Commission Decisions 

10-14-81 V and R Coal Co. 

10-16-81 Mettiki Coal Corp. 

10-16-81 Maben Energy Corp. 

10-19-81 Old Ben Coal Co. 

November 1981 

Administrative Law Judge Decisions 

10-01-81 Kaiser Aluminum & Chemical Corp. 

10-01-81 T & W Sand and Gravel Co. 

10-05-81 Pocahontas Fuel Co. 

10-06-81 Mine Shaft & Tunnell Corp. 

10-06-81 Gilbert Corp. of Delaware, Inc. 

10-07-81 MSHA ex rel Milton Bailey v. 

Arkansas-Carbona Co. 

10-08-81 Cleveland Cliffs Iron Co. 

10-09-81 Black River Sand & Gravel, Inc. 

10-13-81 Domtar Industries, Inc. 

10-13-81 Southern Ohio Coal Co. 

10-13-81 Paramont Mining Corp. 

10-15-81 Paramont Mining Corp. 

10-16-81 United States Steel Corp. 

10-19-81 River Hurricane Coal Co., Inc. 

10-19-81 MSHA ex rel Clarence Ball 

10-20-81 Donoho Clay Co. 

10-20-81 Allied Chemical Corp. 

10-21-81 Conoco, Inc. 

10-21-81 D. C. Coal Co., Inc. 

10-21-81 Maben Energy Corp. 

10-22-81 Peabody Coal Co. 

10-23-81 Magma Copper Co. 

10-23-81 Sttmmit Minerals, Inc. 

10-23-91 The Anaconda Co. 

10-27-81 Cook & Workman Mining Co. 

10-30-81 FMC Corp. 

HOPE 76-275-P 

YORK 80-140 

WEVA 79-123-R 

VINC 74-113 ••••• 

CENT 81-95-RM 

WEST 80-398-M 

HOPE 75-680 

WEST 81-226-DM 

WEST 81-170-DM 

CENT 81-13-D 

LAKE 80-129-M 

WEST 80-331-M 

CENT 81-2-M 

LAKE 80-142 

VA 81-56-R 

VA 81-45 

WEVA 81-214 

KENT 81-88-D 

VA 80-128-D 

SE 80-109-RM 

WEST 80-478-M 

CENT 81-137-R 

SE 80-106 

WEVA 79-447-R 

KENT 81-94 

WEST 79.,...49-DM 

CENT 80-331-DM 

WEST 80-221-DM 

WEVA 81-201 

WEST 80-497-RM 

Pg. 2274 

Pg. 2277 

Pg. 2280 

Pg. 2283 

Pg. 2296 

Pg. 2306 

Pg. 2308 

Pg. 2310 

Pg. 2312 

Pg. 2324 

Pg. 2340 

Pg. 2345 

Pg. 2351 

Pg. 2353 

Pg. 2357 

Pg. 2361 

Pg. 2366 

Pg. 2371 

Pg. 2381 

Pg. 2387 

Pg. 2392 

Pg. 2398 

Pg. 2408 

Pg. 2410 

Pg. 2421 

Pg. 2432 

Pg. 2438 

Pg. 2445 

Pg. 2454 

CoDDD.ission Decisions 

OCTOBER 

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

Secretary of Labo~, MSHA v. Mathies Coal Company, PENN 80-260-R, 81-35; 

(Judge Merlin, August 26, 1981). 

United Mine Workers of America v. Secretary of Labor, MSHA, CENT 81-223-R; 

(Judge Broderick, Dismissal on August 28, 1981) 

Secretary of Labor, MSHA v. Alexander Brothers, Inc., HOPE 79-221-P; (Judge 

Stewart, September 3, 1981). 

Secretary of Labor, MSHA v. Puerto Rican Cement Company, SE 81-25-M; (Judge 

Merlin, September 11, 1981). 

Review was Denied in the following case during the month of October: 

Glen Munsey v. Smitty Baker Coal Company, NORT 71-96, IBMA 72-21; (Judge 

Stewart, September 3, 1981). 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

V and R COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 . 

October 14, 1981 

DECISION 

Docket No. HOPE 76-275-P 

IBMA 77-21 

This penalty proceeding arose under the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. §801 et seq. (1976)(amended 1977) 

["the 1969 Coal Act"]. The Mining Enforcement and Safety Administration's appeal was pending before the Interior Department Board of Mine 

Operations Appeals on March 8, 1978. Accordingly, it is before us for 

decision. 30 U.S.C. §961 (Supp. III 1979). The issue is whether the 

judge properly vacated a notice of violation alleging a failure to 

comply with 30 C.F.R. §70.246. 1_/ We affirm the judge. 

The Secretary's petition for penalty assessment, al.leging several 

violations including a violation of §70.246, was served upon V and R Coal 

Company. V and R failed to answer and a default was entered. The judge 

then ordered MESA to show cause why the alleged violation of §70.246 

should not be dismissed on the ground that MESA had failed to prove the 

availability of an approved sampling device of the required capability. 

The judge cited the holding of the Board in Eastern Associated Coal Corp., 

7 IBMA 14 (Sept. 30, 1976), aff'd on reconsideration,·7 IBMA 133 (Dec. 20, 

1976), as requiring such proof. 2f After MESA responded that the violation 

was for failure to sample and that the Eastern decision did not relieve an 

operator of that duty, the judge rejected this argument and vacated the 

notice of violation. 

ll 30 C.F.R. §70.246 provides: 

During one production shift in every sampling cycle with 

respect to a working section, an approved sampling device shall be 

placed in the intake air course of that working section and a 

sample will be taken within 200 feet out by the working faces of 

such section. 

±_/ In the Eastern decision the Board held that the MRE instrument and 

the respirable dust sampling devices approved by the Secretary yielded 

results based upon dust particulates whose size exceeded that which the 

1969 Coal Act, in section 318(k), defined as respirable. 

2274 

81-10-6 
We have thoroughly examined the record and find no error in the judge's 

decision. 2_/ Accordingly, the decision of the judge is affirmed. 

\ 

3/ We note that the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 

et seq. (Supp. III 1979), removed the statutory basis for the Board's Eastern 

decision by amending the statutory dE!finition of "respirable dust." See 

Alabama By-Products Corp., 2 FMSHRC 2760 (1980). We note also that V & R 

Coal Company apparently is no longer in existence and has -no assets. See 

V & R Coal Co., 3 FMSHRC 2019 (WEVA 81-188, etc., August 28, 198l)(ALJ 

decision). Therefore, no purpose would be served by further proceedings 

in this case. 
Distributio·n 

Michael McCord, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

V & R Coal Company 

c/o James Johnson, President 

Route 1, Box G 

Slab Fork, West Virginia 25920 
FEDERAL MINE SAFETY AND. HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

METTIKI co~ CORPORA'l'ION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 16, 1981 

Docket No. YORK 80-140 

DECISION 

This case is before the Commission on grant of the Secretary of 

Labor's petition for interlocutory review. Oral argument was held on 

September 23, 1981. The relevant procedural history is set forth below. 

This controversy arose when the Secretary filed a petition for 

assessment of civil penalties totalling $10,000 for seven alleged 

violations of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§801 et ~· Mettiki Coal Corporation contested the proposed penalties 

and the case was assigned to an administrative law judge of the Commission. The parties subsequently agreed to a settlement of the case 

that included a reduction of the total penalty to $7,900. The judge 

denied the motion for approval of settlement. 

1'bereafter, the Secretary filed a motion to withdraw the petition 

for penalty assessment and to dismiss the case. The basis for the 

Secretary's motion was that Mettiki had advised the Secretary that it 

desired to w~thdraw its notice of contest and had tendered full payment 

of the $10,000 penalty originally proposed. The judge construed the 

Secretary's motion as one for approval of a settlement and denied the 

motion. 

We hold that the judge erred in treating the Secretary's motion as 

a motion for approval of settlement. The Secretary sought withdrawal of 

his petition for penalty assessment and dismissal of the case. The fact 

that the motion was based upon acceptance by the operator of the amount 

proposed by the Secretary in full does not alter the pleading nor the 

Rule applicable thereto (29 CFR 2700.11). The posture and circumstances 

of this case dictate a finding that the judge abused his discretion in 

denying the motion to dismiss filed by the Secretary. We arrive at this 

conclusion on the basis of the record which indicates that full payment 

of the $10,000 penalty sought by the Secretary is a satisfactory and 

appropriate resolution of this controversy. This is not to say, however, 

that the Commission or its judges may not deny a party's motion to 

withdraw a pleading where the record discloses that resolution of° the 

matter pending would best be served by the Commission's settlement 

procedures or by an evidentiary hearing. This situation is not presented in this case. 

297'' ..... . 

81-10-9 
Accordingly, the Secretary's 

dismissed. 

motion is granted and the case is 

~· 

2278 

( 
Distribution 

Ronald E. Meisburg, Esq. 

Smith, Heenan, Althen & Zanoli 

1110 Vermont Ave., N.W. 

Washington, D.C. 20005 

Ralph M. Burnett, Esq. 

Burnett, Eiswert & Crawford, P.A. 

5000 Thayer Center 

Oakland, Maryland 21550 

Covette Rooney, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

Leslie Canfield, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge John Cook 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2279 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MABEN ENERGY CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 16, 1981 

Docket No. WEVA 79-123-R 

DECISION 

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

1977, 30 U.S.C. §801 et~· (Supp. III 1979). The administrative law 

judge vacated a citation issued to the Maben Energy Corporation (Maben) 

for failure to conduct an inspection of a dam. 1 FMSHRC 1942 (1979). 

For the reasons that follow, we reverse. 

Maben was cited for a violation of 30 C.F.R. §.77.216-3(a) which 

states: 

All water, sediment, or slurry impoundments which 

meet the requirements of §77.216(a) shall be examined 

by a qualified person designated by· the person owning, 

operating or controlling the impounding structure at 

intervals not exceeding seven days for appearances 

of structural weakness and other hazardous conditions. 

All instruments shall be monitored at intervals not 

exceeding seven days by a qualified person designated 

by the person owning, operating, or controlling the 

impounding structure. (Emphasis added). 1/ 

The relevant inquiry in this case is whether Maben was "operating 

or controlling" the dam, within the meaning of the cited standard. The 

record reveals that Maben contracted with the Westmoreland Coal Corporation to mine coal on a designated tract of land. The coal mined by 

Maben was for delivery to Westmoreland. Under the contract Maben operated 

a drift mine, formerly mined by Westmoreland. In proximity to the 

drift mine, but not on the contract property, is the dam at issue. The 

dam was constructed in the early 1970's by the Whitesville A & S Coal 

Company in connection with a strip-mining operaton. It consists of a 

cross-valley earth and rock fill structure about 400 feet long, 20 feet 

high, 300 feet wide at the base and 40 feet wide at.the crest. The 

impoundment upstream of the dam cov·ers an area of about 2 acres. 

1/ It is undisputed that the impoundment structure at issue falls 

within the purview of 30 CFR §§77.216(a) and 77.216-3(a). 

2280 81-10-11 
When the drift mine operated by Maben was being mined by Westmoreland, 

the impoundment was used by Westmoreland as a source of water for its 

mining equipment, for firefighting, and for its bathhouse. 

At the time that Maben was issued the involved citation, Maben was 

using water from the pond for its bathhouse. A haulage access road ran 

from the portal of the drift mine, across a portion of the dam, continued 

behind the dam, crossed the dam's spillway, and continued to the main 

mine access road. Maben maintained a gate with a lock at the entrance 

to the main road~ This gate controls access to the dam, the mine portal 

and the mine's other facilities. Maben's miners, coal haulers and 

suppliers use this road to reach the mine. The primary function of the 

spillway that the road crossed was to control the water level in the 

pond by bypassing flood water down the spillway. Maben raised the road 

2-1/2 to 3 feet above the spillway floor at its outlet, potentially 

affecting the water level behind the dam. That is, the road could act 

as a barrier possibly causing the water coming down the spillway to 

backup to some degree during a storm. 

We find that these facts, considered together, provide a sufficient 

basis upon which to conclude that Maben operated or controlled the dam 

within the meaning of the standard. Maben controlled access to the 

impoundment, used water from the impoundment, affected the irupoundment 

through modification of the spillway, and conducted active mining operations in the immediate area requiring travel over or near portions of 

the structure and the surrounding area. 

Accordingly, the decision of the administrative law judge is 

reversed and the citation is reinstated. 

\ 

Marian Pearlman Nease, Commissioner 

228.i 
Distribution 

James M. Brown, Esq. 

File, Payne, Scherer & Brown 

P.O. Drawer L 

Beckley, West Virginia 25801 

Debra L • Feuer, E·sq. 

Michael·. McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

John A. Macleod, Esq. 

Timothy M. Biddle, Esq. 

Thomas c. Means, Esq. 

Crowell & Moring 

1100 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2282 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

S~CRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRAT.ION (MSHA) 

v. 

OLD BEN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 . 

October 19, 1981 

Docket No. VINC 74-113 

IBMA No. 76-81 

ORDER 

The Secretary of Labor's .unopposed motion for voluntary dismissal 

is granted. 

Marian Pearlman Nease, Commissioner 

2283 

81-10-12 
Distribution 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Robert J. Araujo, Esq. 

Edmund J. Moriarity, Esq. 

Law Department 

Old Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 

2284 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD BEN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

·WASHINGTON, D.C. 20006 

October 19, 1981 

ORDER 

Docket Nos. VINC 74-114 

VINC 74-115 

IBMA No. 76-84 

The Secretary of Labor's unopposed motion for voluntary dismissal 

is granted. 

Marian Pearlman Nease, Commissioner 

2285 

81-10-13 
Distribution 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Robert J. Araujo, Esq. 

Edmund J. Moriarity, Esq. 

Law Department 

Old Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 

2286 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD BEN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 19, 1981 

Docket No. VINC 74-23 

IBMA No. 76-91 

ORDER 

The Secretary of Labor's unopposed motion for voluntary dismissal 

is granted. 

Marian Pearlman Nease, Commissioner 

2287 

81-10-14 
Distribution 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Robert J. Araujo, Esq. 

Edmund J. Moriarity, Esq. 

Law Department 

Old Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 

2288 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION.(MSHA) 

v. 

OLD BEN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 19, 1981 

Docket No. VINC 74-31 

IBMA No. 76-92 

ORDER 

The Secretary of Labor's unopposed motion for voluntary dismissal 

is granted. 

~\~ \lfil\~ Marian Pearlman Nease, Commissioner 

228.9 81-10-15 
Distribution 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Robert J. Araujo, Esq. 

Edmund J. Moriarity, Esq. 

Law Department 

Old Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 

2290 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD BEN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 19, 1981 

Docket No.VINC 74-32 

IBMA No. 76-93 

ORDER 

The Secretary of Labor's unopposed motion for voluntary dismissal 

is granted. 

2291 

81-10-16 
Distribution 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd •. 

Arlington, Virginia 22203 

Robert J. Araujo, Esq. 

Edmund J. Moriarity, Esq. 

Law Department 

Old.Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 ~ 

2292 
FEDERAL MINE SAFnY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD BEN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 19, 1981 

Docket No. VINC 76-56 

IBMA No. 76-104 

ORDER 

The Secretary of Labor's unopposed motion for voluntary dismissal 

is granted. 

2293 

81-10-17 
Distribution 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Robert J. Araujo, Esq. 

Edmund J. Moriarity, Esq. 

Law Department 

Old Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 

229,1 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT i Ill 

KAISER ALUMINUM AND CHEMICAL Contests of Citations 

CORPORATION, 

Complainant Docket No. CENT 81-95-RM 

v. 

Citation No. 157570 

SECRETARY OF'LABOR, 

MINE· SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Docket No. CENT 81-96-RM 

Appearances: 

Before: 

Respondent Citation No. 157571 

Docket No. CENT 81-97-RM 

Citation No. 157572 

-Gramercy Alumina Plant 

DECISION 

Stephen H. Booth, Esq., Oakland, California, for 

Kaiser Al~minum and Chemical Corporation; 

Eloise v. Vellucci, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for the 

Secretary of Labor. 

Judge Melick 

These cases are before me as a result of contests filed by the Kaiser 

Aluminum and Chemical Corporation (Kaiser) pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~-, 

the "Act," to challenge three citations issued under section 104(a) of the 

Act. 1/ The general issue is limited to whether Kaiser has violated the 

cited-mandatory safety standards. An evidentiary hearing in these cases 

was held in New Orleans, Louisiana, commencing March 24, 1981. 

1/ The parties had initially requested the consolidation of these cases with 

corresponding civil penalty proceedings. However, counsel for the Secretary 

recently informed the undersigned that MSHA would not file such proceedings 

as to Citation No. 157572, until a decision is rendered in the corresponding 

contest case now before me. Accordingly, the motions for consolidation are 

denied. 

2296 
Motion for Default Decision 

At hearing, Kaiser moved for a default decision in all cases on the 

grounds that the Secretary failed to timely answer its notices of contest. ]:_/ 

It is undisputed that the Secretary's answers in these cases were indeed 

filed late. Kaiser mailed its notices of contest to the Secretary on 

December 29, 1980, and those notices were received by the Secretary at the 

MSHA subdistrict office in Dallas, Texas. For undisclosed reasons, the 

notices were not, however, forwarded to the Office of the Solicitor for the 

Secretary which represents the Secretary in these matters. The Solicitor's 

Office was, in any event, notified on January 9, 1981, by the office of 

Commission Chief Judge James Broderick that Kaiser had filed such notices 

of contest. The Solicitor's Office thereafter requested copies of the 

contests from the Commission and those copies were admittedly received by 

the Solicitor's Office on January 15, 1981. That office nevertheless did 

not file an answer to the contests until February 3, 1981, 32 days after 

the Secretary received the notices of contest, 25 days after the Solicitor 

received notice of its filing, and 19 days after the actual receipt by the 

Solicitor of the notices of cont~st. 

An exception to the requirement for the timely filing of pleadings 

has been made where adequate cause has been shown for the belated filing. 

Secretary of Labor v. Valley Camp Coal Company, 1 FMSHRC 791 (1979). In 

that case, the mistake or neglect of an attorney and the breakdown of 

internal office procedures were found to be "adequate cause" justifying 

the late filing. In these cases since service of the notices of contest 

was· apparently perfected as of December 29, 1980, when they were mailed 

to the Secretary at the MSHA subdistrict office, it is clear that the 

Secretary's answer should properly have been filed within 20 days of that 

date or on or before January 18, 1981. Commission Rules, 7, 8, and 20(d); 

footnote 2/, supra. The Assistant Solicitor assigned to these cases speculated that the notices were "probably" not forwarded by the MSHA off ice 

to the Solicitor's Office because MSHA employees "may not have understood 

that it was a legal document since it was written in letter form." She 

claimed that she did not file her answers within 15 days of January 15, 

1981 (the date the Solicitor actually received a copy of the notice), 

"simply because of office procedure" and because she did not actually 

receive the notice on her desk until "3 days after it arrived in our 

office," i.e., on January 18. It is not explained why the answer was 

not even then filed until February 3, 1981. 

2/ Commission Rule 20(d), 29 C.F.R. § 2700.20(d), provides as follows: 

"Answer. Within 15 days after service of a notice of contest, the Secretary shall file an answer responding to each allegation of the notice of 

contest." Under Commission Rule 7, 29 C.F.R. § 2700.7, a notice of contest of a citation "shall be served by personal delivery or by registered 

or certified mail, return receipt requested." Under that rule, service 

by mail is complete upon mailing. Under Commission Rule 8, 29 C.F.R. 

§ 2700.8, when service of a document is by mail, 5 days may be added to 

the time otherwise allowed by the rules for the filing of a response. 

229'7 
Under the circumstances, it appears that the Secretary's late filing 

was due to his negligence and to the negligence of his Solicitor. There 

is no evidence that the Secretary or his Solicitor acted in bad faith in 

causing the delay and there is no evidence that Kaiser has been prejudiced 

by the delay. Under the circumstances, "adequate cause" within the framework of the Valley Camp decision appears to exist. See also Secretary of 

Labor v. Salt Lake County Road Department, 3 FMSHRC 1714 (1981). Accordingly, Kaiser's motion for default decision is denied. 

Motion to Dismiss Citations for Lack of Jurisdiction 

At hearing, Kaiser also alleged that the Gramercy Alumina Plant which 

is the subject of Citation Nos. 157570 and 157571 and the impoundments 

surrounding the drying beds or tailings ponds which are the subject of 

Citation No. 157572, are not subject to MSHA jurisdiction under section 

3(h)(l) of the Act. In its posthearing brief, Kaiser conceded that the 

Gramercy Alumina Plant was indeed a "mine" within the scope of the Act, presumably as a mineral milling facility, 3/ but continued to dispute that the 

impoundments surrounding the drying beds or tailings ponds located about 

one-half mile from the alumina plant were within the Act's coverage. Section 3(h)(l) of the Act provides as follows: 

"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 

surf ace or underground, used in, or to be used, 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 facilities. In making a determination of what constitutes mineral milling for purposes of this Act, the 

Secretary shall give due consideration to the convenience 

2./ In Aluminum Company of America v. Morton, Civil Action No. 74-1290, 

U.S. District Court for the District of Columbia, 3 OSHC 1624 (1975), the 

Bayer alumina refining process, the same process as used in the Gramercy 

Alumina Plant here at issue, was held to constitute "milling" as that 

term was used in the Federal Metal and Nonmetallic Mine Safety Act. That 

definition was also found to be consistent with the interpretation of the 

authority and responsibility of the former Mining Enforcement and Safety 

Administration (MSHA's predecessor) in a Memorandum of Understanding, 

39 F.R. 27382 (July 26, 1974). 

229B 
of administration resulting from the delegation to one I assistant secretary of all authority with respect to 

health and safety of miners employed at one physical 

establishment. 

The essential jurisdictional facts are not disputed. Citation No. 

157572 alleges a violation in connection with elevated roadways located 

on the impoundments·surrounding the two tailings ponds or drying beds. 

The tailings ponds are located about one-half mile from the Gramercy 

Alumina Plant at their closest point and are fed by pipes carrying a 

liquid residue from the processing of the bauxite ore at the plant. The 

ore processing begins with an initial mixing with a caustic liquor. Highpressure steaIJl pumps then inject the mixture into high-pressure and hightemperature digesters. Preheated caustic liquor is then added and the 

alumina hydrate fraction of the bauxite is dissolved leaving behind a red 

mud residue. The residue is washed to recover as much of the caustic as 

possible and the insoluble matter is then pumped to the subject tailings 

ponds. The water eventually separates from the solids, is further neutralized and is then disposed of into the Mississippi River. The residue 

remaining in the ponds consists of a red mud. It is expected to have 

some future commercial value but is. not yet marketed. 

The precise jurisdictional question before me is whether the impoundments surrounding the tailings ponds at issue were "used in, or to be 

used in" the milling of or the work of preparing the bauxite ore, within 

·the framework of section 3(h)(l) of the Act. The term "used" means "to 

put into service or employed for some purpose." The American Heritage 

Dictionary of the English Language, Houghton, Mifflin Company (1976). I 

find that this definition appropriately reflects the meaning of the term 

as used in section 3(h)(l) of the Act. Since the impoundments surrounding 

the tailings ponds at issue in these cases were employed for some purpose 

in the process of "milling" or "preparing" the bauxite ore, i.e., for the 

retention of the residual sludge from that process, I find that those 

impoundments were indeed "used in" and "to be used in" the process of 

"milling" or "preparing" the bauxite ore. While it is certainly an 

, indirect usage in relation to the separation process here employed, 

nevertheless, the impoundments were admittedly put into service and 

employed for some purpose in the separation process and were intended 

to be so utilized in the future. Accordingly, I find that the impoundments come within the purview of the Act. Kaiser's motion to vacate the 

citations for lack of jurisdiction is therefore denied. 

The Alleged Violations 

Citation Nos. 157570 and 157571 allege violations of the standard at 

30 C.F.R. § 55.20-3. The standard reads as follows: 

. Mandatory. At all mining operations: 

(a) Workplaces, passageways, storerooms, and service · 

rooms shall be kept clean and orderly. 

2299 
(b) The floor of every workplace shall be m~intained 

in a clean and, so far as possible, a dry condit{on. Where 

wet processes are used, drainage shall be maintained, and 

fast floors, platforms, mats, or other dry standing places 

shall be provided where practicable. 

(c) Every floor, working place, and passageway shall 

be kept free from protruding nails, splinters, holes, or 

lo •Se boar<ls, as practicable. 

Citation No. 157570 specifically charges as follows: 

The floor and passageway of the No. 4 bauxite conveyor 

tunnel, yard materials area, is not being kept as clean and 

dry as possible. A buildup of bauxite with drainage not 

being maintained has created a muddy hazardous condition. 

Persons must use the passageway from one to 10 or more times 

daily, governed by quality of bauxite. Holes at drainage 

points ar·e covered by mud creating a tripping hazard by 

persons using the passageway. This condition also increases 

the possibility of injury to maintenance personnel while performing work on the conveyor belt also. 

The violation charged in Citation No. 157571 is virtually identical 

to the above except that it is directed to conditions in the No. 5 bauxite 

conveyor tunnel. 

Kaiser first argues that the words "clean" and "orderly" and "so far 

as.possible, dry," as they appear in the cited standard do not.give reasonable notice of what is required and that therefore the standard is unenforcea bly vague (and presumably should therefore be vacated as a violation of due 

process under the Fifth Amendment to the United States Constitution). The 

language of the cited standard indeed does not afford any concrete guidance 

as to what is to be considered "clean and orderly" and "in a clean and, so 

far as possible, a dry condition." A regulat~on without ascertainable standards, like this one, does not provide constitutionally adequate warning to~ 

an operator unless read to penalize only conduct or conditions unacceptable 

in light of the common understanding and experience of those working in the 

industry. Cape and Vineyard Division of the New Bedford Gas and Edison Light 

Company v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); United States v. National 

Dairy Corporation, 372 U.S. 29, 83 S. Ct. 594, 9 L.Ed.2d 561 (1963); United 

States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L.Ed.2d 1877 (1947). 

Unless the operator has actual knowledge that a condition or practice is 

hazardous, the test is wheth~r a reasonably prudent man familiar with the 

circumstances of the industry would have protected against the hazard. 

Cape and Vineyard, supra. The. "reasonably prudent man" has been defined 

as a "conscientious safety expert seeking to prevent all hazards which are 

reasonably foreseeable." General Dynamics Corporation, Quincy Shipbuilding 

Division v. OSHRC, 599 F.2d 453 (1st Cir. 1979). The question before me 

then is whether Kaiser knew that the cited tunnels in the conditions then 

2300 
existing were hazardous or whether a conscientious safety expert would have 

protected against the conditions existing therein because they presented a 

reasonably foreseeable hazard. 

The bauxite conveyor tunnels are described as underground structures 

each about 300 feet long, 7 to 8 feet wide, and 12 feet high. Each contains a conveyor belt running about 45 to 50 inches from the floor and an 

adjacent passageway about 30 inches wide. The tunnels run adjacent to the 

Mississippi River, the level of which may rise to 13 feet above the tunnels. Water therefore seeps into the tunnels. The tunnels convey raw 

bauxite ore from ore boats on the. Mississippi and reclaimed ore (from 

spillage and cleanup) to the processing plant. It is not disputed that 

when the conditions herein were cited, the steam-siphon system used to 

force the excess water out of the tunnels was not properly functioning. 

Water and spilled bauxite had therefore accumulated on the tunnel floor. 

According to the undisputed testimony of MSHA inspector Rembold, the wet 

bauxite mud created particularly slippery conditions on the passageways 

adjacent to the conveyors. In some places, the mud was more than ankle 

deep and concealed several 18-inch holes in the passageway floors. 

Rembold described the hazards associated with the conditions he found. 

Maintenance personnel would travel the tunnels at least once a day checking 

for such problems as ore spillage. In addition, if there was a belt breakdown, maintenance employees would be required to carry heavy tools along 

the passageways. If persons would trip or fall as a result of the slippery 

conditions, they could come in contact with the rollers along the belt line, 

thereby causing serious injuries. The rollers were at least partly exposed. 

He observed that similar conditions elsewhere have resulted in torn limbs and 

even death. The concealed holes also posed an additional hazard of sprains. 

and fractures. Rembold testified that over a period of several years before 

he issued the instant citations, there had been many safety meetings and 

negotiations between the union and Kaiser regarding what had commonly been 

known as a constant problem in the tunnels from a lack of drainage and a 

buildup of bauxite spillage. 

Within this framework of essentially undisputed evidence, I find it 

indeed disingenous for Kaiser to contend that it did not know what was 

meant by the requirement to keep passageways and the floors of workplaces 

in a "clean and orderly" and "in a clean and, so far as possible, a dry 

condition" in the context of the cited violations. The types of conditions described by Inspector Rembold clearly had existed periodically for 

some time and presented such an obvious hazard that any "conscientious 

safety expert seeking to prevent all hazards which are reasonably foreseeable" would seek to abate them. General Dynamics, supra. I find, 

therefore, that under the circumstances of this case, Kaiser had adequate 

notice of the standard as it was applied. 

I also observe that Kaiser has not challenged the language of paragraph (c) of the cited standard which relates to the existence of holes in 

floors, working places, and passageways. Thus, even assuming, arguendo, 

230.i 
that paragraphs (a) and (b) of the cited standard were unenforceably vague 

as alleged, sufficient allegations are set forth in the citations at bar 

to charge violations of the unchallenged paragraph (c). For this additional reason, Kaiser's motion to vacate the citions is denied. Since 

Inspector Rembold's undisputed testimony, noted above, also supports a 

finding that the violations alleged in Citation Nos. 157570 and 157571 

did in fact occur, I find that the violations are proven as charged. 

Citation No. 157572 charges a violation of the standard at 30 C.F.R. 

§ 55.9-22. 4/ The standard appears under the subheading "Loading, hauling, 

dumping" and reads as follows: "Mandatory. Berms or guards shall be provided on the outer banks of elevated roadways." The citation specifically 

alleges as follows: 

4/ As a result of testimony concerning this citation at hearing, the undersigned first requested, then issued, subpoenas for, "a copy of a letter from 

Mr. Sale [a Kaiser official] to the Federal Mine Safety and Health Administration in which, Inspector Rembold testified, there existed admissions against 

interest by Mr. Sale in reference to Citation No. 157572." The parties moved 

to quash the subpoenas on the grounds that the subject letter related to confidential settlement negotiations and presumably was therefore inadmissible 

as evidence under that part of Rule 408 of the Federal Rules of Evidence that 

excludes evidence of conduct or statements made in compromise negotiations. 

Even assuming, arguendo, the applicability of the Federal Rules of Evidence 

to Commission hearings (but see 29 C.F.R. §§ 2700.1 and 2700.60(a)), the 

Secretary has tecognized in his brief that the rule does not provide for the 

exclusion of such evidence when it. is offered for another purpose, such as 

proving the bias or prejudice of a witness or for other impeachment purposes. 

See 10 Moore's Federal Practice, §408; John McShain, Inc. ·v. Cessna Aircraft 

Company, 563 F.2d 632 (3d Cir. 1977). As a general rule, the need to evaluate a witness' credibility outweighs the policy of encouraging compromises. 

2 Weinstein's Evidence, U.S. Rules,, 408 [05]. 

The MSHA inspector in these cases testified regarding the existence 

in the subject letter of factual admissions by an agent for the operator, 

Mr. Sale. However, Sale denied in his testimony that he had made any such 

statements. The precise nature of the statement that was in fact made in 

the subject letter is therefore relevant to the credibility of these witnesses. Under the circumstances, the evidence is not inadmissible even 

under Federal Rule 408. In apparent recognition of this, the Secretary in 

his brief suggested that the judge should examine the subpoenaed document to 

determine its admissibility under this exception to the Rule--the same proposal suggested by the undersigned at hearing. The motions to quash are 

therefore denied. However, since MSHA has also unequivocally conceded that 

the testimony of its inspector about Sale's alleged admissions was in error, 

there is no longer any need for the document itself. There is accordingly 

no longer any need for the subpoenas issued in these cases and they are 

therefore withdrawn. 

2302 
Berms or guards are not provided on the outer banks of 

the elevated roadway along the mud lakes or surge ' ponds. 

The angle of repose is such that a vehicle would turn over 

and roll down the embankment if the wheels went off the edge 

of the road. The embankment is approximately 45 to 100 feet 

in some areas and is about a 3 to 1 slope. Pickup trucks, 

vans, and/or cars travel this roadway daily. The largest 

vehicle to travel the roadway has an axle height of approximately 24 inches. 

Kaiser first argues that. even though the cited roadways on the impoundments are in fact elevated above the surrounding area (the evidence indicating at a height of 25 to 30 feet), since the embankments were sloped 

down from the roadway at a 1 to 3 ratio, they were not "elevated roadways" 

within the meaning of the cited standard. Kaiser cites no authority for this 

proposition and since there is indeed no exception provided in the regulation 

where the slope from the elevated roadway is at a 1 to 3 ratio, I reject the 

argument. While the extent of the hazard presented is obviously reduced as 

the degree of slope is reduced, it is nevertheless at least a technical 

violation of the standard. Recognition of a reduced hazard may be made in 

any subsequent civil penalty proceeding. In any event, it is apparent that 

the premise to Kaiser's argument herein is not wholly supported by the evidence. Indeed, Kaiser's own witnesses conceded that sections of the slope 

had been washed out, thus creating a much greater hazard than presented by 

other sections of the slope. 

Kaiser next claims that the cited elevated roadways were not used for 

"loading, hauling or dumping," an apparent prerequisite to the application 

of the standard. See Secretary v. Cleveland Cliffs Iron Company, Inc., 

3 FMSHRC 291 (1981-Y:- While there is no dispute that parts for the pumps 

used in both tailings ponds were occasionally transported by pickup truck 

over the cited roadways on an irregular basis, usually not more than once 

a month (and presumably parts were loaded and unloaded at the ponds), that 

a "cherry picker" vehicle occasionally traversed the roadways for working on 

the pumps and that security vehicles patrolled the roadways on a daily basis, 

the essential question is whether these activ'ities constituted "loading" or 

"hauling." In Secretary v. Cleveland Cliffs Iron Company, Inc., supra, the 

Commission held that the term "hauling" as used in the standard at 30 C.F.R. 

§ 55.9-22, the standard at issue herein, "should be broadly construed, and 

includes conveying men, ore, supplies or materials along elevated roadways 

where the roadways are used in the normal mining routine." (Emphasis added.) 

The Commission also cited with apparent approval the definition of "haulage" 

applied by Chief Administrative Law Judge James Broderick in his decision in 

the same case (1 FMSHRC 1965), _!.~., "the drawing or conveying in cars or 

otherwise, or movement of men, supplies, ore and waste both underground and 

on the surface." Dictionary of Mining at 531. While the pump parts in this 

case were indeed only occasionally loaded and hauled along the cited elevated 

roadways, I find that such activities even though occurring no more than once 

a month were clearly a part of the "normal mining routine" so as to be within 

the purview of the cited standard. The infrequency and irregularity of the 

23oa 
"loading" and "haufing" is not the significant factor so long as those activities are within the normal mining routine. Cleveland.Cliffs, supra. Accordingly, the evidence is sufficient to support a violation of the cited standard. 

I do not find, however, that the daily patrolling of security vehicles 

on the cited roadway or the infrequent use of a "cherry picker" constitute 

"loading," "hauling," or "dumping" within the intended scope of the standard. 

No evidence exists to show that anyone other than the driver of the security 

vehicle performed the patrol functions or that the patrol vehicle was used to 

transport any particular tools or equipment. Similarly, credible evidence is 

lacking to demonstrate that the "cherry picker" was in any way used to load, 

haul or dump. While the superintendent for the processing plant admitted that 

some dry mud from the chemical plant had in the past been occasionally "dumped" 

at the ponds, it is also clear that such dumping had been forbidden for some 

time before the citation here at issue. There is no evidence that such 

"dumping" was continuing to occur on any regular basis as part of the "normal 

mining routine" and, accordingly, I cannot find that.such activity was occurring here. The evidence that a green, white, and gray muddy substance had 

been found dumped at one of the impoundments sometime after the citation was 

issued is not sufficient to establish that it was part of the normal mining 

routine. Accordingly, I do not find that these particular activities constituted "loading," "hauling," or "dumping" within the meaning of the cited 

regulatory provisions. 

Kaiser contends, finally, that even assuming that a violation existed 

here (1) the violation was de minimis, and in accordance with decisions of 

the Occupational Safety and--i:lealth Review Commission, was too trifling to 

warrant imposition of an abatement requirement or the assessment of a civil 

penalty, and (2) it would be economically infeasible to abate the condition 

by"berming or guarding the elevated roadways here at issue. While these arguments could very well be relevant in a civil penalty proceeding under section 

105(b) of the Act, it is clear that the contentions do not go to any issue 

relevant to this contest case under section 105(d) of the Act. While I would 

ordinarily have consolidated those issues and proceedings for a single disposition, the parties herein have sought to have a separate decision first on the 

issue of whether the violation has in fact o~curred. See n. 1, supra. I note, 

moreover, that MSHA did not prescribe any particular mode of abatement in the 

citation at bar and that various alternative modes of abatement apparently 

exist at much less cost. Accordingly, I give the arguments no consideration 

in this case. 

ORDER 

Citation Nos. 157570, 157571 and 157572 are 

of those citations are accordingly DISMISSED. 

2304 

the contests 
Distribution: 

Stephen H. Booth, Esq., Kaiser Aluminum and Chemical Corporation, 

800 Lakeside Drive, Oakland, CA 94643 (Certified Mail) 

Eloise v. Vellucci, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square Building, Suite ·501, Griffin and Young 

Streets, Dallas, TX 75202 (Certified Mail) 

2305 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 :ICT 1 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

H~LTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

T & W SAND AND GRAVEL COMPANY, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~~~~) 

Appearances: 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor 

1961 Stout Street, 1585 Federal Building 

Denver, Colorado 80294 

for the Petitioner 

Gerald M. Madsen, Esq. 

Suite 200, United Bank of Littleton Building 

5601 South Broadway 

Littleton, Colorado 80121 

for the Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-398-M 

A/O NO. 05-02331-05004 

MINE: T & W Sand & Gravel 

This case arose out of a severe arm inJury suffered by an employee attempting 

to clean a moving conveyor at respondent's gravel pit. The Secretary charged in 

Citation No. 328732 that respondent violated a mandatory standard which forbids 

manual cleaning of pulleys on moving conveyors. In Citation No. 328733 he charged 

that respondent also violated a mandatory standard requiring indoctrination of new 

employees in safety rules and procedures. The Secretary proposed an $800 penalty 

for the first citation and $250 for the second. At trial, however, his counsel 

moved to_increase these amounts to $1,500 for each citation. 

That motion was taken under advisement pending the hearing of the evidence. 

2306 
At the beginning of the third day of the hearing on the merits, the 

parties a.nnounced that a settlement had been reached. Specifically, petitioner 

would amend its penalty proposal for Citation No. 328732 to $500 and would 

accept the original $250 for Citation No. 328733. Respondent agrees to pay 

these amounts, and to withdraw its contest of the penalties. 

Having heard most of the evidence, I am convinced that the settlement 

is well conceived and is consistent with the purposes of the Act. The Secretary's 

case for violation is strong, but is jeopardized by a pending motion for dismissal 

based upon his failure to file his penalty proposal until several months past the 

45 day deadline prescribed in Commission Rule 17. 

Under these circumstances it appears that each party had a sound reason 

for compromise. 

Accordingly, the settlement agreement is approved. Respondent's contest of 

the penalties as amended by the settlement agreement is withdrawn, and an aggregate 

of $750 in penalties shall be paid to the Secretary of Labor within 30 days of the 

date of this present order. 

SO ORDERED. 

/j.ciliA.Carlson 

. ,Administrative L~w Judge 

/,/ 

Distribution: 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor 

1961 Stout Street, 1585 Federal Building 

Denver, Colorado 80294 

Gerald M. Madsen, Esq. 

Suite 200, United Bank of Littleton Building 

5601 South Broadway 

Littleton, Colorado 80121 

2307 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 

OCT 

POCAHONTAS FUEL COMPANY, 

Applicant 

Application for Review 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

.ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF AMERICA 

Respondent 

Docket No. HOPE 75-680 

Notice of Violation 1 LAK 

December 31, 1974 

Maitland Mine 

DECISION AFTER REMAND 

The Notice of Violation in the above case was issued when the 

Company paid Mr. Mullins at the laborer's rate of pay rather than the 

roof bolter's rate after he transferred to a non-dusty area of the mine, 

pursuant to section 202 of the 1969 Act. The Act provides that after 

such a transfer, the miner shall be paid "at not less than the regular 

rate of pay" prior to the transfer. Just prior to the transfer Mr. Mullins 

had acted as and been paid at the rate of a temporary roof bolter during 

a substantial percentage of his working hours. 

The Government contended at the trial that a roof bolter's rate of 

pay was appropriate and the Company contends that only a laborer's pay 

(Mullins was classified as a laborer under the Union contract) was his 

regular rate of pay before transfer. I agreed with the Company and 

vacated the notice. The Interior Board of Mine Operations Appeals 

agreed with me and affirmed my decision. 

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

District of Columbia Circuit reversed the Board (D.C. Cir. No. 77-1086). 

It held that the laborer's rate was not the correct rate, but it did not 

go so far as to say the full roof bolter rate was proper either. It 

indicated that the proper rate might be in between these rates. 

The case was remanded to me on September 22, 1981. 

Inasmuch as Pocahontas was paying the laborer's rate to Mr. Mullins 

and inasmuch as the court has said this was not the correct rate, it 

follows· that the company was in violation and that the notice was 

properly issued. 

2308 
The Notice of Violation is accordingly affirmed. It is assumed 

that the parties can agree to the proper pay rate during abatement 

proceedings. If not, I presume a closure order will be issued and 

further review will.be sought. 

Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

2 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW., Washington, D.C. 20036 (Certified Mail) 

Steven B. Jacobson, Esq., Decastro, West & Chodotow, Inc., 18th Floor, 

10960 Wilshire Blvd., Los Angeles, CA 90024 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900-15th St., NW., 

Washington, D.C. 20005 (Certified Mail) 

Michael McCord, Esq., Frederick Moncrief, Jr., Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

2309 
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 JAMES F. MILLER, 

Complainant, 

v. 

) 

) 

) 

) 

) 

) 

) 

) 

MINE SHAFT & TUNNELL CORPORATION, a ) 

subsidiary of CENTENNIAL MINING CO., ) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

' COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 81-226-DM 

MD 80-169 

ORDER APPROVING SETTLEMENT 

On October .1, 1981, the parties in the above-captioned case filed a 

s~ipulation of settlement, consent and motion seeking an agreed disposition 

of the case. 

The terms of the stipulation are as follows: 

1. Respondent agrees to compensate the complainant, James F. Miller, 

in the amount of $5,000.00 for loss of back wages and other expenses 

resulting from his discharge. 

2. James F. Miller's employment record will be expunged of any adverse 

references relating to his discharge, and 

3. James F. Miller accepts the above stipulations as a full settlement of this case. 

Given the complainant's consent to the terms of the settlement and 

finding that such a 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, as agreed to by the parties, be°""APPROVED. 

It is FURTHER ORDERED that respondent tender to the complainant the sum 

of $5,000.00 within 10 days from the date of this order and that the case is 

hereby DISMISSED WITH PREJUDICE. 

