford's apartment. 

Fritz, Schneider, and Stafford were present. Hansen asked Stafford if he 

was going to pay him his back pay. Stafford picked up an envelope and said 

"This is a bunch of horseshit and lies you old son-of-a-bitch, and I'm not 

going to give one dam dime unless you work for it, and everyone else has 

the same treatment." Hansen renewed his request for back pay. Stafford 

replied "You quit, and that is not my fault." Hansen said "Well, Theisen 

said if I continued working, I could jeopardize my back pay." Stafford 

replied "Bullshit." (Tr. 1136, 1140, 1272-1273). 

22. The next afternoon (April 3) at the jobsite, as Hansen was 

turning in his equipment, Stafford heard Aldrich, the office manager, 

arguing with Hansen. Fritz was also present. Aldrich said (referring to 

Hansen) "He is quitting. He is not coming back to work, and he wants a lay 

off slip." Stafford said "We are not going to give any lay off slips if you 

are going to quit and you are not coming back. Now, is there any problem 

with that? Hansen said "No, whatever." The termination slip was made out 

at that time. Hansen didn't receive his check that day because since he'd 

quit he could pick it up on Friday (Tr. 1268-1271). 

DISCUSSION 

Under the doctrine expressed in Consoiidation Coal Company, (David 

Pasula), sup;ra, complainant must show by a preponderance of the evidence 

that he was engaged in a protected activity and that the adverse action 

against him was motivated in part by the protected activity. In this case 

I do not find that Hansen was engaged in a protected activity. A careful 

weighing of the evidence leads to the foregoing voluminous findings of 

fact. The ultimate conclusion is that Hansen was fired by Fritz for 

reasons other than for any actions of Hansen that could be considered 

protected activity. He was subsequently offered back his old job as a 

blade operator. The offer was never accepted by Hansen because he could 

not resolve to his satisfaction payment of his back wages. 

Complainant's post trial brief asserts there are.several possible 

reasons for his discharge. These are (1) that Hansen told Stafford not to 

change the witness statements; (2) He was discharged for calling a superintendent an S.O.B; (3) He was discharged for the events in (1) and/or (2) 

then rehired and later terminated when Harold Stafford had a flare up of 

temper occasioned by Hansen filing an MSHA related complaint; (4) He was 

not discharged at all but quit. However, Complainant asserts 9he credible 

evidence does not support either the "quit" theory or the second reason 

above. 

Only allegations (1) and (3) raise any question of the existence of 

protected activity. Complainant's initial possible reason focuses on the 

witness statements. Hansen concludes Harold Stafford was upset with his 

comment on changing the witness statements. Stafford was not his usual 

2191 
"jolly go smiley" self in the six or seven minute .drive to the worksite. 

(Tr. 1109-1110). 

Hansen's conclusions are not credible. On the way to the jobsite 

Hansen said he'd rather quit than cause any problems. Stafford replied "Oh 

no, I need you, you can't quit" (Tr. 1110-1111). Stafford's stat.ements and 

his willingness to drive to the jobsite and arrange a conference with 

Hansen and Fritz contradicts Hansen's conclusion. 

The MSHA complaint later filed by Hansen, although not introduced in 

evidence, apparently asserts that he was fired for conrrnenting on 

Stafford's activities in changing the witness statements. Inferentially 

complainant has charged Harold Stafford with tampering with MSHA 

statements, but such statements were never offered in evidence. The only 

statement containing a yellow tag was the statement of Adair Rippy (Exhibit R-15). The cover page of the six page typed statement contains a 

yellow tag with this writing appearing on it: "need to add information p. 

4." On page four the following typed question and answer, among others, 

appear in the text of the statement: 

Q: To your knowledge that you know of no one that was 

discharged for breaking an arm? 

A: No. I don't know other than Tom Smith; 

the following appears handwritten after the foregoing typed portion: 

"but we have fired approx 5 or 6 individuals for breaking 

or misuing (sic) equipment in a rec.kless manner" 

Further down the page appears the following script on a yellow tag: 

"Here, the question was not asked whether he knew of any other equipment 

has been broken and if so, how". 

The above changes in the MSHA witness statements are certainly 

innocuous and do not support Hansen's allegation that Harold Stafford was 

tampering with the statements. 

I am unable to find any basis for Hansen's claim that he was fired 

because of his comments in connection with MSHA statements. There would 

hardly have been an effort by Harold Stafford to patch things up between 

Hansen and Fritz if Stafford intended to be retaliatory. 

Complainant's second contention centers on the fact that Hansen could 

not have been fired by Fritz for merely calling him an S.O.B. Considering 

the record in this case, calling a foreman an S.O.B. by itself would not be 

2192 
a basis for discharge of the employee. However, that fact when considered 

in combination with Hansen's other conflicts with Fritz supports Stafford's 

contention that the conflict between Hansen and Fritz was the reason for 

Hansen's discharge. Hansen's arguments and disputes with Fritz began 

virtually from the first day Fritz became superintendent, (Findings of Fact 

, 4, 5, 7, 11, 12, 13, 14, 15). The evidence on these conflicts arises 

from Hansen's testimony. The Stafford evidence merely confirms it. Hansen 

cannot ignore his own evidence. 

I conclude Hansen was lawfully discharged by Fritz on March 9, 1979. 

An employer may discharge an employee for abuse of authority or 

insubordination, provided these reasons are real and not pretextual. In re 

Spalding, Division of Questor Corporation, 225 NLRB 946 (1976). An 

employee was lawfully discharged for repeated arguments and outbursts 

against his supervisor in Butler-Johnson Corp v. NLRB, 608 F. 2d 1303, (9th 

Cir., 1979). Cf Manuel San Juan Co., Inc. 211 NLRB 812 (1974); Farah Mfg. 

Co., Inc. 202 NLRB 666, (1973); Cable Dairy Products Cooperative, Inc. 205 

NLRB 160, 84 LRRM 1094 (1973). While the above cases deal with the 

National Labor Relations Act they give guidance here by analogy. 

Complainant's third contention is that he was fired because of a 

combination of telling Stafford not to change the MSHA statements and 

because he called Fritz an S.O.B. Hansen ma{ntains that he was then 

rehired and terminated a second time when Harold Stafford had a flare· up 

of temper occasioned by Hansen filing an MSHA discrimination complaint. 

After he was fired by Fritz, Hansen filed his MSHA complaint~ He was 

thereupon offered back his old job. He went to the site the following 

Monday but always in issue was Hansen's claim for back pay (March 9 through 

April 2). Fritz could not resolve the matter and said only Harold Stafford 

could resolve the point. Hansen was on the jobsite all day but there was 

no opportunity to talk to Stafford. That night he went to Stafford's 

apartment where the back pay issue was raised. Stafford refused to pay him 

any back wages and that concluded the discussion. 

I disagree with complainant's allegation that Harold Stafford's flare 

up of temper and accompanying statements on April 2 are indicative of 

retaliatory actions for Hansen filing an MSHA complaint. (Facts, 21). I 

have previously co.ncluded ·there was no basis for Hansen to file his MSHA 

complaint. Even if there had been a basis for Hansen to file such a 

complaint, an employer may legimately dispute those allegations. 

Briefly stated, I find that Hansen had already been discharged by 

Fritz, and it was Hansen, and not Stafford, that placed conditions on his 

accepting reemployment with the company. Hansen cannot ignore his own 

testimony that he was not returning to work until the issue of back pay was 

resolved with Stafford. (Tr. 1133-1134). 

2193 
I conclude that Hansen was not fired on April 3 in retaliation for 

having filed an MSHA complaint, but, in fact, Hansen never accepted 

.Stafford's offer of reemployment. 

Complainant attacks the credibility of the evidence that supports the 

view that he quit after the shift on April 2. In essence, complainant 

argues that Harold Stafford is not a credible witness because he says 

Hansen quit after he worked his shift on April 2, but the termination slip 

is dated April 3. (Exhibit P-14). I am not persuaded by complainant's 

argument for sev'eral reasons. Stafford at many times failed to display a 

dexterity with specific dates. I agree with complainant that Stafford 

testified Hansen quit at the close of the shift on April 2. However, the 

following events are very clear: first, Hansen went back to the job site on 

April 2; second, Hansen did not see Stafford on the site that day to 

resolve the back pay issue; third, Hansen went to Stafford's apartment that 

night; fourth, Hansen was asked to and did turn in his gear the next day; 

fifth, on April 3 Stafford directed the office ~anager to indicate on the 

termination slip that Hansen had quit and Hansen didn't argue with Stafford 

at that time. The fact that Stafford's testimony on this point was 

erroneous as to the date Hansen quit does not add greater credibility to 

Hansen's case. In summary, I conclude that Stafford could consider that 

Hansen's failure to accept the offer of reemployment constituted a showing 

that he had quit. 

Two events in this case require comment. One event involves an 

alleged telephone call from Harold Statford to Hansen. Hansen contends 

that when he answered the telephone the only "conversation" was the 

clicking of a ·revolver. The other event concerns Hansen's conclusion that 

he was severely pressured at Stafford's apartment the night of April 2. 

Complainant's post trial brief does not claim that these occurrences 

establish any particular point so it is not necessary to lengthen this 

decision with a further discussion of these factual situations. 

For the foregoing reasons I conclude that Hansen was not engaged in a 

protected activity prior to his discharge on March 9, 1979 and·without such 

protected activity no claim for discrimination can lie under the Act. I 

also conclude that Stafford did not discharge Hansen on April 3 in 

retaliation for Hansen's filing a discrimination complaint with MSHA. 

Hansen's complaint of discrimination should accordingly be dismissed. 

DOCKET NO~ WEST 80-155-DM 

PATRICIA ANDERSON 

INTRODUCTION TO THE CASE 

Complainant's theory of the evidence is as follows: Mrs. Anderson, the 

Stafford secretary-bookkeeper was asked by Harold Stafford to help prepare 

documents that would show MSHA investigators that Stafford was undergoing a 

reduction in force. Mrs. Anderson reviewed the records but was unable to 

2194 
find any support for Stafford's argumer1t. Thereafter, Mrs. Anderson was 

asked to tell MSHA investigators that when Steve Smith was terminated 

Stafford was· undergoing a reduct ion in force. Anderson told Stafford 

officials she would not lie to MSHA investigators.. In retaliation for her 

refusal to cooperate in obstructing the Steve Smith investigation she was 

terminated. 

Respondent denies any claim of discrimination and contends Patricia 

Anderson was terminated because of her inability to handle her bookkeeping 

job. 

FINDINGS OF FACT 

The evidence is conflicting. I find the following facts to be 

credible. 

1. Patricia Anderson was employed as a bookkeeper and secretary for 

Stafford Construction from June 1978 to February 12, 1979. (Tr. 1308). 

2. The night of January 30, 1979, Mrs. Anderson met with Stafford 

Company officials on two separate occasions. (Tr. 1345-1346, 1369). 

3. The first meeting was held at the construction trailer and was 

with Schneider, .Fritz, and Hansen. The purpose was to secure documents .i:~ ... 

the MSHA investigators who were to meet with Stafford officials the 

following day. They went through the employees files and made a 1 ist of 

dates and the indicated reasons for terminations. A majority of the 

termination slips indicated there had been a reduction in force. (Tr. 1346; 

1370, 1375). 

4. One of the most conunon terms on the termination slips was a 

"reduction in force." (Tr. 1394). 

5. Mrs. Anderson was called to a second meeting at the Stafford 

office in downtown Canon City. Harold ·stafford, Mrs. Stafford, Schneider, 

Poynter, Jackson, Hansen and Mrs. Anderson were present. The meeting 

lasted 1 1/2 to 2 hours. (Tr. 1346, 1371, 1373). 

6. Anderson was asked to listen to the company attorney's tape. This 

tape was ~ conversation between Harold Stafford and the attorney on 

handling MSHA business. Anderson was also asked to listen to a tape by 

Mark Jackson. She was also requested to read Mark Jackson's statement so 

she could see the w~y that MSHA tricked people into making statements that 

weren't exactly right. Mrs. Anderson didn't read the Jackson statement. 

(Tr. 1348, 1372-1373). 

7. The purpose of the meeting, according to Anderson, was also to 

instruct her as to what she was to testify to at the MSHA meeting. She was 

asked to testify that there had been, in the Steve Smith case, a reduction 

in force. (Tr. 134 7) • 

2195 
8. Anderson said she couldn't lie; she couldn't testify that there 

had been a reduction in force. Harold Stafford finally said Mrs. Anderson 

could just say whatever she wanted to. (Tr. 1348, 1349). 

9. Mrs. Anderson was asked to testify about the Stafford records. 

Harold Stafford told her that if she had any questions in her mind she was 

to write them on the blackboard. (Tr. 1373, 1392). 

10. After this meeting Harold Stafford didn't talk to Anderson anymore 

and would come in and glare at her. (Tr. 1350). 

11. Mrs. Stafford didn't speak to Anderson after the January 30 

meeting, but Mrs. Stafford had started glaring at her two to three weeks 

before the January 30 meeting. (Tr. 1350, 1384). 

12. Mrs. Anderson's last working day was February 8. She was given 

her termination slip on February 12. (Tr. 1350, 1351, 1355-1356). 

DISCUSSION 

The threshold issue to be addressed concerns respondent's contention 

that Patricia Anderson, as a clerical-secretary-bookkeeper employee, was 

not a "Tiner" under the Act. Resp~ndent relies on the definitions of 

"miner"_/ and "coal or other mine"_/ as well as 3

an interagency 

agreement between MSHA and OSHA. The agreement / specifically lists what 

MSHA considers to be mining operations. -

In May 1979, the United States Court of Appeals for the Third Circuit 

considered the definitions of "miner" and "operator" in the 1977 Act. The 

Court ruled, in part, that nonproduction personnel (those not directly 

involved in the extraction process) logically fall within the statutory 

definition of miner, for the definition of "coal or o"ther mine" includes 

not only the immediate area of mineral extraction, but all lands, means of 

access, excavations, and equipment ancillary to the extraction process. 

Persons working in these ancillary areas are persons working in coal or 

other mines, and, therefore, are miners even though they are unlikely to be 

immediately involved in the production or extraction process. National 

Industrial Sand Association v. Marshall., 601 F. 2d 689, (3rd Cir., 1979). 

The agreement between MSHA and OSHA, cited by respondent, is not 

controlling. The agreement does not purport to include coverage by job 

classifications. It merely gives examples of the type of mining operations 

which MSHA and OSHA con~ider to be within the coverage of the Act. 

Accordingly, I conclude that Patricia Anderson is a miner within the 

coverage of the Act. 

1/ 30 u.s.c. 802(g) 

21 30 u.s.c. 802(h)(l) 

3! CCH Health and Safety Law Reports , 516.62 p. 9 370 

2196 
MERITS OF ANDERSON CASE 

The circumstances giving rise to the foregoing findings of fact must 

be put into perspective. 

On January 30, 1979, the day before the MSHA investigators arrived to 

take statements in the Steve Smith case, Mrs. Anderson was instructed to 

review personnel records and list those employees who had been terminated 

because of a reduction in force (RIF). Later that nfght a meeting was held 

with various company officials. 

Seven company officials were present at the later meeting. Stafford 

was preparing his defense that Steve Smith was terminated because of a 

reduction in force. At this point in time virtually all of the work force 

had been reduced due to the ground freeze on January 5th. 

At the meeting, Anderson was asked to testify that there had been a 

RIF. She refused, saying she couldn't lie. However, Anderson admitted she 

was never asked to lie. (Tr. 1381). All of the testimony about anyone 

implying that she should lie was generated solely by Mrs. Anderson. 

Certainly efforts to suborn perjury can be very subtle, but I conclude 

no such effort was made here. After Mrs. Anderson gratutiously stated "I 

can't lie" there was additional conversation.· Mrs. Anderson credits Harold 

Stafford with "finally" stating "Just say whatever you want to." (Tr. 

1349). Also, at the meeting, Harold Stafford commented that if Mrs. 

Anderson had a question in her mind she was to write out the question on 

the blackboard. (Tr. 1373). 

The above activities in my view are not indicative of an effort to 

obstruct the investigation of the Stephen Smith case. Nor do they 

constitute discriminatory conduct since at this point no adverse action had 

been taken nor indicated against Mrs. Anderson. Mrs. Anderson claims she 

was made to feel unpopular and was threatened at the meeting. No threats 

or the exertion of pressure against Mrs. Anderson which would constitu.te 

discrimination appear in the record. The fact that Harold and Mrs. 

Stafford glared at her does not amount to a violation of§ lOS(c). 

As previously noted, supra. page 5, Stafford's defense in the Stephen 

Smith case, although unsuccessful, has more than a scintilla of evidence 

to support it. To rule that Stafford's conduct during the January 30 

meeting was in violation of the Act would essentially mean that an employer 

could never discuss with any employee what he considered his defense to be 

in an MSHA case. 

The only possible protected activity in this case was the right of 

Mrs. Anderson to testify that there had not been a reduction in force. As 

stated above, Stafford did not interfere with this right prior to the MSHA 

investigation. Mrs. Anderson never did give a statement to the MSHA investigators. (Tr. 1381). 

2197 
At the time her employment was terminated, nearly two weeks after the 

January 30 meeting, Mrs. Anderson was not preparing to testify nor had she 

previously t~stified adversly to Stafford's case. Accordingly, I conclude 

that Mrs. Anderson was not fired in retaliation for any protected activity. 

Therefore, Mrs. Anderson's complaint of discrimination should be 

dismissed. 

REINSTATEMENT 

At the time they filed their complaints the parties requested that 

they be reinstated to their former positions; however, at trial they waived 

that right. 

CIVIL PENALTIES 

In each of these cases the Secretary seeks a civil penalty of 

$4,000.00 against Stafford for the violation of Section lOS(c) ?f the Act. 

The credible evidence has been reviewed and the complaints of Stephen 

Smith and Thomas Smith are to be affirmed. The Act provides that any 

violation of tge discriminat~on section shall "be subject to the provisions 

of section 108 / and llO(a). / The statute authorizes the imposition 

of a penalty in an amount not to exceed $10,000. 30 U.S.C. 820(a). In 

assessing civii monetary penalties the Commis-sion is to be guided by 

section llO(i)_/ of the Act. 

Considering the pertinent statute and in view of the facts in the 

Stephen Smith and Tom Smith cases I deem a penalty of $2,000.00 to be an 

appropriate civil penalty in each case. 

Based on the foregoing findings of fact and conclusions of law as 

stated above I enter the following: 

ORDER 

DOCKET NO. WEST 80-156-DM 

STEPHEN SMITH 

1. Complainant Stephen Smith was unlawfully discriminated against and 

discharged by Respondent for engaging in an activity protected under 

Section lOS(c) of the Act, and his complaint of discrimination is 

sustained. 

4/ 30 u. s. c. 818 

51 30 u.s.c. 820(a) 

6/ 30 u.s.c. 820(i) 

2198 
2. Respondent is ordered to pay Stephen Smith the sum of $4,022.00 in 

back pay. Further, respondent is to pay interest on said back pay at the 

rate of 12 1/2% per annum. 7/ 

3. The employment record of Stephen Smith is to be ~ompletely 

expunged of all comments and references to the circumstances involved in 

his discharge. 

4. A civil penalty of $2,000.00 is assessed against respondent for 

violating Section 105(c) of the Act. 

DOCKET NO. WEST 80-165-DM 

THOMAS SMITH 

1. Complainant Thomas Smith was unlawfully discriminated against and 

discharged by respondent for engaging in an activity protected under 

Section 105(c) of the Act, and his complaint of discrimination is 

sustained. 

2. Respondent is ordered to pay Thomas Smith the sum of $5,488.00 in 

back pay. Further, respondent is to pay interest on said back pay at th.e 

rate of 12 1/2% per annum. 

3. The employment record of Thomas Smith is to be completely expunged of all comments and references to the circumstances involved in his 

discharge. 

4. A civil penalty of $2,000.00 is assessed against respondent for 

violating Section 105(c) of the Act. 

DOCKET NO. WEST 80-71-DM 

DONALD HANSEN 

The complaint of discrimination filed by Donald Hansen is dismissed. 

7/ Interest rate used by Internal Revenue Service for underpayments and 

overpayments of tax, Rev Ruling 79-366 Cf. Cf. Florida Steel Cgrporation, 

231 N.L.R.B. No. 117, 1977-78, CCH, N.L.R.B. Para 18,484; Bradley v. Belva 

Coal Company, WEVA 80-708-D April 1981. 

2199 
DOCKET NO. WEST 80-155-DM 

PATRICIA ANDERSON 

The complaint of discrimination filed by Patricia Anderson is 

dismissed. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Richard D. Alaniz, Esq. 

Tate, Bruckner & Sykes 

2200 South Post Oak Road, Suite 555 

Houston, Texas 77056 

2200 
FEDERAL mlNE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Respondent 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

Contest of Order 

Docket No. PENN 81-132-R 

Order No. 1043545 

Laurel Mine 

Civil Penalty Proceeding 

Docket No. PENN 81-156 

A.C. No. 36-03298-03037 

Citation No. 1043455 

Laurel Mine 

DECISION 

Appearances: Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for 

Consolidation Coal Company; 

James P. Kilcoyne, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me pursuant to sections 105(a) 

and 105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et~., the "Act," to contest an order of withdrawal issued to the 

Consolidation Coal Company (Consolidation) pursuant to section 104(b) of 

the Act (Order No. 1043545) and for review of a civil penalty proposed by 

the Mine Safety and Health Administration (MSHA) for that order and the 

section 104(a) citation underlying that order (Citation No. 1043455). '};_/ 

'J:./ Section 104(a) of the Act provides as follows: 

"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, 

2201 
An evidentiary hearing was held in Wheeling, West Virginia, on June 11, 

1981. 

The primary issue before me is whether Consolidation violated the regu1 atory standard at 30 C.F.R. § 75.403 as alleged in Citation No. 1043455, 

and, if so, whether that violation was abated within the period of time set 

forth in the citation. If it is found that the violation was not timely 

abated, a further issue is whether the period for abatement should have 

been extended. Finally, if it is found that there was a violation of the 

cited standard, a determination must be made as to the appropriate civil 

penalty to be assessed for that violation considering the criteria under 

section llO(i) of the Act. 

The Citation 

The citation at bar was issued by MSHA inspector Earl Miller to mine 

foreman Tom Hofrichter at 8:30 a.m. on March 19, 1981, and alleged as 

follows: 

Based on laboratory analysis by MSHA all four of the 

rock dust samples that were collected in a rock dust survey 

during a health and safety inspection on 2/4/81 in the 

south east mains section contain less than the required 

amount of incombustible materials. They were as follows, 

(1) D12+00 intake 24 percent, !El intake 2+00 19 percent, 

!Fl 2+00 intake 20 percent, !El intake 2+00 19 percent. 

fn. 1 (continued) 

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 re~sonable 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." 

