JUNE 1990 

COMMISSION DECISIONS 

06-05-90 

06-06-90 

06-12-90 

06-14-90 

06-14-90 

06-18-90 

06-28-90 

Odell Maggard v. Chaney Creek Coal Co. 

Dennis Wagner v. Pittston Coal Group, etc. 

J.R. Thompson, Inc. 

Bentley Coal Company 

Bentley Coal Company 

Hickory Coal Company 

John Gilbert v. Sandy Fork Mining Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-05-90 

06-05-90 

06-07-90 

06-07-90 

06-07-90 

06-08-90 

06-08-90 

06-11-90 

06-13-90 

06-13-90 

06-13-90 

06-13-90 

06-14-90 

06-15-90 

06-19-90 

06-19-90 

06-21-90 

06-21-90 

06-21-90 

06-25-90 

06-27-90 

06-27-90 

06-29-90 

France Stone Company 

Joseph Pelehac, Jr. v. Consolidation Coal Co. 

Manalapan Mining Company 

Caldron Coal Corporation 

Donald H. Gibson v. Cyprus Bagdad Copper Co. 

Kent Coal Mining Company 

Flippy Coal Company 

Blue Range Mining Co., L.P. 

J.R. Thompson Incorporated 

Donald F. Denu v. Amax Coal Company 

Sec. Labor for Donald F, Rados v. Beth 

Energy Mines, Inc. 

Noone Associates, Inc. 

Walker Stone Company 

Kathleen I. Tarmann v. International 

Salt Company (Partial Decision) 

Shamrock Coal Company, Inc. 

Pretzel Excavating 

Mid-Continent Resources, Inc. 

Armando M. Rivas v. Phelps Dodge Morenci, Inc. 

Wayne L. Iveyv. Blue Ridge Mining Co. 

Bobby Strouth et al. v. Cavalier Mining Corp. 

Charles Scott Howard v. Harlan-Cumberland Coal 

Jim Walter Resources, Inc. 

Golden Oak Mining Co., L.P. 

KENT 

VA 

CENT 

WEVA 

WEVA 

PENN 

KENT 

LAKE 

PENN 

KENT 

KENT 

WEST 

PENN 

VA 

WEST 

CENT 

LAKE 

PENN 

86-1-D 

88-21-D 

89-161-M 

90-36 

90-52 

90-49 

86-49-D 

89-92-M 

89-226-D 

89-187 

89-204 

89-11-DM 

89-205 

90-8 

89-425-M 

89-161-M 

90-26-D 

90-106-D 

WEVA 90-6 

CENT 89-129-M 

LAKE 89-56-DM 

KENT 89-261 

WEVA 89-176 

WEST 88-276 

WEST 89-395-DM 

WEST 90-67-DM 

VA 90-13-C 

KENT 90-98-D 

SE 89-16-R 

KENT 90-185-R 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1175 

1178 

1194 

1197 

1199 

1201 

1203 

1207 

1209 

1237 

1238 

1239 

1267 

1276 

1277 

1279 

1280 

1281 

Pg. 1282 

Pg. 1290 

Pg. 1291 

Pg. 1301 

Pg. 1308 

Pg. 1331 

Pg. 1350 

Pg. 1351 

Pg. 1352 

Pg. 1353 

Pg. 1354 

Pg. 1360 
JUNE 1990 

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

Secretary of Labor, MSHA v. Beth Energy Mines, Inc., Docket No. PENN 89-222. 

(Judge Weisberger, May 2, 1990) 

Secretary of Labor, MSHA v. J.R. Thompson, Inc., Docket No. CENT 89-161-M. 

(Default Decision of Chief ALJ Merlin on February 6, 1990) 

Secretary of Labor, MSHA v. Ten-A-Coal Company, Docket No. WEVA 89-274. 

(Judge :Maurer, May 3, 1990) 

Secretary of Labor, MSHA v. Lanham Coal Company, Docket No. KENT 89-186) 

(Judge Broderick, April 30, 1990 - previously directed for review sua sponte 

by the Commission on May 30, 1990) 

Secretary of Labor, MSHA v. Bentley Coal Company, Docket Nos. WEVA 90-36 and 

WEVA 90-52. (Default Decisions of Chief ALJ Merlin on May 31, 1990) 

Secretary of Labor, MSHA v. Hickory Coal Company, Docket No. PENN 90-49. 

(Default Decision of Chief ALJ Merlin on May 24, 1990) 

Secretary of Labor, MSHA v. Sanger Rock and Sand, Docket No. WEST 88-275-H 

and WEST 89-71-M. (Judge Morris, May 17, 1990) 

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

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. SE 90-12-M. 

(Judge Melick, April 27, 1990) 

Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 89-147-D. 

(Interlocutory Review of Judge Melick's Order dated May 31, 1990) 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 5, 1990 

ODELL MAGGARD 

v. 

CHANEY CREEK COAL COMPANY 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of ODELL MAGGARD 

Docket No. KENT 86-l-D 

v. Docket No. KENT 86-51-D 

DOLLAR BRANCH COAL CORPORATION 

and CHANEY CREEK COAL 

CORPORATION 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

In our most recent decision in this discrimination case, on remand 

from an opinion of the United States Court ·of Appeals for the District 

of Columbia Circuit (Chaney Creek Coal Corp. v. FMSHRC, etc., 866 F.2d 

1424 (1989), aff'g in part, rev'g in part, Odell Maggard v. Chaney Creek 

Coal Co., etc., 9 FMSHRC 1314 (August 1987)), we reinstated Commission 

Administrative Law Judge Gary Melick's initial award of attorney's fees 

and remanded this matter to the judge for further proceedings with 

respect to interest on back pay. 12 FMSHRC 380, 383-86 (March 1990). 

Following our decision, private counsel for complainant Odell Maggard 

filed with the Commission a Motion for Instructions Concerning 

Supplemental Fees on Remand to Administrative Law Judge. No response to 

this motion has been received from the other parties. Upon consideration of the motion, it is granted as explained below. 