~ ?"'/;/~-· 

~~~r·V~f Virgμ,./-E. Vail 

Admilrlstrative Law Judge 

2310 
Distribution: 

Robert J. Lesnick, 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 

424 East Fifth Street 

Salt Lake City, Utah 84111 

2311 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), on ) 

behalf of ROGER T. MAHONEY, ) 

) 

Complainant, ) 

) 

v. ) 

) 

GILBERT CORPORATION OF DELAWARE, ) 

INC., ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~ 

OCT 6 1981 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 81-170~DM 

MINE: C-b Oil Shale Tract 

DECISION AND ORDER APPROVING SETTLEMENT AND DIRECTING PAYMENT 

On October 1, 1981, a motion to approve settlement was filed with the 

Commission. All parties to the above-captioned proceeding agree to the 

settlement. By stipulation and motion, the parties propose to settle this 

proceeding without a formal hearing. 

Upon due consideration, I conclude that the agreement is consistent 

with the purposes of the Act and should be approved. 

Accordingly, it is ORDERED that within 40 days of the date of this 

Decision that Respondent shall tender to Roger T. Mahoney the sum of $500.00 

for loss of back wages and expunge from his employment record any adverse 

references relat~ng to his discharge. 

Distribution: 

Katherine Vigil, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Thomas E. Korson, Esq. 

Equitable Building, Suite 9 

130 Seventeenth Street 

Denver,-Colorado 80202 

J!on D. Boltz ~, 

~dministrative Law Judge 

2312 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCl 78 

SECRETARY OF LABOR, Complaint of Discharge 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On behalf of 

MILTON BAILEY, 

v. 

ARKANSAS-CARBONA COMPANY, 

and 

MICHAEL W. WALKER, 

Docket No. CENT 81-13-D 

Bradley - Stephen No. 1 Mine 

Complainant 

Respondents 

DECISION 

Appearances: Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department 

of Labor, Dallas, Texas for Complainant. 

R. David Lewis, Esq., Little Rock, Arkansas for Respondents. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This proceeding was commenced by the Secretary of Labor, Mine Safety 

and Health Administration (hereinafter "MSHA') on behalf of Milton Bailey 

(hereinafter "Complainant") against Arkansas-Carbona Co. and Michael W. 

Walker (hereinafter "Respondents") pursuant to Complainant's allegation that 

he was discharged from his employment by Respondents on June 27, 1980, 

because of activity protected under section lOS(c) of the Federal Mine Safety 

and Health Act of 1977 (hereinafter "the Act"), 30 u.s.c. § 815(c). MSHA 

investigated the complaint, found it to be meritorious, and connnenced this 

action on October 20, 1980. 

Upon completion of prehearing requirements, a hearing was held in 

Little Rock, Arkansas, on July 7-8, 1981. At the hearing, testimony was 

received from the following witBess'es: Complainant; David Nigus, formerly 

a mine safety and health consultant for the Arkansas Department of Labor; 

Loy Mccarson, formerly superintendent at Bradley - Stephen No. 1 Mine; and 

Michael Walker, Respondent. Both parties filed posthearing briefs. 

231a 
ISSUES 

Whether Respondents violated section 105(c) of the Act in discharging 

Complainant and, if so, what relief shall be awarded to Complainant. MSHA's 

request for assessment of a civil penalty was severed and remanded to MSHA 

because of the failure to comply with applicable administrative procedures. 

APPLICABLE LAW 

Section 105(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 

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. 
STIPULATIONS 

The parties stipulated the following: 

1. Arkansas-Carbona Company ran and operated Bradley - Stephens No• 1 

Mine at all times pertinent herein in Dardanelle, Arkansas. 

2. Bradley - Stephen Mine produces coal, some or all of which is 

shipped out of the State of Arkansas. 

3. David Nigus is a qualified mine consultant for the Department of 

Labor, State of Arkansas. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. Arkansas-Carbona Company was the operator of a surface anthracite 

coal mine in Dardanelle, Arkansas at all times relevant herein. 

2. Arkansas-Carbona Company was a joint venture composed of Aerth 

Development (70 percent) and Russell Mining (30 percent). Respondent 

Michael W. Walker was President and Chairman of the Board of Aerth Development 

at all times relevant herein. 

3. Until May, 1980, Complainant, age 41, was a full time student 

enrolled at Arkansas Tech University majoring in geology. He attended college 

since he retired from the U.S. Navy in 1977. Prior to his employment by 

Respondents, Complainant was employed as a campus police officer at Arkansas 

Tech University and earned $600 per month and free tuition. Complainant also 

received a pension of $650 per month from the U.S. Navy and G.I. student 

benefits. 

4. In April, 1980, Complainant was interviewed at college for employment by Respondents. In early May, 1980, Complainant was interviewed by 

Respondent Michael W. Walker. Although Complainant had no experience or 

training in coal mining or mine safety, he was hired by Respondents as an 

office manager and safety liasion with MSHA inspectors. 

5. Complainant commenced full time employment for Respondents on May 13, 

1980 at a salary of $800 per month. Complainant received on the job training 

in Dardanelle and Little Rock for approximately 2 weeks. At the time 

Complainant commenced employment for Respondents, Coy Kirshner was safety 

director at the mine and Loy Mccarson was superintendant. Kirshner and 

Mccarson trained Complainant at the mine and Respondent Michael W. Walker 

trained Complainant in Little Rock. 

6. On May 28, 1980, MSHA Inspector Lester Coleman inspected the mine 

and advised Complainant that he would have to issue an order of withdrawal. 

closing the entire mine because there was no evidence that the miners had 

been trained in accordance with the required plan. Complainant recommended 

2315 
to Respondent Walker that the mine be voluntarily closed and that all miners 

be trained by Coy Kirshner and David Nigus, a mine safety consultant employed 

by the Arkansas Deparment of Labor. Walker agreed and the mine was voluntarily closed for 2 days while the required training took place. The MSHA 

inspector issued cit~tions concerning the lack of training and records as 

well as a noise citation. No order of withdrawal was issued by MSHA. Coy 

Kirshner quit his job on or about May 29, 1980. 

7. After the May 28, 1980 MSHA inspection, Complainant was summoned to 

the Little Rock office of Respondent Walker. He was informed that his salary 

would be increased to $1,000 per month and that, thereafter, he would be the 

safety director as well as office manager. He was told that he was to oversee the entire operation at the mine. 

8. During the first 2 we~ks of June, 1980, Complainant's new job as 

safety director at the mine included the following: establishing training 

files for each miner; building a water station for the miners; compiling a 

list of safety equipment needed at the mine; and noting the miners' need for 

safety shoes and hats. During this period of time, Respondent Walker 

remained in Little Rock while Complainant and Loy Mccarson were at the mine 

in Dardanelle. During this period, approximately 7 miners were employed at 

the mine on one production shift and approximately 300 tons of coal was 

produced during the month of June, 1980. 

9. On June 13, 1980, Respondent Walker moved his office to the mine 

site and took over active control of the mine. Walker brought his secretary 

with him. During the next 2 weeks, Complainant raised the following safety 

matters in conversations with Respondent Walker: the steep and unsafe slope 

of the'highwall, the need for safety lines above the crusher, the need for 

a berm on the road around the sedimentation pond, and the need to train a 

crew of newly hired miners. 

10. On June 27, 1980, Respondent Walker engaged in an argument with 

superintendent Mccarson regarding the failure to complete work schedules. 

Thereafter, Complainant approached Respondent Walker to complain about the 

fact that the mine's first aid kit, containing bandages and splints, had been 

moved from the mine office to the screened porch. Complainant told Walker 

that the first aid kit should remain in the mine office where it would not be 

exposed to dust. Walker contended that the kit was in a dust proof container. Walker was upset that Complainant was arguing with him in the 

presence of other employees and told Complainant that "if he could not get 

along, for him to clock out, get his lunch box and go home." (Tr. 182). 

Thereafter, Walker went outside and also discharged Loy Mccarson and ordered 

both men off the mine property. 

11. After Complainant's discharge, he sent a letter to MSHA concerning 

numerous safety violations of the mine to wit: safety shoes; improper 

records concerning training and blasting; drinking water; backup alarms, and 

signs. On July 8, 1980, an MSHA inspector issued citations to ArkansasCarbona for each of these alleged violations. 

2316 
12. Complainant was employed by Respondents as a full time employee 

and such employment was to continue on a full time basis through the next 

school year. 

I 

13. From the time of Complainant's discharge on June 27, 1980 through 

June 4, 1981, Complainant earned wages as follows: 1980 - $1,515, 1981 -

$2,291. 

14. This action was conunenced by MSHA on behalf of Complainant on 

October 20, 1980. The original complaint requested that Complainant be 

reinstated to his prior position. However, MSHA did not file an Application 

for Temporary Reinstatement. Thereafter, on January 22, 1981, Complainant 

moved to amend the complaint because "subsequent to his filing of the complaint the Secretary was informed by Complainant Bailey that he did not wish 

to be reinstated by Respondents and that in lieu of reinstatement he would 

accept tuition for 1 year of college plus an allowance for expenses." 

DISCUSSION 

This case presents the novel question of whether a safety director of 

a coal mine was discharged in violation of section 105(c) of the Act. 

Complainant contends that he was discharged for engaging in protected 

activity. Respondents assert that Complainant was discharged for inattention 

to duty, insubordination, misconduct and incompetence. 

In Secretary of Labor on behalf of David Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786 (October 14, 1980) (hereinafter Pasula), the 

Commission analyzed section 105(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 105(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 

231? 
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. 

A. Background 

Respondent Michael W. Walker has had no formal training or education in 

mining. Prior to 1975 he had never operated or been employed at a mine. 

His company started exploration of the mine in December, 1975. The first 

equipment application of the mine was made in May, 1978. From that time 

until January, 1981, the mine proceeded on an experimental basis to determine 

~hether it was economically feasible to mine coal. Thus, at all times relevant here, the mine was in an experimental stage, i.e., there were seven 

miners at the mine when Complainant began his employment and 14 miners at the 

time of his discharge; and only about 300 tons of coal was produced each 

month. 

When Complainant was interviewed for a job with Respondents, he 

admitted that he had no mining or safety experience. Contrary to the assertion of Respondent Walker, I find that Complainant did not misrepresent himself in connection with his application for employment. 

B. Violation of Section 105(c) of the Act. 

1. Complainant's Burden of Persuasion 

In Pasula, supra, the Commission held that a Complainant in a discharge 

case establishes a prima facie case if he proves the following: (1) that he 

engaged in a protected activity; and (2) that the adverse action was motivated 

in Any part by the protected activity. As one.would suspect, most of the 

work activity of Complainant, the mine's safety director, involved protected 

activity. Illustrative of this protected activity are the following: complaints concerning miner's failure to wear safety clothing; constructing and 

equipping a water station; requesting the purchase of safety equipment; complaints regarding failure to train new miners; and complaints about the slope 

of the highwall. While these protected activities may have set the stage for 

the final confrontation, I find that they are not directly relevant to the 

circumstances surrounding Respondents discharge of Complainant. It is also 

clear that Complainant's complaint to Respondent Walker on June 27, 1980, 

concerning the location of the first aid kit, was also protected activity 

pursuant to section 105(c) of the Act. Section 105(c)(l) provides in 

pertinent part as follows: 

No person shall discharge or in any manner discriminate 

against • • • any miner • • • because such miner • • • has 

filed or made a complaint under or related to this Act, 

including a complaint notffying the operator or the operator's 

agent • • • of an alleged danger or safety or health violation 

in a coal or other mine. • • " 

2318 
30 C .F .R. § 77 .1707(c) provides in pertinent part as follows: "All first 

aid supplies ••• shall be stored in suitable, sanitary, dust-right, 

moisture-proof containers, and such supplies shall be accessible to the 

miners." Thus, I find that Complainant's complaint to Respondent Walker on 

June 27, 1980, concerning the location of the first aid kit was action protected by section lOS(c) of the Act and, therefore, Complainant has satisfied 

the first part of his burden under Pasula, supra. 

The next issue is whether the evidence establishes that Complainant's 

discharge was motivated in any part by the protected activity. Complainant 

was discharged by Respondent Walker. Respondent Walker was the operator's 

agent. Respondent Walker testified as follows: "I'm saying that the main 

reason that I fired him was because he made the big spiel that morning 

because of the first aid kit being in the wrong place, and that is the main 

reason that this man was dismissed." (Tr. 200). Thus, Respondent Walker 

admitted that his decision to discharge Complainant was motivated primarily 

by the complaint about the first aid kit which I have found to be protected 

activity. Complainant has established that his discharge was motivated 

primarily by his protected activity. Therefore, pursuant to Pasula, supra, 

Complainant has established a prima facie case of discrimination. 

2. Respondents' Burden of Persuasion 

After Complainant establishes a prima facie case of discrimination, the 

operator may affirmatively defend by proving that (1) he was also motivated 

by Complainant's unprotected activities; and (2) that he would have taken 

adverse action against the miner for the unprotected activities alone. As 

noted at the outset,.Respondent's Brief contends that Complainant's discharge 

was motivated by unprotected activities as follows: "inattention to duty, 

insubordination, misconduct and incompetence." Specifically, Respondents 

assert the following: (1) Complainant should never have been hired for the 

job as safety director because he was unqualified; (2) Complainant was unable 

to get along with the men or get them to comply with safety requirements; 

(3) Complainant displayed temper tantrums from time to time; (4) Complainant 

refused to prepare paper work; (5) Complainant acted improperly around female 

employees; and (6) Complainant's work activities were unsatisfactory in that 

he complained about safety matters but failed to correct the problems. 

I have considered all of Respondents' contentions. Neither singularly 

nor in combination do Respondents' contentions establish that Respondents 

would have discharged Complainant for the reasons given. Specifically, it 

appears that Complainant was, in fact, unqualified and untrained for the job 

of safety director. However, there is no credible evidence that Complainant 

misrepresented his qualifications or training. Moreover, Respondents failed 

to refute Complainant's assertion that Respondents had agreed to train him 

for the position of safety dire~tor. Whether Complainant should have been 

hired as safety director is irrelevant to this proceeding. The fact is that 

Respondents freely hired him and assigned him the duties of safety director. 

with full knowledge of his lack of training and experience. Respondents 

failed to establish that they would have fired him because he was unqualified. 

2319 
Respondents failed to establish that Complainant was unable to get along 

with the miners or get them to comply with safety regulations. Likewise, 

Respondents failed to establish that Complainant displayed "temper tantrums" 

which would justify his dismissal. Other than the argument which immediately 

preceded Complainant's discharge, the only "temper tantrums' alleged by . 

Respondent Walker involved slamming doors and throwing clip boards down. 

Complainant denied these allegations. Although these incidents occurred ·in 

the presence of other employees, Respondents did not call any witness except 

Michael w. Walker. I find that the "temper tantrum" allegation is relatively 

insignificant and that Respondents have not established this claim by a preponderance of the evidence. 

The only example of Complainant's refusal to prepare paper work was the 

incident involving the preparation of work schedules. However, Respondents 

failed to establish that this was Complainant's duty. Complainant testified 

that he was unable to prepare the work schedule because he was unfamiliar 

with the abilities and experience of the 14 miners. In fact, Respondent 

Walker testified that the responsioility for scheduling the work belonged to 

Superintendent Mccarson (Tr. 180). Respondents failed to establish that 

Complainant would have been fired for refusal to prepare paper work. 

Respondents allege that Complainant acted improperly around female 

employees. This allegation is based upon hearsay evidence according to 

Respondent Walker. Neither of the female employees who allegedly participated in this conversation testified. Complainant and Superintendant 

Mccarson denied the hearsay allegations of Respondent Walker. Respondent 

Walker did not mention this reason during his deposition and conceded at 

hearing that this allegation was not a major reason for discharging 

Complainant. Accordingly, Respondents failed to establish that Complainant 

would have been discharged because of his conduct around female employees. 

Finally, Respondents assert that Complainant's work was unsatisfactory. 

This general allegation is insufficient to establish an affirmative defense. 

Many of the specific charges against Complainant have been examined and 

found wanting. Suffice it to say at this point that Respondents failed to 

establish their claim that Complainant was discharged because he was lazy 

or insubordinate. Complainant refuted the allegation that he gave only lip 

service to safety matters and failed to correct them. Complainant established that the uncorrected safety problems at the mine were the result of 

Respondent Arkansas-Carbona's financial condition or Respondent Walker's 

refusal to take action on Complainant's recommendations. 

In conclusion, the testimony of Respondent Walker clearly establishes 

that the primary reason for discharging Complainant was the dispute over 

the location of the first aid kit. (Tr. 200, 221, 234, and 241). Thus, 

Respondents failed to establish that they were motivated by Complainant's 

unprotected activities and woula have discharged him for those activities 

alone. Since Respondents failed to establish an affirmative defense, 

Complainant's complaint is sustained. 

2320 
C. Award to Complainant 

Section 105(c)(2) of the Act provides in pertinent part that if the 

charges are sustained, Complainant shall be granted such relief as is 

appropriate "including but not limited to, the rehiring or reinstatement of 

the miner to his former position with back pay and interest." The evidence 

of record establishes that Complainant does not seek rehiring or reinstatement. The complaint filed with the Commission on October 20, 1980, requested 

rehiring and reinstatement. However, on January 22, 1981, Complainant moved 

to amend the complaint because "subsequent to the filing of the complaint 

the Secretary was informed by Complainant Bailey that he did not wish to be 

reinstated by Respondents and that in lieu of reinstatement he would accept 

tuition for one year of college plus an allowance for expenses." 

The Commission has no procedural rule concerning amendment of pleadings. 

However, Commission Rule l(b), 29 C.F.R. § 2700.l(b), provides as follows: 

"On any procedural question not 'regulated by the Act, these Procedural Rules, 

or the Administrative Procedural Act (particularly 5 u.s.c. §§ 554 and 556), 

the Commission or any Judge shall be guided so far as practicable by any 

pertinent provisions of the Federal Rules of Civil Procedure as appropriate." 

Rule 15(c) of the Federal Rule of Civil Procedure provides in pertinent part, 

"wherever the claim or defense asserted in the amended pleading arose out of 

the conduct, transaction, or occurrence set forth or attempted to be set 

forth in the original pleading, the amendment relates back to the date of 

the original pleading." Application of the above principle to the instant 

case results in a finding that as of October 20, 1980, Complainant did not 

seek rehiring or reinstatement. Since MSHA was prosecuting this matter, 

Complainant had the right to an order of temporary reinstatement on 

October 20, 1980. See section 105(c)(2) of the Act. If he had pursued that 

right, he would have been reinstated, required to work regular hours, and 

received pay of $1,000 per month. The fact .that Complainant elected not to 

be rehired or reinstated tolls the operator's backpay obligation. Since 

Complainant elected not to be rehired or reinstated on October 20, 1980, 

Respondents' obligation for backpay ends on that date. It would be unfair 

and improper to require a mine operator to pay a former employee backpay for 

a period of time when the employee has unequivocally stated that he does not 

want to return to his former employment. Moreover, any award for a period 

after Complainant elected not to return to work would be based on conjecture 

and speculation. Hence, in the instant case, Respondents are liable to 

Complainant for backpay at $1,000 per month commencing on June 27, 1980 and 

ending on October 19, 1980. 

The evidence of record also establishes that after his discharge in 

1980, Complainant had earnings from two other employers during that year. 

Complainant earned $1,515 in 1980 after his discharge. The evidence of 

record fails to establish the dates on which these sums were earned so they 

will be prorated over the 26-1/Z weeks after June 27, 1980. Based upon this 

formula, Complainant earned $57.17 a week or $245.83 per month during 

calendar year 1980 after his discharge by Respondents. 

2321 
Thus, for the period of Complainant's entitlement, June 27 to October 19, 

1980, Complainant would have earned $3,710 at the mine. In fact, he earned 

$913.03 from other employment. Complainant's earnings during this period 

must be deducted from his backpay. Heinrich Motors, Inc. v. N.L.R.B., 

403 F.2d 145, 148 (2d Cir. 1968). Therefore, Complainant is entitled to an 

award of $2,796.97 for backpay. 

Complainant requests that the backpay award should be payable at "nine 

percent interest per annum." Complainant cites no authority for the award 

of interest at nine percent per annum. To my knowledge, the Commission has 

never awarded a rate of interest higher than 6 percent per annum. See 

Peabody Coal Co., 1 FMSHRC 1785 at 1792 (1979). Therefore, Respondents are 

ordered to pay Complainant $2,796.97 as backpay and interest at the rate of 

6 percent per annum from the dates such payments were due. 

Complainant is also entitled to an order expunging all references to 

this matter from his employment records and a written confirmation from 

Respondents of his dates of employment and position. Complainant failed to 

establish any entitlement to an award of 1 year of college tuition plus 

$400 book and miscellaneous expense allowance. Likewise, Respondents failed 

to establish that the backpay award should be reduced due to veteran's 

benefits consisting of a pension and school allowance. These amounts are 

not based upon any work or activity of Complainant after his discharge by 

Respondents. In other words, if Complainant had remained in the employ of 

Respondents, he would have received both of these veterans benefits in addition to his regular salary at the mine. 

CONCLUSIONS OF LAW 

1. At all times relevant to this decision, Complainant and Respondents 

were subject to the Act. 

2. This Administrative Law Judge has jurisdiction over the parties and 

subject matter of this proceeding. 

3. On June 27, 1980, Complainant engaged in activity which is protected 

under section 105(c)(l) of the Act as follows: complaint to Respondent 

Walker concerning the removal of the first aid kit from the mine office. 

4. Complainant established a prima facie case of violation of section 

105(c)(l) of the Act because he established by a preponderance of the evidence that he engaged in a protected activity and that his discharge was 

motivated by the protected activity. 

5. Respondents failed to establish that they would have discharged 

Complainant for reasons other than his protected activity. 

6. Complainant was discharged by Respondents in violation of section 

105(c)(l) of the Act. 

2322 
) 

7. Effective October 20, 1980, Complainant elected not to be rehired 

or reinstated by Respondents and Respondents' obligation for backpay was 

tolled as of that date. 

8. Complainant is entitled to an award of $2,796.97 as backpay plus 

interest at the rate of 6 percent per annum from the dates such payments were 

due to the date such payment is made. 

9. Complainant is entitled to an order expunging all references to his 

discharge from his employment records and to a written confirmation of the 

dates of employment and his position. 

10. Complainant is not entitled to backpay after October 20, 1980 due 

to his election not to be rehired or reinstated. 

11. Respondents are not entitled to set off the Veterans benefits paid 

to Complainant against the award of backpay. 

ORDER 

WHEREFORE, IT IS ORDERED that Complainant's complaint of discharge is 

SUSTAINED. 

IT IS FURTHER ORDERED that Respondents shall pay to Complainant the sum 

of $2,796.97 for backpay plus interest at 6 percent per annum from the dates 

such payments. were due to the date. such payment is made. 

IT IS FURTHER ORDERED that Respondents shall expunge all references to 

Complainant's discharge from his employment records and shall furnish to 

Complain~nt written confirmation of his period of employment and position. 

IT IS FURTHER ORDERED that MSHA's proposed assessment of a civil penalty 

is severed from this proceeding and remanded to MSHA for further proceedings 

pursuant to 29 C.F.R. § 2700.25. 

Distribution Certified Mail: 

,~j" A. Lautetfson, Judge 

Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department of Labor, 

555 Griffin Square Building, Dallas, TX 75202 

Mr. R. David Lewis, Esq., 1109 Kavanaugh, Little Rock, AR 72205 

2323 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 8 llti 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 80-129-M 

Petitioner A/O No. 20-01012-05003 

v. 

Empire Mine or Empire Mill 

CLEVELAND CLIFFS IRON COMPANY, 

Respondent 

ERNEST RONN, SAFETY COORDINATOR, 

UNITED STEELWORKERS OF AMERICA, 

DISTRICT NO. 33, 

Appearances: 

Before: 

Intervenor 

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, Ishpeming, Michigan, for the Respondent; 

Paul Gravedoni, President, Local Union 4950, United 

Steelworkers of America, Negaunee, Michigan, and Ernest Ronn, 

Safety Coordinator, United Steelworkers of America, District 

No. 33, Marquette, Michigan, for the Intervenor. 

Judge Cook 

I. Procedural Background 

On January 10, 1980, the Secretary of Labor (Petitioner) filed a proposal for a 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) (1977 Mine Act). The proposal charges Cleveland Cliffs 

Iron Company (Respondent) with one violation of mandatory safety standard 

30 C.F.R. § 55.12-16, as set forth in Citation No. 286902, which was issued 

pursuant to section 104(a) of the 1977 Mine Act. The Respondent filed an 

answer and an amended answer on February 1, 1980, and February 15, 1980, 

respectively. On October 6, 1980, Ernest Ronn, Safety Coordinator, United 

Steelworkers of America, Distri~t No. 33 (Intervenor), filed a written notice 

electing party status in the proceedin·g on behalf of the affected employees. 

2324 
The Petitioner and the Respondent engaged in extensive prehearing discovery which entailed the filing and service of a request for production of 

documents, the filing and service of various sets of interrogatories, and 

the taking of several depositions. 

Various notices of hearing were issued which ultimately scheduled the 

matter for hearing on the merits on November 18 and 19, 1980, in Marquette, 

Michigan. The hearing was held as scheduled with representatives of the 

three parties present and participating. The Petitioner interposed an 

objection to the receipt in evidence of Exhibit 0-2, one of the Respondent's 

exhibits. The parties were instructed to argue the materiality of Exhibit 

0-2 in their posthearing briefs, and were informed that a ruling on its 

receipt in evidence would be made at the time of the writing of the decision. 

On April 3, 1981, the Petitioner informed the undersigned Administrative Law 

Judge, in writing, that it had withdrawn its objection to the receipt in evidence of Exhibit 0-2. Accordingly, an order was issued on April 6, 1981, 

.receiving Exhibit 0-2 in evidence. 

Following the presentation of the evidence on November 19, 1980, 

Mr. Ernest Ronn delivered a closing argument on the record in behalf of the 

Intervenor. In addition, a schedule was set for the filing of posthearing 

briefs and proposed findings of fact and conclusions of law. However, 

certain difficulties experienced by counsel for the Petitioner and counsel 

for the Respondent required revisions thereof. The Petitioner and the 

Respondent filed posthearing briefs on April 2, 1981, and April 3, 1981, 

respectively. The Intervenor did not file a posthearing brief. None of 

the three parties filed reply briefs. 

Additionally, when the transcript of the hearing was received by the 

undersigned Administrative Law Judge on December 12, 1980, it was discovered 

that the court reporting company had failed to forward in conjunction therewith three of the exhibits referenced in the transcript, i.e., Exhibits G-1, 

G-2, and G-8. A study of the transcript revealed that Exhibits G-1 and G-2 

were photographs, and that Exhibit G-8 was referenced in the transcript but 

that it was never identified or shown as a specific item. By letter dated 

January 13, 1981, the three parties were apprised of this development and 

were instructed to take appropriate action. 1/ A stipulation resolving the 

l_/ The letter of January 13, 1981, stated, in part, as follows: 

"The matter of the missing exhibits must be resolved at this time. 

Specifically, Exhibits G-1 and G-2 must be located and forwarded to the 

undersigned for inclusion in the record, and must be accompanied by a stipulation signed by the representatives of all three parties stating that the 

exhibits forwarded to me are the same ones placed in evidence during the 

hearing. Additionally, you are requested to determine whether G-8 was an 

exhibit and, if it was, to submit either the original or a copy and a stipulation signed by the representatives of all three parties stating that it can 

be placed in the record either as the original or as a substitute for the · 

original, whichever is applicable. If G-8 was not an exhibit, then please 

so state. 

232[) 
matter, and signed by the representatives of all three parties, was filed 

on February 23, 1981. 

II. Violation Charged 

Citation No. Date 30 C.F.R. Standard 

286902 May 21, 1979 55.12-16 

III. Witnesses and Exhibits 

A. Witnesses 

The Petitioner called as its witnesses Thomas Allen Fay, an apprentice 

electrician at the Empire Mine; Steven Samuel Etelamaki, a field electrician 

apprentice at the Empire Mine; William Waldemar Carlson, a supervisory mining 

engineer employed by the Department of Labor's Mine Safety and Health 

Administration (MSHA); and Richard Dean Breazeal, an MSHA health, safety and 

electri~al inspector. 

The Respondent called as its witnesses James Philip Tonkin, the safety 

coordinator at the F.mpire Mine; Robert Douglas Kallatsa, Sr., a shift foreman 

in the electrical department on May 19, 1979, and a foreman in the electrical 

department as of the date of the hearing; and Dennis Roy Laituri, the electrical engineer in charge of the electrical department on May 19, 1979, and 

the operating engineer of the electrical department as of the date of the 

hearing. 

The Intervenor did not call any witnesses. 

B. F.xhibits 

1. The Petitioner introduced the following exhibits in evidence: 

G-1 was a photograph of the ladder used by the apprentice electricians on May 19, 1979. 

G-2 was a photograph of a light fixture similar to the one involved 

in the May 19, 1979, fatal accident. 

G-3 is a diagram of a ballast and fixed hanger. 

G-4 is a copy of Citation No. 286902, May 21, 1979, 30 C.F.R. 

§ 55.12-16. 

G-5 is a copy of section 103(k) Order No. 286901, issued on May 19, 

1979, and a copy of the termination thereof. 

G-6 is a copy of a page from the Code of Federal Regulations containing mandatory safety standard 30 C.F.R. § 55.12-16. 

232f) 
G-7 is a computer printout prepared by MSHA's Directorate of 

Assessments setting forth the history of violations at the Empire Mine 

or Empire Mill for which the Respondent had paid assessments, beginning 

September 1, 1977, and ending August 31, 1979. 

2. The Respondent introduced the following exhibits in evidence: ];_/ 

0-1 is a copy of a page from a manual used by Federal mine inspectors setting forth the text of mandatory safety standard 30 C.F.R. § 55.12-16 

subsequent to the change published at 42 Fed. Reg. 57040 (October 31, 1977), 

and in effect on May 19, 1979; and setting forth an "application" of the 

standard used by Federal mine inspectors in enforcing such mandatory safety 

standard. 

0-2 is a copy of a page from a manual used by Federal mine inspectors setting forth the text of mandatory safety standard 30 C.F.R. § 57.12-16 

prior to the change published at 42 Fed. Reg. 57040 (October 31, 1977); and 

setting forth an "application" of the standard used by Federal mine inspectors in enforcing such mandatory safety standard. 

0-3 is a copy of a safety orientation report dated February 6, 

1978, and signed by Thomas Fay. 

0-4 is a copy of a safety orientation report dated August 6, 1975, 

and signed by Steven s. Etelamaki. 

0-5 is a copy of a safety orientation report dated January 30, 

1978, and signed by John W. Parkkonen. 

0-6 is a three-page document styled "Safety Orientation, Electrical Department." 

0-7 is a copy of a document dated May 18, 1979, and styled 

"Employee's Safety Meeting Report." 

0-8 is a copy of a document styled "Supervisor's Safety Contact 

and Observation Log." 

0-9 is a copy of a document styled "Supervisor's Safety Contact 

and Observation Log." 

0-10 is a copy of a document styled "Supervisor's Safety Contact 

and Observation Log." 

]:_/ Exhibit 0-13 is a copy of ~he narrative findings for a special assessment prepared by MSHA's Office of Assessments in connection with Citation 

No. 286902. The exhibit was ruled inadmissible during the hearing and, 

accordingly, has not been considered in deciding this case. However, in 

accordance with the ruling made during the hearing, the exhibit has been 

placed in a separate envelope in the official case file. 
0-11 is a three-prong electrical plug. 

0-12 is a copy of the inspector's statement, MSHA Form 7000-4, 

pertaining to G-4. 

3. The Intervenor introduced the following exhibits in evidence: 

U-1-A is a copy of the cover from the August 1, 1977, collective 

bargaining agreement between the Respondent and the United Steelworkers of 

Arnei;ica. 

U-1-B is a copy of certain provisions from the August 1, 1977, 

collective bargaining agreement between the Respondent and the United 

Steelworkers of America. 

U-2 is a copy of the Respondent's electrician (field) standard 

job classification and description. 

U-3-A is a copy of the cover of the Respondent's safety rule book. 

U-3-B is a copy of page 5 of the Respondent's safety rule book. 

U-3-C is a copy of page 24 of the Respondent's safety rule book. 

IV. Issues 

Two basic issues are involved in this civil penalty proceeding: (1) did 

a violation of mandatory safety standard 30 C.F.R. § 55.12-16 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; (5) gravity 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement· of the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. The parties entered into the following stipulations during the 

hearing: 

(a) The Respondent is subject to the provisions of the 1977 Mine 

Act (Tr • 3-4) • 

(b) The Administrative Law Judge has jurisdiction over the 

Responrlent in this proceeding (Tr. 3-4). 

2328 
(c) Citation No. 286902 was issued to the Respondent; and such 

citation may be admitted into evidence, but not for any substantive purposes 

to prove the allegations contained therein (Tr. 3-4). 

2. The parties filed the following stipulation on February 23, 1981: 

It is hereby stipulated and agreed by and between 

petitioner, Secretary of Labor, respondent Cleveland Cliffs 

Iron Company, and Local Union 4950 United Steelworkers of 

America, acting through their respective counsel or representative, the following: 

1. The exhibits marked as G-1 and G-2 may be excluded 

from the record in this matter. Exhibits G-1 and G-2 have 

apparently been lost and negatives of the photographs are 

not available. The parties further stipulate that all 

testimony and references made in regard to the items 

depicted in the exhibits shall not be excluded and are 

part of the record. 

2. Exhibit G-8 was introduced as an exhibit but was 

not offered into evidence by any of the parties. Therefore 

Exhibit G-8 is not part of the record in this matter. 

B. Occurrence of Violation 

On Saturday, May 19, 1979, a fatal electrical accident occurred at the 

Respondent's Empire Mine or Empire Mill while three of the Respondent's 

employees were relocating some previously installed 1,000-watt, high-pressure 

sodium "Halophane Prismpack" lights in the high bay of the mill. Federal 

supervisory mining engineer William W. Carlson and Federal mine inspector 

Richard D. Breazeal participated in the ensuing MSHA fatal accident investigation, .which was conducted at the facility later that day. As a result of 

the investigation, Mr. Carlson issued Citation No. 286902 on May 21, 1979, 

charging the Respondent with a violation of mandatory safety standard 

30 C.F.R. § 55.12-16 in connection with the accident. The citation alleges, 

in pertinent part, that "[a]pprentice electricians were assigned to relocate 

1000 watt, high pressure sodium 'Halophane Prismpack' lights, powered by 

480 volts alternating current, on the ceiling above the primary grinding 

section in the concentrator. The lighting equipment was energized during 

installation" (Exh. G-4). The cited mandatory safety standard provides as 

follows: 

Electrically powered equipment shall be deenergized 

before mechanical work is done on such equipment. Power 

switches shall be locked o'!lt or other measures taken which 

shall prevent the equipment from being energized without 

the knowledge of the individuals working on it. Suitable 

warning notices shall be posted at the power switch and 

2329 
signed by the individuals who are to do the work. Such 

locks or preventive devices shall be removed only by the 

persons who installed them or by authorized personnel. 

There is no substantial dispute amongst the parties as relates to the 

facts and circumstances surrounding the occurrence of the fatal accident. 

Rather, the dispute is principally confined to the following issues: (1) 

whether the light fixture involved in the accident was "electrically 

powered equipment" within the meaning of the regulation; and (2) whether 

the handling, hoisting, and hanging of the energized light fixture involved 

in the accident constituted "mechanical work" on electrically powered 

equipment within the meaning of the regulation. For the reasons set forth 

below, I answer both questions in the affirmative. 

The evidence presented shows that on the morning of May 19, 1979, electrical apprentices Thomas Fay, Steven Etelamaki, and John Parkkonen reported 

for work at the Respondent's Empire Mine or Empire Mill on an overtime 

shift. The three men were assigned to the task of relocating previously 

installed 1,000-watt, high-pressure sodium "Halophane Prismpack" lights a 

distance of approximately 8 to 10 feet laterally from one support beam to 

another in the high bay of the mill. 

In view of the location of the lights, the three men had to work approximately 80 to 100 feet above the floor of the mill. It was therefore necessary 

to use an overhead crane and trolley assembly as a work platform. It was also 

necessary to use a ladder in order to take down and to rehang the light fixtures, and in order to reach the electrical outlets. 

While the men were still on the floor of the mill, Mr. Robert D. 

Kallatsa, Sr., the shift foreman in charge of the electrical crew, gave 

instructions as to where the lights were to be placed. Additionally, 

Mr. Kallatsa gave instructions to wear safety belts, to lock out the 

electrical power to the crane whenever anyone was on the ladder, and to 

secure the ladder. The three men acquired the necessary tools and equipment, and proceeded to the crane and trolley assembly. 

It appears that each fully assembled light fixture consisted of at least 

a shade, a bulb, a ballast, a conduit, and a screw fitting. The screw 

fitting was shaped as an inverted "J" and was attached to the top of the 

conduit, a pipe-shaped stem. The screw fittings apparently served to suspend 

the fixtures from fixed hangers attached to the 6-inch "I" beams. It appears 

that the conduit and screw fitting assemblies were approximately 5 feet in 

length. The conduit, in turn, was attached to the ballast. Although the 

record is not entirely clear on this point, it appears that the bulbs and the 

shades were removed from the lights at all relevant times. 

At some point in time prior to beginning the actual work, the three 

electrical apprentices conferred amongst themselves and determined the procedure to be used in relocating the lights. Basically, the steps employed, 

insofar as relevant to the issues presented, were as follows: On the first 

2330 
light, the crane was moved into position under the electrical outlet, the 

ladder was put up so as to provide access to the plug, and the light was 

unplugged. Then, the ladder was taken down and turned around 180 degrees, and 

the crane trolley was moved to a location where the ladder could be put up to 

provide access to the light fixture. The light fixture was taken down, and 

its electrical cord was replaced with a longer one. The crane trolley was 

moved to a slightly different location, the ladder was put up, and the 

light fixture was rehung. Again, the ladder was taken down, turned around 

180 degrees, and the crane trolley was moved back underneath the electrical 

outlet. The ladder was put up and the light fixture was plugged into the 

electrical outlet. 

At this point, the three men conferred amongst themselves and decided 

to revise the procedure so as to eliminate one of the 180-degree la<li;der rotations. Under the new procedure, the light fixture remained plugged into the 

electrical outlet while being taken down and while being rehung. Basically, 

it entailed moving the trolley under the light fixture, putting up the ladder, 

and taking down the fixture. Then, the ladder was rotated, the trolley was 

moved to a location underneath the electrical outlet, the ladder was put up, 

and the fixture was unplugged. The fixture's electrical cord was replaced 

with a longer cord and the plug was reinserted into the outlet. The ladder 

was taken down and the trolley was moved to the location where the light was 

to be rehung. The ladder was put up and "the light was placed in its new 

location. The second fixture was relocated in this manner without incident. 

Following their coffee break, the three men began work on the third light 

fixture using the same procedure employed in relocating the second one. The 

fixture was taken down from its hanger and was then unplugged from the energi~ed 480-volt electrical circuit. The fixture's electrical cord was then 

replaced with a longer one, and the Hubbel~ twist lock, three-prong electrical 

plug from the old cord was wired onto the new cord. Thereafter, the fixture 

was plugged .into the energized 480-volt electrical circuit and then the three 

men began to rehang the fixture. Messrs. Fay and Etelamaki were standing on 

the work platform,, hoisting or holding the ballast, conduit, and screw fitting 

assembly up to Mr. Parkkonen, who was standing on the aluminum ladder. Messrs. 

Fay and Etelamaki were wearing their leather work gloves, but Mr. Parkkonen 

was not wearing his. Mr. Parkkonen grabbed the stem and received a fatal 

electrical shock. 

The evidence shows that Mr. Fay had miswired the three-prong plug by 

inadvertently wiring one of the electrical cord's phase conductors to the 

ground prong leg on the plug. When plugged into the energized electrical 

circuit, the miswiring caused the conduit, stem,. and the outer casing on ·the 

ballast to energize to approximately 277 volts to ground, producing the 

attendant shock hazard which claimed Mr. Parkkonen's life.]_/ 

1._/ The crane was grounded and the air was moist and humid. Placing the 

aluminum ladder against the structural steel made a solid continuity and 

provided a path for the current to flow to ground. The human body will 

restrain 277 volts to ground for approximately .86 to .87 of a second before 

the heart goes into fibrillation (Tr. 152, 211-212). 

2331 
The record clearly reveals that the light fixture was energized when 

the accident occurred in· that it was plugged into a live 480-volt electrical 

outlet. The citation alleges that the installation or relocation of energized light fixtures violates that portion of mandatory safety standard 

30 C.F.R. § 55.12-16 which provides that "[e]lectrically powered equipment 

shall be deenergized before mechanical work is done on such equipment." 4/ 

The terms "electrically powered equipment" and "mechanical work" are notdefined by any provision of Part 55 of Title 30 of the Code of Federal 

Regulations. 

The Petitioner maintains that the electrical lights in question were 

"electrically powered equipment" within the meaning of the regulation 

because: 

[C]ommon usage of the terms supports a conclusion that the 

electrical light fixtures were such equipment. The evidence 

supports a finding that the electrical lights were high 

pressure soditnn lights powered by 480 volts alternating 

current. It is uncontroverted that the light was electrically 

powered and the Secretary therefore submits that the ballast 

of the light fixture meets the definition of electrically 

powered equipment for purposes of the standard. 

(Petitioner's Posthearing Brief, p. 5). 

The Petitioner further maintains that: 

[The] record is clear that the apprentices handled, hoisted, 

and hung the light fixture in the performance of their work 

on May 19, 1979. In order to accomplish this task, the 

apprentices used various tools and aids in relocating the 

electrical lights to their new locations. It is the 

Secretary's position that the movement and installation of 

the light fixtures constituted mechanical work for the 

purposes of 30 CFR 55.12-16. 

(Petitioner's Posthearing Brief, p. 5). 

The Respondent disagrees, contending that mandatory safety standard 

30 C.f .R. § 55.12-16 does not apply to electrical lights. The Respondent 

argues that the regulation applies only to electrically powered equipment 

which performs a mechanical function through the use of moving or actioning 

parts, and, in support of its position, points to definitions of the words 

"mechanical," "machine," and "mechanism" appearing in the 1966 unabridged 

4/ It appears from the testimony of Mr. Carlson and Mr. Breazeal that this 

portion of the regulation would have been complied with if the circuit 

breaker on the main control panel had been opened, or if the fixture had 

remained unplugged during the relocation operation (Tr. 162-163, 212). 

2332 
edition of The Random House Dictionary of the English Language. The 

Respondent maintains that the regulation is directed solely toward the prevention of injuries caused by moving or actioning machine parts while the 

miners are performing mechanical work on electrically powered equipment, and 

~ppears to maintain that protection against the electrical shock hazards 

presented on the facts of this case is addressed exclusively by mandatory 

safety standard 30 C.F.R. § 55.12-17 (Respondent's Posthearing Brief, 

pp. 14-16). The latter regulation provides, in part, that "[p]ower circuits 

shall be deenergized before work is done on such circuits unless hot-line 

tools are used." 

The Respondent also argues that the Petitioner's interpretation renders 

the 1977 amendments to the regulation meaningless (see 42 Fed. Reg. 57038, 

57040 (October 31, 1977)), because the drafters of the amendments did not 

intend that the regulation, as amended, apply to all work performed on all 

electrical equipment. Significantly, however, the Respondent concedes that 

the cited condition would have been covered by the regulation in its preamendment 

form (Respondent's Posthearing Brief, pp. 18-20). 

The initial question presented is whether mandatory safety standard 

30 C.F.R. § 55.12-16 is directed, as the Respondent contends, solely toward 

the prevention of injuries caused by moving or actioning machine parts, or 

whether the regulation also provides protection against electrical shock 

hazards. The rules of statutory construction provide the governing 

principles for decision. 

As a general proposition, the rules of statutory construction can be 

employed in the interpretation of administrative regulations. See C. D. 

Sands, lA Sutherland on Statutory Construction, § 31.06, p. 3620972). 

According to 2 Am. Jur.2d, Administrative Law, § 307 (1962), "rules made 

in the exercise of a power delegated by statutue should be construed together 

with the ·statute to make, if possible, an effectual piece of legislation in 

harmony. with common sense and sound reason." Remedial legislation directed 

toward securing safe and healthful work places must.be interpreted in light 

of the express congressional purpose of providing a safe and healthful work 

environment, and the regulations promulgated pursuant to such legislation 

must be construed so as to effectuate Congress' goal of accident prevention. 

Brennen v. Occupational Safety and Health Review Commission, 491 F.2d 1340 

(2d Cir. 1974). "[R]emedial legislation and its implementing regulations are 

to be construed liberally. Consolidation Coal Co., 1 FMSHRC 1300, 1309 [sic] 

(1979)," Cleveland Cliffs Iron Company, Inc., 3 FMSHRC 291, 294, 2 BNAMSHC 

1138, 1981 CCH OSHD par. 25,163 (1981), and "[s]hould a conflict develop 

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

the first should be preferred." District 6, United Mine Workers of America 

v. Department of Interior Board' of Mine Operations Appeals, 562 F.2d 1260 

(D.C. Cir. 1972). 

Applying these principles of construction, I conclude that mandatory 

safety standard 30 C.F.R. § 55.12-16 provides miners performing mechanical 
work on electrically powered equipment with protection against injuries 

caused by moving or actioning machine parts or equipment, and with protection 

against electrical shock hazards.. The Respondent's proffered interpretation 

would promote an objective at odds with mine safety and is therefore not to 

be preferred. There is no indication that the drafters of the regulation 

intended that it provide only the limited protection advocated by the 

Respondent. In fact, the plain wording of the regulation provides no support for the limitation advocated by the Respondent. 

The Respondent's position that the electrical shock hazards presented 

on the facts of this case are addressed.exclusively by mandatory safety 

standard 30 C.F .R. § 55 .12-17 is without foundation. That regulation 

applies only when work is being performed on "power circuits," and is not 

directed toward the performance of "mechanical work" on "electrically 

powered equipment." 

The second question presented is whether mandatory safety standard 

30 C.F.R. § 55.12-16 provides the miners with protection against electrical 

shock hazards associated with the relocation of energized lighting fixtures 

of the type involved in this case, i.e.,, whether the handling, hoisting, and 

hanging of such energized light fixtures is "mechanical work" on "electrically powered equipment" within the meaning of the regulation. For the 

reasons set forth below, I answer this question in the affirmative. 

As noted previously, the terms "electrically powered equipment" and 

"mechanical work" are not defined by any provision of Part 55 of Title 30 of 

the Code of Federal Regulations. The words are not used in a narrow, technical sense, and should therefore be given their common meaning in determining 

wliat the drafters of the regulation intended. C. D. Sands, 2A Sutherland on 

Statutory Construction,§§ 47.27 and 47.28 (1973). "It is axiomatic 'that 

words used in a statute are to be given their ordinary meaning in the absence 

of persuasive reasons to the contrary.' Burns v. Alcala, 420 U.S. 575, 

95 S. Ct. 1180, 43 L.Ed.2d 469 (1975)." Chrobak v. Metropolitan Life 

Insurance Company, 517 F.2d 883, 886 (7th Cir. 1975). Additionally, the 

regulation must be interpreted liberally in view of its remedial purpose. 

Cleveland Cliffs Iron Company, Inc., 3 FMSHRC 291, 2 BNA MSHC 1138, 1981 

CCH OSHD par. 25,163 (1981); Local Union No. 5429, United Mine Workers of 

America v. Consolidation Coal Company, 1 FMSHRC 1300, 1 BNA MSHC 2148, 1979 

CCH OSHD par. 23,850 (1979). Also applicable is the principle previously 

cited from the District 6, UMWA case that if a conflict develops between an 

interpretation of the regulation that would promote mine safety and an interpretation that would serve another purpose at a possible compromise of mine 

safety, the first should be preferred. 

As relates to whether light fixtures are electrically powered equipment, the evidence clearly shows that the light fixtures in question were 

1,000-watt, high-pressure sodium lights powered by electricity rated at 

480 volts. The adjective "power" is defined, amongst several definitions, 

as "operated by electricity, a fuel engine, etc." David B. Guralnik (ed.), 

Webster's New World Dictionary of the American Language (2nd College Edition) 
(New York: The World Publishing Company) (1970) at pp. 1116-1117. The noun 

"equipment" is defined, amongst several definitions, as "the special thing~ 

needed for some purpose; supplies, furnishings, apparatus, etc." David B. 

Guralnik (ed.), Webster's New World Dictionary of the American Language 

(2nd College Edition) (New York: The World Publishing Company (1970) at 

p. 473. A light fixture is an apparatus operated by electricity. Accordingly, I conclude that a light fixture is electrically powered equipment 

within the meaning of the regulation. 

As relates to whether mechanical work was being performed on the light 

fixtures, the evidence shows that the May 19, 1979, relocation work entailed 

the handling, hoisting, and hanging of light fixtures. The word "mechanical," 

when used as an adjective, has a range of common meanings which includes the 

following: (1) "Pertaining to, produced by, or dominated by physical forces," 

and (2) "[o]f or pertaining to manual labor, its tools, and its skills." 

William Morris (ed.), The American Heritage Dictionary of the English 

Language (Boston: Houghton Mifflin Company) (1976) at p. 813. The relocation work involved the tools and skills of manual labor, and the work was 

dominated by the physical forces associated with the handling, hoisting, and 

hanging of light fixtures. Accordingly, the handling, hoisting, and hanging 

of light fixtures of the type involved in this case, during their relocation, 

is the performance of "mechanical work" on the fixtures within the meaning of 

the regulation. 

The Respondent's position to the contrary is not well founded. As noted 

previously, the Respondent maintains that the regulation does not apply to 

electrical lights because, in the Respondent's view, the regulation applies 

only with respect to electrically powered equipment which performs a mechanical function through the use of moving or actioning parts. The strongest 

support in the record for this position is found in the testimony of 

Mr. Dennis R. Laituri, an electrical engineer employed by the Respondent. 

According to Mr. Laituri, the regulation applies only to electrically powered 

equipment which performs some type of mechanical work, a position which by 

definition excludes electrically powered lights from the regulation's coverage. He testified that no mechanical work is involved in changing a light 

fixture because a person cannot perform mechanical work on a device which has 

no mechanical function (Tr. 350). His testimony on this point is considered 

unpersuasive because he later admitted during cross-examination by the 

Intervenor that a person removing the shade and the light bulb would be performing mechanical work on the fixture (Tr. 371), a position which is inconsistent with his previous testimony. Removing the shade and the light bulb 

does not alter the fact that a light fixture performs no mechanical function. 

Of even greater significance is the fact that the Respondent's position, 

if adopted, would amount to a rewriting of the regulation under the guise of 

interpreting it. Under the regulation as written, the adjective "mechanical" 

modifies the word "work." The Respondent's interpretation would have it 

modify the word "equipment," and thereby effectively rewrite the regulation 

to apply only to "electrically powered mechanical equipment." 

2335 
The Respondent's reliance on the 1977 amendments to mandatory safety 

standard 30 C.F.R. § 55.12-16 in support of its position is misplaced. Prior 

to November 30, 1977, mandatory safety standards 30 C.F.R. §§ 55.12-16, 

56.12-16, and 57.12-16, provided, in part, that "[e)lectrical equipment shall 

be deenergized before work is done on such equipment." Effective November 30, 

1977, the regulations were revised so as to provide, in part, that "[e]lectrically powered equipment shall be deenergized before mechanical work is 

done on such equipment." 42 Fed. Reg. 57038-57044 (October 31, 1977). The 

supplementary information published in conjunction with the amended regulations commented on the change as follows: 

Mandatory standard 57.12-16 is revised by substituting 

'Electrically powered equipment * * *' for 'Electrical equipment***,' and the words '***mechanical work***' for 

' * * * work * * *' so as to clarify the intent and application of the standard in response to comments. Work on electrical circuits of such equipment is covered under mandatory 

standard 57.12-17. 

42 Fed. Reg. 57038, 57039 (October 31, 1977). These comments are considered 

equally applicable to mandatory safety standards 30 C.F.R. §§ 55.12-16 and 

56.12-16, as amended or revised. 

It is therefore clear that the 1977 amendments simply revised mandatory safety standard 30 C.F.R. § 55.12-16 so as to clarify its intent and 

application as excluding from coverage work performed on the electrical 

circuits of electrically powered equipment. The amendments were not 

intended to change, and did not change, the scope of the regulation so as 

to exclude from coverage the type of activities involved in this case. It 

is therefore highly significant that the Re~pondent concedes, as noted 

above, that the cited condition was covered by the regulation in its preamendment form. 

In view of the foregoing, I conclude that Citation No. 286902 properly 

charges a violation of mandatory safety standard 30 C.F.R. § 55.12-16. I 

further conclude that the violation charged has been established by a 

preponderance of the evidence. 

C. Negligence of the Operator 

The Respondent admits that it demonstrated negligence in connection 

with the violation, but maintains that its negligence was minimal 

(Respondent's Posthearing Brief, pp. 20-21). 

The record contains no probative evidence which shows that Mr. Kallatsa, 

the shift foreman, had actual or constructive knowledge that the handling, 

hanging, or hoisting of the light fixtures was being performed while such 

fixtures were energized. Additionally, the record shows that the three 

2336 
electrical apprentices were sufficiently qualified to perform the relatively 

simple job of relocating the light fixtures without a supervisor being 

present at all t~mes. 5/ The three men received certain safety instructions 

from Mr. Kallatsa prior to beginning their work, as set forth previously in 

this decision. 