Section 104(b) provides as follows: 

"If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) a violation described in a 

citation issued pursuant to subsection (a) has not been totally abated 

within the period of time as originally fixed therein or subsequently 

extended, and (2) that the period of time for the abatement should not be 

further extended, he shall determine the extent of the area affected by the 

violation and shall promptly issue an order requiring the operator of such 

mine or his agent to innnediately cause all persons, 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 t~1at such violation has been abated." 

2202 
The cited regulatory standard reads in relevant part as follows: 

Where rock dust is required to be applied, it shall be 

distributed upon the top, floor, and sides of all underground 

areas of a coal mine and maintained at such quantities that 

the incombustible content of the combined coal dust, rock 

dust, and other dust shall not be less than 65 percentum. 

* * *· 

At hearing, MSHA inspector Charles Burk, Jr., testified concerning the 

regular inspection he performed at Consolidation's Laurel Mine on February 4, 

1981, which eventually led to the issuance of the citation. During the 

course of that inspection, he performed a rock-dust survey in the Southeast 

Mains section. Following the MSHA band-sampling procedure, he collected 

four samples, one each from the No. 4 entry, the No. 5 entry, the No. 6 entry, 

and the No. 7 entry. Jeff Kozora, Consolidation's safety inspector for the 

Laurel Mine observed Burk collect these samples and offered no objection to 

the procedures followed. 

There is no dispute that the areas cited were areas required to be rock 

dusted. Nor is there any dispute concerning the preservation of the samples 

collected by Burk, the chain of custody of those samples to the MSHA laboratory, or the laboratory procedures. The samples were found to have 24 percent, 

19 percent, 20 percent, and 19 percent incombustible content, respectively. 

Accordingly, Citation No. 1043455 was issued for a violation of the standard 

at 30 C.F.R. § 75.403. 

In its defense, Consolidation appeared to contend at hearing (but did 

not argue in its brief) that MSHA had failed to establish the reliability 

of its dust-sampling procedures. In particular, it alleged that Inspector 

Burk actually gathered a 1-3/4-inch sample of material from the mine floor, 

whereas MSHA procedures apparently call for a !-inch sample. Since no actual 

measurements were taken by anyone when the samples were collected and since 

the operator's representative who was present when the samples were taken did 

not then object to the sampling, I find no factual basis for the contention. 

Even assuming that a 1-3/4-inch sample was indeed taken from the mine floor, 

Consolidation presented no evidence that the sample would have accordingly 

been tainted. Moreover, MSHA expert witness John Nagy testified without 

contradiction that even if a 1-3/4-inch sample had been collected that procedure would not have compromised the test objectives. Particularly because 

of Nagy's undisputed expertise, I accord his testimony great weight. Accordingly, I find that the testing procedures here followed were sufficiently 

reliable to have provided valid test results. I find that the incombustible 

content of the dust samples taken at the Nos. 4 through 7 entries was as 

reported in the MSHA laboratory analysis (MSHA Exh. 1), .!.·~·, 24 percent, 

19 percent, 20 percent, and 19 percent, respectively. Since this incombustible content is less than the 65 percentum required under the provisions of 

30 C.F.R. § 75.403, I find that the violations have been proven as charged. 

2203 
The Withdrawal Order 

The section 104(b) withdrawal order issued by MSHA inspector Earl 

Miller on March 24, 1981, alleged as follows: 

The operator did not make a reasonable effort to rock 

dust the area in the south east mains section. Rock dust 

had been applied in the No. 4 and No. 5 entries; however, 

No. 6 and No. 7 entries had not been rock dusted. No men 

were observed dusting in the area at the time of the 

inspection. 

Since Consolidation has admitted that at least 240 feet of the areas 

initially cited had not been rock dusted even as of March 24, 1981, when 

Inspector Miller issued the order at bar, it is clear that the violation 

had not been abated within the time specified in the citation,_!.~., by 

4 p.m. on March 20, 1980. The question before me then is whether the 

inspector acted reasonably in refusing to extend the time for abatement. 

The reasonableness of his actions must be determined on the basis of the 

facts confronting him at the time he issued the order. United States Steel 

Corporation, 7 IBMA 109 (1976). Thus, the facts confronting Inspector 

Miller at 10:15 a.m. on March 24, 1981, when he issued the order, must be 

examined. 

In determining whether the period for abatement should have been 

extended by Inspector Miller at that time, the following factors should be 

considered: (1) the degree of danger that any extension would have caused 

to miners, (2) the diligence of the operator in attempting to meet the time 

originally set for abatement, and (3) the disruptive effect an extension 

would have had upon operating shifts. Consolidation Coal Company, BARB 

76-143 (1976). 

The overriding consideration in this regard is, of course, the degree 

of danger that any extension would have caused to miners. It is undisputed 

that previous testing had demonstrated that over one 24-hour period, 

4,300 cubic feet of methane had been liberated from the Southeast Mains section and 9,700 cubic feet of methane had been liberated from the entire mine. 

In addition, at the time Miller issued the order at bar, at least seven miners 

were working in active sections not mor~ than 200 feet from the cited area and 

where ignition sources admittedly existed. Miller also found serious violations which could have resulted in the accumulation of explosive hydrogen 

gases at the battery-charging station 250 feet from the cited area. It is 

not disputed that under the circumstances a fire or explosion in either of 

these active areas could have traveled to the No. 6 and No. 7 entries and 

could have been perpetuated and magnified by coal dust in these entries. 

Miller thus correctly concluded that a hazardous condition from the exposed 

coal dust existed as a result of Consolidation's failure to complete the 

rock dusting as required in the original citation and would have continued 

to expose at least seven miners working nearby to fatal injuries. Any 

extension of the abatement period would, therefore, have commensurately 

extended the miner's' exposure to these hazards. 

2204 
The second consideration is the diligence of the operator in attempting 

to meet the time originally set for abatement. It is undisputed that ~hen 

the underlying citation was issued at 8:30 on the morning of March 19, 1981, 

mine foreman Tom Hofrichter agreed that the cited condition could be abated 

by 4 p.m. the following day, March 20, 1981, and, accordingly, Miller allowed 

that much time for abatement. It is further undisputed that the condition 

could have been abated by two men working one 8-hour shift. It was nevertheless established that Consolidation had failed to complete abatement 

nearly 5 days after the citation had been issued and was at that-time doing 

nothing to further the abatement process. Moreover, at the time the order 

was issued, Consolidation could offer no extenuating circumstances or 

justification for its failure to have fully abated the condition. While 

the area which had not yet been rock dusted, was, according to the inspector, nearly half of the area originally cited, even assuming that the area 

only consisted of the 240 linear feet admitted by Consolidation, it was 

substantial in relation to the total area cited and is persuasive evidence 

that little effort was made to correct the condition. Accordingly, I conclude that Consolidation did not make a diligent effort to abate the condition within the time originally established. 

A third factor to consider is the disruptive effect that an extension 

of abatement time would have upon operating shifts. Consolidation claims 

that work in the mine was indeed disrupted as a result of the order since 

the areas subject to the order served as a return for the left split of air 

and the section foreman was accordingly told not to set up for mining on 

that split of air. Presumably, however, the men were assigned to work elsewhere during the 4-1/4 hours needed to complete abatement. Consolidation 

also asserts that production was further disrupted because a few men from a 

working crew had to be diverted to complete abatement. While the argument 

is certainly entitled to credit for its audacity, I find no merit to a contention of disruption based on its own intentional or negligent failure to 

have completed abatement within the time required. Under the circumstances, 

I conclude that the issuance of the withdrawal order had only minimal effect 

on operating shifts. I observe moreover that termination of the order was 

further delayed by the fact that the operator's rock-dusting equipment in the 

cited section was admittedly not functioning and other equipment had to be 

brought in. In any event, I find that any adverse effect the order had is 

far outweighed by the other factors considered herein. I therefore conclude 

that Inspector Miller did not act unreasonably in not extending the time for 

abatement. Accordingly, Order of Withdrawal No. 1043545 was properly issued 

and is affirmed. 

Appropriate Penalty 

Under section llO(i) of the Act, the following criteria are to be considered in assessing a civil penalty: (1) the operator's history of previous violations, (2) the appropriateness of such penalty to the.size of 

the business of the operator charged, (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 

2205 
the operator in attempting to achieve rapid compliance after notification 

of the violation. The operator and the mine here at issue are large in size. 

There is no contention that any penalty that might be imposed would affect 

the operator's ability to continue in business. A computer printout summarizing the history of violations at the Laurel Mine indicates a significant number of violations over a recent 2-year period but only one previous 

violation of the standard cited in this case. I find that the operator is 

chargeable with simple negligence in failing to detect and correct a condition which it should have known existed in the cited entries. An area of a 

coal mine that has been rock dusted is plainly visible. I find, however, 

that the operator was grossly negligent in failing to abate the cited condi tions within the time specified for abatement after it knew of the cited 

hazard and indeed failed to correct the condition for nearly 5 days. It is 

obvious within this framework that Consolidation failed to exercise good 

faith to achieve timely abatement and indeed did not achieve abatement until 

an order of withdrawal had been issued. The hazard of fire and explosion 

here was aggravated by the fact that it was allowed to continue to exist 

for such a long period of time. Based on the undisputed testimony of MSHA's 

expert witness, John Nagy, it is apparent that the conditions did pose a 

danger of serious injury or death to at least seven or eight miners. Considering all of these factors, I conclude that a penalty of $2,000 is 

appropriate. 

ORDER 

Citation No. 1043455 and Order No. 1043545 are hereby AFFIRMED. 

Consolidation Coal Company is ORDERED to pay a penalt of $2,000 within 

30 days of the date of this decision. 

Distribution: 

Jerry F. Palmer, Esq., Consolidation Coal 

Pittsburgh, PA 15241 (Certified Mail) 

' 

0 Washington Road, 

James P. Kilcoyne, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

2206 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Docket No. PENN 81-92-R 

Citation No. 845008 

Renton Mine 

Respondent 

DECISION 

Appearances: Jerry F. Palmer, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Contestant; 

David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent. 

Before: Judge Melick 

This case is before me upon the notice of contest filed oy the 

Consolidation Coal Company (Consol) under section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act," challenging 

the validity of a citation issued by the Mine Safety and Health Administration 

(MSHA) on February 2, 1981, under the provisions of section 104(d)(l) of the 

Act. l:_/ In contesting the citation, Consol specifically alleges that: (1) 

there was no violation of the cited mandatory standard, and, even assuming 

that there was a violation, that, (2) the violation was not 'one that could 

significantly and substantially contribute to the cause and effect of a coal 

mine safety or health hazard, and (3) the violation was not due to the unwarrantable failure of the operator to comply with the standard. At the request 

of Consol, an evidentiary hearing was held in Pittsburgh, Pennsylvania. 

1/ Section 104(d)(l) provides in relevant part as follows: 

"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions 

created by such violation did 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." 

2207 
The citation at bar alleges a violation of the operator's ventilation 

plan under the mandatory standard at 30 C.F.R. § 75.316. That standard has 

been interpreted as requiring the operator to comply with the ventilation plan 

approved by the Secretary. Zeigler Coal Company, 4 IBMA 30 (1975), aff'd., 

536 F.2d 398 (D.C. Cir. 1976). More specifically, the citation alleges as 

folLows: 

The ve.ntilation plan was not being complied with on the 

6 East active working section in that a room located 101 feet 

directly inby station No. 9098 was driven in (mined) approximately 39 feet. No ventilation devices, mine curtain or tubing, was [sic] installed at the time of inspection to ventilate 

the face. Two sets of examination dates and initials was [sic] 

on the left rib: 1-31-81, J.K.; 02-01-81, D.F. 

The operator's ventilation plan then in effect provided in part as 

follows: "Crosscut is normally provided at face before room or entry is 

abandoned. However, if crosscut is not or cannot be driven at face, line 

brattice will be installed." I find that these provisions of the ventilation 

plan have indeed been violated. 2/ The essential facts in this regard are 

not in dispute. At the time MSHA inspector Lloyd Swayne issued the subject 

citation at about 9:30 a.m. on February 2, 1981, the cited entry was approximately 39 feet deep. No crosscut had been cut at the face and no ventilation 

device was present in the entry. The face of the entry was admittedly not 

then a "working face" since all phases of the mining cycle had terminated 

there on January 30, 1981, during the 8 to 4 shift and no additional mining 

in that entry was contemplated for the immediate future. Section foreman 

Rich<!rd Walker explained that he had decided instead to cut through a crosscut adjacent to the mouth of the cited entry and to continue mining in another 

entry before returning to work in the cited entry. It is not disputed that 

brattice curtain had previously been installed in the cited entry as mining 

progressed and remained in place as late as 7 a.m. on the day the citation 

was issued. The brattice had subsequently been removed, however, by persons 

not identified. 

Within this framework of undisputed evidence, it is clear that the cited 

entry had been temporarily abandoned on January 30, 1981, after having been 

penetrated to a depth of 39 feet but before a crosscut had been driven from 

its face. The section foreman decided to abandon that entry for a short time 

in favor of mining coal in an adjacent crosscut and nearby entry. It is also 

2/ While MSHA alleges that Consol actually violated the provisions of Drawing No. 12 incorporated as part of that plan, I disagree. Drawing No. 12 is 

inapplicable on its face because.it applies only when a double split of air 

is utilized. Here, it is admitted that only a single split of air was in 

effect. Moreover, I do not find that mining was progressing at the time the 

citation at bar was issued and I therefore do not find that the requirement 

set forth as part of Drawing No. 12 that "line brattice or tubing [be] 

advanced to 10 feet of face as mining progresses" is applicable hereto. 

2208 
clear that under the cited prov1s1ons of the ventilation plan, line brattice 

was required under these circumstances to have been installed in the cited 

entry. Since brattice was admittedly not installed at the time the citation 

was issued, I find that the ventilation plan has been violated and that a violation of the cited standard has therefore been proven. 

Whether that violation is "significant and substantial," however, 

depends on whether, based on the particular facts surrounding the violation, 

there existed a reasonable likelihood that the hazard contributed to would 

have resulted in an injury of a reasonably serious nature. Secretary of Labor 

v. Cement Division, National Gypsum Company, 3 FMSHRC 822 at 825 (1981). The 

test involves two considerations: the probability of resulting injury and the 

seriousness of the resulting injury. Inspector Swayne here concluded that the 

violation was "significant and substantial" because "it was evident that methane 

was accumulating" in the cited entry and because of the potential for nearby 

ignition sources. While Swayne had applied a different standard in reaching 

this conclusion, I find, based on a de nova analysis of the facts surrounding 

the violation, that it was nevertheless "significant and substantial" under the 

National Gypsum test. 

In determining that ','methane was accumulating," Inspector Swayne relied 

upon a methane test he performed in the cited entry at about 9:30 that morning 

showing a concentration of .3 percent methane and upon a determination that 

there was absolutely no movement of air in that entry. This evidence is not 

contradicted. The .3 percent methane then found was admittedly not of sufficient concentration to constitute an imminent danger of explosion or fire 

but, as Swayne pointed out, if that had accumulated to a concentration of 

1 percent or more then an explosive concentration would have existed. While 

the records of daily inspections kept at the Renton Mine do show that with one 

exception no methane had been detected at the face of the subject entry from 

January 30, 1981, through 7:30 a.m. on February 2, 1981, the day the citation 

was issued, it is apparent from the testimony of Section Foreman Walker that 

during that same period line brattice was hung to within 15 feet of the face 

of that entry thereby providing ventilation to remove the methane from the 

face. When Swayne cited the condition at 9:20 on the morning of February 2, 

however, the brattice had been taken out leaving the entry without ventilation. 

Indeed, Swayne was unable to detect any movement of air at the face. The fact 

that Section Foreman Walker found more than the required ventilation at a point 

outby the cited entry is of little consequence since there was admittedly no 

ventilation in the entry itself where the methane was accumulating. Under the 

circumstances, I find that Swayne was correct in concluding that methane was 

accumulating in the cited entry. 

Inspector Swayne further testified that before an explosion or fire could 

occur, in addition to an increase in the concentration of methane, an ignition 

source would also have to be present. He found that an energized roof-bolting 

machine working some 75 feet fr~m the mouth of the cited entry was one such 

potential ignition source. He opined that the electrical cables to that machine 

could be severed by a roof fall or from the operation of the machine itself. He 

surmised that the bolting machine could also strike the ribs or tools on the 

2209 
machine could jostle about, thereby creating sparks. This testimony is not disputed by the operator. Within this framework of evidence, I am convinced that 

when the citation at bar was issued there indeed existed a reasonable likelihood 

that the hazard contributed to would have resulted in an injury of a reasonably 

serious nature. Thus, the violation was "significant and substantial." 

A determination must next be made as to whether the instant violation 

was the result of. the "unwarrantable failure" of the operator to comply with 

the law. A violation is the result of "unwarrantable failure" if the violative condition is one which the operator knew or should have known existed or 

which the operator failed to correct through indifference or lack of reasonable 

care. Zeigler Coal Company, 7 IBMA 280 (1977). In this regard, I find first 

that the operator may be presumed to know the clear requirements of its own 

ventilation plan and that accordingly in this case it may be presumed that 

Consol knew that line brattice was required to have been maintained in the 

cited entry. This presumption is reinforced by the undisputed testimony that 

such brattice had existed in the cited entry in apparent compliance with the 

ventilation plan until at least 7:00 that morning when Foreman Walker made his 

onshift examination in the subject entry. This was only 2 and 1/2 hours before 

the citation was issued by Inspector Swayne. There is no evidence before me, 

however, regarding· the circumstances under which that brattice came to be 

removed between 7 a.m. and 9:30 a.m. Foreman Walker testified that he did not 

authorize its removal and did not know who actually removed it. Under these 

circumstances, I cannot find that a respons.ible agent of the operator knew or 

should have known of the violative condition, i.e., the removal of the brattice. 

Accordingly, I find that the violation was not-one which the operator knew of 

or should necessarily have known of and therefore the violation was not the 

result of the "unwarrantable failure" of the operator to comply with the law. 

The section 104(d)(l) citation at bar must be accordingly modified to a section 

104(a) citation. 

ORDER 

Pursuant to section 105(d) of the Act, I hereby modify the Secretary's 

citation in the captioned case from one issued under section 104(d)(l) of the 

Act to a citation under section 104(a) of the Act and affirm the latter 

citation and the "significant and substantial" findings at endant therewith. 

Distribution: 

G 

A 

Jerry F. Palmer, Esq., Consolidation Coal C 

1800 Washington Road, Pittsburgh, PA 1524! 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104 

(Certified Mail) 

2210 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

VICTOR McCOY, 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Complainant 

September 28, 1981 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR 

INTERFERENCE 

CRESCENT COAL COMPANY, 

Respondent 

Docket No. PIKE 77-71 

Appearances: 

Before: 

DECISION 

Stephen A. Sanders, Esq. and Tony Oppegard, 

Esq., Appalachian Research and Defense Fund 

of Kentucky, Inc., Prestonsburg and Hazard, 

Kentucky, for Complainant; 

Henry Stratton, Esq. and David Stratton, Esq., 

Stratton, May & Hays, Pikeville, Kentucky, 

for Respondent. 

Chief Administrative Law Judge Broderick 

On May 10, 1977, Victor McCoy filed a Complaint of Discrimination against Crescent Coal Company under § llO(b) of 

the 1969 Coal Act, 30 u.s.c. § 820(b) (1976 and Supp. I 

1977). McCoy claims he was discharged on April 22, 1977, 

for refusing to ride an unsafe belt line into Crescent's 

Mine lOC. According to Crescent, he voluntarily quit 

because of a general distaste for underground mining. 

A hearing was held on April 21, 22, 24, and May 27, 

1981, in Pikeville, Kentucky. 1/ Former miners at Mine lOC 

who testified for McCoy were Eddie Overstreet, Teddy Overstreet, Paul Bartley, Michael Church, Jesse Spears, William 

Ramey, and Victor McCoy, the Complainant. George Lowers, an 

inspector employed by the Mine Safety and Health Administration 

(MSHA) also testified for McCoy. Witnesses for Crescent 

were William Bevins, who was a foreman during part of McCoy's 

tenure and mine superintendent when he left, Dennis Ratliff, 

McCoy's last foreman, Jerry Anderson, mine mechanic, Herbert 

Mack Gibson, the purchasing agent, and miners Clifford 

Justice, Steve Hackney, Dale Ratliff, and Jeff Wright. 

Morris Scott, another miner, was called at my instance and 

was examined by both parties. 

1/ This case has been assigned to three administrative law 

]udges over the ~ast four years. After it was assigned to 

me, Crescent's motion for a de novo hearing was granted on 

March 5, 1981. In this decision~am considering only the 

evidence introduced since I took jurisdiction of the case. 

2211 
Post-hearing briefs have been filed and, having considered them and the record as a whole, I make the following 

decision. 

Statutory Provision 

Section llO(b) (1) of the 1969 Coal Act reads, 

No per~on shall discharge or in any other way 

discriminate against or cause to be discharged or 

discriminated against any miner or any authorized 

representative of miners by reason of the fact that 

such miner or representative (A) has notified the 

Secretary or his authorized representative of any 

alleged violation or danger, (B) has filed, insti--

tuted, or caused to be filed or instituted any proceeding under this Act, or (C) has testified or is 

about to testify in any proceeding resulting from 

the administration or enforcement of the provisions 

of this Act. · 

Findings of Fact 

1. Crescent's Mine lOC was an underground coal mine 

located in Pike County, Kentucky. Coal was extracted from a 

low seam, the height of which varied from about 32 inches to 

about 40 inches. 

2. The miners entered and left the mine in one of three 

ways. They rode to the face area in a battery-powered 

scoop, they walked '!:_! along the belt line (miners rarely 

walked along the scoop entranceway), or they rode the belt 

line itself. Walking was very tiring and took 30 to 60 

minutes, depending on a miner's size, physical fitness, and 

the mine conditions along the belt line. The belt line 

could carry a miner in a prone position into or out of the 

mine in less than 10 minutes. However, this was contrary to 

MSHA regulations. 30 C.F.R. § 75.1403-5. There were no 

lights along the belt line, miners riding it had no way to 

stop it and it passed through at least one area where the 

roof was only inches from the belt. 

2/ The height of the coal of course made walking upright 

Impossible. Crawling is probably a more accurate description of the locomotion involved. 

2212 
3. Company policy at Crescent ostensibly prohibited miners 

from riding the belt line. Nevertheless, nearly all the 

miners, including supervisors, rode it on a regular basis, 

particularly when the scoop was inoperable, which was common. 

Company management knew or should have known this but never 

disciplined a miner for it nor threatened such discipline. 

In fact, management encouraged the miners to ride the belt. 

As a result, a miner who chose not to ride the belt line was 

at a disadvantage. He would enter and leave the mine later 

than his co-workers and considerably more exhausted from the 

walk. 

4. McCoy, like the other miners, often rode the belt line 

at Mine lOC. But as time passed, he grew more apprehensive. 

On a number of occasions, he failed to jump properly from 

the moving belt and fell down. Once, he "froze" on the belt 

and had to be dragged off. He repeatedly told his foreman, 

William Bevins, that he was afraid to ride the belt line. 