1175 
In this r",tion, Maggard requests the Commission to instruct the 

judge to determine the additional amount of attorney's fees owed Maggard 

in connection.with his private legal representation in review 

proceedings before the Commission and the D.C. Circuit subsequent to the 

judge's initial decisions in this matter in 1986. · Maggard points to the 

language in section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act"), providing that a 

successful complainant in Mine Act discrimination proceedings may be 

awarded attorney's fees "reasonably incurred ... for, or in connection 

with, the institution and prosecution" of such proceedings. 30 U.S.C. 

§ 815(c)(3). 

A similar motion for attorney's fees incurred in administrative 

and court appellate proceedings was acted upon by the Commission in 

Robert Simpson v. Kenta Energy, Inc., 11 FMSHRC 1638 (September 1989). 

There, we remanded the case to Commission Administrative Law Judge James 

A. Broderick for "resolution of whether the attorney's fees being sought 

for administrative and court appeal proceedings are properly awardable 

under the Mine Act and, if so, for all appropriate findings of fact 

relevant to determination of the amount to be awarded." 11 FMSHRC at 

1639. On remand, Judge Broderick issued a Partial Decision on Remand 

concluding that such post-trial fees were recoverable and that a 

Commission administrative law judge may properly make findings and 

determinations with respect to the appropriate amount of any such fee 

award. Robert Simpson v. Kenta Energy Inc., 11 FMSHRC 2543, 2544-46 

(December 1989)(ALJ). 

1176 
We follow here the course that we took in Simpson, supra. In the 

course of the remand proceedings previously ordered, the judge is also 

instructed to rule o~ the question of whether attorney's fees incurred 

in connection with appellate proceedings are awardable under the Mine 

Act and, if so, to enter all appropriate factual findings relevant to 

determination of the amount to be awarded. 

Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky 

P.O. Box 360 

Hazard, Kentucky 41701 

Mr. John Chaney 

Chaney Creek Coal Corporation 

Route 1, Box 286 

East Bernstadt, Kentucky 40729 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S.Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~~ ... =--·---

/) 