Accordingly, the record supports a finding that the negligence demonstrated by the Respondent was of a minimal nature. 

D. Gravity of the Violation 

The violation, coupled with the accidental miswiring of the threeprong electrical plug, resulted in the occurrence of the fatal electrical 

accident which claimed Mr. Parkkonen's life. The violation was a substantial contributing cause of the fatal accident and was therefore extremely 

serious. Additionally, the Respondent concedes that the violation was 

serious (Respondent's Posthearing Brief, p. 21). 

E. Good Faith in Attempting Rapid Abatement 

Both Mr. Carlson and Inspector Breazeal testified that the Respondent 

demonstrated good faith in rapidly abating the violation. Accordingly, it 

is found that the Respondent demonstrated good faith in rapidly abating the 

violation. 

F. Size of the Operator's Business 

The Respondent concedes that it is a large operator (Respondent's Posthearing Brief, p. 20). 

G. History of Previous Violations 

Exhibit G-7 is a computer printout prepared by the Directorate of 

Assessments setting forth the history of violations for which assessments 

have been paid at the Respondent's Empire Mine or Empire Mill, beginning 

September 1, 1977, and ending August 31, 1977. The exhibit reveals that 

the Respondent has no history of previous violations prior to December 8, 

1978. However, the Respondent had 23 violations of various provisions of 

the Code of Federal Regulations at the facility for which assessments have 

been paid, beginning December 8, 1978, and ending May 19, 1979. Of these, 

one was for a violation of mandatory safety standard 30 C.F.R. § 55.12-16. 

H. Effect of a Civil Penalty on the Respondent's Ability to Remain 

in Business 

In Hall Coal Company, 1 IBMA 175, 79 I.Do 668, 1 BNA MSHC 1037, 1971-

1973 CCH OSHD par. 15,380 (1972), the Federal Mine Safety and Health Review 

5/ The Intervenor took the position during the hearing that a standard 

electrician should have been assigned to work with the apprentices on 

May 19, 1979. No opinion is expressed on this subject. 

2337 
Commission's predecessor, the Interior Board of Mine Operations Appeals, 

held that evidence relating to whether a civil penalty will affect the 

operator's ability to remain in business is within the operator's control, 

resulting in a rebuttable presumption that the operator's ability to continue in business will not be affected by the assessment of a civil penalty. 

The Respondent asserts in its posthearing brief that the imposition of 

a reasonable penalty will not affect the ability of either the operator or 

the mine to continue in business, but maintains that "consideration should 

be given to the fact that the Empire Mine operation was shut down for 

three months last fall as was [the Respondent's] Republic Mine on the 

Marquette Iron Range which is still not back to full operation" 

(~espondent's Posthearing Brief, p. 20). 

The evidence presented shows that the Respondent operates the Empire 

Mine, the Tilden Mine, the Republic Mine, and three of the larger taconite 

operations in the area (Tr. 142). The evidence further shows that no production occurred at the Empire Mine for 3 months during the summer of 1980; 

and that the Republic Mine ceased production at about the same time and that 

production had not resumed as of the date of the hearing. However, both 

facilities were shipping from their stockpiles, at least as of the date of 

the hearing (Tr. 153-154). The record contains no other evidence material 

to the issue as to whether the assessment of a civil penalty will affect the 

Respondent's ability to remain in business .• 

Business and tax records are the type of evidence necessary to establish 

a claim of financial impairment. Hall Coal Company, 1 IB'MA 175, 180, 79 I.D. 

668, 1 BNA MSHC 1037, 1971-1973 CCR O.SHD par.· 15,380 (1972) see also, Davis 

Coal Company, 2 FMSHRC 619, 1 BNA MSHC 2305, 1980 CCR OSHD par:-24,291 (1980) 

(Lawson, C., dissenting). The record does not contain such evidence. The 

evidence in the record is insufficient to rebut the aforementioned presumption. Accordingly, I find that a civil penalty otherwise properly assessed 

in this proceeding will not impair the Respondent's ability to remain in 

business. 

VI. Conclusions of Law 

1. Cleveland Cliffs Iron Company and its Empire Mine or Empire Mill 

have been subject to the provisions of the 1977 Mine Act at all times 

relevant to this proceeding. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. Federal supervisory mining engineer William W. Carlson was a duly 

authorized representative of the Secretary of Labor at all times relevant 

to the issuance of Citation No. 286902, May 21., 1979, 30 C.F.R. § 55.12-16. 

4. The violation charged in Citation No. 286902, May 21, 1979, 

30 C.F.R. § 55.12-16 is found to have occurred as alleged. 

2338 
5. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

The Intervenor made a closing argument at the conclusion of the hearing 

on November 19, 1980. The Petitioner and the Respondent filed posthearing 

briefs on April 2, 1981, and April 3, 1981, respectively. Such closing argument and briefs, insofar as they can be considered to have contained proposed 

findings and conclusions, have been considered fully, and except to the extent 

that such findings and conclusions have been expressly or impliedly affirmed 

in this decision, they are rejected on the grounds that they are, in whole or 

in part, contrary to the facts and law or because they are immaterial to the 

decision in this case. 

VIII. Penalty Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a 

civil penalty is warranted as follows: 

Citation No. Date 30 C.F.R. Standard Penalty 

286902 May 21, 1979 55.12-16 $3,000.00 

ORDER 

The Respondent is ORDERED to pay a civil penalty in the amount of $3,000 

within 30 days ot the date of this decision • 

.J-.~ hnF. c~~ Law Judge 

Distribution: 

Gerald A. Hudson, F.sq., Office of the Solicitor, U.S. Department of 

Labor, 657 Federal Building, 231 W. Lafayette, Detroit, MI 48226 

(Certified Mail) 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill & Greenlee, 

P.C., Peninsula Bank Building, Ishpeming, MI 49849 (Certified Mail) 

Ernest Ronn, Safety Coordinator, United Steelworkers of America, 

Dis~rict No. 33, 706 Chippewa Square, Marquette, MI 49855 (Certified 

Mail) 

Paul Gravedoni, President,. Local Union 4950, United Steelworkers of 

America, 936 Baldwin Avenue, Negaunee, MI 49886 (Certified Mail) 

Harry Tuggle, Representative, United Steelworkers of America, Safety 

Department, Five Gateway Center, Pittsburgh, PA 15222 (Certified Mail) 

2339 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

BLACK RIVER SAND & GRAVEL INC., 

) 

) 

) . CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 80-331-M 

) 

) A/C No. 45-01582-05007 

) 

) MINE: Black River Pit 

) 

Respondent. ) ~~~~~~~~~~~..__~~~~-

BENCH DECISION 

Appearances: 

Ernest Scott, Jr., Esq. 

Office of the Solicitor 

United States Department of Labor 

8003 Federal Office Building 

Seattle, Washington 98174 

For the Petitioner 

James L. Hawk, President 

Black River Sand & Gravel, Inc. 

6808 South 140th 

Seattle, Washington 98178 

Pro Se 

Before: Judge Jon D. Boltz 

The Petitioner filed a petition for assessment of civil penalties 

against the Respondent for alleged violations of regulations promulgated 

pursuant to the Federal Mine Safety and Health Act of 1977. The evidence 

having been concluded, the parties have agreed to waive filing of post 

hearing briefs and also agree that a bench decision may be rendered at this 

time. 

Based on statements and agreements of the parties, I make the 

following findings of fact: 

1. Respondent has a moderate history of previous violations. 

2. The size of Respondent's business is less than average for a sand 

and gravel operation in this area. 

2340 
3. Assessment of proposed civil penalties will not affect 

Respondent's ability to continue in business. 

4. Respondent demonstrated good faith in achieving rapid compliance 

after notification of the violations. 

5. The Act gives me jurisdiction over the parties and the subject 

matter of these proceedings. 

6. The inspectors who issued the citations were duly authorized 

representatives of the Secretary of Labor. 

CITATION NO. 586025 

The Petitioner alleges that there was not a side guard on the self 

cleaning tail pulley on the left ~ide of the ~Fl primary conveyor belt. The 

citation alleges a violation of 30 C.F.R. 56.14-7, which regulation states 

that guards shall be of substantial construction and properly maintained. 

It is undisputed that part of the guard had been removed, and 

Respondent's evidence showed that this was done for clean up purposes. The 

equipment, however, was in operation at the time of the inspection and, 

thus, I find under these circumstances that there was a violation of the 

cited regulation. The ground area where the Respondent's plant was located 

was extremely wet and muddy at all times and employees did not clean up· 

spillage around the tail pulley by shovel. This clean up was accomplished 

by use of a bucket on a front end loader. There was, there fore, not a 

great risk of injury to the employees. 

The citation is affirmed and a penalty.of $65.00 is assessed. 

CITATION NO. 586026 

Petitioner alleges that there was no back guard on the self cleaning 

tail pulley on the #2 conveyor which was operating in the pit, in violation 

of 30 C.F.R. 56.14-7. 

It is undisputed that there was no back guard on the pulley and that 

the pulley was at ground level. Again, because of the ground conditions in 

this area of the operation, the potential for contact with the self 

cleaning tail pulley was somewhat remote, however, I am taking this into 

consideration for the purpose of assessing the penalty only. I find that 

there was a violation of the regulation and the citation is affirmed. The 

penalty assessed is $60.00. 

CITATION NO. 586027 

Petitioner alleges that there was no guard on the self cleaning tail 

pulley on the #4 up slope conveyor belt operating in the pit. The 

Petitioner also alleges that the tail pulley was exposed to persons in the 

area, in violation of 30 C.F.R. 56.14-1. 

2341 
The cited regulation states, inter alia, that tail pulleys which may 

be contacted by persons, and which may cause injury to persons, shall be 

guarded. Again, the evidence is undisputed that there was no guard. Even 

though the conditions were muddy, evidence was presented that the pulley 

was operating near ground level ap·proximately two feet ·from two employees. 

The guard had been removed for repairs and had not been replaced. Thus, 

the pulley might have been contacted by persons and it might have caused 

injury to them. Under these circumstances, the citation is affirmed and a 

penalty of $100.00 is assessed. 

CITATION NO. 586028 

Petitioner alleges that the V-belt drive pulley on the #3 conveyor 

belt was not provided with a· guard. The Pet it ioner also alleges that it 

was within reach of persons in the areal all in violation of 30 C.F.R. 

56 .14-1. 

The evidence was that the drive pulley was approximately five feet 

above ground level, and it was easily accessible by two employees who were 

seen working within approximately two feet of the exposed pulley. Thus, 

these persons in the area could have come into contact with the pulleyand 

could have been injured. The citation is affirmed and a penalty of $75.00 

is assessed. 

CITATION NO. 586029 

The Petitioner alleges there was no safe means of access to the plant 

pond pump, in violation of 30 C.F.R. 56.11-1. This regulation states that 

a safe means of access shall be provided and maintained to all working 

places. 

A wooden walkway had been constructed horizontally over approximately 

a twelve foot stretch of water as the means of access to the pump. The 

rungs on the walkway were approximately six inches in width with a space in 

between the rungs. The walkway had a handrail. I find that access to the 

work area was not unsafe. The handrail provided adequate support as 

testified to by a witness for the Respondent, and this handrail, along with 

the walkway, I find allowed for safe access to the work area. This 

citation is vacated. 

CITATION NO. 586030 

Petitioner alleges that the berm had been washed away by drainage 

water on the elevated roadway leading to the electrical control shed, in 

violation of 30 C.F.R. 56.9-22, which states that berms or guards shall be 

provided on the outer banks of elevated roadways. 

2342 
The berm was approximately eighteen inches above the roadway surface 

and approximately two feet wide. The evidence is undisputed that the berm 

was on the outer bank and that the roadway was elevated. Although the 

width of the wash out of the berm is disputed in that the MSHA i~spector 

stated that it was 15 to 20 feet and the Respondent stated that it was just 

a few feet, there is, nevertheless, a violation of the cited regulation, 

since at least a portion of the berm was not in place at the time of the 

inspection. The evidence that the roadway was seldom travelled is a 

matter which I am taking into consideration in assessing a penalty. The 

citation is affirmed and the penalty assessed is $85.00. 

CITATION NO. 586031 

Petitioner alleges that there was no guard on the back section of the 

self cleaning tail pulley on the discharge belt under the jaw crusher, in 

violation of 56.14-7. 

It is undisputed that there was no guard on the back sect ion of the 

tail pulley. However, because the area around this particular pulley is 

always extremely muddy and cannot be contacted by individuals unless they 

wade through mud which was testified to as approximately waist deep, I find 

that the citation should be vacated. The spillage is cleaned up by loader 

as previously described in this Decision. Because of the remote location 

of the pulley and the fact that the employees do not come into contact with 

it, the citation is vacated. 

CITATION NO. 352939 

Petitioner alleges the floor area in front of the wash plant 

distribution center did not have a dry wooden platform or a dry insulating 

mat to protect personnel operating the switches from risk of electrical 

shock, in violation of 30 C.F.R. 56.12-20. The pertinent part of that 

regulation states that dry wooden platforms and insulating mats, or other 

electrical non-conductive materials shall be kept in place at all switchboards and power controlled switches where shock hazards exist. 

It is undisputed that the floor area in the distribution center had 

sand and mud approximately 2 inches deep and that the area was wet. It is 

also undisputed that the center did have a board on which electrical 

switches were mounted. There was a wooden palet and mat which were buried 

under the sand and mud on the floor. The Respondent admitted that it had 

exercised poor housekeeping in that area. The Respondent had been 

previously cited for the same violation in the same area in November 1978. 

The citation is affirmed and the penalty assessed is $130.00. 

234a 
ORDER 

The foregoing Bench Decision is affirmed and the Respondent is ordered 

to pay total civil penalties in the sum of $515.00 within 30 days of the 

date of this Decision. 

..--, {)( c . / " '-1'-"_J ~ 

< d1>iifi?4J? ,~Jon D. Bol z ,-

v Administrative Law Judge 

Distribution: 

Ernest Scott, Jr., Esq. 

Office of the Solicitor 

United States Department of Labor 

8003 Federal Office Building 

Seattle, Washington 98174 

Mr. James L. Hawk, President 

Black River Sand and Gravel, Inc. 

6808 South 140th 

Seattle, Washington 98178 

2344 
FEDl!RAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 13, 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 81-2-M 

Petitioner A.C. No. 16-00358-05017 F 

v. 

Cote Blanche Mine 

DOMTAR INDUSTRIES, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Stephen P. Kramer, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Petitioner; 

Horace A. Thompson II, Esq., Mccalla, 

Thompson, Pyburn & Ridley, New Orleans, 

Louisiana, for Respondent 

Chief Administrative Law Judge Broderick 

On December 17, 1979, two miners at Domtar's Cote 

Blanche salt mine were killed when a nearby round of explosives was detonated as they were preparing another round for 

blasting. The Secretary of Labor, after investigating the 

accident, charged Domtar with a violation of 30 C.F.R. § 57-

6-175 which reads, "Mandatory. Ample warning shall be given 

before the blasts are fired. All persons shall be cleared 

and removed from areas endangered by the blast. Clear 

access to exits shall be provided for personnel firing the 

rounds." In this proceeding, Domtar contests both the Secretary•s finding of a violation and the proposed penalty 

based upon it. 

A hearing was held, pursuant to notice, in Lafayette, 

Louisiana, on June 2, 1981. Witnesses for the Secretary 

were Jay Durfee and William Wilcox, officials of the Mine 

Safety and Health Administration (MSHA} who investigated the 

accident. Witnesses for Domtar were William Coughlan, 

Manager of the Cote Blanche mine, and Robert Marks, a production foreman who supervised the blasting crews on the day 

of the accident. Marks was the only witness with personal 

knowledge of the events preceding and immediately following 

the accident. · 

The parties have filed briefs stating their positions. 

At the hearing and in its brief, Respondent has objected 

vigorously to the evidence submitted by the Secretary on the 

ground that it was hearsay. I do not in this decision 

specifically address those arguments since, as I v.iew the 

2345 
case, the facts essential to a decision for the most part 

are not in dispute. See Respondent's Prehearing Statement 

submitted May 12, 1981, pages 9-13, and Tr. 37-47. Having 

considered the briefs and contentions of the parties, and 

the whole record, I make the following decision. 

Findings of Fact 

1. Domtar's Cote Blanche mine is an underground salt mine 

in St. Mary's Parish, Louisiana. Mining proceeds by the 

room and pillar method, with explosives befng used to dislodge the salt. 

2. Blasting is normally conducted at the end of the day 

shift. On December 17, 1979, Robert Marks assigned Herbert 

Allen and Flowers Hope to blast a "bench round" in Room 23 

between 0 and N South headings. He also assigned Darsey 

Conner and David Washington to blast a "toe" or "floor 

trimming" round in N South heading between Rooms 23 and 22. 

3. A "bench" is a portion of the mine which stands, in 

this case, 55 feet higher than the floor of the mine. A 

bench round consists of a number of explosives drilled down 

into the bench. When the round explodes, the bench cascades 

onto the floor, where it is removed for transportation to 

the surface. 

4. A "toe" consists of the remnants of an incomplete bench 

round explosion. Occasionally, a bench round does not dislodge the entire section of bench which was blasted, leaving 

a portion intact near the floor of the mine. The object of 

a toe round is to blast this part of the bench so that the 

resulting debris can be removed for processing. 

5. Marks instructed Conner, Washington, and Allen to use 

flashlight signals to communicate with each other as they 

prepared to blast the rounds. Once the two crews arrived at 

the blasting locations, Allen was to signal the toe round 

crew that the bench round crew was in place. The. toe round 

crew would then flash back, signifying the same. When the 

toe round crew had lit their fuse, they were to signal the 

bench round crew that they were leaving. Upon seeing that, 

the bench round crew would ignite their fuse and depart. 

6. As it happened, both crews apparently signalled to each 

other when they reached the blasting locations. But, according to Allen, the toe round crew subsequently left the area. 

He took this to mean that they had lit their fuse, although 

they had not signalled that they were leaving, as required 

by the signalling procedure. Consequently, the bench round 

crew lit their fuse and departed the area. 

2346 
7. Allen and Hope parked their vehicle at the shop area 

and rode an elevator to the surface. Shortly after that, 

Marks saw the parked vehicle and became alarmed, since 

Conner and Washington should have arrived before the bench 

round crew. As he began to look for them, the bench round 

exploded. Conner and Washington were later found dead near 

the toe round. They had been killed by the bench round 

explosion before they ignited the toe round. 

8. Jay Durfee, investigating the accident for MSHA, issued 

a citation to Domtar on December 21, 1979,"'Which is the subject of this case. It alleges a violation of "57.06-175" 

and, under "condition or practice" reads, 

Powdermen D.L. Washington and D. Conners, Jr. 

were fatally injured when they were blasted 

by an adjacent bench round that had been fired 

by another crew (powdermen H. Allen and F. Hope). 

The two crews had not been instructed by Shift 

Crew (b) Foreman R. Marks to use effective voice 

communication between themselves to provide 

ample warning when firing blasts. 

Issues 

1. Was Respondent properly charged with a violation 

of the requirement that all persons shall be cleared and 

removed from areas endangered by the blast? 

2. Did the violation occur as alleged and, if so, 

what is the appropriate penalty? 

Discussion 

Domtar has raised two procedural objections to the 

citation. First, it notes that the citation referred to 

"57.06-175" instead of 57.6-175 and claims, as a result, 

that it was not given fair notice of the charge. The 

ordinary person with even a passing acquaintance with the 

Mine Act would know the part and section intended. Domtar's 

claim of lack of notice can only be characterized as frivolous and is rejected. 

The citation as originally issued refers only to the 

first sentence of the cited standard requiring ample warning. The Secretary filed a "modified" citati6n after this 

action was commenced, in which it is alleged that all persons were not removed from the area, as required by the 

second sentence of .the standard. Domtar contends that the 

second sentence may not be considered in this proceeding 

since it was not raised in the citation. 

2347 
A representative of the Secretary issuing a citation is 

not held to the rules of pleading in formal agency proceedings. I hold that the principal purpose of a citation's 

narrative portion is to familiarize the mine operator with 

the facts upon which the inspector relied in issuing the 

citation. 1/ Greater precision, of course, is required of 

the Secretary if and when he files a formal proposal for a 

penalty with the Commission. In this case, the proposal 

added an allegation that "all persons were not removed from 

the area endangered by the blast" in the Narrative Findings 

for a Special Assessment. Thus, from the moment civil penalty proceedings began, Domtar was on notice that it was 

charged with violating the first two sentences in 30 C.F.R. 

§ 57.6-175. 

Turning to the merits, the undisputed facts show that a 

violation of the cited standard occurred. It is difficult 

to seriously argue that the dead miners were given any warning, much less ample warning. It is clear that they had no 

idea that the bench round had been ignited. It is just as 

clear that all persons were not cleared from the area endangered by the blast. The fact that the miners' bodies were 

found in that area is irrefutable proof. ~/ 

The remaining question is, what penalty should be 

assess~d? This requires an analysis of six criteria. 30 

U.S.C. § 820(i). Domtar is a large mine operator whose 

1/ The Legislative History of the Act supports this construction. The Senate Committee on Human Resources, discussing imminent danger closure orders, remarked that "the 

purpose of the detailed description of conditions is to 

adequately apprise the operator of the problem involved so 

he may take appropriate steps to correct the condition or 

practice. The Committee does not intend that this requirement be a procedural pitfall for the inspector, thus should 

it not be construed to invalidate orders issued under this 

section." S. Rep. No. 95-181, 95th Cong., 1st Sess., at 38 

(1977), reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., "2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 

626. 

2/ The Mine Act is generally a strict liability statute. 

The language of the cited standard and the wording of 

§ llO(a) of the Act make it plain that unforeseeability is 

not a defense to a violation, nor can the operator avoid a 

violation by placing the blame on a careless employee. MSHA 

v. El Paso Rock Quarries, 3 FMSHRC 35 (1981); Hendensfels v. 

Marshall, 2· BNA MSHC 1107 (5th Cir. 1981); MSHA v. Ace 

Drilling Co., 2 FMSHRC 790 (1980). 

2348 
ability to continue in business would not be affected by any 

penalty I may impose. Its history of prior violations is 

not such that an appropriate penalty for this violation 

should be increased because of it. 

Domtar displayed ordinary good faith in responding to 

the citation. Blasting procedures were rewritten and MSHA 

personnel generally commended company officials for their 

cooperation in the investigation. 

Obviously, the gravity of the violation is extremely 

serious. Two miners were killed. 

It is difficult to attribute any negligence to the 

operator. Robert Marks testified that he instructed the 

miners in flashlight signalling procedures, which had been 

used at the mine for years without incident. He repeated 

his instructions until he was sure they were understood. The 

Secretary offered no evidence to contradict Marks's testimony so I must conclude that the accident resulted from the 

miners' failure to obey their instructions. 

The Secretary expended considerable effort at the hearing attempting to show that other methods of communicating 

between the blasting crews would have been superior. 3/ On 

the whole, the evidence was unpersuasive. 4/ The issue is 

not whether Domtar's signalling procedures-were superior to 

any others that could be conceived, but whether they served 

3/ Of course, oral communication is not the only way to 

provide "ample warning" in compliance with the standard. 

Any suggestion to that effect by the Secretary is rejected. 

4/ Witnesses for the Secretary suggested that a nearby fan 

should have been turned off to allow voice communication. 

But the mine was classified as "gassy" by MSHA and continuous operation of the fan appears to have been prudent. 

It was also argued that one of the bench crew could have 

walked around to the bench directly over the toe crew and 

observed their work. However, this would have split the 

blasting crew into three instead of two components and 

further increased the risk of inadequate communication. The 

use of two-way radios would have been inadvisable since 

radio communications near blasting operations create an 

additional hazard. Both parties concede, however, that the 

toe round and the bench round could have been fired from a 

single location. Domtar's new blasting procedures provide 

that when more than one round.is fired, "all members of the 

crews will be in accompaniment when firing rounds following 

the firing of the first,round." 

2349 
the purpose of providing. "ample warning" in the past and 

would have done so on this occasion had they been properly 

followed. I conclude that Domtar's negligence, if any, was 

slight. 

Based on the above findings and discussion, I conclude 

that the appropriate penalty for the violation found is 

$3,000. 

Conclusions of Law 

1. I have jurisdiction over the subject matter and the 

parties to this proceeding. 

2. Domtar violated 30 C.F.R. § 57.6-175 as alleged by 

the Secretary of Labor. 

3. The appropriate penalty for the violation is $3,000. 

ORDER 

Respondent, Domtar Industries, Inc., is ORDERED to pay 

the sum of $3,000 within 30 days of the date of this decision. 

//fUl;tuA A-f..1'roci+iel_ ~ James A. Broderick 

Chief Administrative Law Judge 

Distribution: By certified mail. 

Horace A. Thompson II, Esq., Attorney for Domtar Industries, 

Inc., Mccalla, Thompson, Pyburn & Ridley, 1001 Howard 

Avenue, Suite 2801, New Orleans, LA 70013 

Stephen P. Kramer, Attorney, Office of the 'solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Assessment Office, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

2350 

\ 

\ 
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. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. LAKE 80-142 

A. C. No. 33-02808-03050 

Raccoon No. 3 Mine 

DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 

The issue involved in this proceeding is whether Respondent unlawfully refused to pay a representative of miners walkaround pay for time 

spent on a "ventilation technical inspection" and a "roof control survey." 

Respondent contends that a "spot" inspection was involved while Petitioner 

initially contended that a regular inspection was involved. 

After intervening 'procedural events, Respondent renewed its quest 

for dismissal in a motion for summary decision received March 9, 1981. 

In its response thereto Petitioner indicated: 

The present case involves the issue of whether a miners' 

representative is entitled to compens~tion for his participation in a so-called "spot" inspection of the respondent's 

mine. This issue is substantially the same legal issue that 

is raised in the cases of Secretary of Labor v. The Helen 

Mining Company 1 MSHC 2193 (FMSHRC, November 21, 1979), appeal 

pending No. 79-2537 (D.C. Cir., December 21, 1979) and Secretary 

of Labor v. Kentland Elkhorn Coal Corporation, 1 MSHC 2230 

(FMSHRC, November 30, 1979), appeal pending No. 79-2536 (D.C. 

Cir., December 21, 1970), cases presently on appeal to United 

States Court of Appeals for the District of Columbia. 

Petitioner now indicates in its letter of September 22, 1981, that 

a "spot" inspection is involved in this proceeding, but renews its contention that the Commission's decisions with respect to walkaround pay 

entitlement are incorrect. That miners' representatives are not entitled 

to pay for participation in "spot" inspections was held by the Commission 

in the cases of Secretary of Labor v. The Helen Mining Company, 1 MSHC 

2193 (FMSHRC, November 21, 1979), appeal pending No. 79-2537 (D.C. Cir., 

December 21, 1979) and Secretary of Labor v. Kentland Elkhorn Coal 

Corporation, 1 MSHC 2230 (FMSHRC, November 30, 1979), appeal pending 

No. 79-2536 (D.C. Cir., December 21, 1979), cases presently on appeal to 

the United States Court of Appeals for the District of Columbia. I am 

obliged to follow the Commission's decisions until and unless the same 

are overruled. 

2351 
Accordingly, Respondent's motion for summary decision is GRANTED, 

and this proceeding is DISMISSED. 

#~~/(~~ 

Michael A. Lasher, Jr., Judge 

Distribution: 

Marcella L. Thompson, Esq., Office of the Solicitor, U. S. Department of Labor, 1240 E. 9th St., Rm. 881, Cleveland, OH 44199 

(Certified Mail) 

David M. Cohen, Esq., American Electric Power Service Corp., P. O. 

Box 700, Lancaster, OH 43130 (Certified Mail) 

2352 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PARAMONT MINING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PARAMONT MINING CORP., 

Respondent 

oc113·an 

DECISIONS 

Contests of Citation and Orders 

Docket No. VA 81-56-R 

Citation No. 685706; 3/31/81 

Docket No. VA 81-57-R 

Order No. 685707; 4/1/81 

Docket No. VA 81-58-R 

Order No. 685708; 4/1/81 

No. 7 Underground Mine 

Civil Penalty Proceeding 

Docket No. VA 81-84 

A.O. No. 44-05222-03018 

Citation 0685706; 3/31/81 

Citation 0685708; 4/1/81 

No. 7 Underground Mine 

Appearances: Galen C. Thomas, Esquire, New York, New York, for the 

contestant-respondent; Lawrence W. Moon, Trial Attorney, 

U.S. Department of Labor, Arlington, Virginia, for the 

respondent-petitioner. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern contests filed by the 

contestant challenging the legality of one section 104(a) citation, 

one section 104(b) withdrawal order, and one section 107(a) imminent 

danger order issued by MSHA Inspector William W. Mulvey upon inspection 

of the subject mine on March 31 and April 1, 1981. The citations and 

orders in dispute are as folloY{s.: 

2353 
Docket VA 81-56-R 

Section 104(a) citation no. 0685706, issued on March 31, 1981, 

charges a violation of mandatory safety standard 30 CFR 75.316. In 

addition, the inspector made a finding that the violation was "significant 

and substantial." 

Docket VA 81-57-R 

Section 104(b) withdrawal order no. 0685707 was issued on April 1, 1981, 

after the inspector concluded that the previously issued citation no. 

685706 had not been timely abated and that the time for abatement should 

not be further extended. The inspector cited another violation of mandatory 

standard 30 CFR 75.316, and concluded that the alleged violation was 

"significant and substantial." He subsequently modified his order to 

permit mining to continue during the abatement process. 

Docket VA 81-58-R 

Withdrawal order no. 0685708 was issued on April 1, 1981, and it is 

a combination section 107(a) imminent danger order and a section 104(a) 

citation for an asserted violation of mandatory standard 30 CFR 75.316, 

which the inspector believed was a "significant and substantial" violation. 

In addition to the aforementioned citation and orders, respondent, 

by letter filed with me on August 27, 1981, (as augmented by subsequent 

motion) requested a consolidation of the Secretary's civil penalty 

proposals filed in connection with citations 0685706 and 0685708. 

These citations are included in Docket No. VA 81-84, a recently filed civil 

penalty proceeding concerning these same parties, in which the Secretary 

seeks civil penalty assessments for a total of 11 alleged violations. 

By agreement of the parties, the request for consolidation of that portion 

of Docket VA 81-84 pertaining to the two citations which are the subject 

of the instant contests was granted, and the parties advised me that they 

were prepared to offer evidence concerning the statutory criteria found 

in section llO(i) of the Act for my consideration in connection with civil 

penalty Docket VA 81-84. 

Hearings were convened in Wise, Virginia, on September 9, 1981, 

pursuant to notice, and the parties appeared and participated fully 

therein. During the course of the proceedings, the parties advised 

me that they had agreed to a settlement disposition of the two citations 

at issue in Docket VA 81-84, and that in light of the proposed settlement 

contestant desired to withdraw its contests filed in Dockets VA 81-56-R, 

VA 81-57-R, and VA 81-58-R. Under the circumstances, the parties were 

afforded an opportunity to present their arguments in support of their 

proposed settlement of the cases on the record. 

2354 
Discussion 

Stipulations 

The parties agreed and stipulated to the following: 

(1) Paramont Mining Company is a medium sized coal mine operator. 

(2) The No. 7 Underground Mine has an annual production of 400-450 

tons of coal, employing approximately 75 underground miners. 

(3) Respondent.' s previous history of violations is not such as 

to warrant any increases or reductions-in the assessed civil penalties. 

(4) Respondent exercised good faith in abating the citations in 

question. 

(5) The penalties assessed will not adversely affect respondent's 

ability to remain in business. 

In addition to the aforementioned stipulations, counsel for the 

Secretary asserted that while the circumstances surrounding the ventilation 

plan violations were serious, respondent's negligence with regard to 

the citations was not great because of the fact that the circumstances 

which prompted the issuance of the citations may not have been within the 

mine operator's control. In this regard, counsel stated that the operator 

may have been unaware of the existence of a body of water in the cited 

mine area which may have affected the mine ventilation in the cited bleeder 

entries. Further, counsel argued that there is a genuine dispute as to 

the existence of the concentrations of methane reported by the inspector 

an~ that counsel's investigation of the circumstances surrounding the 

issuance of the orders reveals a possible misunderstanding between the 

inspector and mine management with respect to precisely what was required 

to abate the initial citation· and subsequent section 104 (b) withdrawal order. 

With regard to the imminent danger order, counsel for the Secretary 

candidly conceded that the .order may have been an "afterthought" by 

the inspector and that it was issued subsequent to the section 104(b) 

withdrawal order which withdrew miners from the mine. Counsel also 

asserted that this order may have resulted from a misunderstanding 

rather than an imminently dangerous condition underground. 

Conclusions 

On the basis of the foregoing arguments, the parties proposed a 

settlement for the section 104(a) citation no. 0685706 for the full 

assessment amount of $880. Upon consideration of the arguments presented 

in support of the proposed setclement, and pursuant to Commission Rule 29 CFR 

2700.30, I conclude and find that the proposal is reasonable and in the 

public interest and the settlement is APPROVED. 

235[) 
The Secretary's motiori to vacate withdrawal order citation no. 

0685708 and to dismiss the civil penalty proposal filed in Docket VA 81-84 

for an assessment of a civil penalty for this citation is GRANTED and 

the citation is VACATED and DISMISSED. 

The Secretary's motion to amend the civil penalty proposals filed 

in Docket VA 81-84 to reflect that citation 0685706 is in fact a section 

104(a) citation rather than a section 104(b) withdrawal order was granted. 

In addition, counsel's motion to amend the petition to accurately 

reflect the Secretary's intention to seek a civil penalty assessment for 

citation 0685708 on the basis of a section 104(a) citation rather than 

an order was likewise granted. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount of $880 in 

satisf?ction of Citation No. 0685706, March 31, 1981, 30 CFR 75.316, 

and payment is to be made to MSHA within thirty (30) days of the date of 

this decision. Upon receipt by MSHA, the citation is severed from Docket 

No. VA 81-84, and MSHA's proposal for a civil penalty for this citation 

filed in VA 81-84, IS DISMISSED. 

IT IS FURTHER ORDERED that Citation No. 0685708, April 1, 1981, 30 

CFR 75.316, which has been severed from Docket VA 81-84, IS DISMISSED AND 

VACATED, and that portion of MSHA's civil penalty proposal seeking a penalty 

for this citation is DISMISSED. . 

IT IS FURTHER ORDERED that the contests filed by the contestant in 

Dockets VA 81-56-R, VA 81-57-R, and VA 81-58-R are DISMISSED. 

4~~ Administrative Law Judge 

Distribution: 

Lawrence W. Moon, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Galen C. Thomas, Esq., Suite 1203, 11 Park Place, New York, -NY 10007 

(Certified Mail) 

Catherine Oliver, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

235G 
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), 

Petitioner 

v. 

PARAMONT MINING CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. VA 81-45 

A.O. No. 44-05222-03014 V 

No. 7 Underground Mine 

DECISION 

Appearances: Lawrence W. Moon, Trial Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the petitioner; Galen C. Thomas, 

Esquire, New York, New York, 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), proposing civil penalty assessments 

for one alleged violation of 30 CFR 75.200. 

Respondent filed a timely answer in the proceeding, and after 

extensive discovery, including an interlocutory appeal taken by the 

respondent with respect to one of my pretrial rulings on a motion for 

summary partial decision, which was subsequently rejected by the Commission, 

a hearing was convened at Wise, Virginia, on September 9, 1981, and the 

parties appeared and participated fully therein. During a brief 

informal pretrial conference, the parties advised that they proposed 

to settle the dispute, and they were afforded an opportunity to present 

their arguments in support of the proposed settlement disposition of 

the matter on the record for my consideration pursuant to Commission Rule 

29 CFR 2700.30. 

Discussion 

Jn support of the proposed settlement di~position of this case, 

petitioner submitted full arguments and information concerning the six 

statutory criteria found in section llO(i) of the Act, including a 

discussion of the facts and circumstances surrounding the citation in 

question. In this regard, the parties stipulated to the following: 

2357 
1. The respondent owns and operates the subject mine and is 

subject to the jurisdiction of the Act and the Commission. 

2. The citation properly charged conditions or practices 

which were in violation of the approved roof control plan 

and mandatory safety standard 30 CFR 75.200. 

3. The subject citation was properly served on the respondent 

by MSHA inspector Nolan White. 

4. The penalty assessed for the subject citation will not 

advers.ely affect respondent •·s ability to continue in 

business. 

5. Respondent's history of prior citations is not such as to 

warrant an increase or reduction in the proposed civil 

penalty assessment made in this case. 

6. Respondent's annual coal production is approximately 400,000 

tons, and respondent employs 75 miners underground at the 

mine in question. 

7. The conditions cited by the inspector were rapidly abated and 

corrected by the respondent when they were brought to 

respondent's attention. 

The citation issued by the inspector in this case, No. 0680403, was 

issued on November 16, 1980, and charges the respondent with a violation 

of 30 CFR 75.200, for an asserted failure by the respondent to follow its 

approved roof control plan. The citation was issued after the inspector 

found that approximately 20 roof bolts used to support a roof area which 

had fallen were 18 inches in length rather than 42 inches as required by 

the approved mine roof control plan. In support of the proposed settlement 

disposition for this citation, the parties agreed to the following: 

1. Section foreman Charles Wyatt was aware of the fact that 

the short roof bolts were installed, and in fact may have 

personally installed them himself. 

2. The installation of the bolts in question were contrary to the 

roof control plan as well as company policy, and except for 

Mr. Wyatt, no one in mine management was aware that they had 

been installed until they were discovered by MSHA inspector 

Nolan White on December 16, 1980. 

3. The presence of the short roof bolts was not visibly noticeable 

upon normal visual examination of the roof area by someone 

standing in the entry. The existence of the short bolts was 

called to MSHA's attention by an informant, and was subsequently 

confirmed by Inspector White upon closer examination of the 

roof area in question. 

235S 
4. Although the roof area in question was in an area 

designated as an escap·eway from August 22 to October 20, 

1980, and was subject to weekly examinations subsequent 

to October 20, 1980, and up to and including December 16, 

1980, the area was not a designated escapeway during this 

period of time. 

5. Although the affected roof was not a face area or working 

section, it was an "active workings" of the mine. However, 

the roof was in fact supported by cribs as an additional 

means of roof support. 

6. Mr. Wyatt was discharged from his employment with the 

respondent prior to the discovery of the installation of the 

short roof bolts and prior to their discovery by MSHA and 

mine management. Mr. Wyatt was subsequently indicted by a 

Federal grand jury for the Western District of Virginia for 

the intentional installation of the short roof bolts and has 

entered a guilty plea based on one criminal count returned by 

the jury. 

7. At the time the short roof bolts were discovered, mine employees 

were not in the roof area in question because the inby area 

had been temporarily abaondoned. 

Conclusion 

After careful review of the pleadings, arguments, and submissions 

submitted by the parties, including the oral arguments advanced by counsel 

for the petitioner at the hearing in support of the proposed settlement 

disposition of this matter, I conclude and find that the settlement is 

in the public interest and should be approved. Although it is clear 

that a mine· operator is responsible for the acts of his management personnel, 

in this case it also seems clear to me that the conditions cited resulted 

from the unauthorized acts of a shift foreman without the knowledge 

of mine management and contrary to company policy. Coupled with the 

fact that respondent took immediate and decisive action in correcting 

the cited conditions and discharged the responsible party, these factors 

may be considered by me in mitigating any civil penalty assessed 

for the violation in question. Under the circumstances, I conclude that 

the proposed settlement is reasonable, and pursuant to Commission Rule 

30, 29 CFR 2700.30, it is APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the settlement amount 

of two-hundred dollars ($200), in satisfaction of the citation in question 

within thirty (30) days of this decision and order, and upon receipt of 

payment by the petitioner, this case is dismissed. 

~Ktl~ Administrative Law Judge 

2359 
Distribution: 

Lawrence W. Moon, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Galen C. Thomas, Esq., 11 Park Place, New York, NY 10007 (Certified 

Mail) 

2360 
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. 

UNITED STATES STEEL CORPORATION, 

Respondent 

UNITED STATES STEEL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 81-214 

A/O No. 46-01418-03034 

No. 9 Mine 

Contest of Citation 

Docket No. WEVA 81-43-R 

Citation No. 897803; 9/15/80 

No. 9 Mine 

DECISION 

Appearances: Leo J. McGinn, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner-Respondent, 

Louise Symons, Esq., United States Steel Corporation, 

Pittsburgh, Pennsylvania, for Respondent-Contestant. 

Before: Judge Charles C. Moore, Jr. 

The citation involved in this consolidated review and penalty 

proceeding reads as follows: 

An unplanned roof fall (accident) above the anchorage 

zone in the active workings of the 4-Left Sandlick section 

ID No. 042 (section belt loading point and outby distance 

of 70 feet) where roof bolts (84 inches long) were in use. 

Occurred on August 26, 1980, and the operator did not contact the subdistrict office (Princeton, West Virginia). 

As stated in the citation, a roof fall did occur on August 26, 1980. 

While the inspector was notified of the roof fall the next day, he did not 

see the area until September 10, 1980, and did not issue the citation 

2361 
quoted above until September 15, 1980. The testimony of the company 

witnesses indicates that there was a considerable change in the size of 

the roof fall between the time that it first occurred and the time the 

inspector saw it. The fall that occurred on the evening of August 26 

consisted of an area approximately 12 feet by 15 feet by 5 feet and was 

not above the anchorage zones of the roof bolts. By 10:30 a.m. on the 

27th, the fall had expanded and some roof bolts had fallen out. The 

area expanded further on the 28th, 29th, and 30th of August. Timbering 

was started immediately after the first fall and the remaining roof fell 

despite the company's timbering efforts. On the morning of the 27th of 

August, a written report of the roof fall was sent to MSHA,and Inspector 

Snyder, who happened to be at the mine, was informed orally of the fall. 

The inspector did not think it of sufficient importance to examine the 

area, however. 

30 C.F.R. §50.10 states that if an accident occurs in a mine, the 

operator "shall immediately contact the MSHA District or Subdistrict 

Office***·" Section 50.2(h) defines twelve situations as accidents 

for the purpose of these regulations. Subsection 50.2(h)(8), at issue 

herein, defines as an accident: 

An unplanned roof fall at or above the anchorage zone 

in active workings where roof bolts are in use; or, an 

unplanned roof or rib fall in active workings that impairs 

ventilation or impedes passage; 

There is no doubt that the roof fall occurred in an active working, 

that it did not impede ventilation, that it did not impede passage and 

that at some time it did involve the area of the roof above the anchorage 

zone of the roof bolts. 

U.S. Steel reports all roof falls whether technically reportable or 

not, but makes a distinction between accidents that are reportable by 

telephone and those which are reportable by a written document. U.S. Steel 

contends that it was told by the district manager not to report accidents 

which occur at night where·no miner is injured or trapped, and that it was 

told it did not have to immediately (by telephone) report a roof fall that 

was not in a working section unless either ventilation or passage was 

impeded. Inspector Snyder agreed with the first part of this instruction, 

that is, that no accidents were to be reported at night unless a miner 

was injured or trapped. He did not agree with the second part of the 

assertion by U.S. Steel but his reasons for not doing so were simply that 

the director was aware of the inspector's actions and had agreed that a 

citation should be issued. 

U.S. Steel also contends, that in addition to the instructions by the 

subdistrict manager, it relied on almost identical wording contained in 

the preamble to the accident reporting rule published in Volume 42 of the 

2362 
Federal Register on December 30, 1977, at page 65535. That stateme~t, 

under the heading of "DEFINITION OF ACCIDENT" is as follows: 

With respect to §S0.2(h)(8), unplanned roof or rib falls 

in active workings which impair ventilation or passage must 

be reported immediately, but falls which do not do so need 

not be reported immediately regardless of their size. 

MSHA has an explanation for the fact that the language in the preamble 

to the regulations is contrary to the language in the regulations themselves. After quoting the regulation and the preamble thereto, MSHA quotes 

a previous proposed regulation which contained the following words at the 

end of §S0.2(h)(8): "or exceeds 100 cubic feet of material." MSHA makes 

the following argument: 

MSHA contends that a reading of the three regulatory 

passages set forth above conclusively shows that .the operator's argument is without merit. The paragraph in the preamble to which the operator refers obviously deals only with 

the second clause of 50.2(h)(8) which, in addition to the 

first part of paragraph (8), requires immediate notification 

to MSHA under 50.10. The reason that the preamble to the 

final rule discusses only the second clause of paragraph (8) 

is simply that only the second part was revised in the final 

rule distinguishing it from the version set forth in the 

notice of proposed rule-making. There is no doubt now, nor 

wa:s there any doubt during the rule-maki.ng process, that the 

immediate accident notification requirement referred to all \ 

unpl~nned roof falls at or above the anchorage zone in active 

workihgs where roof bolts were in use. It is equally clear 

that the rule-making process resulted in a change in the 

second clause of paragraph (8), eliminating the 100 cubic 

feet of material requirement for unplanned roof or rib falls 

in active workings that impair ventilation or impede passage. 

I will accept MSHA's explanation as to how the preamble came into being 

because I cannot believe that the Government would deliberately try to deceive 

the public as to the requirements of a regulation. The fact remains, however, 

that the preamble is deceptive because if the reader happened to be unaware 

of the proposed "100 cubic feet of material" requirement, he would read it 

exactly as U.S. Steel read it and as I believe the subdistrict manager read 

it. In this connection, the affidavit filed by the subdistrict manager, 

Conrad Spangler, is very general in terms. While he states that he has at 

all times interpreted the notification requirements for reporting in accordance with the definition in the rules, he does not answer U.S. Steel's 

contention that he stated there was a difference in the reporting requirements depending on whether the roof fall was in a working section or not, 

nor does he comment on the clearly established fact that he gave instructions not to report an accident at night unless a miner was trapped or 

2asa 
injured. If he had the authority or thought he had the authority to 

modify the word "immediately" so that it does not mean at night, except 

in certain circumstances, then it would seem reasonable that he thought 

he had the authority to modify that word in other circumstances. Furthermore, the affidavit denies an allegation that has not been made. Mr. Spangler 

denies that he ever told anyone that an unplanned roof fall above the anchorage zone in active workings was not to be reported "under Section 50.10 unless 

that fall impairs ventilation or impedes passage." The question involved 

here is not what has to be reported but what has to be immediately reported 

and what does that word "immediately" mean? I therefore give very little 

weight to the affidavit of the subdistrict manager. 

Despite the good faith reliance by U.S. Steel on the previously quoted 

statement in the preamble to the rule and its reliance on statements made by • 

the subdistrict manager, the preamble cannot take precedence over the regulation itself. Unintentional roof falls above the anchorage zone of the roof 

bolts are reportable immediately. I do not believe that the subdistrict 

manager has authority to alter the word "immediately" to mean when business 

starts the next day or that he would have authority to in any way alter the. 

terms of the regulation itself. I therefore agree with MSHA that the unintentional roof fall as described in the citation is of the type that should 

be reported immediately. 

The citation says that an unplanned roof fall above the anchorage zone 

in the active workings "occurred on August 26, 1980, and the operator did 

not contact the subdistrict office (Princeton, West Virginia)." The evidence 

does not establish that the described roof fall occurred on August 26, 1980. 

On that date, there was a roof fall but it was not above the anchorage zones 

of the roof bolts. On the following morning, August 27, the accident was 

reported in writing and it was reported orally to Inspector Snyder who is 

certainly an agent of the subdistrict office. Had he been at the subdistrict 

office and answered the phone and received the report, there could be no 

question that the subdistrict office had been notified and I see no difference 

created by the fact that he happened to be at the mine when he was notified. 

He was notified at 8 a.m. on August 27 and made the decision that the fall 

area was not sufficiently important to inspect. The written report was 

filled out by 8 a.m. and it was not until 10:30 a.m. that Mr. Paul discovered 

that the fall had expanded so that some roof bolts had fallen out. It was 

thus not until 10:30 a.m. on August 27 that a report was required. Inasmuch 

as the roof fall had already been reported more than 2 hours earlier, however, 

there would be little point in reporting it again. MSHA had not argued that 

there is any requirement to.continue to report the progress of a roof fall. 

Once a report has been made, it is up to MSHA whether it wishes to investigate the matter and in this case it obviously chose not to do so since it 

did not even issue the citat~on until some 20 days later. But the charge 

is that on August 26, U.S. Steel failed to report a reportable accident. 

I hold that it was not a reportable accident until some time on August 27 

and that by that time it had already been reported. 

236il 
The citation is VACATED and the above cases are DISMISSED. 

l:!~o~,??:~I 9t 

Administrative Law Judge 

Distribution: 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant 

Street, Pittsburgh, PA 15230 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900-15th St., 

NW., Washington, D.C. 20005 (Certified Mail) 

2·365 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 D&l .i 9 \9S\ 

SECRETARY OF LABOR, Complaint of Discrimination 

MI NE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

ON BEHALF OF BRUCE EDWARD PRATT, 

Complainant 

v. 

RIVER HURRICANE COAL CO., INC., 

Respondent 

Docket No. KENT 81-88-D 

No. 1 Mine 

DECISION AND ORDER 

This matter came on for a confrontational-type hearing in Pikeville, 

Kentucky on October 7 and 8, 1981. The complaint charged the operator 

with a violation of the anti-discrimination clause of the Mine Safety 

Law, 30 U.S.C. § 815(c)(l). More specifically, the Secretary claimed 

complainant's retaliatory discharge of Bruce Edward Pratt, a mechanicrepairman, for refusing to accept directions to fight fires that occur 

on the surface in the junction boxes of large, industrial-type, leadacid batteries was unlawful because the refusal was based on a good 

faith, reasonable fear that such fires could result in an explosion 

of hydrogen gas and acid splash that couid cause serious physical injury 

to him or to others. 

The operator admitted complainant was discharged for refusing to 

accept such directions but claimed that because Mr. Pratt's fear was 

unreasonable and pretextual it was an act of insubordination that 

justified his dismissal. 

The matter was exhaustively pretried. As a result, the parties were 

able to file plain and concise statements of their positions together 

with proposed findings, conclusions and orders prior to the hearing. 

Counsel are to be commended for the professionalism of their performance 

which contributed greatly to the trial judge's understanding of the 

technical factual issues. At the conclusion of the hearing, the parties 

were afforded an opportunity to supplement their proposals and to present 

oral argument. Thereafter, the trial judge entered the following decision 

on the record from the bench: l./ 

1/ Any deviations in verbiage are due to the unavailability of the transcript 

and extemporaneous interpolations that are not reflected in retained notes. 

With footnotes and citations added, this confirming order constitutes 

my final, definitive disposition of this case. 

2366 
Findings and Conclusions 

After carefully evaluating the credibility of the witnesses, I 

find and conclude a preponderance of the reliable, probative and 

substantial evidence establishes: 

1. The fire in the battery trays on August 19, 1980, 

was the result of a short circuit in the connectors 

located in the junction box or receptacle. 

2. The fire could have caused any hydrogen gas present 

in the recently charged battery tray to burn or explode. 

3. The expert testimony and evidence shows that because 

the tray did not disintegrate there was an insufficient 

concentration of hydrogen to cause an explosion or the 

flames did not propagate sufficient heat to spark an 

explosion. Y 

4. If trrere had been an explosion it would in all likelihood have been largely contained within the steel covers 

and casing that surrounded the battery tray. 

5. If the receptacle had been opened or the covers removed 

any explosion could have sprayed battery acid (sulfuric 

acid) on the clothes and person of any miners standing 

near or over it. (BX-1, pp. 8-9). 

6. On August 20, 1981, James Calvary Sloan, the operator's 

chief electrician and Mr. Pratt's superior, had little 

or no understanding or appreciation of the hazards presented 

by battery fires or how to instruct his subordinates in 

the appropriate procedures for coping with a battery fire. 

7. Mr. Sloan did not know there was no fire suppressant 

system for the battery trays on the S&S scoop. 

8. Mr. Sloan did not know that a 50 pound bag of rock dust 

and not a hand held fire extinguisher is the method 

preferred by the operator's expert witness, Mr. Eddins, 

for smothering an electrical fire on a battery tray. 

9. Mr. Sloan did not fully appreciate the danger of acid 

splash that attends an electrical fire on a battery tray. 

Y I take official notice of the fact that the lower limit for explosive 

mixtures of hydrogen is 4.1 per cent, but for safety hydrogen should 

not exceed 2 per cent. The upper limit is 74 per cent. Maximum violence 

occurs at a mixture of 2 parts of hydrogen to 1 of oxygen. Vinal, 

Storage Batteries, A General Treatise on the Physics arid Chemistry of 

Secondary Batteries and their Engineering Applications at 316 (4th ed., 

1955). 

2367 
10. Mr. Sloan's demand that Mr. Pratt agree, as a condition of his 

continued employment, to fight electrical fires on battery 

trays by attacking the fire without protective clothing or 

glasses with a hand held ABC fire extinguisher was made without 

a proper understanding of the hazards involved as detailed 

by Inspector Lycans. 

11. Mr. James Sloan, as chief electrician, was responsible for 

maintaining the connectors on the battery trays in a 

corrosion free condition; he failed to do this and this 

resulted in the short circuit that caused the fire on 

August 19. 

12. Bruce Pratt did not know that because he failed to observe 

any immediate explosion the danger of a hydrogen gas 

explosion, if any, may have been over by the time he 

observed the fire in the battery trays on August 19. 

13. Mr. Pratt's ignorance was attributable to a deficiency 

in the operator's knowledge and in the operator's training 

program. 

14. It was and is impossible for anyone to say with certainty 

when the danger of a hydrogen gas fire or explosion has 

passed in a fire on a battery tray. 

15. Mr. Pratt's fear, much of which stemmed from his ignorance, 

was honest and not a pretext for a reckless disregard for his 