5. On April 22, 1977, shortly after the start of his 

shift, McCoy emerged from the mine to tell Dennis Ratliff, 

who had succeeded Bevins as his foremen, that he would not 

ride the belt line and that he would not walk in. Bevins, 

who had been promoted to mine superintendent, was summoned. 

6. McCoy repeated to Bevins his refusal to ride or walk 

the belt line and asked him for another job. Bevins told 

McCoy that no other jobs were available. He did not insist 

that McCoy ride the belt line. Instead he told McCoy that 

he would either ride or walk in; it would make no difference 

since McCoy was paid on a portal-to-portal basis. McCoy 

then left the mine property. 

Issues 

1. Was McCoy discharged or in any other way discriminated 

against by Crescent? 

2. If so, was it because of activity protected by § llO(b) 

of the 1969 Coal Act? 

Discussion 

Did McCoy Quit or was he Fired? 

On April 22, 1977, Victor McCoy refused to ride the 

belt into Mine lOC and also refused to walk in via the beltline. Exasperated, he asked William Bevins for another job. 

Bevins told him no other job was available and that he would 

have to either ride the belt or walk in. McCoy then left. 

2213 
McCoy's quitting was equivalent to a discharge. Bevins 

testified that McCoy was automatically discharged when he 

refused to go to work. I find, therefore, that McCoy was 

actually discharged for refusing to work. Alternatively, 

for reasons which will appear below, I find that the evidence amply supports a finding that McCoy was constructively 

discharged. 

Riding the Belt 

There is no doubt that miners at Mine lOC rode the belt 

regularly, both into and out of the mine. Testimony to the 

contrary was simply not credible. Most of Crescent's witnesses admitted riding the belt, including William Bevins, 

who eventually became mine superintendent. If there was a 

company policy prohibiting it, it was not enforced. In 

fact, it was a policy kept in reserve to be followed when a 

mine inspector was present or expected. 

The dangers of riding the belt are obvious. The belt 

line entranceway was unlighted and there were no reflectors 

to alert miners to their positions along the belt. The belt 

travelled through at least one location where the vertical 

clearance was barely sufficient for a miner to pass underneath. There were no accessible stop controls along the 

belt, so if a miner was unable to jump off, he would either 

be thrown into a crushing machine or off the end of the belt 

to a pile of coal about 70 feet below. It was not uncommon 

for miners to suffer various bruises and sprains in jumping 

from the belt. One miner was more seriously injured when 

his clothing became entangled in the rollers. It is clear 

and I find that miners who rode the belt were exposed to a 

real danger of serious injury. 

For McCoy, riding the belt was particularly difficult. 

He was not as agile as the other miners and continually 

bruised himself jumping off the belt. He grew so apprehensive that one day he "froze" and had to be dragged from 

the belt or he would have dropped off the end. 

Cases under § llO(b) of the Coal Act and the corresponding provision of the 1977 Mine Act have established the 

rule that a miner may not be fired for refusing to work 

under conditions he reasonably believes are unsafe or unhealthful. ~, Phillips v. Interior Board, 500 F. 2d 772 

(D.C. Cir. 1974); Secretary of Labor ex rel. Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980). Plainly, 

McCoy was entitled by statute to refuse to ride the belt. 

2214 
Walking to the Face Area 

McCoy's only practical alternative to riding the belt 

was to walk into and out of the mine, except on the infrequent occasions when the scoop was operable. He claims that 

walking the beltline was unsafe because of hazardous conditions, particularly near the entrance. Specifically, he 

states that there were areas of unsupported roof and electrical cables·on the floor in wet areas. This aspect of his 

claim was not alluded to when McCoy filed his original claim 

(~alled an Application for Review of Discharge under the 

1969 Coal Mine Act). Although the testimony is in conflict, 

I find that McCoy did not expressly complain to his supervisors of safety conditions related to the roof or floor of 

the beltline. I further find that he did not indicate to 

Respondent that he refused to walk the beltline because he 

thought it was unsafe. ~ 

The crux of the matter, then, is whether McCoy was protected by the Act not only when he refused to ride the belt, 

but also when he refused to walk in. Ordinarily, a miner 

exercising the right to refuse to work must contemporaneously ground his refusal on a claim that he is exposed to 

hazardous conditions. Cf. Secretary of Labor ex rel. Duncan et al. v. T.K. Jessup, Inc., 3 FMSHRC 1880, 1883 (1981). 

In this case, however, McCoy's refusal to walk the beltline 

was protected because it was a grossly unreasonable alternative to riding the belt. 

Substantially all the employees, including supervisors, 

regularly rode the belt in and out of the mine. Realistically, it was a condition of employment at Mine lOC. Although management did not specifically require the employees 

to ride the belt or specifically forbid them. to walk, I find 

that it encouraged the former and discouraged the latter. 

For example, all the employees rode to and from the job site 

with the supervisor. On one occasion when McCoy walked from 

the mine outside, the truck had left the job site and he was 

required to get home on his own. 

3/ A Federal inspector toured the mine on June 2, 1977, 

approximately six weeks after McCoy left. He issued notices 

and orders alleging various violations, including broken 

roof bolts and dislodged timber supports along the beltline, 

loose rock hanging down between bolts, and standing water on 

the beltline floor so that the bottom belt was running 

through water. ~here is evidence that the conditions found 

by the Inspector in June which resulted in closure orders 

were basically the same conditions which confronted McCoy in 

April. 

2215 
It is not enough that the alternative work is safe. 4/ 

An unreasonable alternative is really no alternative at all. 

Cf. 29 C.F.R. § 1977.12(b) (2). The alternative which Crescent offered to riding the belt was so onerous and so disfavored by management that it was an unreasonable alternative to what I have found was a dangerous condition. 

Conclusion 

I find, therefore, that McCoy had a right under § llO(b) 

to refuse to ride the belt or walk into the mine on April 22, 

1977. 

I do not decide that a miner who properly exercises a 

right to refuse to work is entitled to other work equivalent 

or even comparable to the job he refuses. However, the 

miner is entitled to have management investigate and correct 

the problem so that he may resume his regular duties. 

Management may not simply ignore his concerns and permanently relegate him to less desirable tasks as a condition 

to honoring his refusal to perform hazardous work. The 

miner is protected by § llO(b) when he refuses to accept 

such an arrangement. Had I concluded that McCoy resigned 

rather than was fired, therefore, the resignation would 

amount to a constructive discharge under the facts presented 

in this case. 

Conclusions of law 

1. I have jurisdiction over the parties and subject 

matter of this proceeding. Respondent was subject at all 

times pertinent to this proceeding to the provisions of the 

Federal Coal Mine Safety Act of 1969, and Complainant was a 

miner protected under that Act. 

2. Complainant Victor McCoy was discharged by Respondent on April 22, 1977, for refusing to work. The discharge violated § llO(b) of the Coal Mine Safety Act of 

1969. 

Order 

1. Crescent Coal Company shall offer reinstatement to 

McCoy in the position from which he was discharged at the 

rate of pay fixed for that position on the date of reinstatement. 

4/ I do not find it necessary to decide whether walking 

1nto the mine on April 22, 1977, was safe or unsafe. 

2216 
2. Crescent Coal Company shall pay to McCoy back pay 

covering the period from April 22, 1977, until the day he is 

offered reinstatement. Back pay shall be computed on a 

quarterly basis and, for each calendar quarter, equals the 

gross pay McCoy would have received minus interim earnings. 

Crescent shall deduct from the back pay award the amounts 

required by state or Federal law. Interest on the net back 

pay award shall be computed at a rate of 7% for the period 

April 22, 1977, through January 31, 1978, 6% for the period 

February 1, 1978, through January 31, 1980, and 12% for the 

period thereafter. ~ 

3. Crescent Coal Company shall pay a reasonable attorney's 

fee for services rendered by counsel for McCoy. 

4. Upon being notified that the decision in this case has 

become a final order of the Commission, the Secretary of 

Labor shall institute proceedings to assess a civil penalty 

against Crescent Coal Company for the violation found 

herein. 

5. Counsel for the parties shall advise me in writing by 

October 15, 1981, whether they have agreed on the amounts 

due under paragraphs 2 and 3 of this order. If so, they 

shall submit those amounts. If not, further proceedings 

will be necessary. For the purpose of determining the 

proper award, I will retain jurisdiction of this case. 

J6)41t.CS- _A43roJz,~~~/i/ James A. Broderick 

Chief Administrative Law Judge 

Distribution: Next page. 

~/ These figures are based on the adjusted prime rates 

used by the Internal Revenue Service for underpayments and 

overpayments of tax. The NLRB also uses these figures to 

compute interest on back pay awards. Florida Steel Corp., 

231 N.L.R.B. No. 117, 1977-78 CCH NLRB ,I 18,484. Appropriate formulae for computation of interest payments are 

found at 3 NLRB CASEHANDLING MANUAL, § 10623, et~ (1977}. 

2217 
Distribution: By certified mail. 

Stephen A. Sanders, Esq., Attorney for Victor McCoy, Appalachian Research and Defense Fund for Kentucky, Inc., P.O. 

Box 152, Prestonsburg, KY 41653 

Tony Oppegard, Esq., Attorney .for Victor McCoy, Appalachian 

Research and Defense Fund for Kentucky, Inc., P.O. Box 360, 

Hazard, KY 41701 

Henry Stratton, Esq. and David Stratton, Esq., Attorneys for 

Crescent Coal Company, Stratton, May & Hays, P.O. Drawer 

851, Pikeville, KY 41501 

Thomas A. Mascolino, Esq., Counsel for Trial Litigation, 

Off ice of the Solicitor, Division of Mine Safety·, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Special Investigation, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

2218 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARGILL, INCORPORATED, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

Docket No. CENT 81-111-M 

A.O. No. 16-00246-05019F 

Belle Isle Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner 

against the respondent through the filing of a proposal for assessment 

of a civil penalty 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 for 14 alleged violations of mandatory safety standards. 

Respondent tiled a timely answer and the matter was scheduled 

for hearing in Franklin, Louisiana on October 6, 1981. However, by 

motion filed September 14, 1981, petitioner seeks approval of a proposed 

settlement negotiated by the parties. The citation=;, initial assessments, 

and the proposed settlement amounts are as follows: 

Citation No. Date 30 CFR Standard Assessment Settlement 

082224 5/1/80 57.4-51 $ 6,000 $ 2,000 

082226 5/1/80 57.20-30 8,000 3,000 

0565746 5/1/80 57.5-2 8,000 8,000 

0566594 5/1/80 57.12-3 2,500 2,500 

0566596 5/1/80 57.12-3 5,000 5,000 

0566597 5/1/80 57.12-3 5,000 3,000 

0566598 5/1/80 57.12-3 6,500 3,000 

0566599 5/1/80 57.12-3 5,SOO 3,000 

0566600 5/1/80 57.12-3 6,000 3,000 

0566601 5/1/80 57.12-18 6,000 2,000 

0566605 5/1/80 57.12-3 5,500 3,000 

0566606 5/1/80 57.12-30 5,000 5,000 

0566607 5/1/80 57.12-B 300 300 

0566609 5/1/80 57.12-30 8 2 000 __ 8,000 

$ 77, 300 $ 50,800 

2219 
Discussion 

The citations in this matter arise out of an investigation by 

MSHA of a mine explosion that occurred at the Belle Isle Mine operated 

by Cargill, Inc., near Franklin, St. Mary Parish, Louisiana, on June 8, 

1979. At the time of the explosion, 22 persons were in the mine, 

seventeen of the miners were rescued and five died as a result of the 

explosion. 

Pursuant to an investigation, the Secretary issued 90 citations 

together with its final report on May 1, 1980. Of these citations, 76 

were settled at the conference level for a total of $29,233. Pursuant 

to settlement negotiations, respondent offered a $50,800 penalty payment 

for the remaining 14 citations. Petitioner's settlement proposal has 

taken this amount offered by respondent and allocated it among the various 

citations. Petitioner states that its allocations have been approved 

by the inspectors who issued the original citations. 

Petitioner points out that seven citdtions were issued for a violation 

of 30 CFR § 57.12-3, and two of these citations have been settled for 

the full amount of the assessment. The remaining citations have been 

allocated penalties of $3,000 each. Petitioner points out that each 

violation involved a similar electrical condition, i.e., the cables were 

not protected against overcurrents caused by short-circuits or overloads. 

The gravity is extremely high because as petitioner asserts, each violation 

could have been the ignition source which caused the explosion. The 

reduced penalty reflects respondent's argument that overload protection 

was provided for the trailing cables while confirming MSHA's authority to 

issue a citation for each occurrence of a violation. 

Citation 082224 alleged that a fire alram system was not provided 

to warn all underground employees. Petitioner asserts that an assessment 

of $2,000 is appropriate for this citation because of the respondent's 

exceptional good faith abatement. By installing an extensive audio and 

visual system, respondent has substantially improved the safety conditions 

which existed prior to the disaster. 

Citation No. 082226 was issued because the inspector found that 

on June 8, 1979, the men had not been removed from the area where blasting 

was taking place even though on numerous occasions dangerous accumulations 

of flammable gas had been encountered through the mine. Petitioner asserts 

that since primary and bench blasting is now done with miners out of the 

mine, a $3,000 settlement is appropriate. 

Citation No. 0566601 alleged that certain circuit equipment was 

not appropriately labeled to indicate the location of the circuits they 

were supplying. Petitioner states that a $2,000 penalty is appropriate 

since this condition did not contribute to the explosion. 

2220 
The remaining four citations were allocated an amount equal to their 

original assessment. In further support of its settlement motion, petitioner 

has submitted respondent's history of prior violations and asserts 

that the proposed settlement is a reasonable and adequate resolution of 

the citations and penalties in issue. 

Conclusion 

After careful review and consideration of the pleadings, arguments 

and information of record in support of the motion to approve the 

proposed settlement, I conclude and find that is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. 2700.30, the motion 

is GRANTED and the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement 

amountsabove in satisfaction of the citatiorsin question within thirty 

(30) days of the date of this decision and order, and upon receipt of 

payment by the petitioner, this proceeding is DISMISSED. 

h-t'I~~ George A. Koutras 

Administrative Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Ave., NW, 

Washington, DC 20036 (Certified Mail) 

Edward Fitch, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

2221 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'SEP 2 8 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 81-27-M 

Petitioner A.C. No. 20~00418-0SOlOF 

v. 

Empire dine 

CLEVELAND CLIFFS IRON COMPANY, 

Respondent 

UNITED STEELWORKERS OF AMERICA, 

Intervenor 

Appearances: 

Before: 

DECISION 

Gerald A. Hudson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Detroit, Michigan, for 

the Petitioner; 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, 

Graybill & Greenlee, P.C., Ishpeming, Michigan, for 

the Respondent; 

Ernest Ronn, Marquette, Michigan, for the Intervenor. 

Judge Melick 

This case is before me upon a petition for assessment of civil penalty under section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq., the "Act." The Secretary proposes a penalty for an 

alleged violationo·f the mandatory safety standard at 30 C.F .R. § SS .9-S4, 

charging that the Cleveland Cliffs Iron Company (Cleveland Cliffs) failed 

to provide an adequate berm to prevent the overtravel and overturning of a 

haulage truck at the Empire Mine's south waste-rock dump. The general 

issues in this case are, of course, whether Cleveland Cliffs violated the 

cited standard and, if so, the appropriate civil penalty to be assessed for 

the violation. Hearings in this case were held in Marquette, Michigan, 

commencing June 30, 1981. 

I. The Alleged Violation 

The citation at bar specifically alleges as follows: 

The berm provided at the dumping location (south waste 

rock dump) site 2S.S, was not adequate to prevent overtravel 

2222 
of truck No. 3415. Berm heights measured on the day of the 

accident using a Stanley 6-foot tape measure were 18 to 

40 inches. Mid-axel [sic] height of a similar model truck 

was measured with a 12-foot Lufkin steel tape, 48 inches. 

The berm shall be improved after removal of the truck at the 

toe of the dump slope and before resuming dumping operations. 

The cited standard, 30 C.F.R. ~ 55.9-54, provides as follows: 

"Mandatory. Ber.ms, bumper blocks, safety hooks, or similar means shall 

be provided to prevent overtravel and overturning at dumping locations·." 

The essential facts are not in dispute. On January 22, 1980, the 

deceased, Michael Bianchi, had been assigned as a temporary driver on an 

85-ton WABCO haulage truck at the Empire open pit iron mine. Bianchi was 

killed when he jumped to escape from his truck as it flipped over and slid 

to the bottom of a 200-foot slope at the Empire Mine south waste dump. 

According to the undisputed evidence, the incident occurred at around 

10:10 that morning as Bianchi was backing a truckload of waste rock in 

preparation for dumping at the slope. In spite of efforts by a nearby 

bulldozer operator to signal Bianchi to stop, the truck rode up onto the 

berm adjacent to the slope. The berm gave way and the truck flipped over 

and slid to the bottom of the slope. The berm adjacent to where the truck 

passed through was variously estimated to have been from about 12 to 

30 inches high on the right (facing the slope) and from 34 to 42 inches on 

the left. It was constructed of boulders up to 2 and 1/2 feet in diameter, 

sand and crushed stone. 

Since Cleveland Cliffs concedes that the berm provided at the south 

waste-rock dumping location at its Empire Mine was indeed not adequate to 

have prevented the overtravel and overturning of the subject haulage truck 

(and since no bumper blocks, safety hooks, or other similar means were 

here utilized to prevent overtravel and overturning), it is apparent that 

the violation is proven as charged. 

By way of attempted defense, Cleveland Cliffs presents a variety of 

specious arguments. It first suggests that the standard does not apply to 

vehicles under power. In other words, the berm need only be sufficient 

to prevent the overtravel and overturning of parked or coasting vehicles. 

There is absolutely no basis for reading such an exclusion into the plain 

language of the standard and it is accordingly rejected. The operator next 

contends that the phrase "to prevent overtravel and overturning," as used 

in the cited standard, should be deemed essentially superfluous since the 

real purpose of berms and other restraining devices is not to prevent overtravel or overturning per se but only to warn drivers of the need to apply 

their brakes. It is a cardinal rule of construction, however, that a statute 

or regulation should be construed to give effect to all its provisions, so 

that no part will be inoperative or superfluous. Zeigler Coal Company v. 

Kleppe, 536 F.2d 398 (D.C. Cir. 1976). Within the framework of this rule, 

I find that I must give operative effect to the phrase "to prevent overtravel and overturning" as used in the cited standard. Respondent's argument is accordingly rejected. 

2223 
Cleveland Cliffs next argues that even assuming the cited berm was 

deficient under the standard, it was nevertheless in "substantial compliance" 

with MSHA's "guidelines." MSHA's enforcement guidelines for the standard at 

bar, which were apparently furnished to the operator sometime before the 

citation herein, read as follows: 

APPLICATION: Use axle height as a guideline if the 

truck is able to dump. A somewhat lower berm or block will 

be acceptable if it is needed to clear tail lights, etc. 

The operator argues that it was in substantial compliance with these guidelines, and that MSHA should accordingly be estopped from enforcing the more 

stringent language of the standard itself. However, following Supreme Court 

precedent, the Commission held in Secretary v. King Knob Coal Company, Inc., 

3 FMSHRC (1981), that the doctrine of "equitable estoppel," such as the operator is attempting to invoke herein, cannot be applied against the Federal 

Government, i.e., MSHA. The Commission further noted in that decision that 

MSHA's guidelines do not have any binding effect. 

In any event, I do not find on the facts of this case that Cleveland 

Cliffs complied in any way with even MSHA's less stringent "guideline" that 

the berm need only be axle height. On the same morning as the fatal accident, MSHA supervisory engineer William Carlson measured the height of the 

berm adjacent to where the subject truck had passed through. He estimated 

it to be 18 inches high on the right side (facing the slope) at a horizontal 

distance of 8 inches from the tire tracks and 40 inches high at a corresponding position to the left of the tire tracks. Carlson opined that his 

measurements could even have been overestimated by as much as 6 inches. I 

fihd these conservative measurements to have been the most reliable since 

they were made in close time proximity to the accident, were made with a 

tape measure, and were made in the presence of Cleveland Cliffs officials 

who voiced no objection to the measurement procedures. I observe, moreover, 

that company safety coordinator, James Tonkin, estimated without taking any 

measurement that the berm to the right of the tire tracks was only 30 inches 

high and that mine superintendent Roger Solberg admitted that the berm on the 

left side was only 42 inches high. Within this framework of evidence, it 

is clear that, even assuming the axle height of the truck at issue was only 

46 inches as represented by the operator, the subject berm was in any case 

not of sufficient height to meet even MSHA's more liberal "guideline." I 

note, moreover, that Tonkin testified that larger 120-ton trucks having an 

even greater axle height were also using the dump at issue, therefore also 

in clear violation of the "guidelines." The operator's third argument is 

for these additional reasons clearly unsupportable. 

Respondent next argues that the use of a bulldozer operator signalling 

from inside his closed cab was equivalent to using a "spotter" to direct the 

trucks backing at the dump site and constituted a means "similar" to berms, 

bumper blocks, and safety hooks within the meaning of the cited standard. 

Under the rule of ejusdem generis, however, general language in a regulation 

which follows a specific designation of a particular class of items is to be 
given a meaning restricted by that specific designation and will include only 

things of the same kind, class, character, or nature to those specifically 

enumerated. Association of Bituminous Contractors, Inc. v. Andrus, 581 F.~d 

853 (D.C. Cir. 1978); General Electric Company v. OSHRC, 583 F.2d 66 (2d. Cir. 

1978). Applying this rule of construction, it is clear that a person designated as a "spotter" is not of the same nature or character as physical 

restraints such as berms, bumper blocks, and safety hooks and therefore does 

not come within the general language "or other similar means" as used in the 

cited standard. The operator's argument herein is accordingly rejected. 

Inasmuch as the use of the so-called spotter herein did not prevent the subject truck from overtraveling and overturning, it is clear that a violation 

of the cited standard would in any event have existed. Indeed, there was 

obvious confusion over the proper signal to be used to stop a backing truck. 

One witness thought the bulldozer operator signalled by raising his blade 

and backing up while another thought it was by shaking the head or waving 

the hand. 

Finally, Cleveland Cliffs appears to argue that the cited standard is 

so vague that it denies constitutional due process of law. When the contention is analyzed, however, it is apparent that the challenged vagueness 

is directed not to the regulatory standard itself but only to the MSHA 

"guidelines" and to MSHA's enforcement practices. Inasmuch as I am not 

here called upon to determine whether an MSHA guideline or enforcement 

practice has been violated, the argument is, of course, without any 

relevance. 

II. The Amount of Penalty 

In determining the amount of 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) the effect on the 

operator's ability to continue in business, (4) whether the operator was 

negligent, (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. 