-r /_ .. -,,. /, ,..,.-.--· ,I. - - c (_ (~ :... ,_ 

( 

Richard V. Backley, Commissioner 

Joyce A. Doyle, 

L. 

~~~Cl= Clair Nelson, Commissioner 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1177 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

DENNIS WAGNER 

v. 

PITTSTON COAL GROUP 

CLINCHFIELD COAL COMPANY 

JACK CRAWFORD 

MONROE WEST 

WAYNE FIELDS 

and 

ANN McLAUGHLIN 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

June 6, 1990 

GERALD SLOCE AND KENNETH HOWARD 

Docket No. VA 88-21-D 

Before: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

By: Ford, Chairman; Doyle and Nelson, Commissioners 

In this discrimination proceeding, arising under the Federal Mine 

Safety and Health Act of 19 77, 30 U.S. C. § 801 et seq. (1988 )("Mine Act" 

or "Act"), the Secretary of Labor seeks interlocutory review of that 

portion of an order by Commission Administrative Law Judge James A. 

Broderick, holding that the Department of Labor's Mine Safety and Health 

Administration ("MSHA") and its employees are "persons" subject to the 

discrimination prohibitions of section 105(c)(l) of the Mine Act, 

30 U.S.C. § 815(c)(l). ll The judge certified his ruling to the 

lf Section 105(c)(l) of the Mine Act provides: 

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 

1178 
Conunission, and the Secretary's petition tor interlocutory review was 

granted. For the reasons that follow, we reverse the judge insofar as 

he held that MSHA and its employees are "persons" subject to section 

105.(c) of the Mine Act, and we dismiss those portions of Wagner's 

complaint pertaining to the individual governmental respondents. 

I. 

At all times relevant to this case, Dennis Lee Wagner was employed 

as a miner at the McClure No. 1 Mine, an underground coal mine, located 

near McClure, Virginia, and operated by Clinchf ield Coal Company 

("Clinchfield"), a subsidiary of the Pittston Coal Group ("Pittston"). 

Wagner was also ~ United Mine Workers of Anierica ("UMWA") safety 

conunitteeman at the mine. 

On June 26, 1987, Wagner was suspended with intent to discharge by 

Clinchfield, but shortly thereafter was reinstated with back pay, as the 

result of an arbitration proceeding conducted pursuant to the wage 

agreement between Clinchf ield and the UMWA. 

On July 17, 1987, Wagner filed a discrimination complaint with 

MSHA, alleging that Clinchfield, Pittston and their employees, Monroe 

West, Jack Crawford, and Wayne Fields, as well as the Secretary of Labor 

and MSHA and its agents, Inspector Gerald Sloce and District Manager 

Kenneth Howard, had all unlawfully discriminated against him in 

violation of section lOS(c) of the Mine Act. 

Wagner alleged that the respondents had collectively conspired to 

obstruct effective operation and enforcement of the Mine Act and had 

discriminated against him because he had engaged in protected activities 

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]. 

30 U.S.C. § 815(c)(l). 

1179 
as a representative of miners. Alternatively, Wagner alleged that the 

respondents had individually discriminated against him because he had 

reported unsafe conditions and safety violations to MSHA officials and 

because of _other actions associated with his status as a representative 

of miners. 

Upon completion of MSHA's investigation of Wagner's complaint, the 

Secretary filed an action on Wagner's behalf against Clinchfield 

pursuant to section 105(c)(2) of the Act (Docket No. VA 88-i9-D). ~/ 

The complaint named only Clinchf ield as a respondent and alleged that 

~/ Section 105(c)(2) of the Mine Act provides in part: 

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 Commission, with service 

upon the alleged violator and the miner, applicant 

for employment, or representative of miners alleging 

such discrimination or interference and propose an 

order granting appropriate relief. The Commission 

shall afford an opportunity for a hearing ... 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 Commission 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 .... 

30 U.S.C. § 815(c)(2). 

1180 
Clinchfield illegally discriminated against Wagner when it suspended him 

with intent to discharge because he had reported a safety violation to 

Inspector Sloce during an inspection of the mine. Because Wagner had 

been reinstated prior to the filing of the complaint and paid back wages 

as the result of the arbitration award, the Secretary sought only 

interest on his back pay, reimbursement to Wagner of attorney's fees 

incurred as a result of the discrimination, an order directing 

Clinchfield to comply with section lOS(c) in the future, and the 

assessment of a civil penalty for the operator's violation of section 

lOS(c). Subsequently, Judge Broderick approved a settlement of the 

Secretary's section 105(c)(2) complaint on Wagner's behalf. Pursuant to 

the parties' settlement agreement, the judge awarded interest on lost 

wages, noted Clipchfield's promise of future compliance with section 

lOS(c), and assessed a civil penalty of $700 against Clinchfield. 

10 FMSHRC 1542 (November 1988)(ALJ). 

Approximately one month after the Secretary's complaint was filed, 

Wagner, as an individual and member of a class, filed the subject 

discrimination complaint pursuant to section 10S(c)(3) of the Act. }/ 

}/ Section 105(c)(3) of the Mine Act provides in part: 

Within 90 days of the receipt of a complaint filed 

under [section 105(c)(2)], the Secretary shall 

notify, in writing, the miner, applicant for 

employment, or representative of miners of his 

determination whether a violation has occurred. If 

the Secretary, upon investigation, determines that 

the provisions of this subsection have not been 

violated, the complainant shall have the right, 

within 30 days of notice of the Secretary's 

determination, to file an action in his own behalf 

before the Commission, charging discrimination or 

interference in violation of [section lOS(c)(l)]. 

The Commission shall afford an opportunity for a 

hearing ... and thereafter shall issue an order, 

based upon findings of fact, dismissing or 

sustaining the complainant's charges and, if the 

charges are sustained, granting such relief as it 

deems appropriate, including but not limited to, an 

order requiring the rehiring or reinstatement of the 

miner to his former position with back pay and 

interest or such remedy as may be appropriate. Such 

order shall become final 30 days after its issuance. 

Whenever an order is issued sustaining the 

complainant 1 s charges under this subsection, a sum 

equal to the aggregate amount of all costs and 

expenses (including attorney's fees) as determined 

by the Commission to have been reasonably incurred 

by the miner, applicant for employment or 

representative of miners for, or in connection with, 

the institution and prosecution of such proceedings 

shall be assessed against the person committing such 

1181 
The multi-count complaint reiterates many of the allegations in Wagner's 

complaint to MSHA and alleges that MSHA and its agents illegally 

disclosed to operators the identities of miners making safety complaints 

and, in particular, disclosed Wagner's identity to Clinchfield and 

Pittston; that Clinchfield and Pittston illegally required miners to 

report to management all safety violations prior to reporting them to 

MSHA and suspended Wagner for failing to conform to that policy; that 

MSHA and its agents, in collusion with the operators, obstructed the 

enforcement of mine safety laws; and that MSHA and its agents conspired 