obligation to take reasonable action to protect the lives 

of his fellow workers or the property of his employer. 

16. Mr. Pratt's fear, in view of his lack of training in 

how best to cope with the danger of a hydrogen gas 

explosion, was reasonable and certainly, in view of the evidence, 

was not arbitrary, capricious or so grossly erroneous as 

to imply bad faith. 

17. The operator failed to show that Hr. Pratt's refusal to 

accept Mr. Sloan's instructions for coping with electrical 

fires in the connectors of battery trays was arbitrary, 

capricious or so grossly erroneous as to imply bad faith. 

18. Mr. Sloan's discharge of Mr. Pratt was not justified by 

the circumstances of the alleged insubordination but was 

largely an overreaction to Mr. Pratt's provocative 

rejoinders and the long simmering personality conflict 

between the two men. 

19. The conflict in the testimony over the reasonableness of 

Mr. Pratt's fear is resolved in his favor because much 

of the contrary testimony consisted of macho, self-serving 

2363 
testimonials of little probative value. I find much more 

persuasive the testimony of (1) E. C. Sloan, Mr. Pratt's 

immediate supervisor and an experienced section foreman 

who said he would recognize the right of a man to feel a 

danger, (2) Luther Jarvis, a miner with limited experience 

and training who said he would have been afraid to approach 

the fire with just a fire extinguisher, and (3) Inspector 

Lycans, a miner with over 30 years experience with electrical 

fires, who said he would consider any attempt to lay hands 

on the battery trays an imminent danger. 

20. Based on Mr. Pratt's knowledge and the attendant circumstances 

his belief that the fire on August 19 was abnormally dangerous 

was reasonable. 

21. When Mr. Pratt refused to extinguish the fire on August 19 

and warned others against it he was engaged in activity protected 

under section 105(c)(l) of the Mine Safety Law. 

22. When on August 20, 1980, Mr. Pratt explained to Mr. Sloan 

his fear of a hydrogen gas explosion and of the injury such 

an explosion might inflict he was engaged in activity, i.e., 

reporting an alleged danger, specifically protected under 

section 105(c)(l) of the Mine Safety Law. 

23. In order to effectuate the purpose of the Mine Safety Law 

miners must be allowed freedom to express their safety concerns 

without fear of retaliation by management. 

24. Mr. James Sloan's explanation and instructions to Mr. Pratt 

on August 20 concerning how to cope with fires on battery 

trays was lacking in technical and factual understanding of 

the hazards and failed to allay Mr. Pratt's reasonable fears. 

It is no solution to the problem of recurrent fires in the 

electrical systems of the electric face equipment at this 

mine to condone retaliation by discharge of a miner with the 

temerity to speak out against the hazard. 

25. The refusal on August 20 of Mr. Pratt to agree to attempt 

to extinguish a fire in or around lead-acid batteries under 

circumstances similar to those that occurred on August 19 was 

made in a good faith, reasonable belief that a serious risk 

of injury from an exploding battery existed. 1/ 

26. Mr. Pratt's refusal to attempt to extinguish such fires in 

the future was, under the circumstances shown, a protected 

activity under section 105(c)(l) of the Act and his discharge 

for such refusal a violation of the Act. 

'}_/ Secretary of Labor on behalf of David Pasula v. Consolidation Coal Co. 

2 FMSHRC 2786, 2793 (1980); Secretary of Labor on behalf of Thomas Robinette 

v. United Castle Coal Co. 3 FMSHRC 803, 812 (1981). 

236·9 
27. Based on the stipulation of the parties Mr. Pratt is 

entitled to back pay in the amount of $3,348.00. 

28. It is the policy of the River Hurricane Coal Company to 

require its miners to assume unnecessary risks of injury 

to save mine equipment. 

Enforcement Order 

Accordingly, it is ORDERED that: 

1. On or before Friday, October 30, 1981, River Hurricane 

Coal Company pay to the Office of the Solicitor a check 

made payable to Bruce Edward Pratt in the amount of $3,348 

plus interest at the rate of 8% from August 20, 1980 to 

March 1, 1981 and at the rate of 12% from March 1, 1981, 

until paid. 

2. On or before the same date River Hurricane Coal Company 

pay a civil penalty in the amount of $5,000 for the violation 

found of section 105(c)(l) of the Mine Safety Law. 

3. The River Hurricane Coal Company post a copy of this decision 

and order in a conspicuous place on the mine bulletin board and 

maintain it there for thirty days from the date of its receipt. 

4. The River Hurricane Coal Company cease and desist from any 

retaliation or other disciplinary action against miners who 

refuse to comply with the company policy that requires miners 

to assume the risk of injury in order to suppress electric 

fires that pose no hazard other than to equipment. 

Confirming Order 

The premises considered, it is ORDERED that the foregoing bench 

decision entered on the record on the eighth day of Octobe~ 1981, in 

the City of Pikeville, State of Kentucky be, and hereby is, ADOPTED 

AND CONFIRMED as the trial judge's fin disposition of this matter. 

Judge 

Distribution: 

John O'Donnell, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Garred O. Cline, Esq., Trimble Building, Pikeville, KY 41501 (Certified 

Mail) 

2370 
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, Complaint of Discharge 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On behalf of 

CLARENCE BALL, 

v. 

Complainant 

B & B MINING COMPANY, INC., 

LAUREL MOUNTAIN MINING COMPANY, 

ROBERT ESSEKS, 

JODA BLANKENSHIP, 

Respondents 

Docket No. VA 80-128-D 

NORT CD 80-14 

No. 1 Mine 

DECISION 

Appearances: 

Before: 

Barbara K. Kaufmann, Esq., at the hearing and David T. Bush, 

Esq., on the Brief, Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Complainant; 

Robert T. Copeland, Esq., C~peland and Thurston, Abingdon, 

Virginia, for Res~ondent B & B Mining Company, Inc. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This proceeding was commenced by the Secretary of Labor, Mine Safety and 

Health Administration, (hereinafter "MSHA") on behalf of Clarence Ball 

alleging that Clarence Ball was discharged from his employment at B & B 

Mining Co., Inc., (hereinafter "B & B") on March 7, 1980, 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"). Upon completion of prehearing requirements, a hearing was held in Abingdon, Virginia on August 5, 1981. 

Clarence Ball was the only witness who testified about the merits of this 

case. 

At the hearing, B & B objected to MSHA's attempt to propose a civil penalty herein without following the procedures set forth in 30 C.F.R. §§ 100.5 

and 100.6 and 29 C.F.R. § 2700.25. I sustained B & B's objection, severed 

the civil penalty proposal from the amended complaint, and remanded the civil 

penalty proceeding to MSHA to begin the civil penalty assessment process. 

23'71 
ISSUES 

Whether B & B 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 

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. If upon such investigation, the Secretary 

determines that the provisions of this subsection have been 

violated, he shall immediately file a complaint with the 

Conunission, with service upon the alleged violator and the 

2372 
miner, applicant for employment, or representative of mine·rs 

alleging such discrimination or interference and propose an 

order granting appropriate relief. The Commission shall 

afford an opportunity for 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, affirming, modifying, 

or vacating the Secretary's proposed order, or directing 

other appropriate relief. Such order shall become final 

30 days after its issuance. The Connnission shall have 

authority in such proceedings to require a person committing 

a violation of this subsection to take such affirmative action 

to abate the violation as the Commission deems appropriate, 

including, but not limited to, the rehiring or reinstatement 

of the miner, to his former position with back pay and 

interest. The complaining miner, applicant, or representative 

of miners may present additional evidence on his own behalf 

during any hearing held pursuant to this paragraph. 

STIPULATIONS 

The parties stipulated that the mine in question is a coal mine within 

the meaning of the Act and that the administrative law judge has jurisdiction 

over this matter. 

Motions to Suspend Proceedings and to Take Deposition of Mack Gamble 

After Complainant completed the presentation of his case in chief, 

B & B moved to suspend proceedings and to take the deposition of Mack Gamble. 

Counsel for B & B stated that the whereabouts of Mack Gamble had not been 

ascertained until 2 days before the hearing. In support of the motions, 

B & B contended as follows: (1) Mack Gamble was th~ person who discharged 

Complainant; (2) no one was aware of Gamble's whereabouts; (3) Joda 

Blankenship, former President of B & B, stated to a representative of B & B's 

counsel that he didn't know where Gamble could be found; and (4) 2 days prior 

to the hearing, Gamble was found to be working for JodaBlankenship at another· 

mine. Complainant opposed these motions for the following reasons: 

(1) Neither the attorneys for B & B nor Gentry Blackwell attempted to find 

Mack Gamble's home telephone number, checked the U.S. Post Office, or checked 

B & B's employment records to find Gamble's last known address or telephone 

number; (2) the complaint identified Mack Gamble.as the person who discharged 

Complainant and B & B had ample notice that he would be a key witness in this 

proceeding; and (3) assuming that the motions were granted and Gamble testified contrary to Complainant at a deposition, there would be no way for the 

judge to resolve the credibility issue between Complainant and Gamble since 

the judge would have no opportunity to evaluate Gamble's demeanor at the 

deposition. 

In addition to the above, it should be noted that present counsel for 

B & B entered his appearance on May 22, 1981. The Notice of Hearing was 
issued on May 28, 1981. At no time prior to the date of hearing did counsel 

for B & B request a subpoena for Mack Gamble or notify the judge that B & B 

had been unable to locate this. key witness. In fact, it was only after 

Complainant rested his case in chief that B & B raised the matter of the 

whereabouts of Mack Gamble and his unavailability to testify. 

After considering the testimony presented concerning this matter and the 

arguments of counsel, I denied the motions for the following reasons: 

(1) B & B failed to establish good cause for a continuance of the hearing to 

take Mack Gamble's deposition; (2) there is no evidence that Mack Gamble 

concealed his whereabouts or attempted to make himself unavailable to give 

testimony; (3) B & B failed to request a subpoena prior to hearing which 

could have been served on Mack Gamble to insure his presence at the hearing; 

and (4) although B & B knew at all times that Mack Gamble would not appear at 

the hearing, it failed to request any postponement of the hearing. I hereby 

reaffirm that decision for the reasons stated. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. B & B was the owner and operator of an underground coal mine in 

Dickinson County, Virginia, until approximately July 24, 1979. 

2. On approximately July 24, 1979, B & B turned over the operation of 

the mine to Laurel Mountain Mining Company, (hereinafter "Laurel Mountain"), 

which operated the mine until approximately February 20, 1980. 

3. On approximately February 20, 1980, B & B filed Chapter 11 proceedings in the U.S. Bankruptcy Court for the Western District of Virginia. 

(~xh. G-1). 

4. On February 27, 1980, the U.S. Bankruptcy Court for the Western 

District of Virginia ordered Laurel Mountain, to "relinquish and turnover all 

property belonging to" B & B's representatives. (Exh. G-1). 

5. On September 15, 1979, Complainant was hired as a section foreman 

at the mine in question by Laurel Mountain. Three weeks later, he was promoted to mine superintendent. Until late February, 1980, Complainant's 

immediate supervisor was Ernest Brown •. 

6. On approximately February 16, 1980, Complainant received a telephone 

call from a representative of Joda Blankenship, President of B & B, to 

withdraw all men from the mine and send them home and that, thereafter, only 

supervisory personnel consisting of Complainant and three section foremen 

would be employed at the mine. 

7. At some time between FebruarYi 16, 1980 and March 3, 1980, Mack Gamble 

was designated by B & B as general manager of this mine. Thereafter, Mack 

Gamble was Complainant's supervisor. 

2374 
8. During the week of March 3, 1980, the only persons working at the 

mine were Complainant and three section foreman. On March 3, 1980, Mack 

Gamble instructed Complainant to load rock dust from outside the mine and 

deliver it to the 001 section. Complainant loaded the rock dust but did.not 

deliver it to the section because all other employees left to work at another 

mine and he did not believe it was safe to enter the mine when no one was 

outside. The rock dust was delivered to the section by a foreman during the 

next working shift.• 

9. On Ma~ch 4, 1980, Mack Gamble instructed Complainant to clean the 

production sections and shoot down the coal at the faces. Gamble said he 

would return in a few days. While Gamble was gone, Complainant and two of 

the foreman did all of the cleaning necessary to prepare the sections for 

production,.!.·~·, ventilation, rock dusting, scooping, shoveling, moving 

belts and equipment, and maintenance. 

10. Complainant did not shoot down coal at any of the 21 faces of the 

mine or instruct his foremen to shoot coal because neither Complainant nor 

the foremen were trained or licensed to handle or detonate explosives. 

11. When Mack Gamble returned to the mine on March 7, 1980, he told 

Complainant that he was not satisfied with Complainant's work. In response 

to a request for specifics, Gamble stated that Complainant did not deliver 

the rock dust to the section. When Complainant responded that the rock dust 

had been delivered to the section, Gamble stated that Complainant did not 

shoot down the coal. The following conversation then took place: 

Complainant: "Do you expect me to go on the section and 

shoot the coal by myself?" 

Gamble: "Yes." 

Complainant: "I won't do it." 

Gamble: "We'll find someone who will. Give me the truck 

keys and catch you a ride home." 

12. Complainant was discharged by B & B's general manager, Mack Gamble, 

on March 7, 1980. 

13. At the time of Complainant's discharge, he was being paid $125 per 

day. 

14. About 1 week after his discharge, Complainant applied for other 

employment. During the next 3 months, Complainant inquired about or applied 

for work at the following: MSHA; State of Virginia; Clinchfield Coal Co.; 

Norella-Ohio; Virginia Iron, Coal and Coke; Russell County, Virginia Board 

of Education; Jim Walters Resources in Alabama; and U.S. Office of Surface 

Mining. Complainant also visited the Virginia Employment Commission in 

Bristol, Virginia. 
15. Beginning in approximately June, 1980, Complainant entered into 

.discussions with Virginia Iron, Coal and Coke concerning lease arrangements 

for Complainant to open his own mine. On July 15, 1980, Complainant filed 

an application with the State of Virginia for a permit to open his own mine. 

On September 5, 1980, he received authorization from the State of Virginia 

to open the mine. 

16. Complainant had no income from wages or self-employment from 

March 7, 1980 to September 5, 1980. Complainant contends that B & B should 

be required to pay him backpay between March 7, 1980 and September 5, 1980. 

17. The complaint filed herein on July 3, 1980, states in pertinent 

part: "No application for temporary reinstatement has been filed as Applicant 

Clarence Ball does not desire !=o be reinstated by Respondent." 

DISCUSSION 

Complainant contends that he was discharged as superintendent of the 

mine because of his reasonable and good faith refusal to perform or order 

others to perform hazardous work. Specifically, he alleges that he was 

ordered to shoot or blast down coal by the use of explosives when neither he 

nor any of the employees under his supervision at the time was licensed or 

trained to handle or detonate explosives. Complainant further asserts that 

after his discharge, he made a reasonable and diligent effort to find other 

employment but that he was not successful until September 5, 1980, when he 

opened his own mine. B & B's Brief does not challenge any of Complainant's 

claims concerning the circumstances of his discharge but alleges the following: (1) Complainant should not receive backpay after July 15, 1980, 

because he was no longer actively seeking -employment after that date; 

(2) Complainant failed to mitigate damages prior to July 15, 1980, because 

he did not conduct a reasonable job search; and (3) Complainant's recovery 

of backpay is limited to after tax income rather than gross per diem wages. 

A. Violation of Section 105(c)(l) of the Act 

Since B & B does not contest Complainant's version of the facts leading 

to his discharge, a brief review of the applicable law concerning the 

liability of an operator under section 105(c) of the Act will suffice. In 

Secretary of Labor on behalf of David Pasula v. Consolidation Coal Company, 

2 FMSHRC 2786 (1980) (hereinafter "Pasula"), the Federal Mine Safety and 

Health Review Commission (hereinafter "Commission") analyzed section 105(c) 

of the Act, the legislative history of that section, and similar antiretaliation issues arising under other Federal statutes. The Commission 

held: "We hold that in this case the miner's refusal to work was protected 

under the 1977 Mine Act • • • • His good faith belief was reasonable, and 

was directed to a hazard that we consider sufficiently severe •••• " 

Pasula at 2793. The Commission went on to hold as follows: 

237G 
We hold that the complainant has established a prima 

facie case of a violation of Section 105(c)(l) if a prepon~ 

derance 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. Id. 

at 2799-2800. 

The undisputed facts in the instant case establish that prior to this 

incident, the operator of the mine filed a Chapter 11 proceeding in the 

U.S. Bankruptcy Court and terminated the employment of all hourly employees. 

The only employees remaining at the mine were the Complainant, who was the 

superintendent, and three section foreman. Mack Gamble, B & B's general 

manager, ordered Complainant to shoot or blast the coal. Neither Complainant 

nor the section foreman were trained or licensed to handle or detonate 

explosives. Complainant refused to comply with this order. Mack Gamble 

discharged Complainant for failure to obey this order. The evidence establishes that Complainant's good faith belief that it would be hazardous for 

untrained and unlicensed men to shoot or blast coal was reasonable and was 

directed toward a severe hazard. Hence, I find that Complainant's refusal 

to work in the manner ordered by B & B's general manager was protected under 

the Act. Since general manager Mack Gamble stated that Complainant was being 

discharged for failure to shoot or blast the coal, I find that Complainant 

has met his burden of persuasion and established a prima facie case of violation of section 105(c)(l) of the Act. B & B did not present any evidence 

on the merits during the hearing. Thus, B & B failed to meet its burden of 

persuasion or establish an affirmative defense. Complainant has sustained 

his complaint of discharge. 

B. Complainant's Duty to Seek Other Employment and Mitigate Damages 

Section lO(c) of the National Labor Relations Act, 29 u.s.c. § 160(c), 

provides in pertinent part that where the National Labor Relations Board 

(hereinafter "NLRB") finds that the charged party engaged in an unfair labor 

practice, it may take affirmative action, "including reinstatement of 

employees with or without backpay •••• " The Supreme Court held that the 

NLRB must consider the issue of mitigation of damages by deducting from lost 

earnings, any amounts which the employee failed to earn during the backpay 

period. See NLRR v. Seven-up Bottling Co., 344 U.S. 344 (1953) and NLRB v. 

Gullett Gin C~340 U.S. 361 (1951). An employee must make reasonabre--

efforts to find other employment and must remain in the labor market for the 

backpay period. See J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223 

(5th Cir. 1973) cert. den., 414 U.S. 822 (1974) and NLRB v. Pugh and Barr 

Inc., 207 F.2d 409 (4th Cir. 1953). 
In the instant case, B & B argues that Complainant failed to mit~gate 

damages because he did not conduct a reasonable job search. B & B does not 

challenge Complainant's testimony that he applied for or inquired about work 

at eight potential employers and visited the unemployment office. B & B 

apparently contends that there were other coal mines within several hours 

driving time of Complainant's residence where he did not apply for work. 

However, B & B produced no evidence that work was available at any coal mine 

or other job for which Complainant was qualified. I reject B & B's contention 

that Complainant failed to make a reasonable job search. Complainant acted 

reasonably and B & B failed to establish that any amount should be deducted 

from Complainant's backpay because of a failure to mitigate damages during 

the period following his discharge by B & B. 

C. Complainant's Failure to Seek Rehiring or Reinstatement 

The complaint filed with the Commission on July 3, 1980, states that 

Complainant does not desire to be reinstated by Respondent. Since MSHA 

determined that the Complainant's complaint was not frivolously brought, 

Complainant had the right to immediate reinstatement pursuant to section 

105(c)(2) of the Act. If Complainant had pursued that right, he would have 

been reinstated, required to work regular hours, and been paid at his regular 

rate. The fact that he elected not to be rehired or reinstated tolls the 

operator's backpay obligation. This is analogous to the rule in NLRB cases 

that an employer who offers reinstatement, which the employee rejects, is 

released from backpay obligations as of the date the offer is rejected. NLRB 

v. Huntington Hospital Inc., 550 F.2d 921 (4th Cir. 1977). Moreover, it 

would be unfair and improper to require a mine operator to pay backpay to a 

former employee for a period of time when the employee has unequivocally 

stated that he does not wish to return to his former employment. Since 

Complainant elected not to be rehired or reinstated on July 3, 1980, B & B's 

obligation for backpay ends on that date. 

D. Award to Complainant 

The evidence establishes that Complainant was earning $125 per day, 

5 days a week, at the time of his discharge on March 7, 1980. B & B's 

liability for backpay terminated on July 3, 1980. Complainant had no earnings from wages or self-employment between March 7, 1980 and July 3, 1980. 

Thus, Complainant is entitled to an award of $125 per day for 83 days for a 

total award of $10,375. 

B & B submits no authority for its novel contention that "recovery of 

back wages should be based on after tax income rather than gross per diem 

wage." B & B Brief at 6. On the contrary, the uniformly followed rule in 

backpay cases is that discriminatees are entitled to an award of gross 

backpay where there have been no interim earnings. See NLRB Casehandling 

Manual, par. 10,530 (1977). 

The complaint herein also requests, "that interest be added to the 

backpay until the date of payment at the rate of .09 per centum [sic]." I 

2378 
assume that Complainant is requesting an award of interest on the backpay 

at the rate of 9 percent per annum. Complainant cites no authority for the 

award of this amount of interest. To my knowledge, the Commission has not 

awarded a rate of interest in excess of 6 percent per annum. See Peabody 

Coal Co., 1 FMSHRC 1785, 1792 (1979). Therefore, B & Bis ordered to pay 

Complainant the stun of $10,375 as backpay plus interest at the rate of 

6 percent per annum from the dates such payments were due until the date such 

payment is made. 

E. Dismissal of Other Respondents 

In addition to B & B, the amended complaint lists the following 

Respondents: Laurel Mountain, Robert Esseks, and Joda Blankenship. Although 

all three of these Respondents are in default for failure to answer or appear, 

Complainant produced no evidence of liability on their part at the hearing. 

Accordingly, Laurel Mountain, Robert Esseks, and Joda Blankenship are dismissed as parties herein. 

CONCLUSIONS OF LAW 

1. At all times relevant to this decision, Complainant and B & B 

were subject to the Ac·t. 

2. This Administrative Law Judge has jurisdiction over the parties and 

subject matter of this proceeding. 

3. During the week of March 3, 1980, Complainant engaged in activity 

which is protected under section 105(c)(l) of the Act as follows: He 

reasonably and in good faith believed that a hazardous condition would result 

if he obeyed his superior's order to shoot down coal at the face or order 

his section foreman to shoot down coal because neither Complainant nor his 

foremen were trained or licensed to handle or detonate explosives. 

4. Complainant's refusal to work was protected under the Act. 

5. Complainant was discharged on March 7, 1980, by B & B because of 

his refusal to work, supra. 

6. Complainant established a prima facie case of violation of section 

lOS(c)(l) of the Act because he established that he engaged in a protected 

activity and that his discharge was motivated by the protected activity. 

7. B & B failed to establish that it would have discharged Complainant 

for reasons other than his protected activity. 

8. Complainant was discharged by B & B in violation of section 105(c)(l) 

of the Act. 

9. Complainant made a good faith effort to find employment following 

his discharge and B & B failed to establish that Complainant did not act 

reasonably to mitigate damages. 

23.79 
10. On July 3, 1980, Complainant elected not to be rehired or reinstated 

by B & B and B & B's obligation for backpay was tolled as of that date. 

11. Complainant is not entitled to an award of backpay after July 3, 

1980 due to his election on that date not to be rehired or reinstated. 

12. Complainant is entitled to a backpay award for 83 days at $125 per 

day for a total award of $10,375 plus interest at the rate of 6 percent 

per annum from the dates such payments were due to the date such payment is 

made. 

13. Although Respondents Laurel Mountain, Robert Esseks; and Joda 

Blankenship are in default in this proceeding, Complainant has presented no 

evidence to establish the liabili.ty of any of these Respondents. Accordingly, Respondents Laurel Mountain, Robert Esseks, and Joda Blankenship are 

dismissed from this proceeding. 

ORDER 

WHEREFORE IT IS ORDERED that Complainant's complaint of discharge is 

SUSTAINED. 

IT IS FURTHER ORDERED that B & B shall pay to Complainant the sum of 

$10,375 plus interest at the rate of 6 percent per annum from the dates such 

payments were due to the date such payment is made. 

IT IS FURTHER ORDERED that Respondents Laurel Mountain Mining Co., 

Robert Esseks, and Joda Blankenship are DISMISSED from this proceeding. 

IT IS FURTHER ORDF.RED that MSHA's proposed assessment of a civil penalty 

is severed from this proceeding and remanded to MSHA for further proceedings 

pursuant to 29 C.F.R. § 2700.25. 

Distribution by Certified Mail: 

David T. Bush, Esq., Office of t olicitor, U.S. Department of Labor, 

Room 14480 Gateway Bldg., 3535 Market Street, Philadelphia, PA 19104 

Robert T. Copeland, Copeland and Thurston, P.C., 212 West Valley Street, 

P.O. Box 1036, Abingdon, VA 24210 

238-0 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22o41 

OCT 2 o 1981 

DONOHO CLAY COMP ANY, Contest of Citation 

Applicant 

v. Docket No. SE 80-109-RM 

SECRETARY OF LABOR, Donoho Mill & Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent 

DECISION 

Charles E. Parks, Esq., for Applicant; 

Murray Battles, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Respondent. 

Judge Fauver 

This proceeding was brought by Donoho Clay Company under section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~·' 

to review the validity of a citation issued by a· federal mine inspector pursuant to section 104(a) of the Act. Jurisdi~tion to adjudicate a civil penalty has been added to this proceeding by consent of the parties. The cases 

were heard. at Birmingham, Alabama. Both 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: 

FINDINGS OF FACT 

1. At all pertinent times, Applicant, Donoho Clay Company, operated a 

clay pit, known as the Donoho Mill & Mine, in Calhoun County, Alabama, which 

produced clay for sales in or substantially affecting interstate commerce. 

2. The clay pit is about 2-1/2 miles west of Anniston, Alabama, and 

about 5 miles from a processing plant also operated by Applicant. Applicant 

normally employs about 20 people at the plant and about two at the clay pit. 

Employment records are maintained separately and the employees are not 

inter-mingled between pit and plant. Annual clay production is about 

120,000 tons. 

2381 
3. Applican~'s clay is a naturally occurring clay refractory. The clay 

deposit at the pit is over 100 feet thick and lies just beneath a shallow 

soil overburden. Front-end loaders are used to mine the clay, which is then 

dumped into trucks and hauled by independent contractors to the plant for 

processing. 

4. At the plant, the unprocessed clay is tested by grade, transported 

by belt conveyors through crushing machines, rotary driers to remove 

moisture, and then through a series of screens to remove remaining 

by-products, which are returned to storage facilities for later use. The 

screened material is then discharged into an open area for mixing and blending according to customer specifications. As blending materials, Applicant 

uses silicon rock, sand, and clay, which are also mined from its pit, and at 

times pitch and coke, which are purchased from outside sources. The material 

is finally transferred to packaging stations for bagged- or bulk-shipping. 

5. Applicant's final product (trade name "Meltzona") is used primarily 

in the fireclay industry and requires only the addition of water by customers. 

Meltzona is used primarily by steel and iron manufacturers, as a lining for 

brick and ceramic furnaces, ladles, and cupolas to extend their lives by 

acting as a buffer to the molten metal. As Meltzona gradually burns away or 

corrodes, it must be reapplied. 

6. On June 24, 1980, federal inspector Bill Alverson, and Bart Collinge, 

a supervisory mining engineer, requested permission to inspect Applicant's 

clay-processing plant. Permission was refused and Inspector Alverson 

charged Applicant with a violation of section 103(a) of the Federal Mine 

Safety and Health Act of 1977, as follows (Citation No. 83079): 

On 6/24/80, Mr. C.F. Johnson, Co-owner, refused to allow 

Billie G. Alverson, an authorized representative of the Secretary, entry into the company's clay mill for the purpose of 

conducting an inspection of the mill pursuant to Sec. 103(a) 

of the Act. Mr. Johnson stated that the mill is not subject 

to the mine Act jurisdiction. Mr. Johnson was advised that 

the mill is subject to the mine Act jurisdiction. 

7. On June 25, 1980, Inspector Alverson returned to inspect Applicant's 

plant, was again refused admittance, and issued an order of withdrawal under 

section 104(b) of the Act. This order (No. 83080) reads in part: 

Mr. C. F. Johnson, Co-owner, continued 'to deny Billy G. 

Alverson, an authorized representative of the Secretary, the 

right of entry into the company's Donoho Clay Mill for the 

purpose of conducting an inspection of the mill in accordance 

with the requirements of Sec. 103(a) of the Act on 6/26/80 

after expiration of the time allowed for Mr. Johnson to 

.comply. 

These alleged violations have not been abated. 

2382' 
8. Since 1972, MSHA or its predecessor, MESA, has inspected Applicant's 

plant and pit 19 times. The Occupational Safety and Health Administration 

(OSHA) has never inspected the plant or pit. 

DISCUSSION WITH FURTHER FINDINGS 

Based on the citation and order of withdrawal, the Secretary charges 

a violation of section 103(a) of the Act, which provides in part: 

Authorized representatives of the Secretary * * * shall 

make frequent inspections and investigations in coal or other 

mines each year for the purpose of (1) obtaining, utilizing, 

and disseminating information relating to health and safety 

conditions, the causes of accidents, and the causes of 

diseases and physical impairments originating in such mines, 

(2) gathering information with respect to mandatory health 

or safety standards, (3) determining whether an imminent 

danger exists, and (4) determining whether there is compliance with the mandatory health or safety standards or with 

any citation, order, or decision issued under this title or 

other requirements of this Act. In carrying out the requirements of this subsection, no advance notice of an inspection 

shall be provided to any person * * *· 

The basic issue is whether Applicant's plant is a milling operation, and 

therefore part of a "mine" under section 3(h)(l) of the Act and subject to 

MSHA's jurisdiction, or whether it is a refining operation, and therefore 

subject to OSHA's jurisdiction under the MSHA-OSHA Interagency Agreement 

(discussed below). 

This is an issue of first impression, and the parties propose that if 

a violation is found, the assessed penalty be minimal to reflect the 

test-case nature of the proceeding. 

On April 22, 1974, OSHA (Department of Labor) and MESA (MSHA's predecessor in the Department of Interior) entered into a Memorandum of Understanding to resolve jurisdictional disputes between the two agencies. In 

March 1978, the Secretary of Labor assumed statutory responsibility for 

enforcing both the Occupational Safety and Health Act and the Mine Act. 

Since March 1978, the Secretary of Labor has had jurisdiction over both 

agencies and, through them, discretion in determining the enforcement 

boundries of each. On March 29, 1979, the agreement between OSHA and MESA 

was superseded by an "MSHA-OSHA Interagency Agreement,"which recognized the 

Secretary's dual enforcement role and the continuity of enforcement principles of the earlier agreement. 

Section A(3) of the Interagency Agreement explains its purpose and 

general principles as follows: 
This agreement is entered into to set forth the general 

principle and specific procedures which will guide MSHA and 

OSHA. The agreement will also serve as guidance to employers 

and employees in the affected industries in determining the 

jurisdiction of the two statutes involved. The general 

principle is that as to unsafe and unhealthful working conditions on mine sites and in milling operations, the Secretary 

will apply the provisions of the Mine Act and standards promulgated thereunder to eliminate those conditions. However, 

where the provisions of the Mine Act either do not cover or do 

not otherwise apply to occupational safety and health hazards 

on mine or mill sites (e.g., hospitals on mite sites) or where 

there is statutory coverage under the Mine Act·but there exist 

no MSHA standards applicable to particular working conditions 

on such sites, then the OSH Act will be applied to those 

working conditions. Also, if an employer has control of the 

working conditions on the mine site or milling operation and 

such employer is neither a mine operator nor an independent 

contractor subject to the Mine Act, the OSH Act may be applied 

to such an employer where the application of the OSH Act 

would, in such a case, provide a more effective remedy than 

citing as a mine operator or an independent contractor subject 

to the Mine Act who does not, in such circumstances, have 

direct control over the working conditions. 

The legislative history of the Mine Act indicates a Congressional intent 

to resolve jurisdictional doubts in favor of coverage under that statute. 

The Report of the Senate Committee on Human Resources states: 

The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's intention 

that what is considered to be a mine and to be regulated under 

this Act be given the broadest possibly [sic] interpretation, 

and it is the intent of this Committee that doubts be resolved 

in favor of inclusion of a facility within the coverage of the 

Act. 

S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in, Legislative 

History of the Federal Mine Safety and Health Act of 1977 at 60-Z-(1978). 

Section B(S) of the Interagency Agreement recognizes the Congress' intent that 

doubts be resolved in favor of coverage under the Mine Act. 

Section 3(h)(l) of the Mine Act defines "coal or other mine" as: 

(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, 

2384 
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 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 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. [Emphasis added.) 

Under the Act, covered mining operations include the milling of mine 

products; however, the Act does not define "milling." Appendix A of the 

Interagency Agreement defines "milling" as: "[T)he art of treating the crude 

crust of the earth to produce therefrom the primary consumer derivatives. 

The essential operation in all such processes is separation of one or more 

valuable desired constituents of the crude from the undesired contaminants 

with which it is associated." The types of milling processes over which MSHA 

has jurisdiction under the Interagency Agreement include crushing, grinding, 

pulverizing, sizing, concentrating, washing, drying, roasting, pelletizing, 

sintering, evaporating, calcining, kiln treatment, sawing, and cutting stone, 

heat expansion, retorting (mercury), leaching, and briqueting. 

Section B(6)(b) of the Agreement provides that OSHA's ju~isdiction 

includes the following, whether or not located on mine property: Brick-, 

clay pipe-, and refractory-plants; ceramic plants; fertilizer product operations; concrete batch-, asphalt batch-, and hot mix-plants; smelters and 

refineries. "Refining" is defined in the appendix to the Agreement as "the 

point where milling, as defined, is completed, and material enters the 

sequential processes to produce a product of higher purity." "Refine" is 

also defined in A Dictionary of Mining and Related Terms (U.S. Department of 

Interior, 1968), as: "To free from impurities; to free from dross or alloy; 

to purify, as metals; to cleanse." 

The dominant activity of Applicant's plant is the milling of clay, which 

includes crushing (defined by the Agreement as "the process used to reduce 

the size of mine material into smaller, relatively coarse particles"); sizing, 

(defined as "the process of separating particles of mixed sizes into groups 

of particles of all the same size, or into groups in which the particles range 

between maximum and minimtnn sizes"); and kiln treatment (defined as "the process of roasting, calcining, drying, evaporating, and otherwise upgrading 

mineral products through the application of heat"). These key processes are 

all defined as "milling" by the Agreement, which recognizes "milling" as a 

part of mining operations subject to MSHA's jurisdiction. 

2385 
Applicant's mixing and blending of the clay with other products does not 

increase the purity of the clay, but simply changes its nature and level of 

refractoriness. I do not find that these changes are a "refining" process. 

Even if considered "refining," the mixing and blending are not sufficient 

in kind or degree to justify inclusion of the plant operations under OSHA's 

jurisdiction as opposed to MSHA's. Meltzona is a naturally occurring 

refractory clay that requires principally milling processes to produce a 

marketable product. Under the purview of the Act and the Interagency Agreement, doubts such as may exist here are to be resolved in favor of jurisdiction by MSHA, not OSHA. 

I conclude that Applicant's plant facility is subject to MSHA's jurisdiction and that Applicant violated section 103(a) of the Act as charged. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the parties and subject 

matter of these proceedings. 

2. Applicant violated section 103(a) of the Act by refusing entry to a 

federal mine inspector to inspect its clay processing plant, as alleged in 

Citation No. 83079 and Order of Withdrawal No. 83080. 

3. Based upon the statutory criteria for assessing civil penalties, 

Applicant is assessed a penalty of $1 for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The above-mentioned citation and order of withdrawal are AFFIRMED 

and the notice of contest is DISMISSED. 

2. Applicant shall pay the Secretary of Labor the above-assessed civil 

penalty, in the amount of $1, within 30 days from the date of this decision. 

(&~~~Ve..\ WILLIAM FAUVER' Tun~ 

Distribution: 

Charles L. Parks, Esq., P.O. Box 1709, Anniston, AL 36202 (Certified 

Mail) 

Murray Battles, Esq., Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 1929 Ninth Avenue, South, Birmingham, AL 

35205 (Certified Mail) 

238G 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

OCT 2 0 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

ALLIED CHEMICAL CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Robert J. Lesnick, Esq., Office of 

DOCKET NO. WEST 80-478-M 

MSHA CASE NO. 48-00155-05056 V 

MINE: Alchem Trona or 

Alchem Mine 

Henry C. Mahlman, Associate Regional Solicitor, 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

John A. Snow, Esq. 

Van Cott, Bagley, Cornwall, and McCarthy 

50 South Main Street, Suite 1600 

Salt Lake City, Utah 84144 

For the Respondent 

Before: Judge John J. Morris 

BENCH DECISION 

The Petitioner filed a petition for assessment of a civil penalty 

against the Respondent for th~ alleged violation of a regulation 

promulgated pursuant to the Federal Mine Safety and Health Act of 1977. 

The evidence having been concluded, the parties agreed to waive the 

filing of post hearing briefs and also agreed that a bench decision be 

rendered. 

Based on statements and agreements of the parties, I entered the 

following bench decision. 
JURISDICTION 

The parties agreed that the Federal Mine Safety and Health Review 

Connnission has jurisdiction to hear and determine this case. 

STATEMENT OF THE CASE 

Petitioner alleges respondent violated 30 C.F.R. 57.21-12. The cited 

standard provides as follows: 

"Mandatory. Immediately before and continuously during welding 

or soldering with an open flame, in other than fresh air, or in 

places where methane is present or may enter the air current, a 

competent person shall test for methane with a device approved 

by the Secretary fdr detecting methane." 

ISSUES 

The issues in this case are whether respondent violated the standard. 

A corollary issue is if the standard was violated, what penalty, if any, is 

appropriate. 

FINDINGS OF FACT 

Some of the facts in this case are uncontroverted. 

are controverted will be discussed later in the decision. 

facts are as follows: 

Those facts that 

The credible 

1. On April 2, 1980, Inspector William Potter inspected respondent's 

Trana mine. The mine has been classified as a .gassy mine and has produced 

meth?ne liberating approximately one million eight hundred thousand cubic 

feet each twenty-four hours. 

2. The inspector issued Citation No. 576827 at the J.M.E. Panel where 

he observed welding being conducted on the head of a continuous miner in 

the last open crosscut toward the face. The miners were employed by Allied 

Chemical Corporation, the respondent in this case. 

3. None of the miners nor their superintendents monitored for 

methane. 

4. The inspector tested for methane with methanometer Model No. 102. 

The inby tests that were conducted resulted in the following methane 

concentrations: .0%, .5%, .2%, .4%, .5%, .4%, .5%, .6%. 

5. Methane was found as close as twenty feet from where the men were 

welding. 

6. The methane present might enter the air current. 

2388 
7. The explosion range for methane is 5% to 15%. 

8. Methane explosions have previously occurred at this particular 

mine. 

9. Foreman Tom Jones advised the inspector that he had not tested for 

methane since 1:00 a.m. The inspection was being conducted at 

2:05 a.m. 

10. Welding had been going on for one hour before the citation was 

issued in this case. 

11. Methane can build up in the face area from small cave-ins within a 

few seconds of such an event or close to instantaneously. Such a build-up 

could be explosive in nature. 

12. Continuous testing was not being conducted at the point of the 

welditlg. 

DEFENSES AND DISCUSSION 

Respondent's defense is that everything was working at the t~me of the 

inspection and, therefore, methane would not accumulate at this particular 

work site. I reject that defense, although I do find those underlying 

facts to be true. If everything was working well, then in the ordinary 

course of events, there would be no accumulation of methane at the point 

where the welding was being conducted. However, things are not always in 

the position where there will not be some difficulty that might cause the 

accumulation to build up. The regulation itself requires the continuous 

monitoring, and the regulation says where.methane is present "or may 

enter the air current." It seems to me that on the factual basis where you 

have methane close to the air current, the methane can, then, enter into 

it. 

One of the issues raised in this case is the credibility of 

respondent's foreman:, Tom Jones 1 who claimed at the hearing that he was 

monitoring for methane. I find on this issue in favor of the government's 

witnesses who related Jones' statement, made at the time of the inspection, 

that he was not monitoring for methane. Mr. Potter and witness 

Kinterknecht both testified in this particular regard. I resolve this 

issue in favor of Mr. Kinterknecht and Mr. Potter because of Mr. 

Kinterknecht's notes. Although they didn't directly contain the answers 

therein on this particular issue, they did refresh his recollection as to 

what was said. As the parties know, the witnesses were sequestered in this 

case. Mr. Kinterknecht said that his notes that were written at the time 

of the inspection refreshed his recollection in this matter. 

238B 
At the hearing, Mr. Jones testified that he was monitoring the 

particular area for methane, but he was doing it every fifteen minutes. He 

had been instructed by his supervisors in this regard. Even if Jones' 

testimony is taken to be true, it is no defense because the standard says 

that the area shall be "continuously" monitored during welding or cutting 

with an arc or open flame. So I take the regulation to be that continuous 

does not mean every fifteen minutes; the regulation means that the 

monitoring must be without interruption. 

Further in support of this view, I note that the equipment approved 

by the Secretary· does in fact, "continuously" monitor. So I see no reason 

why, technically speaking, if the equipment was there, continuous detection 

could not have been conducted. 

There are several other credibility issues that should be discussed. 

Witness Potter discussed in detail the various tests he made. When Mr. 

Jones testified, he only directed his testimony at one of those particular 

tests. So, as I construe the evidence, Mr. Potter says he conducted nine 

tests .. Mr. Jones only mentions one such test. So, I take it that Mr. 

Potter's evidence that he tested at least in eight areas and his findings 

in those areas are uncontroverted. 

Further in connection with the case is the testimony of witness Randy 

Dutton offered on behalf of respondent. Mr. Dutton does not directly contradict the testimony of the compliance officer as to the compliance 

officer's tests. Mr. Dutton was at the test site after the inspector and 

he, himself, found some concentrations of methane. As he described it, it 

was .2%, and he described it as the highest reading he received. 

Mr. Dutton further testified that he talked to the MSHA inspector, Mr. 

Jacobson, concerning monitoring every fifteen minutes or thereabouts. The 

nature of the defense here is that Mr. Jacobson, in effect, gave permission 

to respondent to conduct their monitoring on a basis of every fifteen 

minutes. That is a defense that is in the nature of an equitable estoppel 

against the Government. The law is clear that an employee or agent of the 

Government cannot bind the Government to a particular construction of the 

regulations. Inasmuch as the parties stipulated that Mr. Jacobson did not 

recall the conversation with witness Dutton, I take it that Mr. Dutton's 

testimony is correct in this regard. I am not willing to discount that 

particular evidence because it goes to the negligence of respondent, which 

is one of the matters to be considered when a penalty is to be assessed in 

this particular case, if a violation is found. 

The last bit of evidence to be considered is the matter of the 

testimony of the witnesses McLendon and Kovick concerning the ventilation 

at the work site. I do find that under ordinary circumstances there would 

be no hazard to employees working in this particular area. I do note that 

the welding or cutting with an arc or open flame is only prohibited when 

the atmosphere surrounding that particular flame contains more than 1% of 

methane as may be determined by a monitoring device. That particular 

standard is 30 C.F.R. 57.21-13, which innnediately follows the standard in 

contest here. 

2390 
However, as I see it, 57.21-12 is a control standard that would help 

protect miners by measuring the amount of methane that may be entering the 

particular atmosphere in which they are working, and that can only be done 

if it is done continually. Since respondent had not continuously monitored 

the area in question for methane, I find that the operator did not comply 

with 30 C.F.R. 57.21-12. 

PENALTY 

In considering the statutory penalty in this case I find that 

Respondent did rely on an interpretation of the regulations that does not 

appear to have been correct. I believe that the penalty, as proposed, is 

excessive~ I deem a penalty of $500.00 to be appropriate. 

ORDER 

Based on the foregoing findi~gs of fact and conclusions of law, I 

enter the following order: 

1. Citation 576827 is affirmed. 

2. A penalty of $500.00 is assessed. 

POST TRIAL ORDER 

The foregoing bench decision is affirmed and respondent is ordered to 

pay the civil penalty in the sum of $500.00 within 30 days of the date of 

this decision. 

•. \ .(J-.?7£t91-~-A-Q._./ 

/John J. Mofris 

//Administrative Law Judge (/ 

Distribution: 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

John A. Snow, Esq. 

Van Cott, Bagley, Cornwall & McCarthy 

SO S. Main Street, Suite 1600 

Salt Lake City, Utah 84144 

2391. 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

CONOCO, INC., 

v •. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 Ot1 2i \~ 

Contest of Citation 

Contestant 

Docket No. CENT 81-137-R 

Citation No. 170624; 1/28/81 

Karnes County Pits 

Respondent 

DECISION 

Appearances: Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Contestant; 

Robert A. Fitz, Office of the Solicitor, U.S. Department of 

Labor, Dallas, Texas, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

Despite the docket number assigned to this case, it is not a coal mine 

case. The notice of contest was forwarded to the Commission by a letter of 

February 26, 1981, on Consolidation Coal Company's letterhead and the notice 

states in paragraph 1 that "at or about 1045 hours on September 14, 1979, 

Federal Coal Mine Inspector, D. J. Haupt * * * issued Citation No. 170624 

* * *·" I am assuming that because of this, our docket section gave this 

case a coal mine docket number. Actually, the mine is a uranium mine 

located near Falls City, Texas, but I see no necessity of going through 

any formal procedure to change the docket number. 

This is an alleged noise violation where the noise produced by a Caterpillar scraper in the hearing zone of the operator was louder than that 

allowed by the noise standard but where the operator was wearing hearing 

protection that would reduce the sound level pressure within his ear to an 

amount below that allowed by the regulations. It was the opinion of the 

expert witnesses testifying for MSHA that if the engineering controls 

recommended for reduction of the noise in the hearing zone of the operator were followed by the Contestant, it would still not reduce the sound 

pressure level sufficiently so that the equipment operator could forego 

personal hearing protection. The equipment operator in this case was 

wearing personal hearing protection that was represented to attenuate 

noise by 41 decibels. ];/ 

1/ In this decision I am using the word "decibel" and the term "dBA" interchangeably even though technically there is a difference because the latter 

term is weighted to allow for different frequencies. 

2392 
To this extent, this case is similar to the situation that wa~ presented 

to me in Hilo Coast Processing Company v. Secretary of Labor, 1 FMSHRC 895 

(1979). I decided that case against the Government on the basis of the economic feasibility of the engineering controls suggested by MSHA as well as 

the fact that I considered it improper for MSHA to issue a citation, when the 

operator of the equipment was wearing hearing protection and when it appeared 

that the mine operator was required to guess how much money and effort he 

should expend in trying to reduce the noise level before resorting to personal hearing protection. 

The history of the Hilo case, after I decided it, is somewhat strange. 

The Government appealed my decision and the Commission granted discretionary 

review. Both of the parties filed briefs and after the briefing, Hilo filed 

a further pleading indicating that it was engaged in a borrow pit type of 

operation and inasmuch as MSHA had decided it would no longer exercise jurisdiction over borrow pits, the case should be dismissed. The Commission then 

wrote to the Secretary of Labor and asked if the Secretary would dismiss its 

case against Hilo on the grounds that he was not exercising jurisdiction over 

such a mine if the Commission reversed my decision. The Secretary then properly informed the Commission that the borrow pit exclusion had nothing to do 

with the Hilo operation and that accordingly it would not dismiss its proceeding should the Commission reverse my decision. Thereafter, without 

further motion from either party and without any explanation or opinion, the 

Commission vacated its order granting the petition for discretionary review. 

This leaves me, the Government and the industry, without guidance as to the 

Commission's views, and I refuse to speculate as to the possible reasons for 

the action taken. 

PROCEDURAL MATTERS 

When the above case was assigned to me, I had already noticed two cases 

for hearing in Corpus Christi, Texas, for May 27, 1981. Because I thought it 

might be possible to conclude those two cases in the morning, I noticed the 

instant case for hearing at 2 p.m. on May 27, 1981, but advised the parties 

that because of a previous schedule it might be May 28 before this case 

would commence. The notice of hearing was issued on March 26, 1981, 1 day 

in excess of 2 months before the scheduled hearing date of May 27, 1981. At 

the time I issued my notice of hearing, Eve Chesbro, Esq., was the attorney 

representing the U.S. Department of Labor in this case. By letter of April 8, 

1981, not received until April 13, 1981, I was informed that Thomas Mascolino, 

Esq., would be representing the Secretary of Labor in this case. By letter 

dated May 6, 1981, but received May 11, 1981, I was requested by Robert A. 

Fitz, Esq., from the Department of Labor's Dallas office to issue a subpoena 

requiring Contestant "to produce its unit [No.] 482, a Caterpillar 651-B 

scraper, at the hearing in the subject administrative law case at 2 :00 p.m., 

Wedneday, May 27, 1981, in Corpus Christi, Texas." Since a Caterpillar 

scraper is a massive piece of equipment and Falls City, Texas, is more than 

100 miles from Corpus Christi and inasmuch as no justification was provided, 

I declined to issue the subpoena. I did offer to stop in Falls City, Texas, 

and view the equipment but, as I later learned, the Government did not want 

239a 
me to look at the equipment but wanted one of its experts to see it. It 

was subsequently arranged that the expert from the Technical Support Center 

in Denver, Colorado, would view the equipment on Friday, May 22, 1981. 

THE EVIDENCE 

On January 28, 1981, Inspector Haupt conducted a noise survey on four 

pieces of equipment being operated in Contestant's Karnes County Pits. For 

various reasons, he issued no citations concerning the front-end loader 

operator, the truck driver, or the backhoe operator. He did issue a citation concerning the scraper operator. He placed the dosimeter in the 

hearing zone of the scraper operator and left it there for a period of 

10 hours and 45 minutes. A dosimeter when properly calibrated does not 

record any sound level less than 90 decibels. T~e readout is not in 

decibels but in a percentage of the allowable noise level for an 8-hour 

shift. The reading in the case of the scraper was 793.9 percent which 

is the equivalent of 105 dBA during the shift. At five different times 

during the 10-hour and 45-minute shift, Inspector Haupt checked the scraper 

with his sound level meter and found that it registered 90 dBA when idling 

and 104 dBA when the engine was revved up. 2/ This served as a check on 

the dosimeter and buttressed the 793.9-percent reading that the dosimeter 

had given. 

The operator of the scraper was wearing the E.A.R. brand of personal 

ear protection. This is a fibrous-type of plug that is inserted in the 

ear. Each of the personal ear protection devices has been rated by MSHA 

as to the amount of sound attenuation it can produce. Each device is 

assigned an "R" factor and a "D" factor. The "R" factor is the number of 

decibels that the device can subtract from the noise entering the outer 

ear shell to obtain the noise impinging upon the tympanic membrane (eardrum). In the case of the E.A.R. device, the "R" factor is 41 decibels 

meaning that the eardrum receives 41 decibels less than the noise existing 

just outside of the outer ear. The "D" factor assigned to the E.A.R. 

device is .0034 and this is a figure which is to be multiplied by a dosimeter percentage reading in order to get the percentage of the allowable 

sound level that actually reaches the eardrum when the device is being 

worn. When the recorded dosimeter percent of 793.9 is multiplied by 

.0034, the result is 2.699 percent of the allowable noise limit. When 

41 decibels is subtracted from the recorded 104 on the sound level meter, 

it leaves 63 decibels. Both of these figures are well below the allowable 

noise level. 

Contestant's Exhibit No. 1 is a letter addressed to Mr. Patts, an 

employee of Contestant, by Leonard C. Marraccini, Chief of the Field and 

2/ The difference between the 104 dBA measured by the noise level meter and 

the 105 dBA figure measured by the dosimeter is attributable to the fact that 

total sound during a 10-hour, 45-minute shift must be considered as though an 

8-hour shift were involved. 
Applications Branch, Physical Agents Division of MSHA's Pittsburgh Health 

Technology Center. Attached to the letter are the "R" and "D" factors for 

numerous types of personal ear protection. Only the E.A.R. devices (see 

page 6 of exhibit) and the Deci Damp manufactured by Marion Health ancr--

Safety Inc. (see page 11 of exhibit), have "R" factors as high as 41 decibels. There ~ also evidence that the Federal Aviation Administration 

had tested numerous hearing protection devices and decided that the E.A.R. 

was the best. During the hearing, I announced to the parties that on my 

way to Corpus Christi, I had visited the flight line of the Navy Jet Training Base at Beeville, Texas. Personnel on the flight line are required to 

wear personal hearing protection and the devices that were given to me to 

wear appeared to be the same as the E.A.R. devices. 

Mr. Larry Rabius is an industrial hygienist and he is the previously 

referred to expert witness from the Denver Technical Support Branch of MSHA. 

He examined the scraper in question and made certain suggestions as to how 

the noise produced by the machine could be reduced. These included checking 

the canopy to see if it was generating or reflecting noise, checking the fire 

wall floor and possibly lining them and checking the engine cover itself.· 

He suggested that belt material could be used for some of the shielding 

and speculated that if his suggestions were all followed a 4- to 5-decibel 

reduction might be achieved. While such a reduction is substantial, it is 

nowhere near the 41-decibel reduction which the personal ear protection supplies and it does not bring the noise level down to that level where no personal ear protection would be required. The evidence was inconclusive as 

to the cost of the suggested modifications and as stated the 4- to 5-decibel 

attenuation was stated more as speculation rather than as an expert opinion. 

Dr. Garson testified on behalf of the Contestant. It was his testimony 

that the damage from excessive noise does not occur in the outer portions 

of the ear, but to the small hairs in the spiral organ of corti which is 

located in the snail like bone called the cochlea. Any device that can 

reduce the noise level reaching the eardrum reduces the likelihood of 