The operator here is large in size but appears to have had only a moderate history of violations. However, in the year preceding this incident, 

the Empire Mine had been twice cited for insufficient berms. This factor 

is particularly significant in finding the operator negligent in this case 

for in spite of this past history, the bulldozer operator in charge of constructing berms at the south waste-rock dump on the day of this fatal accident had received no management instruction regarding the sufficiency of the 

berms. Indeed, the undisputed evidence shows that he had been relying on the 

advice of another employee that berms only 3 feet in height were sufficient--

a height which did not even meet the criteria, allegedly relied upon by the 

operator, under MSHA's more liberal enforcement guidelines. Its negligence 

is further highlighted by the existence of the obvious hazard ,presented by 

the 200-foot drop-off at the south waste-rock dump. Under the circumstances, 

2225 
I find that Cleveland Cliffs was indeed negligent in failing to maintain an 

adequate berm. The high gravity of the violation is obvious in that it 

resulted in the tragic death of truck driver Michael Bianchi. Abatement was 

achieved in this case by the construction of an 84-inch berm. There is no 

dispute that the operator did demonstrate good faith in achieving rapid 

abatement. There is no evidence that the penalty here imposed would have 

any effect on the operator's ability to continue in business. Considering 

these factors, I find that a penalty of $8,000 is appropriate. 

ORDER 

The Cleveland Cliffs Iron Company is ORDERED 

within 30 days of the date of this decision. 

Distribution: 

a penalty of $8,000 

Gerald A. Hudson, Esq., Office of 

Labor, 231 West LaFayette, Room 

Mail) 

Solicitor, U.S. Department of 

7, Detroit, MI 48226 (Certified 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill & Greenlee, 

P.C., Peninsula Bank Building, Ishpeming, MI 49849 (Certified Mail) 

Ernest Ronn, Safety and Health Coordinator, United Steelworkers of 

America, District 33, 706 Chippewa Square, Marquette, MI 49855 

(Certified Mail) 

2226 
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. 

BROWN BROTHERS SAND COMPANY, 

Respondent 

~ 28 1981 

Civil Penalty Proceeding 

Docket No. SE 81-24-M 

A.O. No. 09-00265-05005 

Junction City Mine 

DECISION 

Appearances: Ken Welsch, Trial Attorney, U.S. Department of Labor, 

Atlanta, Georgia, for the petitioner; Carl W. Brown 

and Steven Brown, pro se, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated 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 for one alleged violation of the mandatory safety standard 

30 CFR 56.12-23. Respondent filed a timely answer and notice of contest, 

and a hearing was convened in Columbus, Georgia, on August 31, 1981. 

The parties appeared and participated fully therein, and they waived 

the filing of posthearing proposed findings and conclusions. However, 

I have considered the arguments advanced by the parties in support of 

their respective cases during the course of the hearing in this matter. 

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~· 

2227 
Discussion 

Citation No. 090842, November 5, 1980, cites a violation of 30 

CFR 56.12-23, and states as follows: 

The connections to the slip rings of the dredge 

pump drive motor were not guarded. The guard 

had been left off and the energized components 

were readily accessable (src) to the dredge 

operator. 

Testimony and Evidence Adduced by the Petitioner 

The citation in question in this case was issued by MSHA Inspector 

Thomas W. Hubbard, after inspection of the subject mine on November 5, 1980. 

Mr. Hubbard has since been permanently transferred to California, and 

to preclude the expense and logistical costs incurred in b~inging him 

to the hearing, petitioner's counsel file a motion pursuant to the 

Commissions Rules, and the appropriate provisions of the Federal Rules 

of Civil Procedure, to permit the telephone deposition of Mr. Hubbard 

and for leave to introduce the deposition at the hearing in lieu of his 

"live" testimony. The motion was granted, and by Order issued by me on 

August 6, 1981, petitioner was permitted to take the inspector's deposition. 

Respondent was afforded a full opportunity" to participate in the taking 

of the deposition, including the right to question and cross-examine 

the inspector. As a matter of fact, petitioner's counsel arranged for 

a conference call which would have permitted the respondent to participate 

in the taking of the deposition without the necessity of his leaving his 

own mine office and at no travel or other expense to him. However, 

respondent refused to participate or otherwise cooperate in the taking 

of the deposition and insisted that MSHA produce the inspector. 

Mr. Hubbard's sworn deposition was produced and offered in evidence 

by the petitioner at the hearing and it was received in evidence and is 

a part of the record (Tr. 13). Respondent refused to make any comments 

regarding the deposition, and although given a copy and a full opportunity 

to refute the testimony, he refused to do so. 

In addition to the deposition of Mr. Hubbard, petitioner presented 

testimony by Supervisory Inspector Reino Mattson and Electrical Inspector 

Russell Morris. Although Mr. Mattson was not with Inspector Hubbard when 

he inspected the mine site on November 5, 1980, he has inspected the 

mine on previous occasions and is familiar with the respondent's operations, 

and has some knowledge of the cited dredge pump motor. Although Mr. Morris 

is from another MSHA subdistrict office, he is a qualified electrical 

inspector and testified as to motors which are similar to the one which 

was cited. 

Corrections to Deposition 

At page 7 of Inspector Hubbard's deposition, the respondent Carl 

Brown is identified as Paul Brown. This is an obvious typographical 

2228 
error made at the time the deposition was transcribed and the parties 

obviously recognized it as such. 

Respondent's Testimony and Evidence 

Although given a full opportunity to present testimony and evidence 

in his defense, respondent refused to testify or to cross-examine 

Mr. Mattson or Mr. Morris. He also refused to offer any statements 

to refute the matters testified to by Inspector Hubbard in his sworn 

deposition. However, respondent did offer four photographs of the cited 

dredge pump motor (exhibits R-1 through R-4). 

Respondent conceded that the motor in question was unguarded on 

November 5, 1980, when the citation was issued by Inspector Hubbard. 

However, he contended that since the motor had been operated for some 

30 years with no one being injured, the fact that the protective screen 

guard had been removed on November 5th did not render it hazardous. 

Respondent did concede that the motor was initially guarded with a 

heavy wire mesh guard which had been fabricated at the mine and installed 

sometime prior to the inspection of November 5th. The guard had been 

installed at the insistence of another MSHA inspector who advised 

him that it was required. Since the respondent complied no guarding 

citation was issued during this previous inspection. 

Findings and Conclusions 

Fact of Violation 

Respondent does not dispute the fact that the cited dredge motor 

was in fact unguarded on November 5, 1980. Nor does he dispute the fact 

that the wire mesh screen which served to guard the motor in question 

had been removed from the motor and not replaced at the time Inspector 

Hubbard observed the condition cited (Tr. 61-62). Aside from the fact 

that respondent does not believe that the unguarded motor posed any 

hazard, his sole defense to the citation is his belief that the inspector 

was "nit picking", and unwarranted and ill-advised personal attacks as 

to the inspector's motives. As far as I am concerned, respondent Carl 

Brown has been treated more than fairly and objectively by the inspectors. 

He obviously is not too enchanted with any attempts to regulate his mining 

activity and this fact is attested to by the voluminous letters he has 

written over the past year or so expressing his views concerning mine safety 

and health enforcement. 

Mandatory safety standard 56.12-23, provides as follows: 

Electrical connections and resistor grids that 

are difficult or impractical to insulate shall be 

guarded, unless protection is provided by location. 

2229 
On the facts and evidence presented in this case, I conclude and 

find that the exposed motor area cited by Inspector Hubbard was required 

to be guarded. The question as to the degree of hazard involved when 

it is not guarded is a matter which goes to the gravity of the violation 

and may not serve as an absolute defense to the citation, unless the 

respondent can show that the motor was "protected by location". On · 

the facts presented in this case, I cannot conclude that the respondent 

has established that the motor was guarded by location. The evidence 

adduced reflects that the motor was in an area where at least one workman 

was present on the. dredge, and that it was in close proximity to several 

walkways. Further, since the respondent previously fabricated a guard 

and installed it on the motor, an inference may be drawn that he agreed 

that the motor required some protective device such as a wire mesh guard. 

Only after respondent was cited by Inspector Hubbard, which exposed him 

to an assessment of a civil monetary fine, did respondent assert that 

the requirements for a guard was "nit-picking". 

I conclude and find that petitioner has established the fact of 

violation by a preponderance of the evidence adduced in this case, and 

the citation issued by Inspector Hubbard is AFFIRMED. 

Negligence 

I conclude that the conditions cited in the citation issued in 

this case resulted from the respondent's failure to exercise reasonable 

care and that this constitutes ordinary negligence. 

Gravity 

I find that the citation in question is serious. Although the 

pos~ibility of someone coming into contact with the unprotected electrical 

motor parts was somewhat remote, the proximity of the unguarded motor 

to an area where a person could readily pass by and come in contact 

with the motor posed a potential hazard. 

Good faith compliance 

Compliance was achieved by fabricating another guard and installing 

it on the exposed motor the same day the citation issued (pg. 10, Hubbard 

deposition). I find that respondent exercised rapid compliance in 

achieving abatement of the cited condition, and this is reflected in 

the penalty assessment. 

History of prior violations 

Petitioner's 'counsel offered a computer print-out listing two prior 

citations of section 30 CFR 56.12-8~ issued on May 1, 1979, for which 

civil penalties in the amount o.f $168 were paid. However, the computer 

print-out is obviously erroneous since it shows Engelhard Minerals and 

Chemicals Corporation at the mine "controller", and the "Junction City Mine" 

2230 
as the mine for which the citations are charged. Under the circumstances, 

I rejected the offered computer print-out as evidence of the respondent's 

history of prior violations (Tr. 5-6). However, I will take official 

notice of my prior decision in MSHA v. Brown Brothers Sand Co., Docket 

SE 80-124-M, May 1, 1980, where I assessed a civil penalty for a previous 

violation issued on June 26, 1980, as well as decisions rendered by 

Judge Cook where he assessed civil penalties against this same respondent 

for three citations issued November 20, 1978, May 1, 1979, and November 27, 

1979, (Dockets BARB 79-312-M, SE 79-90-M, and SE 80-58-M, March 30, 1981). 

Respondent's history of prior citations, as reflected in the aforementioned 

prior decisions, is not such as to warrant any additional increases in 

the civil penalty assessed by for the citation which I have affirmed in 

this case. 

Size of Business and Effect of the Penalty Assessment on Respondent's 

Ability to Continue in Business. 

Petitioner concedes that the respondent is a small family owned 

mining operation and I conclude and find that this is the case. With 

regard to the effect of the civil penalty assessed in this case on the 

respondent's ability to continue in business, there is no evidence 

that respondent is adversely affected by the payment of the penalty in 

question. I conclude that payment of the penalty will not cause the 

respondent to ceas.e his mining business. 

ORDER 

In view of the foregoing findings and conclusions, including 

consideration of the requirements of section llO(i) of the Act, I 

con~lude that a civil penalty in the amount of fifty-dollars ($50) 

is reasonable for the citation issued in this case, No. 090842, November 5, 1980, 

30 CFR 56.12-23, and Respondent IS ORDERED to pay the penalty assessed 

within thirty (30) days of the date of this decision and order, and upon 

receipt of payment by the petitioner, this proceeding is DISMISSED. 

~~ ~ff:fa-{! Admin' trative . f~t::la!'·t:~ Law 

~ Jurlge 

Distribution: 

Carl W. Brown, Brown Brothers Sand Co., Box 32, Howard, GA 31039 

(Certified Mail) 

Ken Welsch, Esq., U.S. Department of Labor, Office of the Solicitor, 

1371 Peachtree St., NE, Rm. 339, Atlanta, GA 30367 (Certified Mail) 

2231 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~ 28 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of RICHARD A. 

FLEMING, 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. VA 81-16-D 

Complainant No. 1 Mine 

v. 

D & J COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Barbara Krause Kaufmann, Attorney, Office of the Solicitor, 

U.S. Department of Labor, for Complainant; 

James E. Arrington, Jr., Esq., and Gregory R. Herrell, Esq., 

Browning, Morefield, Schelin, and Arrington, P.C., Lebanon, 

Virginia, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to an order issued March 4, 1981, a hearing in the aboveentitled proceeding was held on April 28, 1981, in Richlands, Virginia, 

under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815(c)(2). 

Completion of Record 

At the concl~sion of the hearing, counsel for both complainant and 

respondent stated that they had intended to present one additional witness 

in support of their respective cases, but were unable to do so because the 

two witnesses had failed to appear at the hearing (Tr. 259). Counsel stated 

that they would like to have the record remain open until such time as they 

could determine whether they would like to present the testimony of the two 

remaining witnesses in the form of depositions. It was agreed that counsel 

would notify me by May 15, 1981, as to whether they would depose the two 

witnesses. Counsel for complainant filed a letter on May 8, 1981, in which 

she stat.ed that depositions would not be taken by counsel for either party. 

I indicated at the hearing that my decision would show whether the record 

had been expanded by receipt of the depositions. Inasmuch as the parties 

decided not to take the depositions, the record in this proceeding is closed 

and consists of the three exhibits received in evidence at the hearing and 

the 266 pages of transcript comprising the testimony of the witnesses presented at the hearing on April 28, 1981. 

Counsel for complainant filed her brief on July 7, 1981, and counsel for 

respondent filed their reply brief on July 24, 1981. 

2232 
Issues 

Although complainant's brief and respondent's reply brief express their 

statements of the issues in somewhat different language, the two main issues 

in this proceeding may be expressed as set forth on page 2 of complainant's 

brief: 

1. Was complainant, Richard Fleming, engaged in protected activities 

within the meaning of the Act? 

2. Was complainant discharged by respondent because he engaged in 

protected activities? 

Complainant's brief (p. 3) also raises a third issue, that is, the 

amount of civil penalty which should be assessed, assuming' that a violation 

of section 105(c)(l) of the Act is found to have occurred. Since my decision 

finds that no violation of section 105(c)(l) was proven, it is not necessary 

for me to consider the issues with respect to assessment of a civil penalty. 

Findings of Fact 

My decision in this proceeding will be based on the findings of fact 

set forth below. My findings include all the facts proposed by the parties 

in their briefs to the extent that the proposed findings are correct. There 

are some rather egregious errors in complainant's proposed findings of fact. 

Those errors will hereinafter be discussed in this decision under the heading 

of "Consideration of the Parties' Arguments". 

1. D & J Coal Company, Inc., the respondent in this proceeding, operated 

its No. 1 Mine for a period of about 3-1/2 years before the mine was closed 

on March 24, 1981. The mine was closed after respondent encountered large 

amounts of rock which made production of coal uneconomic. During the last 

3 months of active mining from January 1981 through March 24, 1981 the mine 

suffered operating losses totaling $59,433 (Exh. A; Tr. 240). 

2. D & J Coal Company on June 27, 1980, at the time the unlawful 

discharge alleged in this proceeding occurred, was owned by three individuals 

named Carmel Deel, O'Dell Deel, and Verlin Deel, each of whom owned a onethird interest. Some time after June 27, 1980, O'Dell Deel and Carmel Deel, 

who are brothers, purchased the one-third interest owned by Verlin Deel. 

Therefore, at the time the No. 1 Mine was closed, Carmel Deel and O'Dell Deel 

each owned a one-half interest in the corporation (Tr. 238-239). Verlin Deel 

is not related to either O'Dell or Carmel Deel (Tr. 152; 173). 

3. At the time of the hearing held on April 28, 1981, Carmel and O'Dell 

Deel were trying to find a location where a new mine could be opened, but 

none had been found at that time. They are not planning to open the new mine 

under the name of D & J Coal Company and they do not plan to reopen the No. 1 

Mine. They estimate that their liabilities are equal to their assets, but 

they still owe for equipment and have been able to obtain an extension on 

their obligation to make payments while they are seeking to find a location 

2233 
for a new mine. No one is drawing a salary or wages at the present time 

(Tr. 242). During the last 3 months of the company's operations, the two 

owners received a salary of $75 per day and the mine foreman, Charles Quinley, 

received a salary of $115 per day (Tr. 256). 

4. Respondent's profit and loss s~atement shows that it also owes civil 

penalties in the amount of $2,319 which it is unable to pay at the present 

time (Tr. 257). Respondent has asked MSHA for an extension of time within 

which to pay the civil penalties and Carmel Deel testified at the hearing 

that if an adverse ruling should be made against respondent in this proceeding, that he would have to ask for permission to postpone payment of any 

back wages awarded to complainant until such time as a new mine can be opened 

so as to produce a business which would have an income from which back wages 

could be paid (Tr. 253). 

5. The complainant in this proceeding, Richard A. Fleming, began working 

at respondent's No. 1 Mine in November 1979 as helper for the operator of the 

roof-bolting machine. After about a week, a new employee was hired and was 

given the position of helper for the operator of the roof-bolting machine. 

At that time, complainant was assigned to the position of general inside 

laborer whose job consisted primarily of hanging ventilation curtains and 

applying rock dust to the mine floor and ribs. Complainant stated that he 

was told that he would be allowed to rotate as helper for the operator of the 

roof-bolting machine until the new employee and complainant had each learned 

to operate the roof-bolting machine. Complainant alleges, however, that he 

was thereafter permitted to perform only the duties of a general inside laborer 

and was given no opportunity to learn to operate the roof-bolting machine(Tr. 9). 

6. During the portion of complainant's employment beginning in November 

1979 and extending to the end 'of December 1979, complainant took 2 days off 

after calling respondent's management to report that he would not be at work 

on those days. In January 1980 respondent took off a third day to attend to 

some personal business and failed to call respondent's management in advance. 

Respondent's management called complainant's aunt and advised her that complainant had been discharged for not reporting to work. When complainant 

learned from his aunt that he had been discharged, he called one of respondent's owners, O'Dell Deel, and explained why he had not reported for work. 

O'Dell told complainant to report to work the next day and explain the reason 

for his absence from work on the previous day to the mine foreman, Charles 

Quinley, and another of the owners, Verlin Deel, who worked at the mine as a 

scoop operator. O'Dell said that if those two men were willing to reinstate 

complainant, it was satisfactory with him. Complainant reported for work and 

Charles Quinley and Verlin agreed to allow complainant to continue working 

at the No. 1 Mine (Tr. 9-10; 57; 97; 114; 144; 245). 

7. Complainant continued to work, after the first reinstatement, as 

a general inside laborer. The helper to the operator of the roof-bolting 

machine left and another person was hired to take his place. Complainant 

asked management to let him become the helper the next time that position 

became available. Soon thereafter, the helper's position again became open 

and in February 1980 complainant was allowed to assume the position of helper 

2234 
to the operator of the roof-bolting machine. Subsequently, the operator of 

the roof-bolting machine resigned and complainant was permitted to become 

the operator of the roof-bolting machine in early March 1980 (Tr. 10-12). 

8. Complainant does not allege that he discussed any health or safety 

matters with respondent's management prior to January 1980 (Tr. 11). While 

complainant worked as a helper to the operator of the roof-bolting machine, 

he did not use temporary supports, as required by respondent's roof-control 

plan, because the operator of the roof-bolting machine did not want him to 

bother with erecting temporary supports prior to installation of roof bolts 

(Tr. 62; 76). After complainant became the operator of the roof-bolting 

machine in early March 1980, he stated that he installed roof bolts without 

using temporary supports because both the mine foreman, Charles Quinley, and 

part-owner, Verlin Deel, saw him installing roof bolts without using temporary 

supports and at no time did they ever instruct him to use temporary supports 

or ever explain to him any provisions of the roof-control plan (Tr. 16; 63; 

76; 79). 

9. A copy of the roof-control plan was at all times hanging in the 

mine office during complainant's entire employment by respondent, but at no 

time did complainant ever read the roof-control plan or examine it (Tr. 68-69). 

Complainant carried in his lunch box a copy of the Union contract and was 

able to explain its terms in considerable detail when any disputes arose as 

to his rights under the contract (Tr. 59-60; 97). 

10. When complainant became the operator of the roof-bolting machine 

in early March 1980, he was an inexperienced operator. After about a week 

of operating the roof-bolting machine, compla.inant testified that his skill 

increased to the extent that he could install bolts in from 8 to 10 headings 

a day. The largest number of places which complainant ever bolted during a 

single shift was 10, whereas the operator who ran the roof-bolting machine 

prior to complainant's obtaining the job was able to install roof bolts in 

about 14 or 15 headings per shift and the operat0r who succeeded complainant 

as operator of the roof-bolting machine could install bolts in from 14 to 15 

headings per shift (Tr. 66; 81; 76; 116). Complainant contended that he could 

operate the roof-bolting machine as fast and as skillfully as the other operators and that the only reason he failed to install as many roof bolts as the 

other operators did was that he was installing temporary supports, whereas 

they were not. Complainant argued that if the other operators had used temporary supports, they would not have been able to bolt any more places during 

a shift than he bolted (Tr. 77). 

11. As stated in Finding No. 8 above, complainant did not at first use 

temporary supports after he became the operator of the roof-bolting machine. 

On May 20, 1980, however, an event occurred which caused complainant to begin 

using temporary supports. That event was the arrival at respondent's mine of 

an MSHA inspector named N. K. Rasnick. Inspector Rasnick, with respondent's 

permission, called the miners together and read the roof-control plan to them. 

Inspector Rasnick explained to them that it was equivalent to committing 

suicide for them to install roof bolts without using temporary supports 

(Tr. 17-18). Complainant was so impressed with the inspector's lecture, that 

he claims that he told respondent's mine foreman, Charles Quinley, that he 

2235 
wanted to use temporary supports and asked Quinley to provide him with the 

necessary timbers or with metal jacks which would work. Complainant contends 

that he daily asked for timbers because the jacks could not be adjusted to 

fit the varying heights which he was encountering in the mine. Complainant 

alleges that management never did supply him with either workable jacks or 

sufficient timbers to use in all entries (Tr. 19-20). 

12. Complainant stated in his direct testimony that seven entries were 

being mined and that the entries were lower on the left side of the mine 

than on the right. · Complainant said that the mining height varied from a 

low of 40 inches on the extreme left or entry No. 1, to a high of 5-1/2 feet 

on the extreme right, or entry No. 7 (Tr. 20). Complainant later testified 

that the mining height varied from a low of 48 inches in the No. 1 entry to 

a high of 6 feet in the No. 7 entry (Tr. 91). Complainant stated that there 

were timbers on the roof-bolting machine which measured 5 feet in length, but 

he claimed that he could not use them because of the varying heights in the 

mine (Tr. 20). Complainant testified that the lack of a sufficient supply 

of timbers prevented him from being able to use temporary supports at all in 

the No. 1 and No. 7 entries because his timbers were not long enough to reach 

the 6-foot mining height in the No. 7 entry, and that if he cut off his limited 

supply of timbers short enough to be used in the No. 1 entry, he would then 

not have timbers of the right length to use in the other entries (Tr. 20; 

92-93). 

13. Complainant testified that about June 1, 1980, respondent began to 

engage in retreat mining or the pulling of pillars (93-94). At that time, 

management brought in a plentiful supply of timbers to be used in the retreatmining process. Although the timbers were not brought into the mine for use 

as temporary supports, complainant testified that he began to use the timbers 

for temporary supports (Tr. 95). He was able to use them in all entries 

because he had timbers to use in the 6-foot No. 7 entry as well as timbers 

that he could cut off for use in the 40 to 48-inch No. 1 entry (Tr. 94-95). 