with Clinchfield and/or Pittston and their agents to interfere with 

miners' rights to file safety complaints. 

Wagner's complaint seeks to have the Commission order MSHA and its 

agents to cease and desist from violating miners' rights to anonymity, 

from harassing and retaliating against miners, including Wagner, and 

from refusing to re-establish a special unit investigating 

discrimination complaints. Wagner further seeks to have the Commission 

order Clinchfield and/or Pittston and their agents to cease and desist 

from retaliation and harassment against Wagner and others for reporting 

safety violations and from the policy of requiring miners to first 

report safety violations to management. Finally, Wagner's complaint 

seeks an order requiring all of the respondents to cease their alleged 

conspiracy to render mine safety laws ineffectual and to impede the 

independence of investigators and inspectors. Wagner also seeks 

interest, punitive damages, costs, attorney's fees, and the assessment 

of a civil penalty against the respondents. 

Clinchfield, Pittston and their named employees moved for 

dismissal of Wagner's complaint on the grounds that it was barred by the 

Secretary's complaint on Wagner's behalf, which was settled in Docket 

No. VA 88-19-D. The Secretary also moved to dismiss Wagner's complaint, 

arguing that section lOS(c)'s prohibition against "persons" committing 

acts of discrimination does not encompass federal agencies or officials 

and that MSHA and its officers and agents are immune from suit under 

section lOS(c); that section lOS(c) does not contemplate class action 

suits, or that if it does, the purported class has not been properly 

alleged; that parts of the complaint are untimely; and that Wagner has 

no right to challenge in a section lOS(c) proceeding the manner in which 

the Secretary chooses to investigate discrimination complaints. 

In an unpublished interlocutory order, the administrative law 

judge concluded that the complaint did not ·state a cause of action 

against the Secretary of Labor individually; that it must be dismissed 

with regard to those acts of discrimination that had also been charged 

in the Secretary's complaint; that it did not meet the prerequisites for 

a class action; that those portions of the complaint charging all of the 

respondents with conspiring to undermine enforcement of the Act and to 

discriminate against Wagner were too vague to support a claim; and that 

portions of the complaint were untimely. ALJ Order 2-4 (May 24, 

1988)("0rder"). 

violation •.•. 

30 U.S.C. § 815(c)(3). 

1182 
The judge also stated: 

Order 3. 

The Secretary argues that neither MSHA nor any of 

its officers or agents can be considered a "person" 

under section lOS(c) of the Act because of the 

doctrine of sovereign immunity. I have previously 

ruled that MSHA is a person under lOS(c) in the case 

of Local 9800 v. Secretary of Labor or Thomas 

Dupree, 2 FMSHRC 2680 (September 1980)[(ALJ)]. I 

adhere to that ruling in this case •.•. I conclude 

that Congress intended that the prohibition against 

discrimination applies to all persons, including 

government officials. 

Accordingly, all of the allegations in the complaint were 

dismissed except for the allegation that the federal respondents had 

adopted a policy, which they enforced against Wagner, of disclosing to 

coal companies the names of miners who had reported safety violations 

and the allegation that the operators had adopted a policy requiring 

miners to report safety violations to management before communicating 

them to MSHA. Order 4. 

II. 

The Secretary asserts that "the judge erred in ruling that MSHA 

may be sued and that employees of MSHA may be sued individually and/or 

in their official capacity as 'persons' under section lOS(c) of the Mine 

Act. 11 PIR 1. For the reasons set forth below·, we agree. 

In Local 9800, on which the judge relied, the complainant union 

alleged that an employee of MSHA had unlawfully discriminated against it 

when he threatened the union local and its president with legal action 

as a result of their complaints about alleged irregularities in certain 

mine inspections. MSHA moved to dismiss the union's complaint 

asserting, among other things, that MSHA was not a "person" subject to 

the provisions of section lOS(c). The judge found nothing in the Mine 

Act or in its legislative history to indicate that Congress directly 

considered whether MSHA or any other public agency could be a "person" 

involved in discriminatory conduct under section lOS(c) of the Act. 

Therefore, the judge stated that he was required "to guess" what 

Congress would have intended if it had considered the question. 

2 FMSHRC at 2683. The judge noted the statement in the Senate Committee 

Report that "the prohibition against discrimination applies not only to 

the operator but to any other person directly or indirectly involved" 

and also noted the same committee's admonition that section lOS(c) is 

"to be construed expansively" in order "to assure that miners will not 

be inhibited in any way in exercising any rights afforded by 

legislation." S. Rep. No. 95-181, 95th Cong., 1st Sess. 36 (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 624 ("Legis. Hist."); 2 FMSHRC at 2683. The 

judge reasoned that the "general rule" that the United States is not 

1183 
bound by legislation when it is not expressly named in or made subject 

of the legislation may be curtailed when the statute is "intended to 

prevent injury and wrong." 2 FMSHRC at 2683 (quoting Nardone v. United 

States, 302 U.S. 379, 384 (1937). The judge further reasoned that, in 

such cases, the entire scheme of regulation must be examined to 

determine if an effective alternate remedy is available. 2 FMSHRC at 

2683. The judge concluded that the alleged act of discrimination was 

"by its inchoate nature, uniquely within the domain of this Commission" 

and held that "MSHA is a person under section 105(c)" and, as such, is 

"prohibited from discriminating against any miner." 2 FMSHRC at 2684. 

On review, the Secretary takes issue with this rationale and its 

application to the present case, arguing that a waiver of the doctrine 

of sovereign immunity must be unequivocally expressed, and that when, as 

in the Mine Act, the definition of "person" does not expressly extend to 

a governmental agency and its employees, Congress did not mean for the 

agency and its officers and agents to be liable under the Act. See Sec. 

Br. at 8-11. Further, the Secretary notes that holding MSHA liable 

under section 105(c) would result in the anomalous situation of MSHA 

investigating and prosecuting cases in which it and its agents are also 

defendants. Id. at 12. 

Wagner responds that granting sovereign immunity to MSHA 

inspectors and other agency employees is inconsistent with the spirit 

and intent of the Mine Act and general legal principles of sovereign 

immunity. Wagner urges the adoption of a case-by-case approach in 

analyzing the conduct of MSHA employees and determining whether immunity 

-is justified. Wagner contends that where, as here, the conduct of an 

MSHA employee does not further a clearly expressed governmental policy, 

immunity does not apply. Wagner Br. 6, 9-11. 

Our analysis of these issues begins, as it must, with the words of 

the Mine Act. Section 105(c)(l) states, "[n]o 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 ..•. " Although the term "person" is not 