damage to the "outer hair cells" of the spiral organ of corti. His testimony was that the EAR devices would serve that purpose. 

There was some evidence that the R and D factor might not be as great 

as those listed on the MSHA publication that was attached to Contestant's 

Exhibit No. 1. There was also evidence that some miners found personal ear 

protection uncomfortable and did not wear it, but there was no disagreement 

as to the operator of the caterpillar scraper involved in this case. He was 

wearing ear protection and he was wearing the best type available. _MSHA 

deducts 10 decibels from the R factor as an allowance for a possible poor 

fit when considering how much sound pressure actually reaches the inner ear 

through an ear plug type device. If that allowance is made, the EAR device 

will reduce the noise facto+ by 31 decibels. 

While there was some evidence that the dosimeter sometimes records sounds 

at 89 decibels, it is designed to record only that sound that exceeds 90 decibels and it stores that sound in an electronic manner similar to the way a 
battery is charged. If properly adjusted, the dosimeter will convert the 

stored electric charge to a percentage of the allowable sound level above 

90 decibels during an 8-hour work shift. As indicated earlier, if the work 

shift exceeds 8 hours, an adjustment is made to allow for the fact that the 

standard is written in terms of an 8-hour shift. The mine operator's witness, 

Dr. Garson, agreed with the inspector's action in adjusting the readout to 

accommodate an equivalent 8-hour shift readout. 

The standard in question requires that a mine operator exercise feasible 

administrative or engineering controls to reduce the noise level before 

resorting to the use of personal hearing protection. The kind of controls 

suggested by Mr. Rabius are engineering controls. Administrative ~ontrols 

would be having a sufficient n~ber of equipment operators work on this 

particular scraper during a shift, so that no individual would exceed his 

accumulative allowable noise level. The standard allows a miner to work 

for only 1 hour at 105 decibels. To work an 8-hour shift on this piece of 

equipment it would require eight operators to each work 1 hour and then be 

given some other job for the remainder of their shift in which the sound 

level would be 90 decibels or less. If the noise of the scraper were 

reduced by 5 decibels and produced only 100, a miner could work for 2 hours 

on the scraper and it would thus require four miners to operate such a 

scraper for an 8-hour shift. Administrative controls are thus not 

practical. 

The standard in question says that administrative or engineering controls should be used but it is MSHA's position that boti:i-administrative and 

engineering controls should be used before resorting to personal hearing 

protection. The coal mine regulations use. t·he word "and" instead of "or." 

I agree with MSHA that the word "or" in the metal and nonmetal standard 

conveys the same meaning as "and" but it does not matter in this case. 

MSHA has the burden of proving feasibility and it has not done so. I find 

that neither engineering nor administrative controls or a combination of 

both would be feasible in this case. An air-conditioned noise-proof canopy 

would protect the miners' ears without personal hearing protection, but 

attempts ~o retrofit scrapers with that type of device have been unsuccessful. The Government witnesses so testified. 

I see no need in this decision to reexamine the position I took in Hilo. 

In the instant case, I find that there were no feasible administrative or--

engineering controls that Contestant should have tried before resorting to 

personal hearing protection. The EAR plugs were necessary to protect the 

miners' hearing and there was nothing short of a new piece of equipment 

with a factory-installed, air-conditioned cab (air conditioning because 

temperatures of over 100 degrees for a number of days in a row are common 

in this part of Texas) would have protected the miners' ears and MSHA does 

not contend that Contestant should have replaced the scraper in issue with 

a new one. 

239fl 
The citation is VACATED and the case is DISMISSED. All proposed findings 

not included in the above opinion are REJECTED. 

Distribution: 

~C-~~Q,. Charles C. Moore, Jr. 

Administrative Law Judge 

Karl T. Skrypak, Esq•, Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Robert A. Fitz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square, Suite 501, Dallas, TX 75202 

(Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 21 l~' 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 80-106 

Petitioner A.O. No. 40-02287-03014 V 

v. 

No. 1 Mine 

D. C. COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Darryl A. Stewart, Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner; 

Rudolph L. Ennis, Esquire, Knoxville, Tennessee, 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 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 one alleged violation of mandatory safety standard 30 C.F.R. 

§ 75.201. Respondent filed a timely answer in the proceeding and a hearing 

regarding the proposal was held on August 27, 1981, in Oak Ridge, Tennessee, 

and the parties appeared and participated therein. The parties waived the 

filing of posthearing arguments, but were afforded the opportunity to make 

arguments on the record and they have been considered by me in the course 

of this decision. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing safety 

regulation as alleged in the proposal for assessment of civil penalty filed 

in this proceeding, and, if so, (2) the appropriate civil penalty that should 

be assessed against the respondent for the alleged violation based upon the 

criteria set forth in section llO(i) of the Act. Additional issues raised 

by the parties are identified and disposed of in the course of this decision. 

2398 
In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty 

to the size of the business of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 u.s.c. § 801 ~~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et~· 

Stipulations 

The parties stipulated to the. following: 

1. Respondent is subject to the provisions of the Act, and is a small 

coal mine operator producing approximately 25,000 tons of coal annually. At 

the time of the inspection in question, respondent was engaged in "retreat 

mining," and was producing coal on only one section. 

2. On December 5, 1979, MSHA inspector Donn W. Lorenz conducted an 

inspection of the mine and issued Citation No. 999971, citing the respondent 

with a violation of mandatory safety standard 30 C.F.R. § 75.201. Respondent 

was given an opportunity to accompany the inspector during the inspection. 

3. Inspector Lorenz fixed the abatement time as 11:30 a.m., December 5, 

1979, and the conditions cited were abated at 11:15 a.m., that same day. 

Discussion 

Citation No. 999971, December 5, 1979, cites a violation of 30 C.F.R. 

§ 75.201, and states as follows: 

The two rows of breaker posts that have been installed 

in the No. 1 entry on the 003 working section where pillar 

recovery is being done have been removed, and gob rock and 

mud have been pushed inby the breaker line. The posts were 

then re-installed. Four cuts of coal have been taken from 

this pillar before the breaker posts were removed. 

The abatement of the conditions cited reflects that "a safety meeting was 

held and all persons were warned against this act." 

2399 
Petitioner's Testimony 

Inspector Donn W. Lorenz confirmed that he issued Citation No. 999971 on 

December 5, 1979, because breaker posts had been removed in order to push gob, 

rock, and mud inby the breaker line where cuts of coal had already been taken 

from the pillar. The inspector explained that he had previously issued a citation on November 30, 1979, to respondent for failure to install breaker posts 

in the No. 1 entry and that these were the same posts which he determined had 

been removed to push mud behind them. When he returned on December 5, he 

knew he was in the same areas as on November 30, because he saw the pillar 

with the cut off one corner. This pillar, which had been under unsupported 

roof, was the reason he had issued a citation on November 30. On December 5, 

he saw mud and gob behind the posts which had not been there on November 30. 

The foreman, Troy Jackson, had told him that they had pushed the mud through 

the timbers. 

Mr. Lorenz testified further that he did not believe the foreman's account 

of how the mud got pushed to the other side of the breaker posts. The inspector had noticed that the breaker posts were covered with mud from top to bottom 

and were not sturdy and were not caked with mud on November 30. He assumed 

that they had been removed and laid to the side while the area was filled. 

The inspector testified that the posts could not have stood the pressure of 

having mud pushed through them and would have been knocked out. He also concluded that the mud could not have been pushed through the No. 2 entry because 

this area had already been robbed and it would have been a violation to do so. 

He could tell by the angle of the mud that it had not been brought in through 

this entry. The inspector stated that the mud was angled toward the pillar 

demonstrating that it had been pushed up by a scoop bucket and then tapered 

outby the No. 1 entry. He knew that they had not brought the mud in from the 

left side of the No. 1 entry because it was also full of gob and mud. The 

inspector, in explaining the violation, stated that by removing the timbers 

and going inby the breaker line, the miners would be exposed to unsupported 

roof, since one pillar had been removed and another cut off. Since the area 

was not bolted, the danger of a potential roof fall was increased (Tr. 9-26, 

45-47). 

On cross-examination, Mr. Lorenz admitted that he had relied only on his 

visual observations to determine his location on December 5. He stated that 

the corner of the pillar which had been cut off was the only one like it in 

the area, and that there were no other pillars further back that were scarred 

or marked in a similar fashion. The inspector testified that the mine was 

muddy and had water in it, and that the mud was anywhere from 4 to 6 inches 

deep. The timbers were stacked in the mine with two or three laying alongside 

one another, and he did not know whether there was gob material behind the 

pillar labeled "D" on Government Exhibit 2 (G-2), which was the one with the 

cut taken out of it. He restated ·his belief that the mud could not have been 

brought through the left of the No. 1 entry because it was full of mud and 

gob and had been that way on November 30. He stated that there was no evidence of the mud having_ been moved since that time. The inspector testified 

that he stood at the line of the breaker posts to make his observations, and 

2400 
that the slab taken off pillar "D" was not bolted, but he did not get close 

enough to that pillar to determine whether the area around it had been bolted 

(Tr. 27-44). 

In response to bench questioning, Mr. Lorenz admitted that he did not 

personally observe the violation but assumed that the posts had been taken 

down and that miners had worked under unsupported roof. His assumption was 

based on the fact that there was only a 4-foot spacing between the posts and 

if machinery had pushed mud through that area, the posts would have fallen. 

He reiterated his belief that the posts had been taken down in order to 

push gob into the area behind the breaker line. He stated that he did not 

take notes at the time of the inspections and could not say how much pillar 

recovery had been completed (Tr. 50-57). 

Testimony and Evidence Adduced oy the Respondent 

Don D. Collins, owner and operator of D. C. Coal Company, Inc., testified that the particular mine where the violation in question occurred is now 

closed and was in operation for 14 years, but that his present operation is 

located about a mile from the old facility. Mr. Collins stated that he 

employs 6-7 men at most, and that two of them would be involved in pillar 

extraction. He indicated that he has a cutting machine, a bolting machine, 

and two battery-powered scoops, and that since they are 26 inches tall and 

about 30-35 feet long, they often run into columns or knock off corners of 

pillars as the machines go around them. He also stated that every pillar 

which is close to the machines is scarred, and that the pillars change shape 

from square to hexagon or round. 

Mr. Collins testified that he spoke wi~h his men about the violation on 

November 30 because he did not want the violation to reoccur. He stated that 

once posts are installed, they are never removed and all his men had been 

instructed in that respect. He did not remember Foreman Jackson telling him 

that the mud had been pushed through the posts, and he accounted for the 

presence of mud behind the breaker posts by describing the procedure which 

was regularly used at their mine. He explained that prior to setting the 

posts and robbing the pillars, the area around the pillars are cleaned. 

This involved pushing 2 to 9 inches of mud, dry rock, and loose coal as far 

as possible toward the last row of breaker posts. This method saved the 

trouble of making a number of trips outside with the mud while still providing a clean area to set the posts in and to work in. 

Mr. Collins testified that once the posts are installed, the pillars 

are extracted, and they repeat the process of moving the coal, mud, and gob 

to the next row of pillars. He stated that the pillars are rarely recovered 

completely, that usually seven or eight cuts are made, leaving one or two of 

the corner stumps before moving on. The extraction of coal creates more 

debris in the area which is cleaned up with the rest of the gob and mud in 

retreating to the next row of pillars. Mr. Collins indicated that it was 

pillar No. 5942 on Exhibit R-2 which the inspector noticed on November 30, 

although he could not recall whether it had a corner cut off of it. He 

2401 
pointed to the pillar No. 5941 as being the one in question on December 5, 

and asserted that the breaker posts in that area had been installed and not 

moved prior to cutting into that pillar (Tr. 64-88, 101-102). 

On cross-examination, Mr. Collins could not remember whether he accompanied the inspector underground on November 30, although the posts that 

needed to be installed were pointed out to him. He did remember speaking 

with the inspector underground on December 5, but contended that on 

December 5, Mr. Lorenz was in the same entry but near a different row of 

pillars than on November 30. In further explaining the procedure for 

moving mud, he stated that a miner would not be exposed to unsupported 

roof while pushing the mud back because the pillars would not have been 

robbed (Tr. 88-99). 

Troy Jackson testified that he was acting in his capacity as section 

foreman on both November 30 and December 5. He stated that on November 30, 

four cuts had been taken from the pillar which needed about seven to eight 

cuts to be pulled all the way through. He claimed that there was mud, gob, 

and debris behind the posts on November 30, and that this was the result of 

having gathered all the muck and rock from the previous stump and putting 

it in the back to clear an area for the next row of breaker posts. Once 

the posts were in place, there would be no debris in the mine entrance side 

of the pillars. He denied that they had taken the posts down to push mud 

behind them. He stated that if his men had done this, he would have known 

about it. None of the workers had ever been instructed to engage in this 

practice of removing the posts. When the inspector issued the citation, he 

did not explain to him their procedure of pushing away the mud and debris 

before installing the posts because the inspector was at the mine every 

week and he assumed he knew the procedure followed. He denied having told 

the inspector that gob was pushed between the posts. He indicated that 

stump No. 5942 was the pillar being worked on November 30, but that on 

December 5, they were working on pillar No. 5941, and had taken out about 

half of that pillar by making four cuts on it (Tr. 109-123). 

On cross-examination, Mr. Jackson confirmed that he accompanied the 

inspector on November 30, 1979, to the No. 1 entry where the inspector 

instructed that breaker posts be installed, and conceded the citation was 

issued because gob was being stored in an unsupported area where cuts had 

been taken from a pillar. Although asserting that the inspector had been 

disoriented as to his location in the mine on previous occasions, he 

stated that he did not try to explain the presence of gob on December 5, 

and asserted that he did not recall telling Mr. Lorenz that the gob had 

been pushed through the posts (Tr. 124-130). 

On redirect examination, Mr. Jackson stated that it was not their practice to put debris on the retreat side once cuts were made in the pillar. 

After they were ordered to put posts up on November 30, no gob was put behind 

them. He asserted that roadway timbers can be knocked down by equipment 

after they are installed, and he believed that the inspector should have 

known that the mud had been pushed up prior to installing breaker posts 

because the inspector had seen them do so on other occasions (Tr. 135-139). 

2402 
Findings and Conclusions 

Fact of Violation 

In this case, the respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.201, which provides as follows: "The method 

of mining followed in any coal mine shall not expose the miner to unusual 

dangers from roof falls caused by excessive widths of rooms and entries or 

faulty pillar recovery methods." 

It seems clear from the record in this case that the storage of gob and 

mud behind breaker posts in the mine is no-t .E!:.E_ ~ a violation of any safety 

standard. However, once the breaker posts are installed, they are not to be 

removed if men and equipment are still in the area and working under that 

unsupported roof. In this case, the critical question is whether or not 

the breaker posts had been removed to facilitate the pushing of the gob and 

mud behind them, and then reinstalled. If the posts were removed, and then 

reinstalled after the gob and mud was pushed into the area, a violation of 

the cited section would have occurred because men would be working under the 

unsupported roof area, and would therefore be exposed to roof falls from 

faulty pillar recovery methods. 

The inspector's testimony is that when he inspected the area on 

November 30, he observed no breaker posts installed and no gob or mud stored 

in the area. Once the breaker posts were installed to abate the citation 

which he issued on November 30, there was no gob or mud behind the posts. 

However, when he returned to the same area during his December 5 inspection, 

he testified that he observed mud and gob behind the same breaker posts, and 

assumed that someone had taken the eight posts· down in order to push the gob 

and mud behind them (Tr. 141). 

Inspector Lorenz testified that on November 30, 1979, there was one 

active section being mined, and while he served the first citation on 

Mr. Collins, Mr. Collins was not underground with him. However, he indicated that Section Foreman Jackson was with him underground at that time, 

and that two rows of breaker posts were installed to abate the citation. 

When he returned to the section 5 days later on December 5, 1979, he 

observed mud and gob behind the same breaker posts, and since there was 

no mud or gob in that area on November 30, he surmised that the posts had 

been removed to facilitate the pushing of mud and gob behind them, and that 

once this was done, the posts were reinstalled. Mr. Collins was not with 

him underground on December 5, but Mr. Jackson was (Tr. 41). When he questioned Mr. Jackson about this, Mr. Jackson purportedly told him that the 

posts were not removed but that mud and gob was pushed between the posts. 

At that time, Hr. Lorenz observed that the posts were muddy from top to 

bottom, and since he believed the po~ts would have been pushed out of place 

and broken by the pressure of all of the gob and mud which was behind them, 

he did not accept Mr. Jackson's explanation and issued the unwawrrantable 

failure notice. 

2403 
Inspector Lorenz indicated that during the intervening period from 

November 30 to December 5, four cuts of coal were taken from the pillar in 

question (Tr. 62). He specifically recalled that he was at the same location 

on November 30 and December 5 because the pillar being mined was one and the 

same, the breaker post location was at a corner which had been "slabbed off" 

or cut away, and it was the only corner cut in that fashion on both days 

(Tr. 29)~ Although Mr. Lorenz stated that he normally does not make notes 

or sketches at the time he issues a citation but simply relies on the conditions described on the face of the citation, in this case he made a sketch 

of the scene shortly before the August 27, 1981, hearing, and to the best 

of his recollection,, the sketch is accurate (Exh. G-2; Tr. 57). More 

significantly, Mr. Lorenz testified that when he discussed the matter with 

Foreman Jackson on December 5, Mr. Jackson said nothing to him about being 

in the wrong location, and Mr. Jackson made no protest that the posts in 

question were not the same as the previous posts cited on November 30 (Tr. 

11-14) •. 

Mine Operator Collins was not sure whether he was with the inspector 

underground during both of the inspections in question, and I accept the 

inspector's testimony that he was not. Mr. Collins apparently went underground with the inspector only on December 5 after the citation was served 

on him. Further, Mr. Collins conceded that he did not recall too much about 

the row of pillars cited by Inspector Lorenz on November 30 (Tr. 81), and he 

testified that the basis for his belief that Mr. Lorenz was not in the same 

location on December 5 is the fact that the mining cycle advances from weekto-week, from pillar row to pillar row, and that it generally takes 3 or 

4 days to mine a row of pillars (Tr. 78-79). In this connection, I take 

judicial notice of(the fact that November 30, 1979, was a Friday, and that 

December 5, 1979, was a Wednesday. Absent any indication that the mine was 

operated over the intervening weekend, this time span would not have permitted the complete mining out of the pillar rows in question, particularly 

under the wet and muddy conditions which apparently prevailed in the section 

at the times in question. Mr. Collins testified that he had no idea how many 

days coal was mined in 1979, and that "most of the time" coal was mined 6 days 

a week (Tr. 90). He also testified "possibly three of four shifts" worked 

during the period November 30 to December 5, but that all three pillars in 

question could not have been completely mined either on November 30 or 

December 5 (Tr. 100). 

Mr. Collins conceded that Inspector Lorenz was in the right entry on both 

November 30 and December 5, and while he believed that on December 5 he was in 

a row of pillars closer to the mine portal, Mr. Collins did not recall too much 

detail about the three pillars (A, C, D) being mined (Tr. 92). Mr. Collins 

also conceded that he did not protest the citation of November 30, and does 

not dispute the fact that the breaker posts were not installed as required. 

Further, I take note of the fact that after Mr. Lorenz issued his unwarrantable 

failure notice of December 5, Mr. Collins filed no contest and sought no independent review of that citation. It seems to me that if he was so sure that 

the citation was erroneously issued, the natural thing would have been to contest it at that time rather than to wait for the civil penalty case to be 

2404 
filed. Further, even though the record suggests that the three miners working 

at the scene had no present recollection of,the circumstances surrounding a 

citation which occurred close to 2 years ago, it seems to me that since a 

safety meeting was called to discuss this matter, and since the inspector 

accepted this meeting as part of the abatement, someone from mine management 

would have protested if they believed the inspector was wrong. 

Mr. Collins did not personally observe any gob or mud being pushed into 

the area behind the breaker posts in question, and his belief that the material was pushed there before the posts were installed is based on the fact 

that this was the usual and routine mining practice (Tr. 102). Mr. Collins 

could not recall Inspector Lorenz telling him that Mine Foreman Jackson stated 

to him that the gob and mud were pushed between the breaker posts (Tr. 99), 

nor could he recall Mr. Jackson ever telling him that the gob and' mud was 

pushed between the posts (Tr. 101). On the day of the December 5 inspection, 

three men were working on the section where the violation assertedly occurred, 

but Mr. Collins stated that he spoke with the men recently and none of them 

could recall the events which transpired nearly 2 years ago (Tr. 88). Petitioner's counsel confirmed that this was the case (Tr. 96), and none of these 

men were called to testify. 

Section Foreman Jackson testified that the citation that Mr. Lorenz 

issued on November 30 resulted from the fact that gob and mud were being 

stored in the area without breaker posts being installed to support the 

roof (Tr. 127). When asked to explain why he offered no explanation to 

Mr. Lorenz on December 5, Mr. Jackson stated "They usually write us up once 

or twice a week anyway" (Tr. 130). Although Mr. Jackson denied telling the 

inspector that the gob and mud were pushed between posts, he candidly 

admitted that he did not discuss this procedure with the inspector at the 

time the citation was issued. His explanation for not discussing it was 

his belief that the inspector knew the procedure they were following. However, it seems to me that once the citation issued, a section foreman would 

certainly discuss such a situation with an inspector, particularly if he 

believes that a citation was being issued for a procedure which he believed 

had the inspector's approval. 

The difficulty presented in this case is that the crucial question of 

violation turns on the credibility of the witnesses and their perceptions as 

to the events which transpired some 2 years ago. After viewing the witnesses 

on the stand during the course of the hearing in this case, they all impressed 

me as being candid and honest in their testimony. However, based on my evaluation of the entire record in this case, I conclude and find that the inspector's account of what transpired is totally credible and that based on the 

foregoing analysis and evaluation of the testimony and evidence, his inference that the break.er posts were removed to facilitate the pushing of gob and 

mud behind the posts is supported by a preponderance of the evidence and testimony adduced in this case. Further, I conclude and find that the breaker 

posts cited by the inspector on November 30 were in fact the same posts, and 

at the same location, as those cited on December 5. In these circumstances, 

removal of the posts coustituted a violation of the cited mandatory safety 

standard, and the citation is AFFIRMED. 

2405 
History of Prior Violations 

The parties stipulated that for the 24-month period prior to December 5, 

1979, the respondent at its No. 1 Mine had paid and been cited for 53 violations of the Act's mandatory health and safety standards. In addition, petitioner's counsel conceded that except for the citation issued in this case, 

the respondent had no previous violations issued pursuant to section 75.201 

(Tr. 151). Under.the circumstances, I cannot conclude that respondent's 

prior history is such as to warrant any additional increases in the penalty 

assessment made in this case. 

Size of Business and Effect of Civil Penalty on Respondent's Ability to Remain 

in Business 

Mine operator Don D. Collins testified that the No. 1 Mine is now closed, 

that he only has small blocks of coal to mine, and that he is presently mining 

at a location approximately a mile or so from the No. 1 Mine (Tr. 66). The 

parties agreed that the respondent is a small mine operator (Tr. 151), and I 

accept this as my finding. Further, I conclude that the civil penalty assessed 

by me in this case will not adversely affect respondent's ability to continue 

in business. 

Gravity 

While it is true that the area of unsupported roof may have exposed two 

men to a hazard had the roof fallen, the fact is that the roof was otherwise 

bolted to some extent, and petitioner's counsel conceded that the scoop 

operator would not have been under unsupported roof because any areas not 

bolted would have been next to the pillar or rib that had been cut. Further, 

respondent's witness indicated that the roof areas around the roadways and 

pillars in the surrounding area were supported by roof bolts and petitioner 

does not deny this fact. Even so, while the area was apparently adequately 

roof bolted, the fact is that in the immediate roof area behind the breaker 

posts, which I have found had been removed, was not supported by the posts, 

thereby possibly exposing the scoop operator to a hazard. Respondent's 

counsel conceded that at least two men would have been.exposed to a hazard 

in these circumstances (Tr. 150-151). Under the circumtances, I conclude 

that the violation was serious. 

Negligence 

I conclude and find that the violation resulted from the failure by the 

respondent to exercise reasonable care to prevent the conditions cited, and 

that this failure by the respondent amounts to ordinary negligence. Although 

the fact is that the inspector cited an unwarrantable failure to comply, I 

cannot conclude that the record evidence supports a finding of gross negligence and the petitioner has advanced no such argument. 

2406 
Good Faith Compliance 

Abatement in this case was achieved by calling a safety meeting to explain 

the provisions of the roof-control plan and to impress on the work force the 

fact that once installed, breaker posts should not be removed. In the circumstances, I conclude that the citation was abated in good faith and petitioner 

has established nothing to the contrary. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, and taking into 

account the requirements of section llO(i) of the Act, particularly the fact 

that the respondent is a small operator, has ceased mining in the particular 

mine which was cited, the gravity of the conditions cited, and the fact that 

the respondent had not been previously cited for an identical violation, I 

conclude and find that a civil penalty assessment of $500 is appropriate. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount of $500 

within thirty (30) days of the date of this decision and order, and upon 

receipt of same by the petitioner, this matter is DISMISSED. 

./~. ~~,£-4~ Koutras 

Administrative Law Judge 

Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Hail) 

Rudolph L. Ennis, Esq., McCampbell & Young, Suite 2021, United American 

Plaza, P.O. Box 550, Knoxville, TN 37901 (Certified Mail) 

240'7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MABEN ENERGY CORPORATION, 

Contestant 

Contest of Citations 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEVA 79-447-R 

Citation No. 637734 

September 7, 1979 

Docket No. WEV A 7 9-448-R 

Citation No. 637735 

September 7, 1979 

Docket No. WEVA 79-449-R 

Citation No. 637736 

September 7, 1979 

Docket No. WEVA 79-450-R 

Citation No. 637737 

September 7, 1979 

Docket No. WEVA 79-451-R 

Citation No. 637738 

September 7, 1979 

Docket No. WEVA 79-452-R 

Citation No. 637880 

September 7, 1980 

Maben No. 4 Mine 

DECISION AND ORDER 

On October 16, 1981, the Federal Mine Safety and Health Review Commission 

in Secretary v. Maben Energy Corporation, Docket No. WEVA 79-123-R, reinstated the citation therein, thereby affirming a violation of the standard 

at 30 C.F.R. § 77 .216-3(a). The parties in the captioned cases have agreed 

and stipulated that the disposition of the citations in these cases shall be 

governed by final Commission decision in the proceedings in Docket No. WEVA 

79-123-R. 

2408 
Accordingly, Citation Nos. ·637734, 637735, 637736, 637737, 637738, 

and 637880 are AFFIRMED and the captioned contests o those citations are 

DISMISSED. 

Distribution: 

James M. Brown, Esq., File, Payne, Scherer & Brown, P.O. Drawer L, 

Beckley, WV 25801 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900-15th Street, 

NW, Washington, DC 20005 (Certified Mail) 

2409 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

· 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY 0 F LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 81-94 

Petitioner A.O. No. 15-07166-03061 V 

v. 

PEABODY COAL COMPANY, 

Sinclair Slope Underground 

No. 2 Mine 

Appearances: 

Before: 

Respondent 

DECISION 

Thomas A. Grooms, Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner; 

Thomas A. Gallagher, Esquire, St. Louis, Missouri, 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 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 one alleged violation of mandatory safety 

standard 30 c·.F.R. § 75.1725(a). Respondent filed a timely answer in the 

proceeding, a hearing was held in Nashville, Tennessee, and the parties 

appeared and participated therein. The parties waived the filing of posthearing arguments, but were afforded the opportunity to make arguments on 

the record and those have been considered by me in the course of this 

decision. 

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~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et~· 

2410 
Issues 

The principal issue presented in this proceeding is (1) whether respondent has violated the provisions of the Act and implementing regulations as 

alleged in the proposal for assessment of civil penalty filed, and, if so, 

(2) the appropriate civil penalty that should be assessed against the respondent for the alleged violation based upon the criteria set forth in section 

llO(i) of the Act. Additional issues raised are identified and disposed of 

where appropriate·in the course of this decision. 

In determining the amount of a civil perialty 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 busine~s of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Stipulations 

The parties stipulated that the respondent is subject to the Act, that I 

have jurisdiction to hear and decide the case, that respondent is a large mine 

operator whose operations affect interstate commerce, and that any penalty 

assessments imposed will not adversely affect respondent's ability to continue 

in business (Tr. 4-5). 

Discussion 

Section 104(d)(l), Citation No. 1031535, issued on October 30, 1980, 

by MSHA inspector Lendell Noffsinger, cites a violation of 30 C.F.R. 

§ 75.1725(a), and states as follows: 

There are no less than twenty-three (23) damaged and 

frozen rollers on the 2nd Main East Belt Conveyor starting 

at No. 60 stopping and extending outby to the belt drive. 

This condition was recorded in the belt examiner's book on 

October 28 and 29, 1980 (Freddie Hill Belt Examiner). The 

belt is approximately 3,070 feet long and running. The 

damaged rollers only were marked with red tape. Witness: 

Donnie Higgins. Responsibility of Bill Hampton. 

Petitioner's Testimony 

MSHA inspector Lendell W. Noffsinger testified that on October 30, 1980, 

he was the resident inspector at respondent~ mine, was there practically 

every day, and confirmed that he inspected the mine that day and issued the 

citation in question. Prior to the inspection, he reviewd the belt examiner's 

book (Exh. G-4) for the October 28th and 29th day shifts. Several entries in 

the book indicated that the belt needed rock dusting, that float dust was 

2411 
present, and belt examiner Freddie Hill had made a notation in the book that 

damaged and defective or frozen rollers were discovered on the East Main Belt, 

and the locations were noted by stopping numbers. Mr. Hill told him that he 

w~s having some trouble getting the rollers "changed out"' on the third shift 

(Tr. 7-13). Although some of the area had been rock dusted, one area had not, 

and the inspector issued another citation for that condition (Exh. G-3, Tr. 

12). 

Inspector Noffsinger confirmed that he issued the citation in question in 

this case after finding no less than 23 damaged and frozen rollers along the 

belt line, and he testified that he did so because he considered such conditions to be unsafe and the condition had previously been noted in the belt 

examiner's book. Under these circumstances, he believed that the respondent 

should have been aware of the condition of the rollers and changed them out 

on the shifts prior to his inspection. While he permitted the belt to continue running, he insisted that the area be rock dusted, and that the rollers 

be changed out on the third shift that same day. He indicated that he did 

not take the belt immediately out of service because he did not consider the 

roller conditions to be serous enough to cease production on the three units 

which were dumping coal on the belt line in question. In addition, by 

requiring immediate rock dusting, any hazards from the roller conditions 

would have been minimized. However, if he considers conditions to be "real 

bad," he will take a belt line out of service, but did not do so in this 

case as an accommodation to mine management. He maintained that the cited 

roller conditions were unsafe since a frozen roller could produce heat and 

it could possibly reach the underside of a bottom roller where the rock dust 

may have fallen off (Tr. 16-20). 

Mr. Noffsinger stated that while no ignition source was present when he 

observed the rollers, the rollers that were located along the belt areas which 

had not been rock dusted could have become worse, and since this may have 

potentially been an ignition source, he insisted that the area be rock dusted 

(Tr. 28-29). Later in his testimony, he stated that he was concerned that.the 

defective roller condition had been recorded by the belt examiner, but the 

rollers were not changed out (Tr. 32). He also stated later that he was 

concerned over the lack of rock dust and the possibility of a fire (Tr. 33). 

On cross-examination, Mr. Noffsinger stated that when he reviewed the 

belt examiner's books, he saw no indication that the roller conditions had 

been corrected and he identified the rollers which he cited by means of "red 

flags" apparently placed by the stopping locations by the belt examiner. -He 

made a note of these locations before inspecting the belt in question, and 

while walking the belt line, he.did not observe any hot rollers or rollers 

turning in coal, and in some places the conditions were wet. He also confirmed that he saw no sources of any potential fire on the belt line, and 

had this been the case he would have immediately taken the belt out of 

service. However, he nonetheless considered the cited roller conditions as 

unsafe (Tr. 20-23, 25). He also indicated that the belt examiner's book did 

indicate that rollers on other belts had been changed out, but not the ones 

which he cited (Tr. 27). 

2412 
Mr. Noffsinger confirmed that he did not identify which rollers were 

defective or damaged and which ones were frozen. Since they all had to be 

changed out, he did not believe it made any difference to identify each 

roller by any specific defect. However, he did observe all of the rollers 

(Tr. 51), and his concern was that the rollers were not changed out and he 

wanted the respondent to insure that they were. He also indicated that the 

cited standard does not provide for any time limits within which a cited 

"bad roller" must be changed out (Tr. 30). 

Inspector Noffsinger described a "frozen" roller as one that would not 

turn, and he indicated that this condition may be caused by a stuck roller 

bearing or the presence of mud (Tr. 30-31). In response to my question as 

to the meaning of the comment "bad roller" as it appears in the belt examiner's book, Mr. Noffsinger stated that it could indicate a broken roller, 

one with a missing bearing, or one that needed maintenance. Simply 

recording the condition as "bad" would not give any specific indication 

upon visual examination as to the precise problem, but it does indicate to 

the belt examiner that the roller needs to be replaced (Tr. 46-47). 

Inspector Noffsinger reviewed a copy of MSHA's enforcement policy guideline concerning the application of section 75.1725(a) (Exh. R-2), indicated 

that it was recently brought to his attention, and he conceded that it 

requires that unsafe equipment be irmnediately removed from service (Tr. 24). 

Motion for Directed Verdict 

At the close of the petitioner's case, respondent's counsel moved for a 

summary decision in its favor on the ground that the inspector's testimony and 

evidence presented by the petitioner does not support his conclusions that 

the cited conditions were unsafe. In support of his motion, counsel argued 

that the inspector's critical concern was the fact that the rollers in question had been previously flagged for change out during a previous maintenance 

shift and that this had not been done. Counsel asserted that the inspector 

issued the citation in this case only to insure that the rollers were changed 

out, and that based on his testimony that the rollers were not hot, were not 

turning in coal, that the belt was made of fire-retardent material, and that 

he saw no ignition sources or possible fire hazards present, his conclusion 

that the conditions cited were "unsafe" are simply not supportable. In addition, counsel points to the fact that section 75.1725(a) requires equipment 

in unsafe condition to be removed from service immediately, and since the 

inspector permitted the belt to continue to operate and did not require it 

to be taken out of service immediately, he cart hardly be heard to argue now 

that the conditions were unsafe. Respondent's counsel argues further that 

section 75.1725(a) does not provide for "degrees of safeness," and the conditions cited by an inspector must either be safe or unsafe (Tr. 52-55). 

Petitioner's counsel argued in opposition to the motion for summary decision and asserted that Inspector Noffsinger considered the defective roller 

conditions to be unsafe in the context of, and in conjunction with, the other 

2413 
conditions which he observed along the belt line, namely, the lack of rock 

dust in some areas, and the fact that the preshift book had entries written 

in attesting to inadequate rock dust and the presence of float coal dust in 

some of the areas where defective rollers were noted and observed by the belt 

examiner. Counsel asserted that the term "unsafe" need not be applied in the 

context of an immediate condition noted by the inspector, but may be applied 

to a situation which could develop into a problem if not corrected. In short, 

counsel contends that defective rollers which may not pose any immediately 

dangerous or hazardous situation are nonetheless unsafe since the defect 

could eventually deteriorate and lead to a dangerous or hazardous situation 

if allowed to remain uncorrected. Here, counsel states that the inspector 

exercised his discretion in not shutting down the belt or requiring respondent to shut it down, and the fact that the belt was not shut down does not 

detract from the unsafe condition of the cited roller (Tr. 53-54). 

The motion for summary decision was taken under advisement, and respondent proceeded to call its witnesses and to present evidence and testimony 

concerning the citation. 

Respondent's Testimony and Evidence 

Allen R. Gibson, respondent's safety manager, confirmed that he accompanied Inspector Noffsinger during his inspection of October 30, 1980, and 

by reference to a mine map (Exh. R-4), he indicated where they had walked the 

belt line and what they observed. He indicated that·both he and the inspector touched approximately 10 of the cited belt rollers and none of them were 

hot. He also confirmed that the belt line from the No. 39 crosscut to the 

No. 1 stopping was in need of rock dusting, and that in this area there were 

10 rollers among those which were cited. The crosscuts are on 60-foot centers, 

and the entire length of the belt line cited is 4,200 feet. He also eonfirmed 

that the rollers cited by the inspector were tagged by the belt walkers for 

change out because they were "frozen" and not turning, and that the float 

coal dust condition which existed from the No. 39 crosscut outby the belt 

header was not a severe condition because the belt was wet at different 

locations (Tr. 57-64). 

Mr. Gibson testified that at the time the inspector issued the roller 

and float dust citations, the belt was running and he stated that the inspector was disturbed because the rollers which had been identified as being in 

need of change out had not been changed out. He also indicated that the 

belt fire-suppression unit and fire hoses were in operational order (Tr. 66). 

Albert Knight, general mine foreman, testified that he first became aware 

of the citation in question when Mr. Gibson telephoned him over the mine phone 

and advised him that Inspector Noffsinger had issued the citations on the belt 

line. He confirmed that he had previously left instructions in the mine manager's book for the second shift to change out the rollers which had been 

noted by the belt examiner and cited by the inspector. The instructions were 

written at approximately 1:30 p.m., the day the citation issued, and were 

intended for the second shift which came on at 4 p.m. (Tr. 70-74). 
Mr. Knight testified further that he was not aware of any dangerous or 

unsafe condition on the belt in question, and that had such a situation 

existed, the belt examiner would have shut the belt down. He also indicated 

that belt maintenance is performed on the third shift and that normal maintenance on the belt is done at that time (Tr. 74-76). He confirmed that the 

belt examiner's books do in fact reflect entries on October 28 and 29 concerning the rollers cited by the inspector on October 30 (Tr. 77-78). 

Mr. Knight stated that five men are usually assigned for the entire mine to 

change rollers, and that three men would have been on the section in question to change the rollers (Tr. 80). 

With regard to the notations made by the belt examiner on the preshift 

book for October 29, Mr. Knight stated that they do not indicate an immediate 

problem or any dangerous or unsafe condition. He also indicated that such 

notations concerning rollers are not indicative of unsafe conditions and that 

it is not unusual for 2 or 3 days to go by before such roller conditions are 

corrected or the rollers changed out (Tr. 82). As for the frozen rollers in 

question, if six of them were top rollers and were all within a span of some 

60 feet, there could be friction on one or two of them, and they could cause 

some heat (Tr. 84). He also indicated that a roller end bearing could heat 

up, but that once the roller is frozen, there is no heat generated as such 

except for some belt friction which is not much (Tr. 85). 

Mr. Knight reviewed the language of section 75.1725, and he expressed the 

view that if an unsafe condition is found, the equipment cited must be taken 

out of service (Tr. 90). He also identified a statement signed by several 

miners, including Belt Examiner Hill, who expressed the view that they "did 

not see any violation of the law on these rollers" (Exh. R-6, Tr. 91). The 

statement also contains a statement of company policy indicating rollers are 

normally changed out on the maintenance third shift except that rollers which 

could cause fires or damage to the belt line are immediately changed out during 

a production shift. 

On cross-examination, Mr. Knight conceded that the belt examiner's preshift books for October 28 and 29 did reflect notations concerning defective 

rollers and the existence of float coal dust and that the rollers were not 

changed out during the third shifts on those days. He explained the failure 

to change them out by stating that company policy dictates that the maintenance shift change as many rollers as they can get to, and that some rollers 

were changed out for another belt which had been cited, but he conceded that 

they were changed out only after a citation was issued (Tr. 93). He also 

conceded that part of the belt line had gone undusted for 2 days after that 

particular condition was cited and noted (Tr. 94-95, 101). 

In clarifying the meaning of a notation in the belt examiner's books 

which simply states "Bottom rollers on second east, 53, 55, 56 etc", 

Mr. Knight indicated that the rollers needed to be changed out, but not 

necessarily right away or on the third shift (Tr. 109). 

2415 
Findings and Conclusions 

Fact of Violation 

In this case, the respondent is charged with a violation of mandatory 

safety standard 30 C .F .R. § 75 .1725(a), which provides as follows: "Mobile 

and stationary machinery and equipment shall be maintained in safe operating 

condition and machinery or equipment in unsafe condition shall be removed 

from service immediately." 

Petitioner argues that notwithstanding the fact that the inspector did 

not take the belt line out of service, he nonetheless considered the roller 

conditions as an unsafe condition, and he did so because of the presence of 

float coal dust at several locations along the belt line, and that coupled 

with the defective and frozen rollers, the conditions were unsafe. Although 

conceding the fact that there was no immediate ignition source, petitioner 

maintains that the inspector's concern was with the potential for such an 

ignition source to develop at any time because of the fact that the defective rollers could become progressively worse. Finally, petitioner argues 

that the fact that at least 2 days went by before the rollers were changed 

out, or the area completely rock dusted, supports an inference that mine 

management is not totally aware of when such conditions will be corrected 

(Tr. 115-116). 

As indicated earlier in the discussion supporting the respondent's 

motion for summary decision, it is the respondent's position in this case 

that the petitioner has failed to establish a violation of section 75.1725 

because (1) the inspector has not established that the cited belt roller 

conditions constituted an unsafe condition, and (2) the inspector failed 

to take the belt line out of service. In support of its case, respondent 

cites my previous decision of August 3, 1976, 1n the case of Alabama 

By-Products Corporation v. MSHA, BARB 76-153 (Tr. 114). 

In my previous Alabama By-Products decision cited by the respondent, I 

vacated a portion of a citation for an alleged violation of section 75.1725(a), 

and I did so on the ground that MSHA (then MESA) had failed to establish that 

the cited conditions (13 defective belt rollers along a 3,000-foot belt line) 

were unsafe. I held that a finding that the equipment is unsafe is a condition precedent to a finding of a violation of this safety standard. However, it should be noted that while I vacated that portion of the citation 

which alleged a defective and unsafe belt roller condition, I affirmed that 

portion of the citation which alleged that the cutting of the conveyor belt 

into numerous bottom belt structures was in fact an unsafe condition constituting a violation of section 75.1725(a). I also concluded that in addition 

to citing an operator for failing to maintain equipment in safe operating condition, an inspector could also issue a citation if he found that an operator 

had failed to take such unsafe equipment out of service when the condition was 

first detected. 

2416 
My decision in Alabama By-Products vacating that portion of the citation 

which alleged that 13 rollers were unsafe was made on the basis of the specific 

facts and evidence of record in that case. I found that the inspector who 

issued the citation had no rational basis for concluding that the cited roller 

conditions were in fact unsafe, and that his motivation in issuing the citation was to implement a policy guideline calling for the removal of "faulty" 

equipment from service. Since I concluded that the inspector obviously 

believed that "faulty" or "defective" rollers were per se unsafe, without 

detailing any specifics as to the assertedly dangerous conditions which prevailed in the areas where the rollers were located, I found that he acted 

arbitrarily. 

It should be noted that in the Alabama By-Products case, the mine operator argued that the mere presence of defective rollers does not per se render 

them unsafe. That is precisely the argument advanced by the respondent in 

this case. However, I take note of the fact that in the previous case, the 

operator advanced the argument that an inspector must take into consideration 

other factors, such as the presence of coal or coal-dust accumulations, or 

the extent of rock dusting in the affected area, in order to properly evaluate whether the cited roller condition was unsafe. This is the argument 

advanced by the petitioner in this case. 

The question of whether a piece of equipment is in an unsafe condition 

need not be limited to or determined on the basis of that particular piece 

of equipment. It seems to me that a piece of equipment which has deteriorated 

to some degree through normal wear and tear may not necessarily be unsafe 

simply because it is not new. If it is operating in a totally safe environment, the fact that it is beginning to show signs of wear may not warrant 

its immmediate replacement. On the other hand, if the equipment is operated 

in a mine area where other real or reasonably potential hazardous conditions 

exist, then it is not unreasonable for one to conclude that such equipment, 

continually operated under those circumstances, may be unsafe and in need of 

attention. In my view, this is precisely what we are faced with in the 

instant case. Respondent takes the position that even though the cited 

rollers may have been defective (frozen), they were not unsafe because the 

overall prevailing belt conditions where the rollers were located were not 

hazardous. Further, since the inspector did not shut the belt line down, 

respondent argues that he obviously could not have considered the rollers 

unsafe since the standard requires him to take the equipment out of service 

once he determines it is unsafe. In short, respondent seeks to penalize the 

inspector for an act of charity in not shutting down the belt line and interrupting production. In retrospect, had the inspector ordered the belt line 

shut down, I venture a guess that the respondent would then argue that he 

acted arbitrarily. 

On the facts of this case, it seems clear to me that the operator's own 

belt examiner recognized the fact that the cited rollers were in need of 

attention and had to be changed out since he specifically noted and flagged 

them, and made the appropriate entries in the belt examiner's book. Thereafter, the normal procedure calls for corrective action to be taken during 

2417 
the next available maintenance shift. However, the record in this case 

reflects that several shifts went by after the initial condition was noted 

by the belt examiner and the rollers had not been changed out prior to the 

inspection by Inspector Noffsinger. While it may be true that Mr. Noffsinger 

saw no ready ignition sources present and was concerned that the rollers were 

not changed out earlier, his judgment that the rollers were unsafe did take 

into consideration the presence of float coal dust along several belt line 

locations as well as his concern that the frozen rollers could have deteriorated further, thereby producing ·heat in those areas where the rock dust may 

have fallen off the belt. In these circumstances, I cannot conclude that he 

acfed arbitrarily. In light of all of the prevailing conditions which existed 

along some of the affected belt line locations where the frozen rollers were 

found, I conclude that his decision that the rollers were unsafe was correct. 

As a matter of fact, Mine Foreman Knight conceded that frozen rollers may 

generate some friction on the belt, and he did not dispute the presence of 

float coal dust on the belt where rock dusting had not been completed, and 

that this condition had existed for a day or two prior to the inspection. 

In Mid-Continent Coal and Coke Company, DENV 79-29-P, 1 MSHC 2246, 

October 1, 1979, final order November 9, 1979, the Commission affirmed a 

decision issued by Judge Broderick affirming a violation of section 75.1725(a). 

Judge Broderick found that a frayed cable on a hoist assembly used to open an 

airlock door constituted an unsafe condition. While the record before Judge 

Broderick did not support a conclusion that the condition of the cable 

contributed to a fatality which had occurred at the mine, the condition of 

the cable was such that it possibly could have contributed to serious injuries. 

Upon subsequent court review, the Tenth Circuit Court of Appeals on September 24, 

1981, (No. 2271, unreported), affirmed the decision and noted that "Congress 

intended the Mine Act to both remedy existing dangerous conditions and prevent 

dangerous situations from developing" (case noted in the October 7, 1981, issue 

of the BNA Mine Safety & Health Reporter, pp. 185-186). 

In view of the foregoing findings and conclusions, I conclude and find 

that the petitioner has established a violation of section 75.1725(a), and the 

citation is AFFIRMED. Respondent's motion for summary judgment is DENIED. 

Gravity 

While it is true that no ready ignition sources were present in the areas 

where the frozen rollers were located, the presence of float coal dust and the 

absence of complete rock dusting along with the possible further deterioration 

of the roller conditions presented a hazardous. situation which I consider serious. The belt was running when the inspector arrived on the scene, and even 

though he saw no imminent danger present, the fact is that the conditions 

which prevailed presented a potential danger. Under the circumstances, I 

find that the violation was serious. 

Negligence 

The frozen roller conditions were noted by the belt examiner at least a 

day or two before the inspection in question and the conditions were not 

2413 
corrected. Although respondent established that corrections were made with 

regard to similar roller conditions on another belt line and that it had a 

company policy dealing with such corrections, that policy apparently permits 

each belt examiner to make his own judgment as to whether a roller condition 

is such as to start a fire or is simply one that can be taken care of during 

the next maintenance shift. In this case, the record establishes that the 

cited roller conditions were not corrected during the next regular maintenance 

shift after detection by the belt examiner. Under the circumstances, I find 

that the failure to correct the conditions cited resulted from the respondent's failure to exercise reasonable care to prevent the conditions cited 

and that this amounts to ordinary negligence. The fact that maintenance was 

being performed on another belt and that men may not have been available 

to change out the rolle~s in question is no excuse. MSHA v. Sewell Coal 

Company, HOPE 78-744-P, Commission decision of June 11, 1981, 3 FMSHRC 1380. 

Good Faith Compliance 

I cannot conclude that the respondent is entitled to any additional consideration on the basis of good faith compliance. The fact is that compli~ 

ance was achieved after the inspector issued his unwarrantable failure 

citation, and the conditions were subsequently corrected within the approximate time fixed by the inspector. Under these circumstances, I cannot conclude that the respondent acted in bad faith once the citation issued. 

History of Prior Violations 

The history of prior violations for the Sinclair Slope Underground 

No. 2 Mine reflects that the respondent paid civil penalty assessments for 

452 citations issued at that mine during the period October 30, 1978, through 

October 29, 1980 (Exh. G-1). Five of the citations were for violations of 

section 75.1725(a). While the overall number of citations is not particularly 

good, I cannot conclude that the mine has had problems with compliance with 

the cited mandatory safety standard, nor can I conclude that the record in 

this case warrants any additional increase in the civil penalty otherwise 

assessed by me because of respondent's history of prior citations. 

Size of Business and Effect of Penalty on the Respondent's Ability to Remain 

in Business 

The parties stipulated that the respondent is a large mine operator and 

that any penalty assessed in this case will not adversey affect its ability 

to remain in business. I adopt these stipulations as my findings on these 

issues. 

Penalty Assessment and Order 

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 a penalty assessment in the amount of $750 is reasonable and appropriate for the citation which I have affirmed, and the respondent IS ORDERED to 

2419 
pay the assessed penalty within thirty (30) days of the date of this decision 

and order. 

~~oq,as~ Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 

U.S. Courthouse, 801 Broadway, Room 280, Nashville, TN 37203 (Certified 

Mail 

Thomas R. Gallagher, Esq., Peabody Coal Company, Box 235, St. Louis, 

MO 63166 (Certified Mail) 

2420 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE". SUITE 400 

DENVER. COLORADO 80204 

) 

WILLIAM A. HARO, ) 

Complainant, ) 

) 

v. ) 

) 

MAGMA COPPER COMPANY, ) 

Respondent. ) 