Management at no time objected to complainant's use of temporary supports 

(Tr. 200). 

14. Complainant testified that on June 4, 1980, Verlin Deel, one of the 

mine's owners, who also operated a scoop, watched complainant while he was 

installing roof bolts and remarked to complainant, as he had several times 

before, that complainant was not installing roof bolts fast enough to keep 

ahead of the miners who were drilling and shooting coal, and that unless he 

could increase his operating speed, management would have to replace him as 

the operator of the roof-bolting machine. After complainant came out of the 

mine on June 4, 1980, Verlin Deel informed complainant that he would not be 

allowed to operate the roof-bolting machine the next day. Complainant and 

Verlin engaged in a heated argument during which complainant stated that 

Verlin could not, under the Union contract, replace him as operator of the 

roof-bolting machine. Complainant then filed a grievance with the Union. 

Respondent refused to sign the grievance because respondent's management 

contended that complainant had quit in a rage, whereas complainant argued 

that he had been discharged (Tr. 13; 25-26; 115; 147; 175). The grievance 

was never officially decided because respondent's management agreed to reinstate complainant after a Union representative advised management that miners 

had won similar grievances in the past (Tr. 59-60; 246). 

2236 
15. After the second discharge on June 4, 1980, complainant returned 

to work on June 11, 1980, but he agreed to relinquish his job as operator 

of the roof-bolting machine and resume the position of general inside laborer 

in return for management's offer to pay him the wages of an operator of a 

roof-bolting machine for doing the work of a general inside laborer (Tr. 27; 65). 

16. Complainant testified that his reinstatement on June 11 was marked 

by an atmosphere of strained relations between him and respondent's management 

(Tr. 28). His primary duties as a general inside laborer were to hang curtains, 

construct brattices, and apply rock dust. Complainant said that the mine 

foreman followed him around constantly to see that he performed his assignments promptly. If he were rock dusting, he would be told to go hang a curtain. 

If he were hanging a curtain, he would be told to go and hang a different 

curtain which had been torn down. He was told several times each day that he 

would have to improve the way he was doing his job or he would be discharged. 

Complainant stated that management would interrupt his lunch period by telling 

him to do some sort of job. Complainant explained that under the Union contract, if a person's lunch period is interrupted, he is entitled, after doing 

the assigned work, to resume his lunch period and take the full 30 minutes 

which he had a right to take in the first instance. Complainant said that 

his lunch period was interrupted two or three times and then he was reprimanded for having taken a 45-minute lunch period. Complainant testified that 

he did not let management's constant harassment bother him because he knew 

that management was looking for an excuse to discharge him and he was making 

every effort to prevent them from having a reason to discharge him (Tr. 28-32). 

· 17. On June 26, 1980, when complainant was in the mine office at the 

end of his shift, Verlin Deel told complainant that the other miners were 

complaining to Verlin because they were having to do the work which complainant was supposed to be doing. Both Verlin's and complainant's descriptions 

of the incident show that the discussion was quite heated (Tr. 32; 177). 

After leaving the mine on June 26, complainant called the MSHA office and 

reported to Inspector N. K~ Rasnick that temporary supports were not being 

installed in respondent's mine prior to installation of roof bolts. The 

inspector advised complainant that since the next day, June 27, 1980, would 

be the last day of work prior to the commencement of vacation, it was unlikely 

that anyone would b~ able to come to respondent's mine to investigate the 

complaint on June 27, but that some action would be taken (Tr.· 34). 

18. Complainant testified that he overslept on the morning of June 27 

and arrived at the mine about a half hour late after the other miners had 

already gone into the mine to work. While complainant was preparing to go 

underground, the phone in the office rang and complainant answered it because 

no one else was in the office. The call was from an MSHA supervisor of 

inspectors named E. C. Rines. Complainant asked Rines if he was calling in 

reference to a complaint about failure to use temporary supports and Rines 

said that he was. Complainant explained to Rines that he was the one who had 

called Inspector Rasnick the preceding day. Rines told complainant that complainant's name would not be used. Then Rines asked complainant to have the 

mine foreman to call him (Tr. 33-34; 104). 
19. Complainant testified that he thereafter went underground and told 

Quinley, the mine foreman, that Quinley had been asked to return an important 

phone call, but complainant stated that he did not tell Quinley what the 

subject matter of the phone call had been (Tr. 35; 71). Quinley testified 

that complainant gave him the name of the man whose call was to be returned 

(Tr. 119; 148). Verlin Deel said that if complainant gave Quinley a name, 

Verlin did not recall hearing it, but-Veriin did tell Quinley to find out 

what the call was about (Tr. 177). Verlin stated that complainant told 

Quinley the number to be called was on the desk (Tr. 178). Greg Deel is. the 

son of Carmel Deel, one of the owners of respondent's mine (Tr. 209). Greg 

is unrelated to Verlin Deel (Tr. 173). Greg is the "surface man" and was in 

the mine office when Quinley came out to make the phone call. Greg testified 

that when Quinley told him he had received a message to call E. C. Rines, 

that Greg recognized the name to be that of an MSHA employee. Greg testified 

that there was no message on the desk of any kind and that ,the only way they 

were able to return the call was that Greg had written in the back of the 

phone book the number of the MSHA office in Norton (Tr. 214-215). The supervisory inspector, E. C. Rines, testified that he only gave complainant his 

name and place of employment (Tr. 104). 

20. Greg testified that he and Quinley both tried to call Rines, but 

they could not get a dial tone on the phone (Tr. 210-211). They walked to an 

adjacent mine, located about 150 feet from their mine, and were unabl .. e to 

get a dial tone on that phone either. They returned to respondent's mine 

office. After about an hour, Quinley went back into the mine with the understanding that Greg would keep trying to get Rines on the phone and that Greg 

would let Quinley know what Rines wanted when Greg succeeded in talking to 

Rines (Tr. 159-160; 177-178). 

21. Complainant's testimony as to the events which occurred after he 

entered the mine on June 27, 1980, the day of his discharge, is generally 

lacking in credibility for reasons which will hereinafter be noted. Complaiaant testified that after he had given Quinley the message about calling 

E. C. Rines, he was told to perform his regular duties which primarily consisted of hanging curtains and applying rock dust (Tr. 71). Complainant 

was at first very doubtful about what he had done on the morning of June 27 

(Tr. 35-36), but he knew that some fly curtains had been pulled down by the 

scoop and that he had to go "hunt up some" (Tr. 37). Complainant also knew 

for certain that he had applied rock dust in the No. 7 entry because of some 

unspecified peculiarities that he recalled (Tr. 39). Complainant also said 

that he recalled speaking to Ronnie Lester in the No. 7 entry because someone 

borrowed some tools from him in the No. 7 entry (Tr. 39). Complainant said 

that he was not 100 percent certain that he spoke to Ronnie Lester in the 

No. 7 entry, but complainant said he then went into the No. 6 entry and 

learned that the miners who had borrowed his tools were using them to repair 

the coal drill (Tr. 39). Complainant then, without any reservations as to 

certainty, stated unequivocally that he saw Ronnie Lester and John Carpenter 

working on the coal drill in the No. 6 entry (Tr. 41). 

22. Complainant explained that he had had some training as a repairman 

when he previously worked for Clinchf ield Coal Company and that he knew more 

about repairing equipement than anyone at respondent's mine (Tr. 80; 84). Complainant, therefore, said that he checked on the status of the repairs being 

2238 
performed on the coal drill and first sa;id that the men working on the drill 

had "everything under control" and that there "wasn't anything there for me 

to do" (Tr. 40). Complainant later testified that when he went into the No. 6 

entry, he gave the miners some suggestions on how to repair the drill (Tr. 80). 

Subsequently, complainant testified that one of the miners who was working 

on the coal drill came and borrowed his hammer and, that since he could not 

hang curtains without his hammer, he had to return to the No. 6 entry and 

ask when they would be finished with his hammer. Shortly after he arrived in 

the No. 6 entry to ask about the hammer, the miners finished repairing the 

coal drill and returned his hammer to him along with the other tools which 

they had borrowed from him on June 27 (Tr. 42). 

23. As indicated in Finding No. 16 above, complainant first testified 

that Quinley followed him around to make sure he was working all the time and 

that Quinley would constantly send him to do a different job before he could 

finish the one he was then doing. Complainant later stated that he had an 

option, when told to hang a given curtain, of either going to hang it right 

then or of hanging the curtain in due course if his duties, within a reasonable 

period of time, would take him to the area where the curtain needed to be hung 

(Tr. 42). Complainant first stated that Quinley only gave him general instructions on June 27, but later he stated that Quinley specifically told him to 

hang a curtain in the No. 1 entry. Then complainant recalled having applied 

rock dust in each heading (Tr. 44-45), although he had previously been certain 

about having applied rock dust only in the No. 7 entry (Tr. 39). 

24. Complainant also claimed that Quinley watched him closely all morning 

on June 27, but simultaneously testified that Quinley and Verlin Deel both went 

outside to return the phone call at 10:00 a.m. and that Quinley did not come 

back into the mine until 11 or 11:30 a.m. (Tr. 45). Also Quinley is said by 

complainant to have gone outside and obtained a load of rock dust at some time 

during the morning of June 27 (Tr. 46). Even though complainant stated that 

Quinley was outside until about 11 or 11:30 a.m., complainant then testified 

that he saw Quinley at the coal drill about 11 or 11:30 a.m. after Quinley 

had come back from trying to return the phone call (Tr. 43). If Quinley had 

followed complainant as constantly and as continuously as complainant alleged, 

he would only have needed to look up at any given moment and Quinley would 

have been 20 or 30 feet from complainant (Tr. 44). 

25. After hanging the curtain in the No. 1 entry mentioned in Finding 

No. 23 above, complainant testified that he then went to the No. 3 heading 

where the roof-bolting machine was being used. While complainant was applying 

rock dust in the No. 3 heading, the miners completed that phase of their roof 

bolting and started backing the roof-bolting machine out of the No. 3 entry. 

In order to get out of the path of the moving roof-bolting machine, complainant said that he went into the break outby the No. 3 entry and sat down 

against the rib so that the roof-bolting machine could be taken to another 

entry. Complainant alleges that Quinley was also sitting against the rib outby 

the No. 3 entry. Therefore, complainant said that he sat down beside Quinley 

and talked to him about the weather and such things for about 2 minutes while 

the roof-bolting machine was passing. Complainant then testified that he 

picked up his rock-dusting bag and started back to the place where he had 

been rock dusting. At that point, complainant alleges that Quinley told him 

2239 
to get into the scoop as Quinley was taking him outside. After complainant 

had gotten into the scoop with Quinley, complainant asked why they were 

going outside and complainant alleges that Quinley replied that he was going 

to fire complainant for sitting down on the job (Tr. 45-48). Complainant 

then alleges that he asked Quinley if Quinley was firing him for sitting 

down for 30 seconds and that Quinley said "That's right" (Tr. 48). 

26. Complainant said that he and Quinley then rode outside on the scoop 

and that both of them went into the mine office where they talked to Verlin 

Deel, owner of a one-third interest in the mine, and Greg Deel, the "outside 

man". Quinley told Greg to write out a discharge slip stating that complainant was being suspended for 5 days with intent to fire him for sitting down 

on the job. Quinley signed the discharge slip after Greg had written it. 

Complainant contends that the discharge slip had already been written before 

he and Quinley entered the mine office because Greg handed the discharge 

slip to Quinley without writing anything (Tr. 50-52). Verlin Deel is alleged 

to have said that he had found out from the Union how to discharge complainant 

this time and do it right. Complainant explained that the Union contract 

requires that a miner be suspended for 5 days before a discharge becomes ef fective so that the miner may file a grievance with the Union while still in an 

employed status (Tr. 51-52). 

27. The testimony of complainant and the testimony of Verlin D~el, 

Charles Quinley, and Greg Deel concerning the details of the events which 

occurred on Friday, June 27, 1980, the day of complainant's discharge, vary 

in some details, but there is no dispute between complainant and the other 

three men about the fact that complainant was allegedly:discharged for sitting 

down on the job (Tr. 126; 151; 179; 213). Quinley, Verlin Deel, and Carmel 

Deel all additionally testified that complainant was discharged for failing to 

perform the tasks which he was· assigned to do. They stated that complainant 

would be assigned a job such as hanging curtains or rock dusting. They could 

check on the assignments at a later time and the work would not have been done. 

They would then find complainant talking with one or niore of the other miners 

instead of doing the work he had been given to do (Tr. 115; 175; 247). 

28. Among the details which cast doubt upon complainant's credibility 

are those pertaining to the time intervals betweeri certain occurrences on 

June 27. As indicated in Finding No. 24 above, complainant stated that he 

knows for certain that Quinley went out of the mine to make the phone call at 

10:00 a.m. Quinley, the mine foreman, on the other hand, did not purport to 

know exactly when he went outside to make the phone call, but agreed on crossexamination, that complainant came in about a half hour late at 7:30 a.m. 

Quinley and Verlin Deel both said that they went outside to make the call 

irmnediately after complainant had told them about it. Quinley stated that 

it takes about 10 minutes to go from the underground working section to the 

outside and that he would estimate that he was in the mine office to return 

the call by about 7:45 a.m. (Tr. 129). Quinley said that Greg tried to make 

the call and could not get a dial tone in either respondent's mine office or 

in an adjacent mine office of another operator whose mine office was about 

150 feet from respondent's mine office. Quinley further stated that he was 

not outside for more than an hour and that he would estimate that he was back 

on the working section by 9 :00 a.m. (Tr. 130). 

2240 
29. Quinley stated that when he returned underground after going out 

to make the phone call, he saw complainant sitting against the rib. He said 

complainant had not done any new rock dusting and had failed to hang the 

curtain which Quinley had told him to hang (Tr. 149-150). Quinley testified 

that he did not even get off the scoop and told complainant to get in the 

scoop so that they could go outside. Quinley estimates that they were back 

outside by 9:15 a.m. Quinley said that Verlin Deel and complainant argued 

for a while before complainant left the mine office after being discharged. 

Quinley stated that after he gave complainant the discharge slip, Verlin 

told him that the phone call had pertained to an allegation that management 

had not been using temporary supports in respondent's mine (Tr. 126; 134). 

Verlin Deel and Greg Deel also testified that Quinley had brought complainant 

out of the mine to discharge him before Quinley was ever told that a complaint 

had been made to HSHA about an alleged failure to use temporary supports 

(Tr. 180; 212). Greg testified that he was able to return Rines' call between 

9:00 and 9:30 a.m. (Tr. 211). The supervisory inspector testified that he 

thought the call was returned between 9:30 and 10:00 a.m., but that he did 

not think the call could have been returned later than 10:00 a.m. (Tr. 104). 

The preponderance of the evidence, therefore, supports a finding that the 

phone call was returned no later than 10:00 a.m. Since it takes at least 

10 minutes to get to the surface, Quinley could not have left the mine at 

10:00 a.m., as stated by complainant, and still have succeeded in returning 

the call by 10:00 a.m. (Tr. 129). 

30. One aspect of complainant's testimony about the events of June 27 

was proven to be completely false. That was his statement, as indicated in 

Finding No. 21 above, that he had seen Ronnie Lester in the mine during the 

morning of June 27 when, as a matter of fact, Ronnie Lester was absent on 

June 27 (Tr. 229). Complainant's own testimony shows that he knew that 

Ronnie Lester was the operator of the coal drill (Tr. 83; 99). Complainant 

also testified that John Carpenter, who normally operated the roof-bolting 

machine (Tr. 100), was running the coal drill on June 27, and that Genco, 

who normally helped operate the roof-bolting machine, was actually operating 

the roof-bolting machine on June 27 (Tr. 55). Those facts should have alerted 

complainant to the fact that Ronnie Lester, the normal operator of the coal 

drill, was absent, but complainant was tripped up on that aspect of his allegations so that he falsely testified that he saw Ronnie Lester during the 

morning of June 27. 

31. Complainant's felicity for devising answers was illustrated at 

pages 63 and 65 of the transcript. On page 63, he stated that he did not 

bring timbers into the mine for use as temporary supports when he was the 

operator of the roof-bolting machine because that was not one of his duties 

as operator of the roof-bolting machine. He said that bringing in timbers 

from the outside was a duty of the general inside laborer, the supply man, or 

the scoop operator. After complainant had agreed to resume the duties of a 

general inside laborer in return for complainant's offer to pay him the wages 

of the operator of a roof-bolting machine, complainant stated that although 

he hauled timbers when instructed to do so by the foreman, hauling timbers 

was not a duty of a general inside laborer (Tr. 65). 

2241 
32. Verlin Deel, Jr., was the helper to the operator of the roofbolting machine on the morning of June 27 (Tr. 224; 231). He testified that 

he installed four metal jacks as temporary supports and that the metal jacks 

were carried on the· roof-bolting machine (Tr. 232). He stated that it takes 

about 2 or 3 minutes to install four metal jacks as temporary supports. Deel, 

Jr., stated that the regular operator of the roof-bolting machine was John 

Carpenter who could install roof bolts in. one working place within a period 

of 15 minutes, but Carpenter was running the coal driLl on June 27 and Bryan 

Genco, the regular helper to the operator of the roof-bolting machine, was 

actually operating.the roof-bolting machine. Carpenter was running the coal 

drill because the normal operator of the coal drill, Ronnie Lester, was 

absent (Tr. 229). Because Genco was not the regular operator, it took Genco 

from 20 to 30 minutes to install roof bolts in a single working place (Tr. 225). 

Deel, Jr., had only worked in the mine since June 1980 and had never seen 

complainant do any work other than that of a general inside laborer (Tr. 233). 

Deel, Jr. 's testimony about the use of temporary supports was not part of his 

direct testimony and he discussed his use of temporary supports only after 

I happened to ask him about his duties as helper to the operator of the roofbolting machine. 

Consideration of Parties' Arguments 

Anyone who first reads the 31 findings of fact set forth above and then 

reads the proposed findings of fact given on pages three to eight of·complainant's brief, will think that complainant's counsel was using a different transcript from the one used by me because very few of the facts given in complainant's brief agree with those given in my 31 findings of fact. Therefore, 

before I can begin to consider the arguments given on pages eight to 24 of 

complinant's brief, I must explain why the facts alleged on pages three to 

eight of complainant's brief must be rejected for being either erroneous or 

incomplete or misleading. 

Complainant's brief states on page three that I shall have to make credibility resolutions in order to decide the issues in this proceeding. Respondent's reply brief (p. 4) agrees that "[p]art of this case hinges on the 

credibility of the witnesses". I agree wholeheartedly with that much of the 

briefs submitted by both parties. In determining credibility, a person's 

total testimony must be considered because, as the Commission noted in Thomas 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 813 (1981), a lack of credibility by a witness with respect to one point does not mean that his testimony 

must be rejected as to all things if his testimony is corroborated by other 

evidence as to other matters. Additionally, it is important to consider all 

of a person's traits and characteristics in determining credibility. The way 

that a witness expresses his thoughts and describes events is also important. 

Even though one witness may answer a question with a rather complete exposition which sounds convincing, he may be expounding upon a complete fabrication. 

Another witness may answer questions in such a brief way, that he sounds unconvincing even though he is telling exactly what happened to the best of his 

ability to describe a given event. 

2242 
Complainant's First Discharge 

Complainant's brief (p. 3) states that complainant was discharged in 

January 1980 for missing one day of work. That sort of incomplete description fails to reflect complainant's unsatisfactory performance which led to 

his discharge. Finding No. 6, supra, shows that complainant had taken 2 days 

off prior to the third absence in January which resulted in his first discharge. 

Complainant stated during the hearing that, under the Union contract, a miner 

can be discharged for missing 3 days at work during a 30-day period and 

defended his absences by stating that he had taken 3 days off within a 45-day 

period (Tr. 97). Complainant conceded that in a small mine like respondent-'s, 

which employs only eight miners, the operator is greatly inconvenienced when 

a single person unexpectedly takes a day off because of management's limited 

ability to shift workers so as to cover for the work which will not be done 

by the person who is absent (Tr. 98). The fact that the mine foreman, Charles 

Quinley, and a one-third owner, Verlin Deel, agreed to reinstate complainant 

on the following day after his first discharge shows that respondent's management was willing to give an employee a chance to redeem himself. Moreover, 

it should be noted that complainant was reinstated after his first discharge 

without any pressure by the Union to get complainant reinstated (Tr. 144). 

Complainant's Position as Operator of the Roof-Bolting Machine (March to June 4) 

Complainant's brief (p. 3) incorrectly states that complainant was promoted in March to the position of helper to the operator of the roof-bolting 

machine. Finding No. 7, supra, shows that complainant became a helper to the 

operator of the roof-bolting machine in February 1980, not March 1980, as 

stated in complainant's brief. As reflected in Finding No. 8, supra, complainant did not erect any temporary supports while he held the position as 

helper to the operator of the roof-bolting machine. 

Complainant's brief (p. 3) incorrectly states that complainant began to 

use temporary supports on March 20, 1980, after an MSHA inspector explained 

the roof-control plan to the miners in respondent's mine. Finding No. 10, 

supra, correctly states that complainant became the operator of the roofbolting machine in early March 1980 and Finding No. 11, supra, correctly states 

that complainant did not use temporary supports between early March and May 20, 

1980, when the inspector explained the roof-control plan to the miners at 

respondent's mine (Tr. 17). Assuming that early March is about March 10, 

1980, and recognizing that complainant actually began to use temporary supports 

after the inspector's visit on May 20, 1980, it is clear that complainant 

bolted without temporary supports for a period of about 52 days before he 

ever gave any thought to the fact that he ought to be using them. 

As shown by Finding No. 14, supra, complainant was either discharged or 

quit on June 4, 1980, after having an argument with Verlin Deel, a one-third 

owner of respondent's mine. Finding No. 15, supra, reflects the fact that 

although complainant was reinstated as a miner at respondent's mine, he was 

reinstated as a general inside laborer who was to receive the pay of an operator of a roof-bolting machine. Therefore, complainant actually used temporary supports only for the period from May 20, 1980, to June 4, 1980, or a 

period of 11 days. Even during those 11 days, complainant did not use 

temporary supports when installing bolts in the Nos. 1 and 7 entrtes because 

2243 
he claimed that he did not have timbers high enough to support the roof in 

the 6-foot No. 7 entry and that he wouldn't cut off the timbers he did have 

for use in the 40-to-48-inch No. 1 entry. Complainant said that he was not 

supplied with timbers of sufficient height for the No. 7 entry until respondent began pillaring operations about 2 to 4 days before complainant's second 

discharge on June 4, 1980. The evidence shows, therefore, that complainant 

actually used timbers or temporary supports in all entries for from 2 to 4 

days out of the entire time that he held the position of operator of the 

roof-bolting machine (Finding Nos. 12 and 13, supra). 