defined in section 105(c), section 3(f) of the Act defines "person" as 

"any individual, partnership, association, corporation, firm, subsidiary 

of a corporation, or other organization." Absent from the definition of 

"person" is any reference to the government or any governmental entity. 

30 U.S. C. § 802 ( f) . " [I] n common usage, tl~e term 1 person' does not 

include the sovereign, [and] statutes employing the phrase are 

ordinarily construed to exclude it." Wilson v. Omaha Indian Tribe, 442 

U.S. 653, 667 (1974) (quoting United States v. Cooper Corp., 312 U.S. 

600, 604 (1941)). See also United States v. United Mine Workers of 

America, 330 U.S. 258, 275 (1947). As the Commission has previously 

observed, it is well settled that the United States, as the sovereign, 

is immune from suit except as it consents to be sued and that waivers of 

its immunity must be unequivocally expressed. See Rushton Mining Co., 

11 FMSHRC 759, 766 (May 1989). The Mine Act contains no such waiver of 

MSHA's immunity from suit under section 105(c). 

Further, other terms in the Mine Act specifically denote 

governmental entities. Section 3(a) defines "Secretary" as "the 

1184 
Secretary of Labor or his delegate. 11 30 U.S.C. § 802(a). Section 3(n) 

defines 11Administration11 as 11 the Mine Safety and Health Administration 

in the Department of Labor. 11 30 U.S.C. § 802(n). Where Congress has 

specifically.defined the term 11 person11 so as to avoid including the 

government and its agencies within that definition, and has expressly 

included them in other definitions, it is clear that Congress has 

purposefully legislated into the Act a distinction between a 11 person11 

and the government, here specifically MSHA, and that neither may be 

subsumed into the other. ~/ Had Congress intended to include MSHA as a 

potential defendant under section 105(c), it would have done so 

explicitly. 

For the for.egoing reasons, we hold that MSHA is not a 11 person11 

subject to the provisions of section 105(c). 

III. 

We also conclude that MSHA's employees and agents are not 11 persons 11 subject to the provisions of section 105(c), and thus that 

MSHA Inspector Sloce and MSHA District Manager Howard cannot be sued 

individually under section 105(c). 

We have noted that the definitions set forth in the Act and the 

enforcement scheme of section 105(c) indicate that Congress regarded the 

Secretary and MSHA as separate and distinct from the population covered 

by the term 11 person. 11 While MSHA possesses its own legal identity, it 

is composed of individuals who hold and staff MSHA's offices and 

positions. In view of MSHA's role in effectuating section 105(c), we 

are convinced that, had Congress intended that MSHA's employees be 

susceptible to section 105(c) suits, it would have expressly stated as 

much. 

The Mine Act, unlike some other acts, does not specifically 

include employees of the government as 11 persons 11 for purpose of 

liability under the Act. Compare Omnibus Crime Control Act of 1968, 30 

U.S.C. §§ 2510, 2520 (1982); Marine Protection Research and Sanctuaries 

Act of 1972, 30 U.S.C. §§ 1415(g), 1402(e) (1982); Federal Pollution 

Control Act, 30 U.S.C. § 1365(a) (1982). Further, as we have noted, the 

structure of section 105(c) requires the Secretary (actually MSHA in 

practice) to investigate all initial discrimination complaints. Under 

the judge's interpretation of section 105(c), MSHA would be required to 

investigate its own employee if a discrimination complaint were filed 

against him and, upon finding evidence of discrimination, prosecute him 

on behalf of the complainant. In effect, the Secretary would be 

required to prosecute herself, a result not contemplated in the 

enforcement scheme of section lOS(c). 

4/ For example, in providing for the judicial reviewof Commission 

~rders, section 106(a)(l) of the Act states "[a]ny person adversely 

affected or aggrieved by an order of the Commission ... may obtain 

review, 11 30 U.S.C. § 816(a)(l), and section 106(b) states, 11 [t]he 

Secretary may also obtain review .... 11 30 U.S.C. § 816(b). 

1185 
Furthe~, the type of relief that Congress envisioned 

discriminatees be awarded is not of the type MSHA employees may readily 

provide. Section 105(c)(2) gives the Commission the authority to 

require a person violating section 105(c) "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." 30 U.S.C. 

§ 815(c)(2). Rehiring and reinstatement with back pay and interest are 

typically within the control of the operator. While Congress envisioned 

that the Commission might also issue cease and desist orders where 

appropriate, it emphasized that those orders "include requirements for 

the posting of .notices by the operator." Legis. Hist. at 625. 

In addition, section 105(c)(3) states that "[v]iolations by any 

person of ... [section 105(c)(l)] shall be subject to the provisions of 

sections 108 and llO(a)." 30 U.S.C. §§ 818 and 820(a). Since the 

injunctive provisions of section 108 and the civil penalty provisions of 

section llO(a) apply specifically to the "operator" or "his agent," it 

does not appear that Congress intended employees of MSHA to be subject 

to the sanctions applicable to "persons" who violate section 105(c). 

Thus, we agree with the Secretary that section 105(c) was not 

structured by Congress to accord complainants the right to proceed 

against MSHA's employees. 

Although we find no cause of action for abuse of power by an 

employee of MSHA under section 105(c), it must be noted that an employee 

whose action is in violation of his or her duties is not immune from 

civil suit and possible punitive action. It is well settled that 

individuals wronged by federal agents through abuse of their power may 

have a cause of action for damages under state law. See Wheeldin v. 

Wheeler, 373 U.S. 647, 652 (1963). lf Moreover, the Secretary clearly 

has the authority through her Office of Inspector General to 

investigate, punish and to remove from office any of her employees found 

to have engaged in conduct violative of the Mine Act or in other 

misconduct. 

v. 

Accordingly, we reverse the judge's holding that MSHA and its 

employees are subject to suit under the provisions of section 105(c), 

and we dismiss those portions of Wagner's complaint pertaining to the 

21 We note that Wagner brought a civil action in Virginia against 

MSHA Inspector Sloce, among others, alleging common law claims under 

state law. Wagner v. Pittston Coal Group, et al., Law No. 6499, 

Dickinson County, Virginia Circuit Court (filed June 21, 1988), removed 

by order of July 13, 1988, to U.S. District Court for the Western 

District of Virginia, Civil Action No. 88-0195-A. Sec. Br. 6 n. 5. 

While Wagner did not expressly allege violations of his constitutional 

rights, we note that damages are available when Fourth and Fifth 

Amendment rights have been violated. See Bivens v. Six Narcotics 

Agents, 403 U.S. 388 (1971); Davis v. F;rsman, 442 U.S. 228 (1979). 

1186 
federal respondents. We remand this matter to the judge for further 

proceedings consistent with this opinion. 

Commissioner 

1187 
Commissioners Backley and Lastowka, concurring in part and dissenting 

in part: 

~·le agree with the majority that complainant Dennis Wagner is harred 

by the principle of sovereign immunity from bringing a discrimination 

action against the Hine Safety and Health Administration ("MSHA") pursuant to section 105(c) of the Federal Mine Safety and Health Act of 

1977 ("Mine Act"). We base our agreement on the Mine Act's failure to 