~~~~~~~~~~~~~~~~~~~-

Appearances: 

Paul F. Tosca, Jr., Esq. 

100 North Stone Avenue 

Tucson, Arizona 85701 

For the Complainant 

Douglas Grimwood, Esq. 

Twitty, Sievwright, and Mills 

100 West Clarendon Avenue 

Phoenix, Arizona 

For the Respondent 

Before: Judge John J. Morris 

) 

DECISION 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NOS. WEST 79-49-DM 

WEST 80-116-DM 

STATEMENT OF THE CASE 

Complainant brings these actions on his own behalf alleging he was 

discriminated against by his employer, Magma Copper Company (Magma), in 

violation of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 ~ seq. 

The statutory prov1s1on, Section lOS(c)(l) of the Act, 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 

operators 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, 

2421 
representative of miners or applicant for employment has instituted or 

caused to be instituted any proceeding under or related to this Act or has 

testified or is about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory right afforded 

by this Act. 

After notice to the parties, a hearing on the merits was held in 

Tucson, Arizona on August 12-13, 1980. The parties filed post trial 

briefs. 

INTRODUCTION TO THE CASES 

Four separate factual situations are involved in these cases. 

The initial incident occurred 1/ when complainant William Haro 

refused to remove a bad order (B.o:-) railroad car from a production train. 

He refused because there was no supervisor present to assist him. 

The second incident occurred on June 14, 1978, when Haro tied a tail 

light on a production train "under protest." Shortly after these events 

Haro was removed as dump mechanic and was given a new assignment ·on a 

different shift. 

On September 25, 1978, Haro was directed to change a bad order (B.O.) 

grease line. He made three safety related requests. He did not repair the 

grease line because his supervisors failed to take any action to comply 

with his requests. 

On November 1, 1978, Haro was involved in an incident which occurred 

when he and fellow worker, Helmer, were working on an AIRSLUSHER. As a 

result of this incident Haro was required to attend a two day safety 

seminar and was transferred to a surface crew. He did not lose any wages, 

but he complains about the seminar, the "Accident Gram" issued by Magma, 

·the transfer, and a letter issued by Magma in connection with the 

accident. 

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 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. David Pasula v. Consolidation 

1/ The transcript is silent as to the date of this event,. but it was 

apparently a day or so before the subsequent incident. 

2422 
Coal Company 2 FMSHRC 2786 (1980). Further, in order to support a valid 

refusal to work the miner's perception of the hazard must be reasonable, 

Robinette v. United Castle Coal Company 3 FMSHRC 803, (1981). 

WEST 80-116-DM 

B.O. (BAD ORDER) CAR INCIDENTS 

FINDINGS OF FACT 

FIRST INCIDENT 

1. Dispatcher Lockhart instructed Complainant Haro to replace a B.O. 

(Bad Order) car with a good order car on the Magma production train (Tr. 

15). 

2. Since the safety latch on the coupler mechanism was broken it was 

necessary to replace that car with one having a good safety latch (Tr. 

15). 

3. Haro did not comply with Lockhart's request because Lockhart would 

not assign a worker to assist him (Tr. 15). 

4. Company policy, evidenced by a written memorandum posted and dated 

May 8, 1976, requires a supervisor to be present when a B.O. car is cut 

out (Tr. 15-17, Exhibit C2). 

5. Haro told Lockhart he wasn't refusing the assignment but was 

asking that Magma's policy be enforced (Tr. 17, 18). 

SECOND INCIDENT 

6. On June 14, 1978, assistant chief foreman Cothern told Haro to tie 

a light on the last car of the production train (Tr. 19). 

7. Haro tied on the light "under protest" because he believed the 

light should be attached on light brackets (Tr. 19, 20). 

8. The company procedure is that if an employee is directed to tie on 

tail lights he does so and logs that event in the log book for the 

supervisor's knowledge. The tie on can be made without using special 

light brackets (Tr. 70, 103, 105, 133). 

9. Shortly after both of the above incidents Haro was removed as a 

dump mechanic and was given a new assignment which placed him on a straight 

days shift (Tr. 20). 

10. As a result of being pla~ed on the straight days shift Haro's pay 

scale did not change, but he lost in wages a shift differential that he 

normally received as a dump mechanic. He also lost one additional day's 

pay for every three week period (Tr. 21). 

2423 
11. Haro has continued to work straight days, and his lost wages (as of 

the time of the hearing) were between $3,500 and $3,700 (Tr. 22). 

DISCUSSION 

Magma asserts that the evidence amply demonstrates that Haro's 

activities were obfuscatory and dissembling and that they were unrelated to 

improving any safety conditions on the job. I disagree. While it is true 

that Haro's activities conflicted with management and could well be 

considered obstreperou~ he was, nevertheless, within the protection of the 

Act at least with respect to the first incident. 

Concerning the removal of the B.O. car, a company memorandum dated May 

8, 1976 stated in part that "when a B.O. car is cut, a supervisor will be 

present" (Exhibit C2). Magma's evidence confirms the authenticity of the 

memorandum. Its supervisor indicated it would have been a violation of 

company policy not to provide Haro with an assistant (Tr. 90-92). After 

Lockhart instructed Haro to remove the car, Haro asked for enforcement of 

this company policy (Fact, 5). Lockhart denied his request, and, consequently Haro refused to remove the car. 

A miner has a right to refuse to undertake a task he reasonably 

considers to be unsafe. The company memorandum supports the reasonableness 

of Haro's refusal to cut the B.O. car. I, therefore, conclude Haro's 

actions in this incident were protected under the Act. Robinette and 

Pasula, supra. 

The second incident involves the tying on of a tail light without 

using a special tail light bracket. Haro's evidence on this act of alleged 

discrimination is considerably overblown. He admits that if he is directed 

by a supervisor to tie on a tail light he is to do so. It is company procedure that he then enters that fact in the company log book. The log book 

would accordingly reflect, in circumstances such as this, that the lights 

were being installed without special brackets. 

No mandatory standard exists regarding the attachment of tail lights, 

and I am unable to see that Haro's perception of the safety hazard was a 

reasonable one. Regardless of whether the light was installed in a proper 

bracket there would be a light protecting the rear of the train. The 

record does not show that a "tied on" light is in any manner less safe or 

in any manner more likely to fall out than a similar light installed in a 

bracket. I accordingly reject Haro's conclusion that the placement of a 

light in a bracket was "company policy." Under the Act for a claim of 

discrimination to prevail the belief that a condition is-unsafe must be a 

reasonable one under the circumstances. Robinette, supra. For the foregoing reasons, I do not find that Haro's complaint concerning the tail 

light was a protected activity. The claim of discrimination based on the 

tail light bracket should be vacated. 

Respondent contends that Haro's inability to cooperate with 

supervisors, as evidenced by these two incidents was the reason for his 

being transferred from dump mechanic on a rotating shift to a mechanics 

2424 
position on straight days. I have ruled that Haro's "uncooperative 

activity" concerning the removal of the B.O. car was protected activity. 

I also conclude that his transfer to a different shift was motivated in 

part by this protected activity. The transfer may also have been motivated 

by Haro's opposition to tying on the light. However, respondent has 

failed to meet its burden of persuasion that Haro's action in tying on the 

light under protest would have itself warranted the adverse action. I, 

therefore, conclude that Magma's transfer of Haro to another shift and 

position constituted discriminatory conduct in violation of the Act. 

WEST 79-49-DM 

GREASE LINE REPLACEMENT 

FINDINGS OF FACT 

1 •. On September 25, 1978, complainant, William Haro, a journeyman 

mechanic, was directed to change the grease line at level 3 A 2075 in 

Magma's underground copper mine (Tr. 13, 25, Cl). 

2. The grease line to be serviced was on the front door cylinder on 

the lip of the loading chute (Tr. 26). 

3. Before changing the grease line, Haro requested that his lead man 

(foreman) spot a skif in front of the loading chute as protection against 

falling. This was a common practice (Tr. 26-31). 

4. Further, Haro requested that the men working on the surface be 

removed from the top of the shaft. Workers at the top will frequently 

cause debris, such as burned bo 1 ts or nut.s, to fall down the shaft. One 

bolt can cause 50 rocks to fall down the shaft. It is compa~y procedure to 

remove such men before work is done near the shaft (Tr. 30. 31). 

5. Further, in accordance with company procedure Haro asked for a 

worker to assist him. The lead man, Howard, refused this request. (Tr. 28, 

31-32). 

6. Haro's requests were never granted, and, therefore~ he did not 

change the grease line. The lead man told Haro he would try to place a 

skif and he would try to remove the overhead shaft workers but this was 

never done (Tr. 27, 29, 32). 

7. On October 2, 1978, Haro received a written warning from supervisor 

Torres for his failure to change the grease line. After receiving the 

notice Haro filed a written grievance (Tr. 34, 35). 

8. On October 2 Haro explained to Rudy Navarro (Torres' supervisor) 

the circumstances concerning the grease line. (Tr. 33). 

DISCUSSION 

Magma maintains that every credible witness testified that the 

spotting of a skif is sometimes done, but work is not stopped in its 

2425 
absence. Magma cites witnesses Torres, Navarro, and Graham in support of 

its position. I disagree with Magma's construction of the evidence. The 

issue is not whether the work could be done without a skif, but it is 

whether Haro's action in not repairing the grease line was reasonable and 

in good faith. Magma's evidence, as discussed hereafter, supports Haro's 

position. 

Torres, a supervisor, testified that if the skif was available he'd 

use it in combination with the Sala Block. 2/ The skif would serve as a 

backup (Tr. 345-346). Navarro said if a skif was not available a Sala 

Block would be used (Tr. 135). Graham indicated a lot of journeymen will 

spot the main hoist (skif) over the lip of the loading area. If a man fell 

and the safety hook (Sala Block) failed he'd fall into the skif instead of 

falling to the bottom of the shaft (Tr. 206). Graham considered the shaft 

to include an area within two or three feet of the shaft. The grease line 

to be changed was within an arm's length of the open shaft (Tr. 207). In 

short, Torres, Navarro, and Graham support the practice of a worker 

spotting the skif innnediately below the area where he is changing the 

grease line. Such a positioning for obvious reasons is a prudent safety 

practice. 

Magma asserts the Sala Block is a safety device that Haro should have 

used. I agree. Haro could have used such a device; however, the other 

remedies sought by Haro were reasonable, particularly in view of Magma's 

confirming evidence. 

Concerning the allegation that the workmen should be cleared from the 

top of the shaft, Magma contends that Haro's allegations on this issue were 

an afterthought, manufactured for the grievance hearing and these 

proceedings. I disagree. Haro testified he asked for worker clearance 

(Tr. 28). A fellow worker, Zagorsky, confirmed Haro's statements that he 

(Haro) couldn't replace the grease line because of the lack of a skif, lack 

of a partner, and the riggers located at the top of the shaft (Tr. 177). 

Haro says he complained to lead man Howard (Tr. 28). Howard, according to 

Haro, refused the request for a partner, but he said he'd try to get the 

skif and would remove the men above (Tr. 28, 29). It may well be that the 

workers above were clear of the shaft as this was apparently a "down" c;:lay 

but the record is devoid of any evidence that such information was ever 

connnunicated to Haro. At the deep level on which Haro was located he would 

hardly be in a position to know if workers were located near the top of the 

shaft. Journeyman mechanic Thomas Traynor said that for safety reasons 

he'd make sure there wasn't anyone working overhead when he repaired the 

grease line (Tr. 146, 156). 

Magma's witness, Howard, stated that he had no personal knowledge of 

Haro's request for the skif or an assistant. (Tr. 158). Howard's testimony 

does not refute Haro's testimony that he requested that the workers be 

2/ A Sala Block is a device that can be worn by a workman. If working 

properly it will arrest the fall of a workman. 

\ 

2126 
cleared· from the top of the shaft. Further, Howard "could not recall" 

Haro's statement made in front of Zagorsky indicating why he (Haro) 

couldn't change the grease line. The inability to recall, which permeates 

Howard's testimony, is far from a denial of a stated ·fact. In short, I do 

not find Howard's testimony credible. 

Concerning the furnishing of a partner, the thrust of Magma's argument 

is that the grease line could be safely changed without a partner. 

However, supervisor Torres indicated that it is company policy to furnish a 

partner if you are sent in on other than a down day (Tr. 347). This 

policy, in my view, confirms Haro's reasonable belief that a partner should 

have been furnished. 

Magma argues that Haro is not credible. It's argument here focuses on 

the fact that four days after this incident, Haro discussed his failure to 

repair the grease line with his supervisor, Torres. Magma asserts Haro is 

not to be believed because on that occasion he failed to state his 

"complete defense." The complete defense, according to Magma, is Haro's 

testimony that when he raised the safety issues leadman Howard simply told 

him not to do the work. 

I find Haro's explanation reasonable. On Monday, the 29th, he stated 

he had already been removed as dump mechanic and had been under a certain 

amount of pressure. He did not feel obliged to try to prove his case to 

management. He simply stated the facts as they were and if they wanted to 

accept them fine, but if they didn't, Haro told them to put it in writing. 

He stated they should stop threatening him with statements such as 1'I'm 

going to nail you to the wall." Haro described this meeting as 

"emotional." (Tr. 244). 

Haro received a written warning for his failure to change the grease 

line (Tr. 34). Inasmuch as Haro's refusal to work was protected activity 

because his perception of the safety hazards were reasonable, the warning 

letter constituted discriminatory conduct in violation of the Act. Local 

Union 1110 v. Consolidated Coal Company, 1 FMSHRC 338 (1979). This portion 

of the case should be affirmed. The employment record of William Haro is 

to be completely expunged of all comments and references to the grease 

line incident of September 2S, 1978. 

AIRSLUSHER ACCIDENT 

FINDINGS OF FACT 

1. On November ·1, 1978, Haro and fellow worker, Helmer, were servicing 

an AIRSLUSHER in a spill pocket (Tr. 36, 37). 

2. The AIRSLUSHER, actuated by compressed air, hauls loads in 

underground mines (Tr. 4S, CS). 

3. The AIRSLUSHER is controlled by a throttle lever which 

automatically returns to a neutral position when released (Exhibit CS). 

4. The load spring on Magma's throttle lever was defective and after 

being moved into a straight up position it would fall down. Magma's 

leadman ·acknowledged to Haro that the spring was broken (Tr. 38, S l). 

~ ... - ~-... : 
S. The throttle control valve operates the controlled movement of the 

slusher (Tr. 263, 264). 

6. As Haro was changing the oil on the AIRSLUSHER the throttle control 

valve, due to its defective spring, dropped. This movement turned the 

slusher on (Tr. 37, 179). 

7. The force of the slusher movement caused the catwalk grating to 

come out of its structure and fall to the floor. The return roller struck 

Helmer in the head (Tr. 37, 38). 

8. As a result of this incident Haro was transferred to a. surface crew 

(Tr. 39, 40) • 

9. An "accident-gram" was issued by the company in November 1978. The 

document identifies Helmer as the person involved in the incident. It 

refers to the other person involved in the incident as "Helmer's partner." 

The document described what happened and why. It indicated "There was a 

lack of communication between Helmer and his partner •••• Helmer's partner 

exhibited poor judgment when he needlessly engaged the slusher." (Exhibit 

C-3). 

9. Haro received a letter from Magma's superintendent indicating he 

had been involved in three accidents requiring dispensary attention and 

seven requiring "at tent ion by the hospital." In addition Haro was 

identified as being the cause of the Helmer's accident. The letter assigns 

Haro to a two day safety training course. (Tr. 41, 43, 49, Exhibit C4). 

10. After the AIRSLUSHER (Helmer) incident, Haro was transferred to a 

special two day safety training class. The seminar did not discuss the 

Helmer incident (Tr. 49). 

11. Haro did not incur any loss of pay in attending the safety seminar 

(Tr. 297, 298). 

Based on the above findings of fact I conclude that Haro was not 

responsible for the injury s~ffered by Helmer. Magma's actions towards 

Haro, namely the transfer, the accident-gram, the letter and the assignment 

of Haro to a two day safety seminar, would therefore appear unjustified. 

However, the incident concerning the airslusher does not involve any 

activity on the part of Haro that is protected under the Act, Haro did not 

make any safety complaint or exercise·any other right afforded him under 

the Act. The actions taken against Haro because of Magma's erroneous 

belief that Haro was responsible for the incident, therefore, cannot be 

deemed to be in violation of the Act. Although such actions may have been 

improper, redress of the damages suffered by Haro as a consequence thereof 

is not within the authority of the Connnission. 

242.8 
Respondent's post trial brief attacks Haro's general credibility 

asserting that several extrjnsic matters reflect poorly on Haro's ability 

to perceive the events in which he participates. Respondent notes Haro's 

hospitalization for alcoholism and his alleged use of drugs on the job (Tr. 

228, 339). In addition, respondent points to Haro's stressful environment 

with his co-workers and superiors. 

I am not persuaded by respondent's arguments. The record does not 

reflect that alcoholism and the smoking of marijuana were in any manner 

factors in the foregoing described events, nor is there a scintilla of 

evidence to suppdrt such a view. Concerning Haro's stressful environment, 

respondent's brief aptly states the law on this point. The brief states as 

follows: "The fact that Mr. Haro is profoundly in conflict with most 

people around him does not mean he is without the protection of the Federal 

Mine Safety and Health Act." 

Respondent's supplemerttal brief cites Pasula, supra, but the ruling in 

that case does not cause a different conclusion here. 

RE INSTATEMENT 

Inasmuch as William Haro's complaint of discrimination in WEST 

80-116-DM is affirmed he should be reinstated as a dump mechanic. He was 

removed from that position after the initial incident involving the B.O. 

car. Ordinarily, a reinstatement order would issue prospectively. 

However, in a post trial motion filed June 10, 1981, it was indicated that 

William Haro had been discharged by respondent. Accordingly, rather than 

reinstatement, I order respondent to pay Haro an amount equal to the wages 

he lost because he was removed from his position as a dump mechanic from 

the date of his removal up to and including the last day he worked at the 

mine. Any order of reinstatement issued in this case would intrude into 

the issues raised in the cases entitled William A. Haro v. Magma Copper 

Company, Docket Nat. WEST 80-482-DM and WEST 81-365-DM." These cases are 

presently assigned to the Conunission Judge Jon D. Boltz, of the Denver 

Regional Office. 

The back pay award is necessarily limited because later events not in 

issue here may indicate further discriminatory and retaliatory conduct by 

Magma against Haro; or, in the alternative, such later events may establish 

that Magma justifiably terminated William A. Haro. In any event such 

issues are not framed in this decision. 

CIVIL PENALTIES 

In this case the Secretary of Labor did not represent complainant. 

However, the Act provides that any violation of the discrimination section 

shall "be subject to the provisions of section 108 and llO(a)." (30 U.S.C. 

§ 818, 820). The statute authorizes the imposition of a penalty in an 

amount not to exceed $10,000.00. (30 U.S.C. § 820(a)). 

2429 
Cons~dering the pertinent statute and in view of the facts as stated 

above, I deem a· penalty .of $500 .00 to be an appropriate civil penalty for 

each instance of discrimination. 

BACK PAY, COSTS, AND EXPENSES 

Sec-tion 105(c )( 3) of the Act authorizes an award for back pay and 

interest, as wel 1 as all costs and attorneys fees in· the event a claim of 

discrimination is su.stained. The uncontroverted evidence shows that 

complainant's back pay loss includes a loss of the shift differential as 

well as one additional day's pay for every three week period (Tr. 21) 

Haro at the time of the trial estimated his wage loss at $3,500.00 to 

$3,700.00. Due to the lack of more specific documentation on his back pay, 

I rule Haro is entitled to back pay in the amount of $3,500.00 plus 

interest. In addition to said amount, William Haro is entitled to back pay 

plus interest since the hearing in this case, until the date of his 

termination by respondent. 

The parties stipulated that complainant Haro incurred $3,896.00 in 

attorneys fees and $585.86 in costs. (Respondent's letter of June 3o, 1981 

and complainant's partially signed stipulation filed July 2, 1981). 

Complainant should accordingly be awarded that amount for attorneys fees 

and costs. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

CASE NO. WEST 80-116-DM 

1. Complainant's claim of discrimination concerning the removal and 

replacement of the bad order car on respondent's production train is sustained. 

2. Complainant's claim on discrimination concerning the placement of 

a light in a light bracket on the end of the production train is vacated. 

3. A civil penalty of $500.00 is assessed against respondent for 

violating Section l05(c) of the Act. Said amount is payable 40 days after 

the decision of the Commission becomes a final order. Said civil penalties 

shall be paid in accordance with Section llO(j) 130 U.S.C. § 820(j)]. 

4. The employment record of William A. ~aro is to be completely 

expunged of all comments and ·references involved in his refusal to remove 

and replace the bad order car. 

5. Respondent is ordered to pay William A. Haro the sum of $3,500.00 

2430 
as back pay with interest at 12 1/2% per annum. 3/Additional back pay 

shall also continue to accrue after the date of~earing until the date 

William A. Haro was terminated by respondent. Respondent is directed to 

pay Haro an additional amount plus interest which complies with this 

order. 

CASE NO. WEST 79-49-DM 

6. Complainant's claim of discrimination in connection with the 

grease line repair is affirmed. 

7. Complainant's claim of discrimination in connection with the 

AIRSLUSHER is vacated. 

8. The employment record of William A. Haro is to be completely expunged of all cormnents and references involved in his refusal to repair the 

grease line. 

9. A civil penalty of $500.00 is assessed against respondent for 

violating Section 105(c) of the Act. Said amount is payable 40 days after 

the decision of the Connnission becomes a final order. Said civil penalties 

shall be paid in accordance with Section llO(j) (30 U.S.C. § 820(j)] of the 

Act. 

10. Complainant is awarded the sum of $3,896.00 as and for attorney 

fees and $585.86 in costs incurred in bo~h of the above cases for a total 

of $4,48L86. 

Distribution: 

Paul F. Tosca, Jr., Esq. 

100 North Stone Avenue 

Tucson, Arizona 85701 

Douglas Grimwood, Esq. 

Twitty, Sievwright, and Mills 

100 West Clarendon Avenue 

Phoenix, Arizona 85013 

/@~:__ ,<;://(~ / .John J. Mofris 

(.,/ Administr~t'ive Law Judge 

3/ Interest rate used by Internal Revenue Service for underpayments and 

overpayments of tax Rev Ruling 79-366. Cf Florida Steel Corporation, 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). 

2431 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

JUAN N. MUNOZ, aka 

JUAN MUNOZ NATIVIDAD, 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

GOMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

Complainant, DOCKET NO. CENT 80-331-DM 

v. MINE: Sununit 

SUMMIT MINERALS, INC., 

Respondent. 

DECISION AND ORDER 

Appearances: 

Frederick H. Sherman, Esq. 

Sherman & Sherman, P.C. 

210 South Silver Avenue 

Deming, New Mexico 88030 

For the Complainant 

John W. Reynolds, Esq. 

P.O. Box 349 

Silver City, New Mexico 88062 

For the Respondent 

Before: Judge Jon D. Boltz 

Statement of the Case 

On June 19, 1980, Juan N. Munoz [hereinafter "Munoz"], brought this 

action pursuant to section 105(c)(3) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. 0978) [hereinafter cited as "the Act" 

or "the 1977 Act"]. In his complaint, Munoz alleges that Respondent, 

Sununit Minerals, Inc. (hereinafter "Sununit"], unlawfully discriminated 

against him by discharging him from his employment at Sununit's mine on 

February 1, 1980, in violation of the Act. Munoz alleges that he had 

engaged in activities relating to health and safety protected by section 

2432 
105(c) of the Act prior to the time of his discharge. 1/ Munoz requests 

relief in the form of a finding of discrimination, reinstatement to his 

former position, back pay plus interest from the time of his discharge, and 

costs, including attorneys fees. Sunnnit, on November 10, 1980, filed an 

answer to the complaint containing a general denial and a prayer for relief 

seeking dismissal of the proceeding at Complainant's cost. Pursuant to 

notice, the matter came on for hearing on April 7, 1981, in Las Cruces, New 

Mexico. Submission of post hearing briefs was completed on May 28, 1981. 

FINDINGS OF FACT 

1. Sunnnit is ·operator of an underground precious metals mine located 

in Grant County, New Mexico, known as the Sunnnit Mine. 

2. Juan N. Munoz was employed by Sunnnit as a miner for slightly over 

two years, until February 1, 1980, the date of his discharge. ~ 

3. Munoz performed various jobs during his tenure at the mine. 

Initially, he worked at timbering. After two or three months on the job, 

he was moved to a drilling position because he was too slow in his work. 

Munoz worked as a drill operator for only four days. Management then 

assigned him to work as a locomotive motorman, again, because he was too 

slow in his work. As a locomotive motorman, Munoz, with the aid of a 

helper, was responsible for filling ore car trains with production from the 

stopes and for transporting them to the surface. Munoz was employed in 

this capacity at the time of his discharge. 

1/ Section 105(c)(l) of the 1977 Act, 30 U.S.C. § 815(c)(l), reads in 

pertinent part as follows: 

"No person shall discharge or in any other manner discriminate against 

or otherwise interfere with the exercise of the statutory rights of any 

miner ••• because such miner ••• has filed or made a complaint under or 

relating to this Act, including a complaint notifying the operator or the 

operator's agent, or the representative of the miners ••• of an alleged 

danger or safety or health violation ••• , or because such miner ••• is the 

subject of medical evaluations and potential transfer under a standard 

published pursuant to section 101 or because such miner ••• has instituted 

or caused to be instituted any proc~eding 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 ... on behalf of himself or others of any 

statutory right afforded by this Act." 
4. In the months preceding his discharge, concern was evidenced by 

individuals comprising Surrnnit management that Munoz was not filling ore car 

trains and transporting them to the surface at a fast enough rate. Both 

the foreman, Guillermo Orteg·a, and the mine owner, Douglas E. Hanson, 

repeatedly warned Munoz that he must produce more ore. A month or so prior 

to his discharge, Ortega and Hanson discussed firing Munoz, but because of 

the miner's advanced age, Hanson deferred taking such action. 

5. On J~nuary 15, 1980, at a safety meeting conducted by Alfredo D. 

Duran, an inspector employed by the New Mexico Bureau of Mine Inspection, 

Munoz registered a complaint about dust problems and poor ventilation in 

the main haulage tunnel, where he worked. Munoz told Duran that whenever 

the State came by to check on the amount of dust raised in attempts to 

blast free clogged ore chutes, Summit management would refrain from 

blasting because they felt that existing ventilation was inadequate and 

that the State would make them take corrective action. Munoz also ;.~ 

complained about the fatigue caused by his work. 0.rtega, the foreman, was 

present at the meeting and aware of Munoz' complaints. 

6. At some point following the meeting, Ortega told several employees 

that if Surrnnit had to install additional fans, the mine would close down 

and they would lose their jobs. Ortega renewed his efforts to get Hanson 

to fire Munoz, but Hanson declined. 

7. On or about January 28, 1980, Hanson gave a $10.00 a day raise to 

everybody at the mine. Although he had been told that Munoz was still not 

doing his job and, therefore, didn't deserve a raise, Hanson gave Munbz the 

raise to see if it would make him work a little harder. Additionally, 

Hanson did not want to show favoritism toward anybody. 

8. On February 1, 1980, with encouragement from Ortega, Hanson 

decided to terminate Munoz. Hanson determined that Summit had given Munoz 

every opportunity to increase his individual effort, but that results were 

not forthcoming. Ortega communicated Hanson's decision to Munoz. 

ISSUES 

By discharging him from his employment at the Surrnnit Mine, did Surrnnit 

unlawfully discriminate against Juan N. Munoz in violation of section 

105(c)(l) of the Federal Mine Safety and Health Act of 1977? 

DISCUSSION 

In its decision of Secretary of Labor on behalf of David Pasula v. 

Consolidated Coal Company, 2 FMSHRC 2786 (October 14, 1980), the Federal 

Mine Safety and Health Review Commission set forth the test to be used to 

determine whether or not the discharge of a miner who engages in both 

protected and unprotected activity was discriminatory. The Corrnnission 
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 <l:efend, 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." ~· at 2799-2800. (Emphasis in original). 

Section lOS(c)(l) of the Act sets forth certain enumerated types of 

employee activity which are protected by a prohibition against discrimination or interference, including: 

'' •.• a complaint notifying the operator or the operator's 

agent ••• of an alleged danger or safety or health violation 

in a coal or other mine, .•• or because of the exercise by 

such miner ••• on behalf of himself or others of any statutory 

right afforded by this Act." 

The evidence establishes that Munoz was engaged in protected activity 

when he made his safety complaints known at the January 15th meeting. 

Although that meeting was conducted by an inspector employed by the New 

Mexico Bureau of Mine Inspection, the meeting was held on mine property 

with the permission of the operator. Through this meeting, the State 

inspector served as the operator's agent with respect to Munoz' complaints. 

Further buttressing a finding of protected activity is the fact that 

Ortega, the foreman, was present at the meeting and aware of Munoz' 

complaints. 

However, I am unable to conclude that Complainant has proven, by a 

preponderance of the evidenceJ that the discharge was motivated in any part 

by the protected activity. The evidence establishes that at some point 

following the safety meeting, Ortega renewed his efforts to get Hanson to 

fire Munoz, but Hanson declined. Ortega testified that Munoz' remarks at 

the safety meeting .had nothing to do with his telling Hanson that he wanted 

2435 
Munoz fired. However, Munoz testified that he noticed a change in the way 

Ortega treated him after his complaints at the safety meeting. Munoz was 

aware of a seriousness in Ortega and of a lack of direct communication 

between the two of them regarding working orders. Though it may appear 

somewhat inconsistent, I find both witnesses' testimony to be credible. 

Hanson, however, held ultimate responsibility for the decision to dischage Munoz. According to his testimony, the sole reason for his decision 

to dismiss Munoz was based on lack of production. I find his testimony to 

be credible. 

Assuming, arguendo, that the discharge was motivated in any part by 

the protected activity, I must nevertheless conclude that Sunnnit has 

proven, by a preponderance of the evidence, an affirmative defense to 

Complainant's cause of action. The evidence clearly establishes that 

Surmnit management was sufficiently motivated to dismiss Munoz for hii·: 

inability to fill ore car trains at a fast enough rate. Also, the evidence 

shows that management would have dismissed him for this one reason alone. 

I conclude that Sununit ultimately did discharge Munoz for that reason. 

CONCLUSIONS OF LAW 

1. Respondent Summit Minerals is a mine subject to the provisions of 

the 1977 Act. 

2. At all times relevant to this Decision, Complainant Juan N. Munoz 

was a miner as defined in the Act and entitled to the protection afforded 

by the Act. 

3. The presiding Administrative Law Judge has jurisdiction over the 

parties and subject matter in these proceedings. 

4. On January 15, 1980, Complainant Munoz engaged in activities 

protected by section lOS(c)(l) of the Act, to wit, complaints to New Mexico 

State Mine Inspector Alfredo D. Duran, in the presence of Mine Foreman 

Guillermo Ortega, concerning dust problems and poor ventilation. 

5. On February 1, 1980, Respondent Summit Minerals discharged 

Complainant Munoz from his employment. That decision, however, was not 

motivated in any part by the protected activity described above. 

6. Respondent Summit Minerals established that it did in fact 

consider Complainant Munoz deserving of discipline for engaging in unprotected activity alone and that it would have disciplined him in any event. 

7. Respondent Sunnnit Minerals' discharge of Complainant Munoz on 

February 1, 1980, was not in violation of section lOS(c)(l) of the Federal 

Mine Safety and Health Act of 1977. 

243G 
ORDER 

Accordingly, it' is ORDERED that Complainant Juan N. Munoz' complaint 

of discrimination is DISMISSED and that the above-captioned proceeding is 

DISMISSED WITH PRE.JUDICE. 

Distribution: 

Frederick H. Sherman, Esq. 

Sherman & Sherman; P.C. 

210 South Silver Avenue 

Deming, New Mexico 88030 

John W. Reynolds, Esq. 

P.O. Box 349 

Silver City, New Mexico 88062 

Jqn n. Boltz · · {' f 

A.c;lfuinistrative Law Judge 

2437 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 

) 

OCT 2 3 1981 

JOSEPH A. CAMPBELL, ) COMPLAINT OF DISCHARGE, 

Complainant, ) DISCRIMINATION OR INTERFERENCE 

) 

v. ) DOCKET NO. 

) 

) MD 80-12 

THE ANACONDA COMPANY, ) 

Respondent. ) MINE: Carr 

) 

DECISION 

Appearances:. 

James E. Hawkes, Esq. 

Gump & Ayers Building 

2120 South 1300 East, 

Salt Lake City, Utah 

Room 301 

84106 

For the Complainant 

Karla M. Gray, Esq. 

Anaconda Copper Company, Legal Department 

P.O. Box 689 

Butte, Montana 59701 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

WEST 80-221-DM 

Fork 

On February 19~ 1980, Complainant filed a complaint alleging discriminatory acts based on section lOS(c) of the Federal Mine Safety and 

Health Act of 1977 (hereinafter "the Act"). 1 / The Complainant alleged 

that his employment with the Respondent had-been terminated on October 26, 

1979, because he had refused to drive Respondent's truck. He alleged that 

the air brakes on the truck had an air pressure leak and that a "retarder," 

built into the automatic transmission, did not work and that the truck was, 

therefore, unsafe to drive. The Respondent generally denied Complainant's allegations. 

1/ Section lOS(c)(l) reads in pertinent part as follows: "No person shall 

discharge •.• any miner .•. because such miner .•. has •.• made a complaint 

under or related to this Act, including a complaint notifying the operator 

••• of an alleged danger or safety or health violation in a ••• mine ..•• " 

2438 
FACTS STIPULATED TO BY THE PARTIES 

1. Respo.ndent [Anaconda] operates a copper mine, known as the Carr 

Fork Mine, in Tooele, Utah, which mine is under the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

2. On October 26, 1979, Joseph Campbell [Complainant] was employed as 

an equipment operator at Anaconda's Carr Fork Mine. 

3. Mr. Camp be 11 had been employed by Anaconda at that location for 

approximately three years. 

4. On October 26, 1979, Mr. Campbell was assigned to transport a 

standby generator, weighing approximately 23 tons, to the exhaust shaft 

using a Peterbilt tractor, serial number 78314P, conunonly referred to as 

Unit #36. Such assignment was within the usual course of Mr. Campbell's .. work duties. 

5. Mr. Campbell refused to perform the assignment and was sent home. 

6. Mr. Campbell was subsequently released from employment with 

Anaconda. 

7. At the time of his refusal to drive Unit #36, Complainant complained about the safety of the unit to John Bishop, his temporary 

supervisor. 

8. Several times prior to the incident which led to his termination, 

Complainant had made safety complaints concerning Unit #36 to his regular 

supervisor, Whitey Thomas. 

ISSUES 

The principles to be followed in deciding this case are those 

set forth in two leading cases: Secretary of Labor, on behalf of David 

Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980) and Secretary of 

Labor, Mine Safety and Health Administration (MSHA), ex rel. Thomas 

Robinette v. United Castle Coal Company, 3 FMSHRC 803 (1981). Thus, the 

following questions must be answered in order to determine whether or not 

the Respondent violated section 105(c) of the Act when :Lt fired the Complainant. 

1. Did Complainant engage in protected activity? 

2. If so, was the firing of the Complainant motivated in any part by 

the protected activity? 

3. If Complainant was engaged in protected activity and Respondent 

fired Complainant partially because of that protected activity, was 

Respondent also motivated to fire Complainant because of any unprotected 

activity of the Complainant? 

2439 
4. Would Respondent have fired Complainant in any event because of 

unprotected activity? 

5. In refusing to drive Unit #36, did Complainant have a good faith 

reasonable belief in a hazardous condition and, if so, was Complainant's 

honest perception a reasonable one under the circumstances of this case? 

These questions shall be discussed in the above order. 

DISCUSSION 

1. The Complainant did engage in protected activity when he 

complained to his temporary supervisor about the condition of Unit #36. 

The Complainant made· a complaint to his supervisor of an alleged 

danger or unsafe condition in regard to the operation of Unit #36. The 

assignment given to Complainant was to drive Unit #36, attached to a~3-

ton generator-trailer, from the shop area at the Carr Fork Mine, in Tooele, 

Utah, to the exhaust shaft at Bingham, some distance away. In order to get 

to Bingham, it would have been necessary for Unit #36 to drive up or down 

grades estimated at 9% to 13% on the road down through Tooele and Bingham 

Canyon. The reason given hy the Complainant for refusing to drive Unlt #36 

was that there were air pressure leaks in the air brake system and there 

was no retarder working in connection with the transmission. The 

Complainant offered to transport the equipment using his regular truck, 

Unit #35, but he was told by his supervisor that he would have to drive 

Unit #36. Thus, the Complainant complained to his supervisor, on October 

26, 1979, of an alleged danger and this conduct constituted protected 

activity. 

2. The firing of the Complainant was motivated 1n some part by the 

protected activity. 

It is undisputed that after Complainant refused to drive Unit #36 on 

October 26, 1979, he was fired. After the plant general foreman had been 

informed of that refusal, the foreman instructed Complainant's supervisor 

to notify the Complainant that his employment with Anaconda was terminated. 

The reason given was "inability to perform duties assigned." 

Thus, I conclude that Respondent was motivated, in some part, to fire 

the Complainant for his having engaged in protected activity. 