Complainant's brief (p. 4) incorrectly states that, after the inspector's 

visit to the mine, complainant "insisted on using temporary supports, in the 

form of either timbers or jacks, before adding permanent roof support". Complainant stated unequivocally at transcript page 20 that he was never supplied 

with metal jacks. Complainant's brief (p. 4) ignores complainant's testimony 

as to the height of respondent's mine and adopts a height given by Verlin 

Deel, one of the mine's owners. When complainant is justifying his difficulties in securing timbers, he should be held to the mining heights which he 

claimed existed in the mine rather than permit him to ref er to a mining height 

given by Verlin Deel whose testimony complainant considers to be highly unreliable. As shown by Finding No. 12, supra, complainant at first stated 

that the height of the mine varied from 40 inches to 5-1/2 feet; he thereafter increased the height from 48 inches to 6 feet. 

For a number of reasons, it was necessary for complainant to take the 

position that the metal jacks supplied by respondent were unworkable. First, 

he knew that if he admitted that they would work at all, he would have to 

agree that the jacks could be erected as temporary supports in a matter of 

3 or 4 minutes and that complainant's inability to install roof bolts in more 

than 10 places per shift, as opposed to 15 by other roof halters, would 

require him to acknowledge his lack of skill as an operator of a roof-bolting 

machine, rather than shore up his argument that the only reason he could not 

install roof bolts as fast as the other miners was that he had insisted on 

installing temporary supports, whereas they did not use temporary supports. 

This point is of vital importance in this case because, as I have explained 

above, complainant installed roof bolts for 52 days without using temporary 

supports and yet he unequivocally admitted that he never succeeded at any 

time in installing bolts in more than 10 working places per shift, even when 

he was not using temporary supports, although both his predecessor and succesor 

as operator of the roof-bolting machine could install bolts in from 14 to 15 

places per shift (Finding No. 10. supra). 

Another reason that complainant had to take the position that the jacks 

would not work is that he claimed that he only carried four timbers 5 feet 

long on the roof-bolting machine and that he could not use those timbers 

because the height varied from 40 inches to 6 feet (Finding No. 12, supra). 

Anyone knows that if the roof height varies from 40 inches to 6 feet, there 

has to be some roof height which is 5 feet, or 60 inches high, when one is 

bolting an area which ranges between 40 inches and 72 inches in height. Therefore, complainant necessarily could have used the 60-inch timbers at least once 

in a while as temporary supports. 

2244 
A further reason that complainant had to take the position that the 

jacks would not work is that they had an adjustment of 18 inches. Complainant had this fact ever in mind because when he first gave a variable height 

in the mine he gave a low of 40 inches and a high of 5-1/2 feet, or a variable 

height of 26 inches which was a variation of more than 18 inches. When complainant next gave different heights for the mine, he raised the low to 

48 inches, but he found it necessary to increase the height of the mine to 

6 feet, or 72 inches, because he knew that if he raised the minimum to 

48 inches and left the maximum at 5-1/2 feet, or 66 inches, he would be supplying heights with. an 18-inch variation which was exactly the range of adjustment of the jacks which had been supplied by respondent. 

Complainant's brief concedes in footnote 4 on page 4 that a question 

exists as to whether metal jacks were ever made available, but complainant 

states that I do not need to resolve that question. Complainant cites some 

of Verlin Deel's testimony to the effect that he was not sure of the extent 

of the adjustments which could be made in the jacks. Complainant also cites 

Quinlty's testimony in which he took the position that the jacks were there 

if the miners wanted to use them. 

Among complainant's other oversights in the argument in footnote 4 on 

page 4, is his failure to take into consideration Quinley's testimony on 

pages 157 and 158 where Quinley stated that he had actually tested the jacks 

and knew that they worked. He further stated that the height of the mine did_ 

not vary more than 18 inches at the time complainant was roof bolter, but that 

the height did vary more than that after complainant was discharged. Quinley 

stated that the increased height was allowed for by management's supplying 

long jacks which were laid on the high side of the mine and picked up by the 

roof bolters when they were bolting on the high side. 

The other very significant testimony which complainant chooses to ignore 

in the footnote on page 4 is that Verlin Deel, Jr., testified that he was the 

helper to the operator of the roof-bolting machine on June 27, 1980, when complainant was discharged. He stated that he personally used metal jacks as 

temporary supports, that they were adjustable, and that they were kept on the 

roof-bolting machine. He further testified that it takes only 2 or 3 minutes 

to set the metal jacks as temporary supports (Finding No. 32, supra). 

Now that complainant has been reminded of the fact that a miner on June 27, 

1980, was installing temporary supports, I am sure that his argument will be 

that I should not give any credibility to the testimony of Verlin Deel, Jr., 

because his father was a one-third owner of the mine. I might have been 

inclined to agree with that sort of argument if I had not examined the testimony closely. It turns out that respondent's counsel did not ask Verlin 

Deel, Jr., a single question about temporary supports or the time it takes to 

set them at the time respondent's counsel presented Verlin Deel, .Jr. 's direct 

testimony. If respondent's management had intended to coach Verlin Deel·, Jr., 

as to the kind of testimony he should provide for this proceeding, I cannot 

imagine that management would have failed to make certain that Verlin Deel, 

Jr., testified on direct as to his having been using metal jacks as temporary 

supports on June 27, 1980. Such testimony not only shows that the metal jacks 

2245 
would work and were being used, but it also refutes complainant's contention 

that temporary supports were not being used in the mine on the day of his 

discharge (Tr. 74). Other reasons for giving Verlin Deel, Jr., a high credibility rating was his fairness in dealing with questions about complainant. 

For example, while Verlin Deel, Jr., stated that he had observed complainant 

sitting down in the mine, he also stated that everyone sits down once in a 

while (Tr. 234). Even though Verlin Deel~ Jr., did not know whether the coal 

drill was being repaired on June 27, 1980, he supported complainant's testimony to that effect by stating that the coal drill broke down almost every 

day and that he would assume that sometime during the day on June 27, 1980, 

it would need to be repaired since that was a daily occurrence (Tr. 235). 

For the reasons given above, Verlin Deel, Jr.'s testimony should be given 

a high credibility rating and is sufficient support for a finding that metal 

jacks were supplied by management, that they worked, and that they were being 

used on June 27, 1980, the day of complainant's discharge. 

Complainant's brief (p. 5), for no apparent reason, relies on Verlin 

Deel's description of where timbers were stored to explain how hard it was for 

complainant to obtain timbers for use in making temporary supports. The brief 

states that complainant had to go beyond the last open crosscut to find timbers 

and a saw for the purpose of cutting timbers to use for temporary supports, 

but complainant cites Verlin Deel's testimony at page 200 in support of that 

statement, whereas complainant himself stated at page 94 that he and.his helper 

had to go three breaks and carry 6-foot long timbers to the area and cut them 

and set them. It should be borne in mind, however, that complainant said he 

only had timbers of sufficient length for the No. 7 entry for 4 days at most 

(Tr. 94). Thus, while he claims that his roof-bolting speed was reduced 

greatly when he began to bolt during retreat mining, he was only engaged in 

very slow timber cutting for ~ out of the total of 63 days during which he was 

employed as operator of the roof-bolting machine. 

Complainant's brief (p. 5) refers to the fact that Verlin Deal and Charles 

Quinley criticized complainant's inability to install roof bolts fast enough 

to keep ahead of the other miners who were drilling, shooting, and scooping 

up coal. The brief defends complainant's inability to install roof bolts 

rapidly by contending that the only reason complainant was slow was that he 

insisted on setting temporary supports. As I have explain~d above, and as my 

findings of fact show (Nos. 10 through 13, supra), complainant admitted that 

he was slow and that he never succeeded in bolting more than 10 places per 

shift for the 52 days during which he worked without using temporary supports. 

Moreover, complainant did not use temporary supports·in all entries except 

for the last 2 to 4 days of the time he was employed as the operator of the 

roof-bolting machine. The evidence simply does not support complainant's 

contention that his lack of speed as a roof bolter was caused by his insistence 

that temporary supports be erected prior to installation of roof bolts. A 

company which tolerates a slow roof bolter for 52 days certainly has a right 

to complain about his lack of speed after he has done the work that long without 

showing any improvement in the speed at which he was able to install roof 

bolts. Even complainant stated that he was inexperienced when he started 

operating the roof-bolting machine and that his speed increased during the 

first week to the point that he was able to install roof bolts in about 

2246 
10 places during a single shift. The trouble was that complainant never did 

get above a speed of installing bolts in 10 places per shift even though he 

held that position for 52 days before he ever began to use temporary supports. 

Complainant's brief (p. 5) gives an erroneous description of complainant's 

second discharge by saying that "[u]ltimately, Fleming was discharged for "slow 

production" on June 4 (Tr. 116)". No one used the term "slow production" on 

page 116. Moreover, the witness carefully explained on page 116 that complainant was not an experienced operator when he was given, at complainant's request, 

the opportunity to be the operator of the roof-bolting machine. Complainant 

was told at the time he became the operator that he could retain the position 

only if he showed that he could handle the job (Tr. 175). Complainant's own 

testimony shows without any equivocation that he could not install roof bolts 

in more than 10 working places per shift regardless of whether he used temporary supports or not. After respondent's management had given complainant 

a period of 52 days without using temporary supports, 7 days with partial 

temporary supports, and 4 days with temporary supports in all entries,a total 

trial period of 63 days (March 10 to June 4), Verlin Deel, a one-third owner, 

told complainant that he would have to relieve him of the job of operator of 

the roof-bolting machine. Complainant took the position that, under the Union 

contract, Verlin Deel could not make him give up the job of operating the roofbolting machine. 

Complainant's brief (p. 5) further makes a misleading statement of the 

facts by stating that "[t]his discharge [of June 4] was brought to the union's 

attention and resolved in the grievance procedure." As I have explained in 

Finding No. 14, supra, the grievance filed by complainant with respect to his 

alleged discharge on June 4 was never officially decided. Respondent's management simply agreed to allow complainant to continue working at respondent's 

mine after respondent's management was advised by a Union representative that 

miners had won similar cases. It is significant that when complainant returned 

to work on June 11, he agreed to accept the position of a general inside 

laborer after management agreed to pay him the salary of an operator of a roofbolting machine. 

Complainant's Position as General Inside Laborer (June 11 to June 27) 

The discharge which is the subject of the complaint in this proceeding 

occurred on June 27, or the 13th day after complainant had returned to work 

on June 11 and had agreed to do the work of a general inside laborer while 

getting paid the wages of an operator of a roof-bolting machine. Complainant's 

brief (p. 5) states that management did not complain during this period about 

the way complainant was performing his job. Complainant's own testimony, as 

indicated in Finding No. 16, supra, shows that management told complainant 

several times a day that his work was unsatisfactory. To use complainant's 

own words (Tr. 28): 

A. I could not sit down to 

take care of something which 

I was continuously told that 

I was not doing good enough. 

around much longer. 

eat my lunch without being ordered to go 

meant that I had to interrupt my lunch. 

I had to do better; I had to do more; 

If I didn't improve I wouldn't be 

224'/ 
Q. When were things such as that said to you? 

A. At various times throughout the day, whenever someone had 

something for me to do. If I were rock dusting and Charles Quinley 

had a curtain that needed to be hung, he would come and inform me 

of it and then add on top of the instructions, you will have to 

start doing better. 

Q. Was this_ statement, you will have to start doing better, said 

to you at times you were performing other job duties? 

A. Absolutely. 

Complainant completely contradicted his statement above when he was 

describing his work on the 13th and last day of his employment as a general 

inside laborer. At that time, he testified (Tr. 42): 

Q. Had you seen Mr. Quinley between the time you told him about the 

phone call and this time? 

A. Yes. 

Q. Had you had any discussions with him? 

A. Only the normal discussions whereas he would inform me of anything 

that needed to be done. And it was his practice that in his tour of 

the face area, if he found a curtain down he would come to me and inform 

me of it, at which time I would have the option to either hang it immediately or if I, in my regular course of my duties were going to take 

me in that direction in the near future, I would just work down towards it. 

The same supervisor, Charles Quinley, who was previously depicted as having 

been harassing complainant, is described above as having a "practice" of reporting curtains to complainant and giving him an option to hang them immediately 

or do them in due course. Despite complainant's many contradictory statements, 

as illustrated above and as set out in my Findings of Fact Nos. 23, 24, 29, 30, 

and 31, supra, complainant's brief (pp. 14-15) praises his own demeanor as a 

witness, claims that his recollections were largely uncontradicted, and urges 

that I rank him as a much more credible witness than Charles Quinley, the 

foreman who discharged complainant. 

Complainant's brief (p. 6) refers to the fact that on June 26, after 

complainant had worked as a general inside laborer for 12 days, Verlin Deel, 

a one-third owner of the mine, engaged in a conversation with complainant. 

Complainant emphasizes that Verlin told him on June 26 that he would get 

8 hours of work out of complainant one way or another and make it so hard on 

complainant that he would leave. Both men agreed that it was a heated conversation. It is a fact, however, that even though complainant reported for work 

a half hour late the next morning, June 27, no one treated him harshly in any 

way. Complainant gave his supervisor, Charles Quinley, a message about returning a phone call. Verlin Deel was present and did not give complainant any 

orders. Instead, complainant states that, "after delivering the me.ssage to 

Mr. Quinley, I went on about my duties hanging curtains and rock dusting" 

(Tr. 35). 

2248 
When complainant described the heated conversation of June 26, he stated 

as follows (Tr. 32): 

A. I do not recall what started the conversation, but it ended in 

a discussion of Union rights and contract obligations and it ended 

in a rather heated discussion between Mr. Deel and myself about my 

duties that were going to be assigned to me the next day. * * * 

The part of the heated conversation which complainant could not remember was 

recalled by Verlin Deel who testified as follows about the heated conversation 

of June 26 (Tr. 176-177): 

Q. The day before the firing of Mr. Fleming did you have occasion 

to engage in any discussion with him? 

A. Yeah, I called him in the office the evening before and I told 

him that some of the men had made a complaint that he wasn't keeping 

up his job; they was having to do his job. And I told him, I said, 

you are going to have to do your job if you stay here. And so he 

kindly had a few words to say, you know, kindly talked smart, and 

I guess I talked smart to him, too. * * * 

The reason that the above-described testimony is important is that it 

shows beyond any doubt that complainant was warned on the day before his 

discharge that his work as a general inside laborer was unsatisfactory and it 

also shows that complainant only argued his rights under the Union contract. 

Nothing whatsoever was said about complainant's alleged insistence on using 

temporary supports when he was the operator of the roof-bolting machine. 

In footnote 5 on page 6 of complainant's brief, it is stated that Quinley 

alleged that he was constantly having to speak to complainant about his inadequate job performance. The footnote then states that Quinley could not give 

a single specific incident of poor job performance. There are many statements 

in the record about complainant's failure to do his job. It should be borne 

in mind that hanging curtains and rock dusting across seven entries is not the 

sort of work which creates specific incidents of poor job performance. As 

Quinley stated, it was obvious across the section when curtains were not hung 

and rock dust was not applied (Tr. 146). Quinley stated that he warned complainant daily about inadequate job performance (Tr. 123) and, as indicated 

above, complainant himself said he was "continuously told" he would have 

"to do better" (Tr. 28). Additionally, as also noted above, Verlin Deel 

certainly warned complainant about inadequate job performance on June 26, the 

day before he was discharged for sitting down on the job. 

There is no record support whatsoever for the claim in complainant's 

brief (p. 6) to the effect that complainant "went to the number six or number 

seven heading where he met Charles Quinley (Tr. 35)". Complainant's brief 

(footnote 6, p. 6) then alleges that respondent's witnesses presented contradictory testimony as to where complainant first entered the working section 

on June 27. The brief claims that Quinley testified it was the No. 3 entry 

(Tr. 149), whereas Verlin Deel testified it was the No. 5 entry (Tr. 182). 

2249 
As to the claim in complainant's brief that complainant met Charles 

Quinley in the No. 6 or No. 7 entry, complainant did not specify any entry 

as the meeting place between him and Quinley (Tr. 35). Moreover, he stated 

that he did not recall exactly where he started hanging curtains that 

morning, but he said he might have started in the No. 6 or No. 7 entry (Tr. 35). 

The only witness who really professed to know where Quinley and complainant 

met on the morning of June 27 was Verlin Deel who stated at transcript 

page 203 that he first saw complainant in the last open crosscut near entry 

No. 5. Verlin said that Quinley "came walking up through there" and one 

must assume that Quinley and complainant met at entry No. 5 since complainant 

did not say where they met. As for complainant's claim in footnote 6 that 

Quinley testified that they met in entry No. 3, Quinley did not say where 

they first met on the morning of June 27. Complainant's brief cites transcript page 149 as the basis for claiming that Quinley said they met at entry 

No. 3. On page 149, however, Quinley is describing the place where complainant 

was sitting at the time Quinley decided to discharge him on June 27 and the 

only entries mentioned there are Nos. 1 and 2. Quinley finally decided that 

the site of complainant's discharge was outby the No. 3 entry, but Quinley 

decided that only after being shown a map of the mine prepared by complainant. 

for the purpose of showing the site of his discharge (Tr. 46; 171; Exh. 2). 

Quinley also stated that he found complainant sitting where he had left him 

(Tr. 171). The testimony, therefore, shows that neither Quinley nor complainant ever specifically designated the place where they met on June 27 ·to discuss the phone call, so any finding as to their exact place of meeting rests 

on the statement of Verlin Deel that complainant and Quinley met in the 

vicinity of the Noo 5 entry. 

Complainant's brief (p. 7) alleges that complainant installed a total 

of four or five curtains on the morning of June 27. Complainant cites transcript page 35 in support of his claim that he hung four or five curtains, 

but when complainant was asked if he knew where he began hanging curtains, 

he answered "No, not exactly" and stated that he generally began in the 

No. 7 or No. 6 entry, but he didn't say that he did hang curtains in either 

the No. 7 or No. 6 entry. When complainant was asked by his own counsel 

if he could recall how many curtains he hung, he answered "[n]ot exactly" 

(Tr. 36). On page 37 complainant spoke of generalities about fly curtains 

and said that some curtains had been pulled down by the scoop and he said 

that if you follow the scoop you "usually" find them, but he did not testify 

that he found any by following the scoop on June 27. In fact, the only 

curtain which complainant specifically claimed to have hung on June 27 was 

the curtain in the No. 1 entry (Tr. 44). 

Complainant's brief (p. 7) tries to establish a sequence of events for 

June 27 based on an amalgamation of the contradictory testimony of complainant and Quinley. Complainant acknowledges in footnote 7 on page 7 that the 

witnesses contradicted each other, but complainant states that it is unnecessary to resolve the credibility questions about the events of June 27 

because of certain credibility arguments which are made in complainant's 

brief on pages 8 to 15. Those arguments will next be considered. 

2250 
The Credibility of Charles Quinley, the Mine Foreman 

Complainant's brief (p. 8) acknowledges that he must prove that he was 

discharged for engaging in a protected activity. He alleges that his testimony supports a conclusion that he was discharged for engaging in a protected 

activity and argues tha.t all I have to do before reaching that desired conclusion is to find that his testimony is credible, while I find that the 

testimony of Charles Quinley, the mine foreman who discharged him, is 

incredible. Complainant argues that Quinley's testimony shows that he was 

an evasive witness with a selective memory. Several examples of Quinley's 

evasive testimony are given. It is first noted that Quinley was responsible 

for all activities on the working section, yet when he was asked by his counsel 

on direct examination if the miners were using safety jacks in their roofbolting procedures, he answered the question with the words "Safety jacks 

(Tr. 123)", instead of saying "Yes" or "No". 

As I explained in the second paragraph of this decision under the heading 

of "Consideration of Parties' Arguments", supra, the mere fact that a witness 

answers a question briefly, or in a way which might be considered evasive, 

does not mean that his credibility is necessarily impaired. Quinley had a 

characteristic of giving monosyllabic answers. For example, he answered 

another of his counsel's questions as follows (Tr. 142-143): 

Q. Is it unusual for bolts to be out in the mine? 

A. No. 

Q. That's a connnon occurrence in all mines? 

A. Connnon. 

Quinley later answered one of my questions as follows (Tr. 145): 

Q. He would come to work, but he wouldn't work· after he got there? 

A. After he got there. 

On another occasion, the following exchange between me and Quinley occurred 

(Tr. 158): 

Q. You should have brought one [metal jack] in here and demonstrated. 

A. Should have. 

Notwithstanding the alleged evasiveness of Quinley in answering questions 

in as few words as possible, he conceded unequivocally that the miners were 

not using jacks or temporary supports when questioned about that subject by 

complainant's counsel during cross-examination (Tr. 140): 

Q. And it is your testimony that those [metal jacks] were installed 

in every place before bolting? 

A. They were supposed to have been. 

2251 
Q. But is it your testimony that they were installed? 

A. I can't say that they were. 

Complainant's brief (p. 9) alleges that Quinley testified that there 

were not enough jacks on the section. Complainant cites Quinley's testimony 

on page 125 in support of that allegation. The actual testimony is as 

follows (Tr. 125): 

Q. Did you have enough jacks for the job? 

A. Yes sir. 

Complainant may have been referring to the fact that on page 125 Quinley 

first stated that timbers were not needed for use as temporary supports because 

four metal jacks with an 18-inch variable adjustment were carried on the roofbolting machine for use as temporary supports. Quinley conceded, after saying 

that they had enough jacks, that there might have been times when the jacks 

wouldn't fit and he also conceded that it would have been necessary for them 

to use timbers in such circumstances. Inasmuch as Quinley said that the 

height of the mine varied from 46 inches to 50 inches (Tr. 137), it would have 

been a rare situation when jacks with an 18-inch adjustment would fail to fit. 

As indicated in Finding No. 12, supra, complainant was very uncertai~ about the 

heights he encountered in the mine, so Quinley can hardly be discredited as 

a witness just because he gave different estimates as to the mine's variable 

heights from the ones given by complainant. Moreover, as I have already 

pointed out under the heading of "Complainant's Position as Operator of the 

Roof-Bolting Machine", supra, complainant relied in his brief (p. 4) on variable mine heights given by Verlin Deel and those variable heights are different from the ones given by complainant. 

Complainant's brief (pp. 10-11) next challenges Quinley's credibility 

because it is claimed that he gave different and inconsistent answers when he 

was asked, on three different occasions, about the amount of time which it 

takes to install temporary supports. Complainant alleges that .the first time 

Quinley discussed the use of temporary supports, he stated that it takes about 

the same amount of time to support a roof with temporary and permanent supports 

as it does to bolt a roof with only permanent supports (Tr:--138). Complainant 

says that the second time Quinley discussed temporary supports, he stated that 

it takes about 10 minutes more to cut and set four timbers than it would to 

install only permanent supports (Tr. 142). The third time he addressed the 

question of temporary supports, complainant alleges that he said it would 

take approximately 3 or 4 minutes extra to put up temporary supports before 

installation of permanent roof bolts (Tr. 158). Complainant's brief (p. 10) 

concludes that Quinley's inconsistent and self-serving replies speak for themselves and show that his testimony lacks credibility. 