include any reference to the government or any governmental entity in 

its :lefinition of "person" and the principle of sovereign immunity. 

\le dissent, however, from that part of the majority decision that 

holds that Wagner is similarly barred in all circumstances from bringing 

a discrimination action against individuals employed by MSHA. As discussed below, a different analysis is required, and a different conclusion 

results, in determining the potential liability under section 105(c) of 

individuals employed by MSHA as opposed to the governmental agency itself. 

At the outset, we acknowledge that "determining the extent to which 

a federal officer may be protected by sovereign immunity for acts done 

in his or her official capacity is an extraordinarily difficult problem" 

requiring careful analysis and a delicate balancing of conflicting 

interests. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and 

Procedure § 3655 at 218 (2nd ed., 1985) ("Wright & Miller"). Wagner 

alleges in Count 25 of his complaint that two MSHA officials, Inspector 

Gerald Sloce and District Manager Kenneth Howard, adopted a policy of 

informing coal companies, including Wagner's employer, the Pittston Coal 

Group, of the names of miners who report safety violations to MSHA, that 

pursuant to this policy Pittston was informed that Wagner had made a 

safety complaint to MSHA, and that as a direct consequence of the actions 

by the MSHA officials Wagner was harrassed and discharged by Pittston. 

Because the complaint alleges official misconduct on the part of Sloce 

and Howard, an inquiry into the principle of sovereign immunity is 

required. 

When federal officials are sued in their official capacity, the 

facts of the case and the relief sought by the plaintiff must be 

analyzed to determine if the suit in reality is against the individual 

or against the United States. Wright & Miller § 3655 at 217. If the 

suit is not against the federal government, then sovereign immunity does 

not apply. Id. "The general rule is that a suit is against the sovereign 

if 'the judgment sought would expend itself on the public treasury or 

domain, or interfere with the public administration,' or if the effect of 

the judgment would be 'to restrain the Government from acting, or to compel 

it to act.'" Pennhurst State School v. Halderman, 465 U.S. 89, 101 n.11 

(1984)(quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)(citations omitted)); 

U.S. v. Yakima Tribal Co~ 806 F.2d 853, 858 (9th Cir. 1986). 

1188 
A suit brought against a federal official for specific relief is not 

a suit against the United Stat•.·s if the official acted outside the scope 

of his authority and his actions are therefore ultra vires. "If an 

employee of the United States acts completely outside his governmental 

authority, he has no immunity." Yakima Tribal Ct., 806 F.2d at 859; 

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949). 

For example, suits charging federal officials with unconstitutional 

conduct are not barred by sovereign immunity because in such suits, "the 

conduct against which specific relief is sought is beyond the officer's 

powers and is, therefore, not the conduct of the sovereign." Larson, 

337 U.S. at 690, 696-97, 702. 

Where a claim against a federal official is based on an official's 

violation of federal statutes or regulations, as opposed to an unconstitutional act, a somewhat different analysis applies. Yakima, 806 F.2d 

at 859. In such instances, if the official has simply committed a mistake of fact or law in the discharge of his duties, his actions do not 

necessarily exceed the scope of his authority. The Supreme Court has 

expressly rejected the argument that a government official "given the 

power to make decisions is only given the power to make correct decisions." 

Larson, 337 U.S. at 695. In Larson, the Court held that official action 

is not invalid because it was based on an incorrect decision as to law 

or fact, "if the officer making the decision was empowered to do so." 

Id. "Official action is still action of the sovereign, even if wrong, 

if it 'do[esJ not conflict with the terms of [the officer's] valid statutory authority ••• "' Yakima, 806 F.2d at 860 (quoting Larson at 695). 

Thus, when a federal official is charged with violating a federal 

statute or regulation, the applicability of sovereign immunity "turns 

on whether the [official] was empowered to do what he did, i.e., whether 

even if he acted erroneously, it was action within the scope of his 

authority." Pennhurst, 465 U.S. at 112 n.22. Stated similarly, an 

ultra vires claim "rests on the official's lack of delegated power." 

Yakima, 806 F.2d at 860. An important consideration in making this 

determination is whether the official's power is limited by statute and 

whether he has exceeded such limitation. Larson, 337 U.S. at 689-90; 

Martinez v. Marshall, 573 F.2d 555, 560 (9th Cir. 1977). At some point, 

a violation of a statute or regulation becomes so inconsistent with the 

agent's authority that his actions are divested of the cloak of sovereign 

immunity. Yakima, 806 F.2d at 860. 

Thus, as specifically applied to persons employed by MSHA, the 

principle of sovereign immunity can be summarized as follows. An MSHA 

official is subject to individual suit, and cannot raise a sovereign 

immunity bar, if his actions are unconstitutional, or conflict with 

and exceed the scope of his statutory or regulatory authority and 

amount to more than a mistake of law or fact in the exercise of 

delegated duties, and if the relief sought against the individual is 

not a claim against the United States Treasury, does not interfere with 

a government program or does not restrain the Government from acting or 

compel it to act. 

Therefore, the Secretary's argument that the principle of sovereign 

immunity in all circumstances requires that discrimination claims brought 

1189 
against persons employed by MSHA be dismissed must be rejected. A bald 

claim of sovereign immunity cannot preclude Wagner from an opportunity to 

establish that Inspector Sloce's and District Manager Howard's authority 

is limited by the Mine Act, that one or both of them exceeded such 

limitation and acted in a manner violative of section 105(c), and that 

the relief sought is against Sloce and Howard as individuals rather 

than against the government. If such a showing is made, the principle 

of sovereign immunity does not apply. 

Structure of Section 105(c) 

The majority would also dismiss Wagner's complaint on the basis that 

section 105(c) is. not structured to allow the Secretary to investigate 

an alleged act of discrimination committed by one of her agents. Given 

the express language of section 105(c), this protest is unpersuasive. 

The Mine Act in no way precludes the Secretary from filing a section 

105(c) discrimination complaint against an individual employed by MSHA 

where such person acted in a manner exceeding the scope of his statutory 

authority and in violation of section 105(c). 

Section 105(c)(l) of the Mine Act expressly provides that "no person 

shall ••• in any manner discriminate against •.. or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights 

of any miner •••• " 30 U.S.C. 815(c)(l)(emphasis added). The term "person" 

is defined in section 3(f) as "any individual, partnership, association, 

corporation, firm, subsidiary of a corporation, or other organization." 

30 U.S.C. 802(f)(emphasis added). Thus, by its express terms, the Mine 