3. The Respondent was also motivated, in part, to fire the Complainant because of unprotected activity. 

Respondent stated in its opening statement that Complainant was fired 

for refusing without reasonable grounds to perform his job and for past 

problems with accepting other assignments. In support of this contention, 

Respondent introduced evidence to show that Complainant on one occasion, 1n 

January 1978, had refused to work with a "Mexican" fe I low employee and 

walked off the ]ob. For this incident, Complainant was reprimanded and 

received a one- day suspension imposed by the Respondent. 

2440 
Respondent also introduced evidence that in April 1977, Complainant 

had refused ·to work with a woman. In the course of assigning laborers or 

utility people on a regular rotation basis to truck drivers, a woman was 

assigned to Complainant's truck to work with him. Complainant refused to 

have the woman work with him because he did not believe a woman should be 

working on the particular job assigned at that time. Taking this evidence 

in a light most favorable to the Respondent, I find that Respondent was 

motivated, in part, to fire Complainant because of this past unprotected 

activity. 

4. Respondent would not have fired Complainant in any event because 

of unprotected activity. 

Respondent's evidence on this point falls far short of showing that 

Respondent would have fired Complainant because of unprotected activ~y 

alone. The activity previously described, involving Complainant's refusal 

to work with a "Mexican" and with a woman, took place one year and ten 

months and two years and six months, respectively, before Complainant was 

fired. If these incidents of unprotected activity did not concern 

Respondent sufficiently enough to have resulted in further adverse act ion 

against the Complainant at those times, they are not persuasive now. 

There is no substantial evidence on which to base a conclusion that 

Complainant would have been fired in any event because of unprotected 

activity. 

5. In refusing to drive Unit #36, the Complainant did have a good 

faith reasonable belief that there was a hazardous condition and Complainant's honest perception was a reasonable one under the circumstances 

of this case. 

Although Complainant had worked for Respondent only a little over 

three years as a truck driver before he was fired, he had considerable 

experience in that occupation. He had a total of 32 years experience as a 

driver of diesel trucks, including semi-trailer trucks, gasoline trucks, as 

well as smaller trucks. 

Prior to October 26, 1979, Complainant had made several complaints 

about the mechanical condition of Unit #36. Complainant testified that he 

had complained to his supervisor several times about an air pressure loss 

in the air braking system and that the "retarder" did not work in 

conjunction with the transmission to slow the movement of the truck when 

necessary. 

Complainant defined a retarder as a braking device built into the 

transmission. Oil under pressure is forced through the device. This 

process slows down the transmission and, as a result, the vehicle is slow~d 

2441 
down. If there is no retarder on the transmission, then only the brakes 

are used to slow the vehicle, according to t.his testimony. There had never 

been a retarder device on the transmission of Unit #36, but Complainant was 

never informed of this fact. Complainant reasonably believed that there 

was one on the transmission and that it just did not work properly. 

However, there were other trucks with automatic transmissions belonging to 

the Respondent which did have retarders. 

The last complaint made by the Complainant before the one made on 

October 26, 1979, when he was fired, was made in July or August of that 

year. Complainant also testified that he made several written complaints 

on driver's reports about these problems .• Two other truck drivers 

testified as to the unusual loss of air presure in the braking system of 

Unit #36. One of these drivers stated that he had made complaints to the 

Respondent's mechanics about the problem. Complainant testified that:Clhe 

could visually observe the air pressure loss as recorded on the air 

pressure gauge in the truck while the brakes were in use. He stated that 

the pressure would drop from 120 pounds to approximately 60 pounds of 

pressure. If the pressure does drop below 60 pounds, the emergency "maxy" 

brakes lock up. The maxy brakes are ordinarily used as a parking brake. 

Another truck driver testified that the pressure had dropped to 90 pounds 

when going down a hill and it was a "a little scary." 

There is a direct conflict in the testimony as to whether or not the 

Complainant was told on October 26, 1979, that the brakes had been safety 

checked by the mechanics. Complainant denied that he was told this by his 

temporary supervisor. In any event, if a statement was made to the Complainant about the safe conditions of the brakes, it was not sufficient to 

convince Complainant that Unit #36 was a safe vehicle to operate with the 

load of equipment it was to haul. Complainant's conclusions were reasonable under the circumstances since he had made several complaints before, 

as had other drivers, and there was no evidence that Respondent had ever 

acknowledged that there was any performance problem in regard to air 

pressure in the braking system. Respondent's heavy equipment maintenance 

worker, who testified for the Respondent, stated that he had heard about a 

complaint in July or August of 1979 regarding an air leak in Unit #36. 

There was a minor leak, but after recycling the "treadle valve" there were 

no further leaks. Respondent's garage foreman testified that he test-drove 

Unit #36, stopping it repeatedly on a hill in July 1979, but experienced 

no air pressure loss. Significally, two truck drivers other than 

Complainant, whose job it was to drive these trucks, testified as to the 

air loss, but the mechanics, whose job it was to fix them, testified that 

there was none. In deciding this case, I am not making a determination as 

to whether or not the braking system was, in fact, defective. Whether it 

was defective or not, Complainant's perception that the system was defective and that it presented a hazardous condition was a reasonable one 

under the circumstances. 

One driver testified that he began driving Unit #36 a month or two 

after Complainant was fired and that there was still an air pressure leak 

in the braking system at that time. While driving and applying the brakes, 

he observed a loss of air pressure on the gauge in the vehicle and could 

hear the air leaking when the motor was stopped. 

2442 
I find it significant that Complainant would not have refused to 

transport the generator-trailer to Bingham if he had been permitted to do 

so driving Unit #35, which he had been driving without problems. It is 

understandable and reasonable that Complainant would not want to drive Unit 

#36 pulling a 23-ton load up and down grades of 9 to 13 per~ent considering 

the continuing problems complained of by Complainant and other drivers. 

The fact that he would have driven Unit 1t35 in order to carry out the 

assignment fortifies the conclusion that Complainant did have a good faith 

reasonable belief that there was a hazardous condition in connection with 

the operation of Unit #36. This perception was reasonable under the 

circumstances. 

I find that in discharging the Complainant, the Respondent did violate 

section lOS(c) of the Act. I will retain jurisdiction of the case until 

the relief to be awarded is determined. 

CONCLUSION OF LAW 

1. The Act gives me jurisdiction over the parties and the subject 

matter of these proceedings. 

2. Respondent violated section lOS(c) of the Act when it discharged 

Complainant on October 26, 1979. 

ORDER 

1. Respondent, the Anaconda Company, shall offer reinstatement to 

Complainant, Joseph A. Campbell, in the position from which he was 

terminated, at the rate of pay fixed for that position on the date of 

reinstatement. 

2. Respondent shall pay to Complainant back pay covering the period 

from October 26, 1979 until the day he is offered reinstatement. Back pay 

shall equal the gross pay that Complainant would have received minus any 

interim earnings. Respondent shall be responsible for withholding from the 

award the amounts required by State or Federal law and for making any 

additional contributions which those laws require. Eight percent interest 

on the net back pay award shall be paid to Complainant. 

3. Respondent shall pay a reasonable attorney fee for the services 

rendered by counsel for Complainant. 

4. Respondent shall pay a civil penalty in the amount of $1,000.00 

for its violation of the Act, and this amount shall be paid within 30 days 

of the issuance of my order finally disposing of the present proceedings. 

5. Respondent shall expunge from Complainant's employment record any 

adverse references relating to his discharge and transmit to him a copy of 

his employment record reflecting the deletion of any adverse references 

relating to his discharge. 

6. Counsel for both parties shall advise me in writing by November 

16, 1981, whether they have agreed on the amounts due under para.graphs 2 '-

and 3 of this Order. If so, they shal 1 submit those amounts to me for 
. approval. If approved, I will issue a~ order which finally disposes of 

these proceedings. If counsel are unable to agree, further post hearing 

orders will be issued. 

Distribution: 

James E. Hawkes, Esq. 

Gump & Ayers Building 

2120 South 1300 East, 

Salt Lake City, Utah 

Karla M. Gray, Esq. 

/) 

(~>i~ l ,£.1-i !/ .. Jon· D. Boltz · ) 

Ad6inistrative Law 1Judge 

Room 301 

84106 

Anaconda Copper Company, Legal Department 

P.O. Box 689 

Butte, Montana 59701 

2444 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT27 II 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COOK & WORKMAN MINING CO. , INC. , 

Respondent 

DECISION 

Docket Nos. 

WEVA 81-201 

WEVA 81-348 

WEVA 81-349 

No. 1 Mine 

Assessment Control Nos. 

46-05712-03016 v 

46-05712-03002 v 

46-05712-03023 

Appearances: James P. Kilcoyne, Esq., Office of the Solicitor, U.S. Depart~ent 

of Labor, for Petitioner; 

D. Grove Moler, Esq., Mullens, West Virginia, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued August 10, 1981, a hearing in the 

above-entitled proceeding was held on September 22, 1981, in Madison, West 

Virginia, under section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 815(d). 

After the parties had completed their presentations of evidence with 

respect to the only contested issue in the proceeding, I rendered the bench 

decision which is reproduced below (Tr. 98-104): 

This proceeding involves three Petitions for Assessment of Civil 

Penalty filed by the Secretary of Labor in Docket Nos. WEVA 81-201, 

WEVA 81-348, and WEVA 81-349 seeking assessment of civil penalties 

for a total of five alleged violations of the mandatory health and 

safety standards by Cook and Workman Mining Company, Inc. The 

petition in Docket No. WEVA 8i-201 was filed on January 21, 1981, 

and the petitions in Docket Nos. WEVA 81-348 and WEVA 81-349 were 

both filed on May 12, 1981. The petition in Docket No. WEVA 81-348 

involves three alleged violations and each of the petitions in the 

remaining two dockets alleges one violation. 

When the proceeding was convened on September 22, 1981, counsel 

for respondent indicated that he had a factual issue that he wanted 

to be considered in this proceeding, and that factual issue pertains 

to Citation No. 668163, which has been introduced as Exhibit 1 in 

this proceeding. The only violation, as I have indicated above, 

which is at issue in Docket No. WEVA 81-201 is. the allegation in 

Citation No. 668163 to the effect that a violation of section 75.1103-

4(3) had occurred. I shall make some findings of fact on which my 

decision will be based, and they will be set forth in enumerated 

paragraphs. 

2445 
1. Inspector Harold Baisden made an examination of respondent's 

No. 1 Mine on May 5, 1980. He observed that the automatic fire sensor 

for the No. 1 belt conveyor terminated 500 feet outby the tailpiece. 

He thereafter issued Citation No. 668163 dated May 5, 1980, at 8:15 a.m., 

alleging a violation of section 75.1103-4(3) which provides in pertinent 

part, "When the distance from the tailpiece at loading points to the 

first outby sensor reaches 125 feet when point-type sensors are used, 

such sensors shall be installed and put in operation within 24 pro...l 

duction shift hours after the distance of 125 feet is reached." 

2. The inspector decided that the violation should be cited as an 

unwarrantable failure violation because the mine foreman, Edward 

Robertson, had told the inspector that one of respondent's owners had 

ordered Robertson to run coal without installing the belt sensor, and 

Robertson stated that they had been working four shifts without having 

installed the sensor. Also', the inspector checked the belt examiner's 

book and saw an entry made for the date of April 30, 1980, to the effect 

that the belt sensor had not been installed. The entry about the failure to install the sensor had been countersigned by Robertson. 

3. Herbert Cook, respondent's President, testified that the No. 1 

belt conveyor had been advanced through some old workings of Island 

Creek Coal Company directly to the working face (Exh. C). In order to 

advance directly to the working face, about 20 stoppings had to be 

erected, additional roof bolts had to be installed, and rock falls had 

to be cleaned up. Cook testified that the No. 1 belt had been advanced 

about 800 feet and that three other belt flights known as Nos. 2, 3 and 4 

had to be removed and reinstalled for the purpose of extending the No. 1 

belt conveyor. Cook testified that the extension of the belt had not 

been completed until Friday, May 2, 198D, and that coal was run only on 

the evening shift -- that is, 3 to 11 p.m. -- on May 2, 1980. 

4. Johnny Maynard, an employee of respondent who ran the coal drill, 

stated that the extension of the No. 1 belt was completed on May 2, 1980, 

about 1 p.m. and that the belt was started and coal was run for about 

1-3/4 hours on the day shift and a full 8-hour shift on the evening 

shift on Friday, May 2, 1980. 

5. Lonnie McKinney, a section mechanic employed by respondent, testified that he had participated in the work of taking out the Nos. 2, 3 

and 4 belts and reinstalling them through old workings, that the work 

had taken an entire week to complete, that the belt had been extended 

by Friday, May 2, 1980, and that production on Friday had taken place. 

But he stated that no production had occurred when he worked on Saturday 

and that when he came back to work on Monday, May 5, so little production 

had been done between his working on equipment on Saturday and Monday, 

when he came back to work, that he could say that no production had been 

done on Sunday. 

I think those findings of fact are sufficient for considering the 

arguments made in this proceeding. Counsel for the Secretary, 

Mr. Kilcoyne, has stressed in his argument that the belt examiner's 

books, which are Exhibits A and B in this proceeding, contain rather 

2446 
convincing evidence to the effect that production had taken place for 

at least 24 hours before the inspector wrote his citation. Mr. Kilcoyne 

points out, based on Exhibit A, that the entries for April 30, 1980, 

indicate that work was still being done on removal of the other belts 

and also, for that same day, there is an entry that the fire sensor 

line needs to be installed; and he goes on to point out that the entries 

for May 1 show that the fire sensor line needs to be installed and the 

entry for May 2 repeats that notation and the entry for May 5, of 

course, shows that the sensor had been installed, because by that time 

the inspector had written his citation and had terminated it after the 

sensor had been installed. 

The entries in this belt examiner's book, or Exhibit A, are rather 

convincing to me in that they show that the sensor needed to be installed and they keep saying that from April 30, 1980, through May 2, 

1980; and it's true that that period of time would be more than 24 hours 

and would be sufficient for 24 production hours to have taken place. 

The difficulty with jumping from the fact that those entries were made 

in the book and finding that a violation of section 75 .1103-4 (3) occurred, 

is that there is no proof in this belt examiner's book that production 

occurred at any time on any of those days; and of course, the section 

of the regulations that is involved, as to which the inspector had the 

burden of proving a violation, requires that the sensor be extended and 

put in operation within a period of 24 production shift hours. 

We have testimony from three witnesses who were there and whose 

demeanor impressed me as people who could be considered as telling the 

truth. Each of them testified that production occurred only on one 

shift with the exception of Johnny Maynard, who said production occurred 

on the day shift on Friday from about 1 p.m. to 2:45 p.m. when they 

stopped working. So, if we were to add up the production that actually 

occurred, based on the preponderance of the evidence in this proceeding, 

we would have use of the belt line for 1-3/4 hours on Friday, May 2nd, 

on the day shift, and for 8 hours on the second shift on Friday, May 2nd. 

That would be total production for 9-3/4 hours. Then, assuming the mine 

operated for 1/2 hour or an hour on May 5th before the inspector cited 

the violation, a total of perhaps 10 or_l0-1/2 hours of production occurred 

before the citation was written. 

I don't think that I can make a finding based on the belt examiner's 

book and the statements made by Robertson to the inspector as being 

more convincing and more credible than the testimony of three witnesses, 

all of whom were working in the mine on April 30, 1980, to the time the 

citation was written on May 5, 1980; and since their testimony has a 

greater amount of weight -- or I think should be given a greater amount 

of weight than the entries in the examiner's book and the uncorroborated 

statements of Robertson, I think the preponderance of the evidence shows 

that a violation of section 75.1103-4(3) has not been proven. 

244'7 
Settlement Agreements 

After I had rendered the bench decision set forth above, the parties 

entered into a settlement conference. The Assessment Office had proposed 

a relatively small penalty of $160 for the violation alleged in the Petition 

for Assessment of Civil Penalty filed in Docket No. WEVA 81-349, but the 

Assessment Office had proposed penalties totaling $2,500 for the three violations alleged by the Petition for Assessment of Civil Penalty filed in 

Docket No. WEVA 81-348. As a result of the settlement conference, respondent 

agreed to pay the full penalty of $160 proposed by the Assessment Office for 

the single violation alleged in Docket No. WEVA 81-349 and to pay reduced 

penalties totaling $700 for the three violations alleged in Docket No. 

WEVA 81-348. 

Section llO(i) of the Act requires that six criteria be considered in 

determining civil penalties. As to the criterion of the size of respondent's 

business, the testimony shows that respondent's mine produces about 16,000 

tons of raw coal on a monthly basis, but Island Creek Coal Company's preparation plant rejects 60 percent of the coal as waste, so that respondent gets 

paid by Island Creek for only 6,400 tons of clean coal per month (Tr. 118-

119). Respondent employs 22 persons on two production shifts per day (Tr. 106). 

Those figures support a finding that respondent operates a small coal business 

and that penalties should be in a low range of magnitude insofar as they are 

determined under the criterion of the size of respondent's business. 

Respondent presented a considerable amount of evidence with respect to 

the criterion of whether the payment of penalties would cause respondent to 

discontinue in business. Respondent is a corporation owned by four individuals. 

Two of the individuals own an interest of 30 percent each and the other two 

each own a 20-percent interest in the corporation. One of the individuals who 

owned a 30-percent interest acted as superintendent when the company first 

began to produce coal. He was discharged on April 1, 1980, by the other three 

owners of the corporation (Tr. 108; 120). He has brought an action in the 

Circuit Court in Wyoming County, West Virginia, for dissolution of the corporation and for payment of wages from the date of his discharge. That lawsuit 

has not even reached the pretrial stage and is a cloud h~nging over the corporation 1 s present owners and operations. The company has had to retain an 

attorney to represent it in the dissolution case and the company has expenses 

in connection with that legal proceeding (Tr. 109; 115). 

Respondent leases the coal reserves it is mining from Island Creek and 

sells its coal to Island Creek for $21.50 per ton of clean coal. Respondent 

has to pay Island Creek 65 cents per ton for equipment rental, 40 cents per 

ton for electricity, 15 cents per ton for road maintenance, and an unstated 

amount for providing the courses for training and retraining of miners. Respondent has to pay 85 cents per ton, plus the cost of fuel, to have its coal 

transported from the mine to Island Creek's preparation plant (Tr. 119). 

According to a financial statement prepared by a certified public accountant, respondent's net loss for the 10-month period ending December 31, 1980, 

was $145,348 and for the year ending February 28, 1981, was $166,091 (Exhibits 

D and E). Even if one deducts an amount for depreciation of $36,145, which 

does not represent an actual cash loss, respondent suffered a cash loss of 

2443 
$109,203 (Tr. 107). Respondent's evidence shows that it also owes the Federal 

Government $14,000 in back taxe_s which it is trying to pay at a rate of $2,000 

per month (Tr. 111). Respondent also owes $90,000 in workmen's compensation 

payments and it is trying to work out a plan for installment payments on that 

obligation (Tr. 110). Respondent's largest supplier of mine supplies is the 

Central Supply Company which respondent owes $14,000. Respondent is trying 

to pay off that debt at the rate of $2,000 per month. Until respondent discharges that debt, it is having to pay cash for all mines supplies which it 

currently buys (Tr. 113~114). Respondent owes about $42,000 on a long-term 

note for money borrowed to purchase three pieces of mining equipment, namely, 

an S & S scoop, an S & S feeder, and a Ford end-loader. Payments on those 

three pieces of equipment amount to approximately $5,250 per month (Tr. 111; 

122). 

Respondent has no profits at the end of the month after it has paid all 

expenses for operating the mine and making the payments discussed above. One 

of the owners manages the business affairs of the company and acts as superintendent of the mine. He gets paid a salary for his managerial functions. 

Another of respondent's owners operates the scoop in the production of coal and 

gets paid union wages for performing that work. The third owner does not work 

in the mine and receives no dividends for his interest in the mine, nor do the 

other two owners get anything in return for their ownership other than their 

salary or wages for work actually done (Tr. 122-123). 

Respondent is just now beginning to achieve a moderate amount of financial 

stability. Respondent places much of the blame for its dire financial condition on the fact that its contract with Island Creek required it to produce 

coal in its mine in an area where sandstone rolls severely impaired its ability 

to find and produce coal. It was not until it had mined eight breaks on 80-foot 

centers without passing beyond the sandstone rolls, that Island Creek permitted 

it to develop coal reserves in an area which permits it to produce enough coal 

to see signs of being able to meet its financial obligations (Tr. 107; 112). 

The evidence of record summarized above shows that respondent's obligations 

are greater than the revenues it has been receiving from the sale of its coal. 

The evidence, therefore, supports a finding that payment of penalties will 

have an adverse effect on respondent's ability to continue in business. 

The Secretary's counsel introduced as Exhibit 14 a computer printout 

listing all of the alleged violations at respondent's mine for which penalties 

have been paid for the 24-month period preceding the occurrence of the violations alleged in this proceeding. That exhibit shows that one prior violation 

of each of the five violations cited in this proceeding has occurred with exception of the violations of section 75.514 alleged in Order Nos. 669923 and 

669925. Neither the official file nor any of the exhibits submitted by the 

Secretary's counsel contain a calculation of penalty points under the formula 

set forth in 30 C.F.R. § 100.3 On the basis of Exhibit 14, I find that respondent's history of previous violations is not excessive and that the settlement 

penalties hereinafter agreed upon are high enough to provide for the assessment 

of a small amount under the criterion of history of previous violations. The 

settlement penalties have, of course, been reduced to give a maximum amount of 

weight to the criterion that payment of penalties would have an adverse effect 

on respondent's ability to continue in business. 

2449 
It is somewhat difficult in this proceeding to make a judgment as to the 

criterion of whether respondent demonstrated a good faith effort to achieve 

rapid compliance because that criterion normally involves a consideration of 

whether respondent abated the violation within the time period provided for 

in the inspector's citation. In this proceeding, all of the violations which 

were the subject of the settlement conference were orders of withdrawal which, 

of course, do not contain a time fixed by the inspector for abatement. The 

inspector's terminations of the orders show, however, that all of the violations were abated within a very short period of time on the same day the orders 

were written, with the exception of Order No. 668331 which was written on a 

Friday and abated on the following Monday. Abatement of Order No. 668331 required some roof bolting to be done at a location a considerable distance from 

the working face and therefore was not easily achieved. Consequently, the 

evidence supports a finding that respondent demonstrated a rapid good faith 

effort to achieve compliance and that mitigating factor has been taken into 

consideration in arriving at the settlement penalties agreed upon by the parties. 

The foregoing discussions of four of the six criteria apply equally to all 

of the settlement penalties agreed upon by the parties. The remaining two criteria of negligence and gravity will be specifically considered in discussing 

the specific violations which were alleged in each docket. 

Docket No. WEVA 81-348 

Order No. 669675 alleges a violation of 30 C.F.R. § 75.200 because respondent had violated Safety Precaution No. 12(d) of its roof-control plan by hanging 

the trailing cables to the shuttle cars on roof bolts which had been installed 

as an integral part of respondent's roof-control plan, whereas the safety precaution requires that a special roof bolt be installed for the purpo.se of 

suspending trailing cables to prevent them from being run over by mining equipment. Since the violation was cited in an order issued under section 104(d) 

of the Act, or the unwarrantable failure portion of the Act, the Assessment 

Office waived the formula in 30 C.F.R. § 100.3 normally used for assessing 

proposed penalties and proposed a penalty of $750 based on special narrative 

findings of fact. 

There is no evidence in the record to show that the torque of any roof 

bolts had actually been reduced by the hanging of trailing cables on them, 

so there is no way to determine whether the roof was made hazardous because 

of the practice of hanging trailing cables on the roof bolts. Nevertheless, 

respondent is required to know and follow the provisions of its roof-control 

plan. Therefore, the violation was the result of a high degree of negligence 

and the practice of hanging trailing cables on roof bolts had a potential for 

adversely affecting the torques of the roof bolts. Therefore, the Assessment 

Office may have proposed a reasonable penalty of $750 for a small mine, but 

the parties agreed to reduce the penalty to $200 in light of respondent's 

evidence showing that payment of large penalties will have an adverse effect 

on its ability to continue in bu.siness. 

Order No. 669923 was also issued under the unwarrantable failure provisions of the Act and alleges a violation of section 75.514 because no electrical connectors were used in the making of a temporary splice in the trailing 

cable for the roof-bolting machine. 'A 4-inch piece of stranded wire had been 

2450 
twisted into the splice instead of the strong connector which is required 

to be used. Failure to make the splice correctly resulted in a weak splice 

which might have caused a spark or short with a resultant electrical shock 

or fire. The Assessment Office made special narrative findings as to this 

alleged violation and proposed a penalty of $750. Here again, the Assessment 

Office may have proposed a reasonable penalty if the record did not contain 

evidence showing that payment of penalties will have an adverse effect on 

respondent's ability to continue in business. The parties gave considerable 

weight to respondent's financial condition and agreed to reduce the penalty 

to $200. 

Order No. 668331 was also issued under the unwarrantable failure provisions of the Act and alleges a violation of section 75.200 because the roof 

had not been supported in a 15-foot area at a place where the mantrip traveled 

each day in taking miners in and o~t of the mine. The violation was obviously 

serious and the violation was accompanied by a high degree of negligence. The 

Assessment Office made narrative findings of fact and proposed a penalty of 

$1,000. Respondent agreed that its personnel should have observed the lack 

of roof support and should have installed additional roof bolts, but respondent's witness explained that the unsupported roof appeared in a curve where 

they had gone into old workings for the purpose of reducing the overall length 

of the belt conveyor and he said that the unsupported roof was on one side of 

the entry in a place where the lack of roof bolts was not easily discernible 

(Tr. 132-134). Since roof falls are still the primary cause of serious accidents in underground coal mines, the Assessment Office may have proposed a 

reasonable penalty of $1,000, but the parties agreed to reduce the penalty to 

$300 in view of the fact that respondent's evidence showed it to be in serious 

financial condition. 

Docket No. WEVA 81-349. 

The Petition for Assessment of Civil Penalty filed in Docket No. WEVA 81-

349 seeks assessment of a civil penalty for a single violation, namely, a 

violation of section 75.514 alleged in Order No. 669925 which states that 

respondent had twisted conductors together in making a splice instead of using 

proper electrical connectors. The only difference between the instant alleged 

violation of section 75.514 and the violation of section 75.514 alleged in 

Docket No. WEVA 81-348, supra, is that the improperly made splice was found 

in the trailing cable to a shuttle car instead of in the trailing cable to a 

roof-bolting machine. Despite the fact that both alleged violations were cited 

in orders issued the same day under the unwarrantable failure provisions of the 

Act, the Assessment Office proposed a penalty of $750 for the violation of 

section 75.514 alleged in Docket No. WEVA 81-348 and $160 for the violation of 

section 75.514 alleged in Docket No. WEVA 81-349. There is not in the official 

file, nor was there introduced at the hearing any exhibits which show how the 

Assessment Off ice arrived at a proposed penalty of $160 for the violation involved in Docket No. WEVA 81-349 as compared with the proposed penalty of $750 

for the identical violation involved in Docket No. WEVA 81-348, supra. 

In considering the previous violation, the parties agreed to a settlement 

penalty of $200, instead of the penalty of $750 proposed by the Assessment 

Office. In the instant case, respondent agreed to pay the full penalty of 

$160 proposed by the Assessment Office. The settlement penalty of $200 for the 

violation of section 75.514 alleged in Docket No. WEVA 81-348 was agreed upon 

• 

2451 
by the parties primarily because of respondent's showing that it is in dire 

financial condition. If I had been determining a settlement penalty for the 

violation of section 75.514 on the basis of evidence in the record, I would 

probably have assessed a penalty of $200 for each of the violations of section 

75.514 in order to be consistent with the facts alleged in each order which 

show that each violation involved an equal degree of negligence and was equally 

serious. Inasmuch as all violations alleged in both Docket Nos. WEVA 81-348 

and WEVA 81-349 were disposed of in settlement agreements, it is permissible 

to approve a different penalty for two similar violations because respondents 

in settlement proceedings rarely agree to pay penalties larger than those 

proposed by the Assessment Office. Inasmuch as no testimony was introduced 

by either party with respect to the violations of section 75.514 alleged in 

Docket Nos. WEVA 81-348 and WEVA 81-349, there is no evidence in the record 

which would support findings by me that respondent should be required to pay 

a larger penalty than the one proposed by the Assessment Office. 

There is, of course, a great deal of evidence in this proceeding showing 

that respondent has demonstrated that payment of large penalties would have 

a very adverse effect on respondent's ability to continue in business. Consideration of that evidence supports a finding that the parties' settlement 

agreement in Docket No. WEVA 81-349, under which respondent would pay the full 

penalty of $160 proposed by the Assessment Office, should be approved. 

WHEREFORE, it is ordered: 

(A) Pursuant to the parties' settlement agreements, respondent, within 

30 days from. the date of this decision, shall pay civil penalties totaling 

$860.00 which are allocated to the respective alleged violations as follows: 

Docket No. WEVA 81-348 

Order No. 669675 8/19/80 § 75.200 . ....................... $ 200.00 

Order No. 669923 8/19/80 § 75.514 . ....................... 200.00 

Order No. 668331 8/22/80 § 75.200 . ....................... 300.00 

Total Settlement Penalties in Docket No. WEVA 81-348 $ 700.00 

Docket No. WEVA 81-349 

Order No. 669925 8/19/80 § 75.514 . ....................... $ 160.00 

Total Settlement Penalties in Docket No. WEVA 81-349 ..... $ 160.00 

Total Settlement Penalties in This Proceeding ............ $ 860.00 

(B) The Petition for Assessment of Civil Penalty filed in Docket No. 

WEVA 81-201 is dismissed for failure to prove that the violation of 30 C.F.R. 

§ 75.1103-4(3) alleged in Citation No. 668163 dated May 5, 1980, occurred. 

~ c >:Staj:j. Richard C. Steff:y ~q;r- Administrative Law Judge 

(Phone: 703-756-6225) 

2452 
Distribution: 

James P. Kilcoyne, Jr., Attorney, Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

D. Grove Moler, Esq., Attorney for Cook & Workman Mining Co., Inc., 

P.O. Box 357, Mullens, WV 25382 (Certified Mail) 

2453 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

FMC CORPORATION, < 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

FMC CORPORATION, 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OC1 30 ,qm 

Contestant 

Respondent 

Petitioner 

.... Respondent 

2454 

Notices of Contest 

Docket No. WEST 80-497-RM 

Citation No. 576913, 8/20/80 

Docket No. WEST 80-498-RM 

Citation No. 576914; 8/20/80 

Docket No. WEST 80-499-RM 

Citation No. 576915; 8/20/80 

Docket No. WEST 80-500-RM 

Citation No. 576916; 8/20/80 

Docket No. WEST 80-501-RM 

Citation No. 576917; 8/20/80 

Docket No. WEST 80-502-RM 

Citation No. 576973; 8/20/80 

Docket No. WEST 80-503-RM 

Order No. 576974; 8/20/80 

Docket No. WEST 80-504-RM 

Citation No. 576975; 8/20/80 

Docket No. WEST 80-505-RM 

Citation No. 576976; 8/20/80 

FMC Mine 

Civil Penalty Proceeding 

Docket No. WEST 81-355-M 

A/O No. 48-00152-05048 

FMC Mine 
Appearances: 

Before: 

DECISION 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

Salt Lake City, Utah, for FMC Corporation; 

James R. Cato, Esq., Office of the Solicitor, U.S. Department 

of Labor, Kansas City, Missouri, for the Secretary of Labor. 

Judge Cook 

I. Procedural Background 

The FMC Corporation commenced the above-captioned "Notice of Contest" 

proceedings pursuant to section 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq. (Supp. III 1979) (1977 Mine Act). The 

Secretary of Labor also filed-a proposal for a penalty in the above-captioned 

"Civil Penalty Proceeding" pursuant to section llO(a) of the 1977 Mine Act. 

On August 11, 1981, a hearing was conducted in the above-captioned 

proceedings at which time both parties were represented by counsel. During 

that hearing, certain settlement negotiations were carried out which were 

later embodied in a joint motion to approve stipulation and settlement 

agreement which was filed on October 13, 1981. At that same time, a motion 

was filed to consolidate the above-captioned civil penalty proceeding with 

the notices of contests in Docket Nos. WEST 80-497-RM, WEST 80-498-RM, WEST 

80-499-RM, and WEST 80-500-RM. 

II. Stipulation and Settlement Agreement 

The joint motion filed by the parties provides as follows: 

Come now the parties and move the Federal Mine Safety 

and Health Review Commission to approve the settlement of 

the above-captioned matters pursuant to section llO(k) of 

the Act. The terms of the settlement are as follows: 

A. 

1. Citations numbered 576913, 576914, 576915 and 

576916 were all issued for the failure of FMC to comply 

with the mandatory standard found at 57.20-8(a) in that 

FMC did not provide readily accessible adequate toilet 

facilities in and about the No. 7 shaft underground area 

of the FMC Mine. Though there did in fact exist adequate 

toilet facilities in the No. 7 shaft underground area of 

the mine, these facilities were not readily accessible to 

the miners by virtue of the distance of the toilet facilities from the various workplaces in the area. Citation 

number 576913 was written by the inspector at the location 

nearest the toilet facilities where the inspector initially 

2455 
determined that the distance of the workplace from the 

toilet facilities made such facilities no longer readily 

accessible to the miners in that particular workplace. 

Citations numbered 576914, 576915, and 576916 each were 

written to reflect workplaces that.were farther from the 

same toilet facilities. 

2. Citations numbered 576974, 576975 and 576976 were 

all also issued for the failure of FMC to comply with the 

mandatory standard 57.20-S(a) in that FMC did not provide 

readily accessible adequate toilet facilities in and about 

the No. 3 shaft underground area of the FMC Mine. Citation 

576974 was written as a.104(d)(l) order of withdrawal because 

FMC had provided a toilet, but kept it locked and the miners 

in the area did not have ready access at all times to the 

key. Further, an inspection of the toilet discovered that 

the toilet in fact had never been made operational. Citations numbered 576975 and 576976 were each written to 

reflect different workplaces in the No. 3 shaft underground 

area that were of such distance from toilet facilities that 

the facilities were not readily accessible to miners in these 

workplaces. 

3. Mandatory standard 30 CFR 57.20-S(a) requires 

"Toilet facilities shall be provided at locations that are 

compatible with the mine operations and that are readily 

accessible to the mine personnel." However, this standard 

gives no guidance as to what shall oe considered a maximum 

distance that a toilet facility may be from a workplace and 

still be considered readily accessible. After a thorough 

research of the available case law, the parties have determined that this issue has not been heard by the Commission. 

4. Therefore, the parties, after a thorough review of 

all the available evidence regarding the aforementioned 

citations, do agree to the following terms for settlement 

and abatement of said citations: 

a. Docket No. WEST 80-497-RM (Citation 576913) 

1. The Secretary modifies citation No. 576913 to remove 

the determination that the violation alleged on the face of the 

citation constitutes a "significant and substantial" safety or 

health hazard within the meaning of the Act. However, this 

modification does not prohibit the Secretary or MSHA from 

making such a determination should the same or a similar 

violation of the standard set forth at 30 CFR 57.20-S(a) be 

discovered at the FMC Mine in the future. 
2. FMC does withdraw its .. notice of contest to citation 

No. 576913 and accepts the citation subject to the modification stated above, ·as final. 

b. Docket No. WEST 80-498-RM (Citation No. 576914) 

WEST 80-499-RM (Citation No. 576915) 

WEST 80-500-RM (Citation No. 576916) 

The Secretary vacates citations numbered 576914, 576915 

and 576916. These citations were issued pursuant to the same 

facts and circumstances that gave rise to citation number 

576913 and represent a repetition of the violation alleged in 

Citation No. 576913. It is the Secretary's position herein 

[that] the issuance of repetitive citations to an operator for 

an alleged violation of the same mandatory standard based upon 

these facts and circumstances would not further effectuate 

the purposes of the Act. Therefore, the operator herein 

having withdrawn its notice of contest to Citation No. 576913, 

the Secretary does vacate Citations numbered 576914, 576915 

and 576916. 

c. Docket No. WEST 81-355-M (Civil Penalty Proceeding) 

1. Citations numbered 576913, 576914, 576915 and 576916 

are also the subject of the above-referenced civil penalty 

proceeding. 

2. The Secretary has vacated citations numbered 576914, 

576915 and 576916, as per above. The respondent does accept 

citation 576913 and agrees to pay the assessed civil money 

penalty of $48 in full. The respondent is a large operator 

and payment of the assessed penalty will not affect the 

respondent's ability to continue in business. The alleged 

violation in citation number 576913 was the result of ordinary 

negligence and the respondent demonstrated the ordinary amount 

of good faith in abating the violation. The gravity of the 

alleged violation was not serious. The respondent's history 

of previous violations is not extraordinary with respect to 

its size. The inspector's statement for citation number 

576913 and the findings of the MSHA Assessment Office are 

attached hereto and incorporated herein by reference. The 

parties agree that the aforementioned terms of settlement for 

this docket are in the public interest and effectuate the 

intent and purposes of the Act. 

d. Docket No. WEST 80-503-RM (Order No. 576974) 

1. The Secretary modifies Order No. 576974 to remove 

the determination that the violation alleged on the face of 

the citation involved a "significant and substantial" safety 
or health hazard within the meaning of the Act. However, 

this modification does not prohibit the Secretary or MSHA 

from making such a determination should the same or a similar 

violation of the standard set forth at 30 CFR 57.20-8(a) be 

discovered at the FMC Mine in the future. 

2. FMC withdraws its notice of contest to Order 

No. 576974 and accepts t~e Order, subject to the modification 

stated above, as final. 

e. Docket No. WEST 80-504-RM (Citation No. 576975) 

WEST 80-505-RM (Citation No. 576976) 

The Secretary vacates ciations [sic] numbered 576975 and 

576976. Citations numbered 576975 and 576976 and Order 

No. 576974 were issued for a violation of 30 CFR 57.20-8(a) 

in that FMC did not provide readily accessible toilet facilities in and around the No. 3 shaft underground area of the 

FMC Mine. Citations numbered 576975 and 576976 were written 

to reflect workplaces of a greater distance from the nearest 

available toilet facilities than the workplace referenced in 

Order No. 576974. The issuance of citations numbered 576975 

and 576976 represents a repetition of the violation alleged 

in Order No. 576974. It is the Secretary's position herein 

that the issuance of repetitive citations to an operator for 

an alleged violation of the same mandatory standard based 

upon these facts and circumstances would not further 

effectuate the purposes of the Act. Therefore, the operator herein having withdrawn its notice of contest to Order 

No. 576974, the Secretary does vacate citations numbered' 

576975 and 576976. 

Further, with regard to the standard set forth at 30 CFR 

57.20-8(a), unless and until the standard is amended to set 

forth and define "readily accessible," or such a determination 

is made by the Commission, the FMC Mine shall not be in violation of said standard if it has adequate toilet facilities 

that are within ten (10) minutes travel time from each and 

every workplace in the mine by means of travel available to 

each and every miner in those workplaces, except where the 

circumstances of the mine are such that it is impossible or 

unsafe to provide toilet facilities within the distance 

aforementioned. 

B. Docket No. WEST 80-501"".'RM 

WEST 80-502-RM 

Citations numbered 576917 and 576973 were issued for an 

alleged violation of the standard set forth at 30 CFR 57.20-11. 

2458 
After a thorough and diligent .investigation into all the available evidence regarding the issuance of these citations, it is 

the Secretary's determination that there is insufficient evidence to prove the violations alleged. Therefore, with the 

concurrence of the contestant, FMC Corp., the Secretary 

vacates Citations numbered 576917 and 576973. 

The parties further agree that the elements of this 

stipulation and settlement agreement apply only to the 

particular citations herein and do not prejudice the Secretary in making any future determinations with respect to the 

operations of FMC Corporation at the FMC Mine. FMC corporation's consent to the terms of this agreement.shall not 

constitute an admission by FMC Corporation of any violation 

of the Act or the standards_ promulgated thereunder in any 

subsequent proceedings other than proceedings brought 

directly under the Federal Mine Safety and Health Act of 1977, 

as amended. 

It is the parties' belief that approval of this stipulation and settlement agreement is in the public interest and 

will effectuate the intent and purpose of the Act. 

WHEREFORE, the parties pray that this stipulation and 

settlement agreement be approved and that the above-captioned 

proceedings be dismissed. 

III. Determination 

As relates to the settlement proposal concerning Citation No. 576913, 

information as to the six statutory criteria contained in section 110 of 

the Act has been submitted. This information 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 reasons given above by counsel for the parties for the proposed 

settlement 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 settlement. It therefore appears that a disposition approving the 

settlement will adequately protect the public interest. 

As relates to the remaining provisions of the joint motion to approve 

stipulation and settlement agreement in the above-captioned proceedings, 

such joint ~tipulation and settlement agreement is APPROVED and the motion 

by both parties to dismiss all of the above-captioned proceedings will be 

GRANTED. 

2459 
ORDER 

The motion to consolidate the above-captioned civil penalty proceeding 

with Docket Nos. WEST 80-497-.:RM, WEST 80-498-RM, WEST 80-499-RM, and WEST 

80-500-RM, is GRANTED. 

Accordingly, ·IT IS ORDERED that the proposed settlement, as outlined 

above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent, within 30 days of the date of 

this decision, pay the agreed-upon penalty of $48 assessed in this proceeding. 

IT IS FURTHER ORDERED that the above-captioned proceedings be, and hereby 

are, DISMISSED. 

Distribution: 

-.....----~. Cook 

Administrative Law Judge 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, Suite 1600, 

50 Main Street, Salt Lake City, UT 84144 (Certified Mail) 

James Cato, Esq., Office of the Solicitor, U.S. Department of Labor, 

911 Walnut Street, Kansas City, MO 64106 (Certified Mail) 

2460