There are several errors in complainant's arguments about Quinley's 

inconsistent answers to questions about the length of time required for setting 

temporary supports. In the first place, although Quinley was asked about the 

length of time it takes to set temporary supports on three different occasions, 

his answers were consistent each time. In the second place, complainant incorrectly refers to two occasions which really constituted a single time 

(Tr. 138 and 142). Finally, complainant chose to ignore the first time (Tr. 125). 

2252 
To set the record straight as to the number of times Quinley was asked about 

the length of time it takes to set temporary supports, the first time was 

when his own counsel asked him (Tr. 125), the second time was when complainant's counsel asked him (Tr. 138-142), and the third time was when I asked him 

(Tr. 158). 

Complainant's contention that Quinley inconsistently answered questions 

about the length of time it takes to set temporary supports is achieved by 

ignoring the fact that he insisted each time he was asked about temporary supports that the miners were furnished with metal jacks which could be installed 

in almost no additional time as compared with the miners' having to use timbers 

which he conceded might require as much as 10 minutes of additional time. To 

show that his answers were consistent, it is necessary to examine the testimony 

in each instance. Quinley first distinguished between use of metal jacks and 

timbers when questioned by his own counsel (Tr. 125): 

Q. But you didn't have timbers in there [on the roof-bolting machine] 

because you used safety jacks? 

A. That's right. Our height varied up and down and to use the timbers 

like that on the pinner, you would have had to cut all the time, haul 

them in these cuts, stand them up. Where you take the jack, they have 

got an eighteen inch variation to them. Use them, no worry. 

When Quinley was asked about the period of time it takes to set temporary 

supports by complainant's counsel, he answered her questions as follows 

(Tr. 138-142): 

Q. How long does it take to put roof bolts in a section of this mine 

without setting temporary supports. 

A. How long? It's according to who does it. 

Q. Give me an average. 

A. A good operator, fifteen to twenty minutes. 

Q. And how much longer does it take if you do set temporary supports? 

A. Takes about the same time, because you have a helper to help you set 

the jacks. 

* * * * * 

Q. And how long does it take to set temporary supports? 

A. Just as long as you can spin a jack stand, [fraction] or five to 

ten seconds to a stand. 

* * * * * 

2253 
Q. At the time when timbers had to be cut before they were set as 

temporary supports, did this cause the bolting operation to take 

longer. 

A. Yes. 

Q. How much longer? 

A. Well, it's according to how hard they worked at it. 

Q. Well, let's assume that somebody is working at the average speed, 

how long does it take to cut and set a timber? 

A. I would say ten minutes more. 

Q. Ten minutes more? 

A. For four timbers. 

The third time Quinley ~,as asked about how long it takes to set temporary 

supports was when he answerea my questions as follows (Tr. 158): 

Q. How much extra time did you say it took to set the four temporary 

supports? 

A. I wouldn't say any time. 

Q. It has to take some time. 

A. Maybe some, not that· much to amount--maybe two or three minutes. 

Q. If you had a man that wasn't using roof bolts or jacks at all and 

another man who did use them, you would say that the time they would 

bolt a place wouldn't vary more than how many minutes between the two 

men? 

A. Couldn't be over three. 

Q. Three or four minutes? 

A. Something like that. All you have to do is stand them up and put a 

stand on them, that's all. 

The testimony reviewed above shows that Quinley pref erred to take the 

position that an experienced operator and helper should be able to install 

roof bolts while using metal jacks as temporary supports without allowing 

any additional time for the setting of the jacks, as compared to bolting 

without use of any temporary supports at all. Quinley, on one occasion, 

stated that he had done nothing but install roof bolts for 7 years before 

he became a section foreman and that "[i]f anybody knows [about roof bolting], 

I ought to" (Tr. 117). Despite his reluctance to agree that it takes any 

additional time at all to install jacks, he consistently, when pressed on the 

subject, reluctantly conceded that it might take from 2 to 4 minutes to 

install jacks as temporary supports. He also conceded, when he was asked 

about installing temporary supports, that if metal jacks weren't available, 

2254 
it would requil;:'e extra time up to about 10 minutes to cut timbers and install 

them. The foregoing extensive review of Quinley's testimony about the period 

of time it takes to install temporary supports shows that Quinley cannot be 

discredited as a witness on the basis of an allegation that his testimony was 

inconsistent as to the amount of time it takes to install temporary supports. 

Complainant's brief (pp. 10-11) next.argues that Quinley's testimony 

should be discredited because of his inconsistency in answering questions 

about the duties to which complainant had been assigned on the morning of 

June 27. Complainant first notes that Quinley stated, as his basis for concluding that complainant had done no work on the morning of June 27, that 

"[t]he curtain at the mouth of the place he [complainant] was sitting in wasn't 

hung. And that's the one I left him definitely to set and rock dust the place" 

(Tr. 149). Complainant then points out that Quinley, on cross-examination, had 

stated in answer to a question about whether he had given complainant any 

specific instructions that he had "[j]ust [told complainant to] rock dust and 

ventilate" (Tr. 138). Complainant argues that Quinley can't have it both ways 

because Quinley either did give specific instructions or he did not. Complainant's brief (p. 11) further contends that respondent has completely failed 

to submit any evidence to substantiate its primary defense that complainant 

was discharged for sitting down on the job and failing to engage in productive 

work on June 27. 

Complainant's arguments in the preceding paragraph overlook a considerable amount of evidence which supports the respondent's position in this proceeding much more than it does the complainant's contentions. Quinley's 

direct testimony shows that he spent some time and gave some specific thought 

to the work which he assigned complainant to do on the morning of June 27. 

Quinley stated that he had a miner by the name of Perry Ramey assisting complainant in the performance of complaiant's duties of hanging curtains and 

rock dusting (Tr. 118). On June 27, after complainant had told Quinley about 

the need for Quinley to return a phone call, Quinley instructed complainant 

to take care of all ventilation and rock· dusting on that day because Perry 

Ramey was going to help "shoot" (Tr. 119). Quinley recalled that while he 

was giving complainant instructions as to his duties for the day, another 

miner came up and asked to borrow some of complainant's tools which complainant normally carried with him (Tr. 164). Quinley testified that he did not 

stay around to watch complainant work because he had to go outside, after 

assigning complainant's duties, for the purpose of returning the phone call 

(Tr. 160). Quinley came back into the mine about 9:00 a.m. and found complainant sitting against the rib outside the No. 3 entry. Quinley noted that 

the curtain in the No. 3 entry had not been hung and that no new rock dusting 

had been done. Quinley was riding in the scoop and he stated that he did 

not even get out of the scoop. He had had trouble in getting complainant to 

do his work of hanging curtains and rock dusting ever since complainant was 

reinstated on June 11. At that moment, Quinley decided that he had had 

enough of complainant's failure to work and just told complainant to get in 

the scoop as he was taking him outside for the purpose of discharging him 

(Tr. 123; 145-146; 150-151). 

Complainant's brief (p. 11) also contends that Quinley's testimony should 

be discredited because he admitted, after much evasion, that he did not know 

whether curtains had been hung by complainant in any entry other than the No. 3 

2255 
outside of which complainant had been found sitting. It is true that Quinley 

reluctantly admitted that he did not know which entries had curtains, but that 

admission is more damaging to complainant's credibility as to his description 

of the events which occurred on June 27 than it is to Quinley's credibility. 

The reason for reaching the foregoing conclusion is that complainant contends 

that Quinley continuously followed compla~nant around on the morning of June 27 

and watched everything that complainant did, except for the hour when Quinley 

went outside to return the phone call (Tr. 42; 44). 

Quinley's testimony is much more credible as to the events which happened 

on the morning of June 27 than complainant's testimony because it was Quinley's 

failure to watch complainant and Quinley's having been outside up to the time 

he fired complainant that forced Quinley to have to admit that he did not know 

whether curtains had been hung in any of the headings other than No. 3--and 

possibly No. 4 (Tr. 170-172). If Quinley had been in the mine on the morning 

of June 27 long enough to have followed complainant around, as complainant 

contended, Quinley would have been able to state that, while he could not see 

into any of the headings except No. 3 and No. 4 at the time he discharged complainant, he knew that the curtains did or did not exist in the other headings 

by virtue of the fact that he had been following complainant that morning and 

knew the curtains were up or were not up. 

Complainant at no time denied that he had failed to hang a curtain in the 

No. 3 heading. He claimed that he went into the No. 3 heading to apply rock 

dust and that when he went into the No. 3 entry, the roof-bolting machine was 

being operated (Tr. 44-47). Complainant's own testimony also shows that he 

understood that his duties on the morning of June 27 consisted of hanging 

curtains and applying rock dust (Tr. 35). Complainant's failure to install a 

curtain in the No. 3 heading was in violation of 30 C.F.R. § 75.302(a) which 

provides in pertinent part: 

(a) Properly installed and adequately maintained line brattice 

or other approved devices shall be continuously used from the last 

open crosscut of an entry or room of each working section to provide 

adequate ventilation to the working faces for the miners and to remove 

flammable, explosive, and noxious gases, dust, and explosive fumes * * * 

Therefore, Quinley was justified in being upset with complainant's failure to 

hang a curtain in the No. 3 heading because complainant's having allowed roof 

bolting to be done in the No. 3 heading without installing a line brattice 

was a violation of the safety regulations as well as a failure to perform the 

duties which he had been assigned to do on the morning of June 27. 

Complainant's brief (p. 12) next attacks Quinley's credibility by citing 

testimony in which Quinley had stated that he could make decisions about discharging personnel, but preferred not to make such decisions on his own initiative (Tr. 135). It is then argued that it is "unbelievable" that Quinley 

could thereafter have claimed, as he did, that he had made the decision to 

discharge complainant without consulting higher management (Tr. 126). The 

foregoing argument misapplies the testimony cited in the argument and overlooks other testimony. Quinley explained that he was able to make the decision 

2256 
to discharge complainant because the mine owners knew what he had been putting 

up with and· they had already told Quinley to "get rid" of complainant if 

Quinley couldn't get him to do his job (Tr. 152). A careful reading of the 

testimony cited by complainant and the testimony cited in the preceding 

sentence shows that Quinley made the decision to discharge complainant on 

June 27 after having had plenty of prior authorization by respondent's management to discharge him. 

Complainant's brief (pp. 13-14) states that the final aspect of Quinley's 

testimony which shows that he is not a credible witness was his repeated 

assertion that he did not know he was going out of the mine on June 27 to 

return a call from MSHA. Complainant cites the testimony of Greg Deel, the 

outside man, for the purpose of showing that Quinley himself tried to dial 

the number as well as Greg. It is said that the testimony of both Quinley 

and Greg shows that they both knew they were trying to call someone who worked 

for MSHA (Tr. 119-120; 148; 215). In Finding of Fact Nos. 19 and 20, supra, 

I have compiled the testimony of all witnesses about the manner in which Quinley 

was told about the phone call from E. C. Rines, the MSHA supervisory inspector, 

and the steps that were taken by Quinley and Greg Deel to return the call. The 

preponderance of the evidence shows beyond any doubt that Quinley, Greg Deel, 

and Verlin Deel all knew that they had been asked to return a call from an 

MSHA employee before they ever succeeded in talking to him. That, however, 

does not mean that they knew before Quinley had brought complainant out of 

the mine to discharge him that complainant had reported to MSHA that temporary 

supports were not being used in respondent's mine. E. C. Rines testified in 

this proceeding that, in addition to the four complete inspections which are 

made of underground mines each year, there are about 30 types of policy inspections (Tr. 106; 109). Consequently, the mere fact that a person is asked to 

return a call made by an MSHA inspector does not provide an operator of a coal 

mine with any reason to believe that one of his employees has reported him to 

MSHA for a violation of a mandatory health or safety standard. 

The Credibility of Richard A. Fleming, the Complainant 

Complainant's brief (pp. 14-15) states that his testimony, as compared 

with that of Charles Quinley, was inuninently credible and well reasoned. It 

is said that complainant's demeanor on the witness stand was conunendable, 

that he recalled the events of June 27 clearly, and that he did not hesitate 

to answer any question on cross-examination. It is contended that complainant's attention to detail on the witness stand may be assumed to be characteristic of his attention to detail inside the mine. Complainant, however, does 

concede that his testimony was contradicted as to some allegations. For 

example, complainant acknowledges that he testified that he came out of the 

No. 3 heading on the morning of June 27 and sat down beside Quinley who was 

already sitting there, whereas Quinley testified that he did not sit down 

at all and that complainant certainly did not sit down beside him on June 27. 

Complainant urges me, however, to discredit Quinley's testimony and accept 

complainant's as to this contradicted occurrence because Verlin Deel, Jr., 

confirmed in his testimony that complainant had to sit down next to the coal 

rib to allow the "drill" to pass. 

2257 
Complainant inadvertently referred to a "drill" on page 15. All witnesses, without exception, have referred only to a roof-bolting machine in the 

No. 3 heading on June 27 in connection with complainant's allegation that he 

had to sit down against the rib to permit the roof-bolting machin~ to pass. 

Complainant's brief (p. 15) does not give a transcript reference in support 

of the claim that Verlin Deel, Jr. 's testimony corroborates complainant's 

allegation that he had to sit down against the rib to get out of the path of 

the roof-bolting machine and I have searched Verlin Deel, Jr. 's testimony 

in vain for any statement showing that he agreed that complainant had to sit 

down against the rib on June 27 to allow the roof-bolting machine to pass. 

Verlin Deel, Jr., stated that he heard Quinley tell complainant to hang a 

curtain or c.urtains before Deel went into an undesignated entry to assist the 

operator of the roof-bolting machine. Deel, Jr., testified that complainant 

was in the crosscut outside the entry when he went in to assist in roof bolting and that complainant was still in the crosscut outby· the entry when the 

roof-bolting machine was brought out of the entry. There is no indication 

in Deel, Jr. 's testimony that complainant was ever in the entry applying 

rock dust while they were roof bolting. Deel, ·Jr., did say that he was pulling up the trailing cable on the roof-bolting machine at the time Quinley came 

back into the mine and took complainant outside (Tr. 224-225; 228; 234). Therefore, Deel, Jr. 's testimony corroborates Quinley's version of what happened 

on June 27 more than it corroborates complainant's account of the events. 

As I have indicated in Finding of Fac·t Nos. 23, 29, 30, 31, supra, ancl 

in my discussion under the heading of "Complainant's Position as Operator of 

the Roof-Bolting Machine", supra, complainant's testimony is filled with contradictions which support a conclusion that he relied on his knowledge of the 

duties which should be done by a general inside laborer to fabricate a plausible account of what he actually did on the morning of June 27. Therefore, 

I must reject all of the arguments in complainant's brief to the effect that 

complainant's testimony is entitled to a high credibility rating. 

Complainant's Protected Activity 

Complainant's brief (p. 15) states that complainant was engaged in a protected activity under the Act and alleges that "[t]hroughout the time [complainant] was a roof bolter he insisted on setting temporary supports". As I 

have already explained in great detail under the heading of "Complainant's 

Position as Operator of the Roof-Bolting Machine", supra, complainant operated 

the roof-bolting machine for about 52 day~ before he used any temporary supports at all. He then used partial temporary supports from May 20·to about 

June 1 and finally used temporary supports in all entries for from 2 to 4 days 

before he either walked off the job or was discharged on June 4. The discharge 

which is before me in this proceeding occurred on June 27--not June 4--and the 

alleged protected activity involved complainant's calling MSHA to report that 

respondent was not using temporary supports, but complainant was not employed 

as a roof bolter at the time he made the call to MSHA and had not been a roof 

bolter for 16 working days before he made the call. 

Complainant's brief (p. 16) relies on the Commission's decision in Thomas 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981), in support of a claim 

that an employee is entitled to use "self-help" in order to protect himself 

2258 
from a hazardous condition. Complainant's reliance on the Robinette case is 

misplaced. In that case, the Conunission held that a person may use affirmative action to lessen a hazard after exercising his right to refuse to work 

where hazards exist. 

The arguments in complainant's brief (p. 16) about complainant's having 

to use self-help to protect himself from hazardous conditions are contrary 

to the facts and are completely unrelated to the issues in this proceeding. 

Complainant's own testimony in this proceeding shows that at no time did 

management suggest that he should install roof bolts without using temporary 

supports. While it is true that complainant contended that it was difficult 

for him to obtain timbers for use as temporary supports, he did continue to 

operate the roof-bolting machine in the Nos. 1 and 7 entries without temporary 

supports from May 20 to about June 1. Therefore, at no time did complainant 

ever refuse to work under an allegedly hazardous condition and at no time did 

he ever use affirmative action by refusing to install roof bolts until management supplied timbers which were short enough for the No. 1 entry and long 

enough for the No. 7 entry. When complainant did begin to use temporary supports in all entries on or about June 1, he used timbers which had been provided by management. Although he claims that the timbers became available 

only because management brought the timbers in to use in pulling pillars, the 

fact remains that complainant never at any time engaged in any activities 

which justify reliance by complainant on the Conunission's holding in the 

Robinette case, supra, especially since complainant's discharge on June 27 

had nothing to do with his use of temporary supports while he held the position 

of roof bolter. 

Complainant's brief (p. 17) refers to complainant's having called MSHA 

on the evening of June 26 to report the allegation that temporary supP,orts 

were not being used at respondent's mine. Complainant's brief (p. 17) then 

quotes from section 105(c)(l) of the Act and correctly argues that an operator 

may not discharge or otherwise discriminate against a miner who makes a complaint about a safety hazard to MSHA. If the evidence in this proceeding 

showed that respondent had discharged complainant because he reported respondent's failure to use temporary supports to MSHA, I would have no difficulty 

in finding that respondent had violated section 105(c)(l). The evidence, 

however, does not show that complainant was discharged for reporting the 

failure to use temporary supports to MSHA. On the contrary, he was discharged 

for failing to do the work which had been assigned to him, that is, hanging 

curtains and applying rock dust. 

Complainant's brief (p. 17) continues trying to claim that complainant's 

insistence on using temporary supports was a protected activity which is 

somehow related to complainant's discharge on June 27. Complainant was not 

a roof bolter at the time he was discharged on June 27 and had not been a roof 

bolter since June 4. Complainant's failure to do his work as a general inside 

laborer did not in any way slow down the installation of roof bolts. John 

Carpenter, who became operator of the roof-bolting machine after June 4, was 

able to install roof bolts in 15 working places per shift as compared to 

complainant's ability to bolt only 10 places. Therefore, respondent had no 

reason whatsoever for discharging complainant on June 27 because he had, while 

performing his duties as a roof bolter between May 20 and June 4 followed 

the requirements of respondent's roof-control plan by using temporary supports 

before installing roof bolts. 

2259 
Alleged Illegal Discharge 

Complainant's brief (p. 18) alleges that "[o]wner Verlin Deel admitted 

that Fleming [complainant] was the only miner who ever set temporary supports". 

During cross-examination by complainant's counsel, Verlin Deel testified as 

follows (Tr. 206): 

Q. Now, other than Mr. Fleming did any other miner, as a practice, 

use temporary supports? 

A. Yes, John [Carpenter] and Genco, they went to using them later 

on, and when they started using them -- that was Bryan Genco. 

Q. In other words, they used them sometimes? 

A. Yeah, sometimes. 

Q. But not all the time? 

A. Not all the time. 

As I have already pointed out under the heading "Complainant's Protected 

Activity", supra, the fact that complainant used temporary supports for 11 of 

the 63 days he was a roof bolter has nothing to do with his discharge. The 

alleged illegal discharge must stand or fall on the question of whether complainant was discharged because he reported to MSHA on June 26 [not June 27, 

as stated on page 18 of complainant's brief] that respondent's miners were 

not using temporary supports. 

Complainant's brief (p. 18), after having argued extensively that Quinley's 

testimony should be totally discredited (Br., p. 8), chooses to adopt Quinley's 

statement that complainant told Quinley on June 27 to ·call E. C. Rines, the 

MSHA supervisory inspector in Norton, whereas complainant testified that he 

only told Quinley that there was a message on the desk for him about an important phone call Quinley was to return (Tr. 35; 71). As indicated in Finding 

of Fact No. 19, supra, every witness (Complainant, Quinley, Verlin Deel, and 

Greg Deel) who had anything to do with the phone call gave somewhat conflicting accounts of it. From a credibility standpoint, it would have made a 

slightly better case for complainant if he had told Quinley on the morning of 

June 27 that E. C. Rines, a supervisory MSHA inspector in Norton had called 

and had asked that Quinley return his call. Complainant, however, testified 

that he had been instructed by Rines not to use Rines·' name and to tell Quinley 

to return a phone call (Tr. 35). Rines testified that he gave complainant 

only his name and the fact that he worked for MSHA. Therefore, unless complainant wrote Rines' name on the message he claims he left on the desk 

(Tr. 71), there would have been no possible way for Quinley or Greg Deel to 

have determined whose phone call Quinley had been asked to return. 

Greg testified that there was no message on the desk and that the only 

way he knew what number to call was that he knew when Quinley gave him Rines' 

name that Rines worked for MSHA. Greg stated that he had written MSHA's 

number down in the back of the phone book and that he knew what number to 

call by obtaining MSHA's number from the phone book. I can't see how it 

2260 
could possibly have enhanced Greg's credibility or respondent's position in 

this proceeding for Greg to have claimed that he had to look up MSHA's number 

if the number had been written by complainant on a message and left on the 

desk in the office. Moreover, since Rines himself testified that he gave 

complainant only his name and the fact that he worked for MSHA, I conclude 

that Quinley must have known Rines' name when he came into the office and 

that Quinley must have obtained Rines' name from complainant despite complainant's testimony to the effect that he did not give Rines' name to Quinley. 

Aside from th~ credibility determinations involved in the preceding discussion, it makes no difference how Greg and Quinley found out that they were 

supposed to call Rines in Norton. The significant aspect of the effort to 

call Rines on the morning of June 27 is that the evidence conclusively supports a finding that Quinley and Greg knew that they were supposed to return 

a call which had come from an MSHA employee. Of course, as indicated in 

Finding of Fact Nos. 20 and 29, supra, Quinley decided to discharge complainant 

before he ever learned that complainant had reported respondent's failure to 

install temporary supports to MSHA. 

Complainant's brief (pp. 19-20) quotes some testimony by Quinley in which 

he stated that he thought when complainant told him to call Rines that Rines 

was a Union man who might be calling in connection with 11>~ >~ ,·~ trouble we 

might have had with him [complainant] before and hired him back (Tr. 148)". 

Complainant then argues that regardless of whether I find that Quinley knew 

that complainant had made a complaint to MSHA before complainant was discharged, that Quinley's belief that complainant was again giving respondent 

"trouble" shows that Quinley wanted to discharge complainant for engaging in 

protected activities because the only prior trouble complainant had which 

involved the Union concerned complainant's setting of temporary supports, 

a protected activity. 