Act prohibits any individual from discriminating against miners in 

violation of section 105(c), and this broad prohibition includes, rather 

than exempts, individuals employed by the Secretary. 

Unless exceptional circumstances dictate otherwise, judicial inquiry 

into the meaning of a statute is complete once a court finds that the 

terms of the statute are unambiguous. Burlington Northern R. Co., v. 

Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987). As the Supreme Court has 

stated: 

[T]he starting point for interpreting a statute is the 

language of the statute itself. Absent a clearly 

expressed legislative intention to the contrary, that 

language must ordinarily be regarded as conclusive. 

Consumer Prod. Safety Cornrn'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 

(1980); ~also Chevron USA, Inc., v. Natural Resources Defense Counsel, 

Inc., 467 U.S. 837, 842 (1984). Section 3(f) of the Mine Act defines 

"person" to include "any individual." The Mine Act does not include a 

second special definition of "person" applicable only to section 105(c) 

or an express exclusion in section 105(c) limiting its reach. Thus, in 

the absence of a clearly expressed legislative intention to the contrary, 

section 105(c)'s use of the word "person" and section 3(f)'s definition 

of "person" to include "individuals" must be interpreted in accordance 

with the plain meaning of those words. 

1190 
Furthermore, the legislative history of the Mine Act clearly provides 

that section 105(c) is to be broadly interpreted: 

It is the Committee's intention to protect miners 

against not only the common forms of discrimination, 

such as discharge, suspension, demotion, reduction 

in benefits, vacation, bonuses and rates of pay, or 

changes in pay and hours of work, but also against 

the more subtle forms of interference, such as 

promises of benefit or threats of reprisal. It 

should be emphasized that the prohibition agaiilst 

discrimination applies not only to the operator 

but to any other person directly or indirectly 

involved. 

S. Rep. No. 95-181, 95th Cong., 1st Sess., at 36 (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 624 (1978)(emphasis added). Thus, the legislative 

history is consistent with the express language of the statute and 

fortifies the conclusion that Congress intended to subject to the antidiscrimination provisions of section 105(c) of the Mine Act "any person" 

who interferes with a miner's protected rights. 

Contrary to the majority's conclusion, the overall structure of 

section 105(c) does not otherwise preclude giving effect to the plain 

wording of the statute. There is no restriction on the Secretary preventing her from investigating allegations that one of her employees 

exceeded the scope of his or her authority and acted in violation of 

the Mine Act by interfering with a miner's protected rights. To the 

contrary, it is not unusual for a federal agency to investigate complaints of misconduct or illegal conduct by its own employees. Thus, 

the fact that an MSHA investigator would be called.on to examine the 

alleged illegal conduct of an MSHA employee is not a basis for defeating 

a miner's right to engage in protected activity without suffering 

harassment or retaliation. Even if the Secretary believed that in 

a particular set of circumstances it would be better, for logistical 

reasons, if MSHA did not conduct the investigation into the activities 

of one of its own employees, she could assign another official of the 

Department of Labor or another of her investigatory agencies, e.g., the 

Inspector General, to assume this function. Certainly, a miner's 

statutory right to engage in safety related activities free from the 

threat of retribution cannot be sacrificed simply because the Department 

of Labor finds itself in an awkward position. 

In sum, nothing in the Mine Act precludes the Secretary from filing 

a complaint against an individual employed by MSHA who, after investigation, 

is determined to have committed an act of discrimination prohibited under 

section 105(c). Further, because no absurd or unworkable result flows 

from interpreting section 105(c) in accordance with its express terms, 

no ambiguity should be created where none exists so as to preclude giving 

effect to the statute's express provisions. 

1191 
We also disagree with the majority's suggestion that the fact that 

the remedies that a discriminatee might seek ag~inst a government 

employee who.has acted illegally would not be the "typical" remedies 

sought in discrimination cases i.e., backpay and reinstatement, has 

some bearing on the outcome of the liability issue presented. First, 

the fact that the relief that could be awarded is not "typical" should 

not be surprising in view of the fact that the issue raised in this case 

is one of first impression. Second, section 105(c)(2) authorizes the 

Commission to direct the discriminator "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." 30 U.S.C. § 815(c)(2)(emphasis 

added). Thus, the Mine Act expressly contemplates that the relief 

granted to any discriminatee will be tailored to fit the particular 

circumstances of the case. In a case such as the present, if illegal 

discrimination were ultimately established, appropriate forms of relief 

could include an award of damages, the issuance of cease and desist 

orders and the imposition of civil penalties. 

Conclusion 

For the above reasons, we agree with the majority that the administrative law judge must be reversed insofar as he held that MSHA 

itself is subject to the provisions of section 105(c). We dissent, 

however, from their conclusion that in no circumstances can a section 

105(c) complaint be brought against an individual employed by MSHA who 

is alleged to have acted in a manner exceeding the scope of his statutory 

authority and in violation of section 105(c). We express no opinion as 

to whether the allegations in the complaint before us satisfy the criteria 

applicable to the determination of whether Wagner's suit is barred by 

sovereign immunity. We would remand to the judge for further analysis of 

this issue. 

Accordingly, we concur in part and dissent in part. 

1192 
Distribution 

W. Challen Walling, Esq. 

Penn, Stuart, Eskridge & Jones 

306 Piedmont Avenue 

P.O. Box 2009 

Bristol, Virginia 24203 

Jerry Talton, Esq. 

222 East Main Street 

Front Royal, Virginia 22630 

Jerald S. Feingold, Esq 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Blvd., Suite 400 

Arlington, Virginia 22203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1193 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

J.R. THOMPSON, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 12, 1990 

Docket No. CENT 89-161-M 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"). On 

February 6, 1990, Commission Chief Administrative Law Judge Paul Merlin 

issued an Order of Default finding respondent J.R. Thompson, Inc. ("J.R. 

Thompson") in default for its failure to answer the Secretary of Labor's 

civil penalty proposal and the judge's order to show cause. The judge 

assessed J.R. Thompson civil penalties of $2,485 as proposed by the 

Secretary. By letter dated April 27, 1990, addressed to Judge Merlin, 

the Secretary requests that this matter be reopened on the grounds that 

the parties have settled the case. For the reasons explained below, we 

deem the Secretary's submission to be one seeking relief from a final 

Commission decision, vacate the judge's default order, and remand for 

further proceedings. 