There are several defects in the foregoing argument. First, although 

Quinley thought the call might involve the Union when he got on the scoop to 

go outside, he was advised by Greg Deel as soon as he gave Greg the name of 

the person to be called that they were supposed to call an MSHA employee--not 

a Union employee. Therefore, Quinley had no reason to associate complainant 

with any "trouble" pertaining to a call to MSHA because complainant had never 

made any complaints to MSHA about conditions at respondent's mine prior to 

June 26 and Quinley did not have knowledge of the subject matter of the call 

of June 26 until after he had discharged complainant. 

A second defect in the argument is that complainant's use of temporary 

supports and "trouble" with the Union are not synonymous, interchangeable, 

or even interrelated matters. One of the important aspects of this case is 

that complainant, up to June 26, had never thought of going to MSHA to obtain 

redress for any of his alleged grievances. As indicated in Finding of Fact 

No. 9, supra, complainant at no time ever read or examined respondent's roofcontrol plan, but he did carry around with him a copy of the Union contract. 

He was an expert in expounding upon his rights under the Union contract. 

When complainant filed his grievance with the Union on June 4 (Tr. 25-26), 

he filed it immediately after he was asked to relinquish his position as 

operator of the roof-bolting machine to another employee who could bolt 

faster than complainant (Tr. 25; 60; 175). The record does not contain 

2261 
a detailed description of the grounds of the grievance filed with the Union, 

but the evidence in the record about the grievance shows that complainant's 

grievance dealt with complainant's rights under the Union contract rather 

than his insistence on installing temporary supports. Consequently, the 

record doesn't support complainant's contention that "trouble" with the 

Union is tantamount to complainant's insistence upon the use of temporary 

supports. 

A third defect in the argument is that the events which occurred on 

June 26 prior to complainant's discharge on June 27 do not support complainant's argument that "trouble" with the Union automatically caused respondent's 

management to conclude that complainant should be discharged for having 

engaged in a protected activity. It must be borne in mind that when complainant was reinstated on June 11, he took the position of general inside laborer. 

On June 26, Verlin Deel talked to complainant in the mine office and told him 

that management had received complaints from the other miners about complainant's failure to do his work. Complainant described the conversation as 

follows (Tr. 32): 

A. I do not recall what started the conversation, but it ended in a 

discussion of Union rights and contract obligations and it ended in a 

rather heated discussion between Mr. Deel and myself about my duties 

that were going to be assigned to me the next day. * * * ]:_/ 

The foregoing testimony shows that complainant, on the evening preceding his 

discharge on June 27, had argued Union contract rights with respondent's 

management. Since complainant had filed a grievance with the Union after 

the heated argument complainant had had with management on June 4, the 

evening of the preceding discharge, there is no reason for me to find that 

respondent's management would equate "trouble" with the Union as being synonymous with a complaint to MSHA about safety matters or any sort of protected 

activity. 

Complainant's brief (p. 21) notes that Greg Deel testified that Quinley 

used the underground paging phone to announce that he was coming outside with 

complainant (Tr. 212). Then,complainant argues that since complainant stated 

in his direct testimony that Quinley did not stop to use the phone when they 

went out together on the scoop (Tr. 49), that it must be concluded that Greg 

had called underground to advise Quinley of the subject matter of the phone 

call from MSHA. Therefore, it is argued that Quinley must have known about 

complainant's having reported the failure of respondent to use temporary 

supports prior to the time that Quinley discharged complainant. 

The preceding argument would be convincing except for at least three 

defects in it. First, as I have hereinbefore explained in considerable detail, 

complainant's credibility in this proceeding is very poor. Therefore, the 

mere fact that he said Quinley did not call outside does not mean that Quinley 

failed to announce that. he was coming out with complainant. Second, Greg Deel 

]:_/ Although complainant alleged that Verlin had threatened to assign him 

all sorts of jobs for the purpose of forcing him to resign, complainant's 

testimony shows that he was given no burdensome duties when he reported for 

work the next day despite the fact that he came in a half hour late (Finding 

of Fact No. 23, supra.) 

2262 
stated that a paging telephone was used by Quinley. A paging telephone can 

be heard for several breaks in a coal mine. It is highly improbable that Gre·g 

himself would have called underground to announce over a loudspeaker that 

someone had reported respondent to MSHA for failing to use temporary supports 

and that Greg thought that complainant was probably the one who had called 

MSHA. Third, Greg voluntarily brought out in his direct testimony that 

Quinley had "hollered" outside to notify Greg that he was coming outside 

with complainant on the scoop. Greg stated that he did not tell Quinley 

about the complaint made to MSHA until after Quinley had arrived in the mine 

office •. Consequently, I disagree with the contention in complainant's brief 

(p. 20) that I "must find" on the basis of the record that Quinley knew complainant had called MSHA and that complainant's call was the actual reason 

complainant was discharged. 

Complainant's brief (p. 22) seeks to establish an "animus" by respondent's 

management toward complainant by noting that Verlin Deel threatened to fire 

complainant in the heated discussion between complainant and Verlin which 

occurred on June 26 before complainant's discharge on June 27 (Tr. 32; 177). 

There is no doubt but that respondent's management was upset with respondent's 

failure to do his work. Both complainant and Verlin agree that their conversation was "heated". The mere fact, however, that complainant's relationship with his employer was discordant does not mean that their argument had 

anything to do with a protected activity for which respondent had decided 

to discharge complainant. 

Complainant's brief (p. 22) also argues that there were many opportunities for the discharge of complainant, but they did not occur until after 

complainant reported the failure to use temporary supports to MSHA. It is 

contended that the occurrence of the discharge on the very next day following 

complainant's call to MSHA shows that the discharge was illegally motivated. 

Complainant also 9enies that respondent regularly criticized complainant's 

work. That argument is defective for at least two reasons. · First, it ignores 

complainant's own testimony that he was daily told that his work was unsatisfactory (Tr. 28) and it overlooks the fact that Verlin Deel himself answered 

my questions about complainant's failure to perform his work as follows 

(Tr. 193): 

Q. If you were a part owner of the mine didn't it bother you to see 

him [complainant] doing nothing? 

A. Yeah, it did. 

Q. And you didn't say anything to him, though? 

A. Sure, I said a lot to him. 

Q. You did? 

A. Yeah. 

Q. On June 27th? 

2263 
A. No, before that. What time he worked for me, I tried to get him 

to do his job. I talked to him several times and tried to get him to 

do his job. And actually, I didn't want to get rid of him. I wanted 

him to work. 

Complainant's brief (p. 23) argues that Quinley did not know what complainant had done on June 27 and therefore Quinley had no basis for discharging 

him for failure to perform his duties. It is said that complainant's version 

of the events of June 27 should be credited as compared to Quinley's and it 

is contended that complainant's statement that he sat down beside Quinley, 

who was already sitting down, should be credited over Quinley's claim that 

he did not sit down at all. Finally, it is argued that complainant's account 

is supported by the equipment operator. I have already dealt with all of the 

foregoing arguments at least once in this decision. I have already shown 

why complainant's testimony is to be given less credit than Quinley's and it 

is incorrect that the Verlin Deel, Jr. 's testimony supports complainant'~ 

testimony. Verlin Deel, Jr., said that he saw complainant sitting down and 

that he heard Quinley tell him to hang a curtain. Deel, Jr., stated that he 

later saw complainant and that the curtain had not been hung (224-225). 

Deel, Jr., also said that he heard Quinley tell complainant that they were 

going outside and that Quinley and complainant were about 12 to 15 feet 

apart. Deel, Jr., did not state that he saw Quinley seated against the 

rib (Tr. 228-229). I don't see how it can be correctly contended th~t Deel, 

Jr. 's testimony supports complainant's version of the events which occurred 

on June 27. 

Complainant's brief (p. 24) takes the narrow position that firing a 

person for sitting down on the job contains no other ramifications and 

argues that only one other .person had ever been discharged for sitting down 

on the job and that that discharge occurred under circumstances highly distinguishable from the events which led to complainant's discharge. The other 

person who was discharged was fired because he refused to perform some work 

which Quinley asked him to do (Tr. 142). Complainant was also fired for 

refusing to do work which he was assigned to do (Tr. 146; 149). Also Quinley 

explained that he did not object to a miner's taking a break when he was 

caught up on his work and that he wouldn't have been upset by the fact that 

complainant was sitting down on June 27 if complainant had done the work which 

he had been assigned to do (Tr. 161). 

Complainant's brief (p. 24) completes its extended argument with the 

unfounded conclusion that complainant has proven a violation of section 

105(c)(l) if the principles of the Commission's decision in David Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980), are applied to the facts in 

this proceeding. It is contended that complainant was engaged in a protected 

activity both because he insisted on setting temporary supports and because 

he had called MSHA to report respondent's failure to use temporary supports. 

Complainant argues that even if one assumes, without admitting, that any 

part of respondent's motivation for discharging complainant was for an unprotected activity, it cannot be found that complainant would have been 

discharged for his unprotected activities alone. 

2264 
In the Fasula case, the Commission held that a miner has shoi:vn a prima 

facie case of discrimination or discharge if he has proven that he engaged 

in a protected act and that the adverse action or discharge was motivated 

in any part by the protected activity. If the miner succeeds in establishing 

his prima facie case, respondent has the burden of showing by a preponderance 

of the evidence that, although it was motivated by the protected activity, 

in part, the adverse action would have been taken in any event for the unprotected activity alone. The Fasula case is not applicable to this proceeding because complainant failed to present a prima facie case showing that 

his discharge by. respondent was motivated by complainant's protected activity 

of calling MSHA to report respondent's failure to use temporary supports, 

or by his alleged protected activity of having used temporary supports 

for about 11 days while he was employed as a roof bolter. 

Respondent's Reply Brief 

My consideration of the parties' arguments above has dealt only with the 

arguments in complainant's brief. I have carefully read respondent's sixpage reply brief. My decision shows that I am in substantial agreement with 

the arguments made in respondent's reply brief. Therefore, I shall not further 

lengthen this decision by discussing arguments with which I am in general 

agreement. 

Civil Penalty Issues 

My order of March 4, 1981, consolidated for hearing in this proceeding 

all civil penalty issues which might be raised if a violation of section 

105(c)(l) of the Act had been proven. Inasmuch as no violation of section 

105(c)(l) was proven, the civil penalty issues are moot and no action on 

that aspect of the proceeding is required. 

WHEREFORE, it is ordered: 

(A) The Complaint of Discharge, Discrimination, or Interference filed 

in Docket No. VA 81-16-D is denied for failure to prove that a violation of 

section 105(c)(l) of the Federal Mine Safety and Health Act of 1977 occurred. 

(B) All civil penalty issues are severed from this proceeding and 

dismissed as moot. 

Richard 

~c.~w~ C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Distribution: 

Barbara Krause Kaufmann, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

2265 
Distribution (Cont'd.): 

James E. Arrington, Jr., Esq., and Gregory R. Herrell, Esq., Attorneys 

for D & J Coal Company, Inc., Browning, Morefield, Schelin, and 

Arrington, P.C., 2 Mill Street, Post Office Box 156, Lebanon, VA 

24266 (Certified Mail) 

MSHA, Special Investigation, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

2266 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY .AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

BECKLEY COAL MINING COMPANY, 

Respondent 

and 

BECKLEY COAL MINING COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 80-415 

A.C. No. 

Beckley Mine 

Contest of Citation 

Docket No. WEVA 79-465-R 

Citation No. 646219 

September 7, 1979 

Beckley Mine 

DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Harold S. Albertson, Esq., for Respondent. 

Before: Administrative Law Judge William Fauver 

These proceedings involve the same citation. In WEVA 80-415 the 

Secretary seeks a civil penalty under section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~· In WEVA 79-465-R, 

the company seeks review and vacation of the citation under secti_on 105(d) of 

the Act. The cases were consolidated and heard at Charleston, West Virginia. 

The parties were represented by counsel, who have submitted their proposed 

findings, conclusions, and briefs following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

2267 
FINDINGS OF FACT 

1. At all pertinent times, Respondent, Beckley Coal Mining Company, 

operated a coal mine known as the Beckley Mine in Raleigh County, 

West Virginia, which produced coal for sales in or substantially affecting 

interstate commerce. 

2. In the Second Northeast Section of the Beckley Mine, the return 

escapeway often alternated between the No. l and No. 2 entries to avoid 

adverse roof conditions or water accumulations. 

3. The intake escapeway was through the track-haulage entry (No. 4), 

which ran parallel to Entries 1, 2 and 3, the b~lt entry. 

4. Under Respondent's approved plan, escapeways had to be at least 

6 feet wide, as high as the coal seam, and marked with one-fourth-inch lifelines with reflective material every 25 feet. 

5. On August 22, 1979, federal inspector Chester D. Pennington, 

accompanied by Respondent's Safety Director, Ronald D. Scaggs, traveled the 

return escapeway on foot. At the No. 20 crosscut, the inspector observed 12 to 

15 inches of water that prevented passage. The water extended from rib to rib 

for about 200 feet, or as far as the inspector could see with his cap lamp. 

As a custom and practice, if water was above "boot level" (about 12 inches), 

the escapeway was to be rerouted because passage in case of an emergency would 

be difficult or dangerous. 

7. Mr. Scaggs suggested rerouting part of the escapeway into the belt 

haul~ge entry (No. 3), which was in a neutral air course between the return 

and intake entries. The inspector traveled to the belthead with Mr. Scaggs 

and waited there while Mr. Scaggs rerouted the escapeway. Mr. Scaggs cut the 

lifeline at the No. 25 break, crouched through a 30-inch square door into the 

belt entry, traveled to the No. 15 break, and cut the line there also. He 

then returned to the No. 25 break, pulled the piece of cut line through the 

water accumulati~n, tied it to the original line and took it through the door 

and down the belt entry untir he reached the No. 15 break. He also marked 

the door at the No. 25 break with chalk to show that the escapeway passed 

through it and marked the cribs in the belt entry with chalk. He spent about 

45 minutes rerouting the escapeway. 

8. As rerouted, the return escapeway began in the No. 1 entry near the 

next to last crosscut. At the No. 35 break, it passed into the No. 2 entry, 

ran to the No. 28 break, and passed back to the No. 1 entry. At the No. 25 

break, it passed through the 30-inch square steel door into the belt entry 

(No. 3). From there, it ran down to the No. 15 break and back into the return 

air course (Nos. 1 and 2 entries). 

9. Inspector Pennington told Mr. Scaggs that he would first have to. 

check with his supervisor about the rerouting plan, and that he doubted that 

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the supervisor would approve it because clearance in the belt entry was not as 

great as in the original escapeway. In the belt entry, timbers were set near 

the left rib; the width between the timbers and the right rib ranged from 

3-1/2 to 5 feet. He did not issue a citation that day for the accumulation 

of water in the escapeway. 

10. Mr. Scaggs told the evening and day shift company safety inspectors, and the section foreman, that the escapeway had been rerouted. He also 

posted the change on the c~alkboard in the foremen's room. 

11. That evening, Mr. Scaggs directed an employee to inspect the No. 1 

entry from the No. 15 break to the No. 1 break to see if there were any more 

water accumulations. More water accumulations were discovered at the No. 12 

break and other breaks further down the return escapeway. On the next shift, 

the escapeway was rerouted into the belt entry all the way to the No. 1 break. 

Inspector Pennington was not aware of this further change in the rerouted 

escapeway. 

12. Emergency travel in the beltway would be difficult because of its 

narrow width where timbered and because of overcasts and beltheads. At various 

places, a stretcher-bearer would have to crouch beneath overcasts, lift the 

stretcher over a belthead, or stoop to pass under a belthead. 

13. The inspector's supervisor, George S. Vargo, refused to approve 

the alternative route, on the grounds that clearance in the belt entry was 

insufficient and passage through the steel door was too narrow. 

14. The inspector did not inform Mr. Scaggs of Mr. Vargo's decision. 

On September 7, the inspector returned to the mine and met Danny Miller, a 

safety inspector for Respondent. They traveled the return escapeway, and 

found that the accumulation of water was still present at the No. 20 crosscut. The inspector found that there had been no efforts to pump out the 

water. He observed chalk marks indicating that the escapeway had been 

rerouted. He did not ask Mr. Miller about a lifeline or travel the rerouted 

section to observe whether a lifeline had been installed. Based on the conditions he observed, Inspector Pennington issued Citation No. 646219 for a 

violation of 30 C.F.R. § 75.1704. The citation reads in part: ''Water 

approximately 15 inches deep was allowed to accumulate in the No. 1 and 

No. 2 entries at No. 20 crosscut in 2 northeast mains escapeway." This 

condition was abated on September 17 by pumping the water out of the 

escapeway. 

DISCUSSION WITH. FURTHER FINDINGS 

Based on the citation issued September 7, 1979, Respondent is charged 

with a violation of 30 C.F.R. § 75.1704, which provides: 

Except as provided in §§ 75.1705 and 75.1706, at least 

two separate and distinct travelable passagewa~s which are 

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maintained to insure passage at all times of any person, 

including disabled persons, and which are to be designated 

as escapeways, at least one of which is ventilated with 

intake air, shall be provided from each working section continuous to the surface escape drift opening, or continuous 

to the escape shaft or slope facilities to the surface, as 

appropriate, and shall be maintained in safe condition and 

properly marked. Mine openings shall be adequately protected 

to prevent the entrance into the underground area of the 

mine of surface fires, ftnnes, smoke, and floodwater. Escape 

facilities approved by the Secretary or his authorized representative, properly maintained and frequently tested, shall 

be present at or in each escape shaft or slope to allow all 

persons, including disabled persons, to escape quickly to the 

surface in the event of an emergency. 

Respondent contends, first, that the Secretary is estopped from bringing 

this action. It argues that Mr. Scaggs, Respondent's Safety Director, justifiably relied on Inspector Pennington's representation that he would first discuss the proposed alternative escapeway with the MSHA District Manager to find 

out whether the proposed route would be permitted, and then notify Mr. Scaggs 

of the District Manager's decision, before issuing a citation~ The inspector 

returned to the mine about 2 weeks after the August 22 inspection and, without 

speaking with Mr. Scaggs, issued a citation. Respondent requests that the 

Commission accept the estoppel argument because the Government's conduct 

"threatens to work a serious injustice against Beckley Coal Mining Company" 

and because, although the Supreme Court has held that equitable estoppel 

generally does not apply against the federal government, opinions in lower 

federal courts have permitted estoppel in some circumstances. Respondent 

urges the Commission to follow the trend in the lower federal courts. 

The Secretary argues that: Under the Act, an inspector is required to 

issue a citation upon observing a violation of a mandatory safety standard; on 

August 22 the water accumulation in the designated escapeway was a clear violation; and the inspector's discussions with Respondent's Safety Director amounted 

to determining an acceptable-means of abatement. The Secretary argues that the 

inspector's faiiure to issue a citation on August 22 did not prevent him from 

issuing a citation for this violation at a later date or estop the Government 

from bringing this case. The Secretary also argues that anyone entering into 

an agreement with an agent of the Government assumes the risk that the agent 

has exceeded his authority and that the inspector exceeded his authority by 

agreeing not to issue the citation immediately. 

The Secretary proposes a penalty of $500. 

I conclude that the Secretary is not estopped from bringing this action. 

Secretary of Labor v. King Knob Coal Company, Inc., 2 FMSHRC 1417 (June 29,_ 

1981), involved a defen~e of estoppel based on the company's reliance on an 

MSHA inspector's manual. The Commission rejected this defense, stating: 

2270 
Absent the Supreme Court's expressed approval of that 

decisional trend, we think that fidelity to precedent requires 

us to deal conservatively with this area of the law. This 

restrained approach is buttressed by the consideration that 

approving an estoppel defense would be inconsistent with the 

liability without fault structure of the 1977 Mine Act. * * * 

Such a defense is really a claim that although a violation 

occurred, the operator was not to blame for it. Furthermore, 

under the 1977 Mine Act, an equitable consideration, such as 

the confusion engendered by conflicting MSHA pronouncements, 

can be appropriately weighed in determining the appropriate 

penalty * * * 

King Knob Coal Company, Inc., 2 FMSHRC at 1421-1422. 

Since Respondent is charged with maintaining an unsafe escapeway as of 

September 7, 1979, rather than the date of the earlier inspection (August 22), 

the remaining issue is whether the Secretary has proved a violation as of 

September 7. 

The cited standard (section 75.1704 of the regulations) requires that 

escapeways be safe, suitably marked, and adequate for persons, including disabled persons, to escape quickly to the surface. Escapeways must be approved 

by the Secretary or his authorized representative(_!..~., the District Manager). 

The criteria for approval are in sections 75.1704-1 and 75.1704-2. Section 

75.1704-1 provides that, where the height of the coal seam is at least 5 feet, 

"the travelway in such escapeway should be maintained at a width of at least 

6 feet." Escapeways that do not meet the criteria may be approved provided 

"the operator can satisfy the District Manager that such escapeways and facilities will enable miners to escape quickly to the surface in the event of an 

emergency." 

In approving Respondent's original escapeway plan, the District Manager 

applied the criteria in section 75.1704-1, including the criterion of a 6-foot 

wiath. The District Manager rejected the alternative plan, principally on the 

grounds of the narrow width in the belt entry and the 30-inch door leading 

from the original escapeway into the belt entry. I conclude that his decision 

conforms to the criteria in section 75.1704-1 of the regulations. 

Because the alternative route was rejected, on grounds consistent with 

the regulation guidelines, the original escapeway had to be maintained in 

compliance with section 75.1704. However, it was not in compliance on 

September 7 because of the water accumulation, which I find was excessive and 

rendered the escapeway unsuitable under the requirements of section 75.1704. 

Even if it were found that the alternative escapeway should be considered 

despite the District Manager's decision, I conclude that the alternative 

escapeway did not meet the requirements of section 75.1704; the grounds for 

this conclusion include the narrow beltway width (a range of only 3-1/2 to 

5 feet), the overcasts and beltheads, and the 30-inch door. 

2271 
I conclude that Respondent's negligence was minimal, considering 

Respondent's discussion with the inspector on August 22 and the facts that: 

Respondent believed in good faith that the alternative route was safe and 

was pending approval by the District Manager; it adequately marked the 

alternative route with a lifeline and reflective markers; and it notified 

its employees of the changes in the escape route. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the parties and subject 

matter of these proceedings. 

2. Respondent violated 30 C.F.R. § 75.1704 on September 7, 1979, by 

failing to maintain the return escapeway in safe condition at its Beckley 

Mine, as alleged in Citation No. 646219. 

3. Based upon the statutory criteria for civil penalties, Respondent 

is assessed a penalty of $25 for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The above-mentioned citation is AFFIRMED and the notice of contest 

is DISMISSED. 

2. Respondent shall pay the Secretary of Labor the above-assessed 

civil penalty, in the amount of $25, within 30 days from the date of this 

decision. 

WILLIAM FAUVER, JUDGE 

Distribution: 

John H. O'Donnell, Esq., Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Harold S. Albertson, Esq., Counsel for Beckley Coal Mining Company, 

P.O. Box 1989, Charleston, WV 25327 (Certified Mail) 

*U.S. GOVERNMEJ!T PRINTING OFFICE: 1981--341-638/4361 

2272