On October 18, 1989, the Secretary filed with the Commission a 

Complaint Proposing Penalty, in which the Secretary proposed civil 

penalties for seven citations issued by the Department of Labor's Mine 

Safety and Health Administration ("MSHA") to J.R. Thompson at its 

Nunneley Quarry. When no answer to the penalty proposal was filed with 

the Commission, the chief judge, on December 19, 1989, issued an order 

directing J.R. Thompson to file an answer within 30 days or show cause 

why it failed to do so. Judge Merlin entered an Order of Default on 

February 6, 1990, after J.R. Thompson failed to file an answer. 

On May 1, 1990, the Commission received a letter addressed to 

Judge Merlin from the Secretary's counsel, requesting the judge's 

1194 
approval of a settlement of this case. Attached to the letter was a 

copy of a signed settlement agreement stating that the parties have 

agreed to the assessment of specified reduced penalties for the alleged 

violations, payable in monthly installments, and stating that 

J.R. Thompson answered the Secretary's civil penalty petition, but sent 

the answer to the Solicitor's Dallas, Texas, office rather than to the 

Commission. 

Under the Commission's rules of procedure, the party against whom 

a penalty is sought must file an answer with the Commission within 30 

days after service of the proposal for penalty. 29 C.F.R. § 2700.S(b) & 

28. The official record of this case does not contain an answer. 

However, the official record of Docket No. CENT 90-8-M contains a copy 

of a letter dated November 10, 1989, from Johnny R. Thompson, president 

of J.R. Thompson, to the Office of the Solicitor, U.S. Department of 

Labor, Dallas, Texas, in which Thompson challenges the penalties 

proposed for the violations alleged in this case. The letter was 

forwarded to the Commission by counsel for the Secretary, but was 

referenced to Docket No. CENT 90-8-M rather than to the present case. 

The letter was therefore lodged in the official file of Docket No. CENT 

90-8-M and Judge Merlin was unaware of its existence when he issued the 

show cause and default orders. 

The judge's jurisdiction over the case terminated when his default 

order was issued on February 6, 1990. 29 C.F.R. § 2700.65(c). Under 

the Mine Act and the Commission's procedural rules, once a decision has 

issued, relief from the decision may be sought by filing with the 

Commission a petition for discretionary review within 30 days of the 

decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Because the 

judge's decision has become final by operation of law, 30 U.S.C. 

§ 823(d)(l), we can consider the merits of the Secretary's submission 

only if we construe it as a request for relief from a final Commission 

decision incorporating a petition for discretionary review. See 

29 C.F.R. 2700.l(b) (applicability of Federal Rules of Civil Procedure 

to Commission proceedings); Fed. R. Civ. Pro. 60(b) (relief fromjudgment or order). 

J.R. Thompson appears to be a small company proceeding without 

benefit of counsel. In compliance with the standards set forth in Fed. 

R. Civ. P. 60(b)(l), the Commission has previously afforded such a party 

relief from final orders of the Commission where it appears the party's 

failure to respond to a judge's order and the party's subsequent default 

are due to inadvertence or mistake. See Kelley Trucking Co., 8 FMSHRC 

1867, 1868 (December 1986); M.M. Sundt Construction Co., 8 FMSHRC 1269, 

1270-71 (September 1986). Here, J.R. Thompson appears to have confused 

the roles of the Commission and the Department of Labor in this 

adjudicatory proceeding. J.R. Thompson's letter answering the 

Secretary's civil penalty petition was apparently mailed to the 

Department of Labor's solicitor within the time provided for a timely 

answer. Further, counsel forwarded the letter to the Commission on 

January 8, 1990, within the time provided for a response to the judge's 

show cause order, but, because of counsel's reference to an erroneous 

docket number, the letter did not come to the attention of the judge. 

Accordingly, we accept the Secretary's submission as a request for 

1195 
relief from a final order incorporatii.1g by implication a petition for 

discretionary review. 

We have observed repeatedly that default is a harsh remedy and 

that if the defaulting party can make a showing of adequate or good 

cause for the failure to respond, the failure may be excused and 

appropriate proceedings on the merits permitted. Sundt, 8 FMSHRC at 

1271. Here, where J.R. Thompson has proceeded without benefit of 

counsel, where the parties agree that J.R. Thompson filed an answer, but 

mistakenly filed it with the Solicitor's Office, where counsel for the 

Secretary inadvertently submitted a copy of the answer for inclusion in 

the official record of CENT 90-8-M, and where the parties may have 

subsequently settled the matter, we conclude that, in the interest of 

justice, the Secretary and J.R. Thompson should have the opportunity to 

present their positions to the judge, who shall determine whether final 

relief from the default order is warranted. 

For the foregoing reasons, the judge's default order is vacated 

and the matter is remanded for proceedings consistent with this order. 

J.R. Thompson is reminded to file further documents connected with this 

proceeding with the judge and to serve counsel for the Secretary with 

copies of its filings. 29 C.F.R. §§ 2700.S(b), 2700.7. 

1196 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BENTLEY COAL COMPANY 

June 14, 1990 

Docket No. WEVA 90-36 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"). On 

May 31, 1990, Commission Chief Administrative Law Judge Paul Merlin 

issued an Order of Default finding Bentley Coal Company ("Bentley") in 

default for its failure to answer the Secretary of Labor's civil penalty 

proposal and the judge's order to show cause. The judge assessed the 

civil penalty of $894 proposed by the Secretary. For the reasons that 

follow, we vacate the default order and remand this case for further 

proceedings. 

The judge's jurisdiction over this case terminated when his 

default order was issued on May 31, 1990. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Commission's procedural rules, once a judge's 

decision has issued, relief from the decision may be sought by filing 

with the Commission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). 

Bentley mailed to. the Commission a letter, dated June 4, 1990, that 

appears to be its answer to the Secretary of Labor's civil penalty 

proposal. Bentley's June 4 letter was received by the Commission on 

June 7, 1990. We will treat Bentley's letter as a timely filed petition 

for discretionary review. See~· Middle States Resources, Inc., 

10 FMSHRC 1130 (September 1988). 

Although Bentley filed a "Blue Card" request for a hearing in this -' 

matter, neither its June 4 letter nor any other part of the record 

1197 
reveals the reasons for its failure .v file its answer within 30 days 

after receipt of the Secretary's penalty proposal petition, as required 

by 29 C.F.R. § 2700.28, or its failure to respond to the judge's show 

cause order. We grant the petition and vacate the judge's default 

decision in order to allow Bentley, which is apparently proceeding pro 

se, an opportunity to present the reasons for these failures, and for 

the Secretary to interpose any objections to relief from the default 

decision. 

Richard V. Backley, Co~ 

L. ~1f:t= Clair Nelson, Commissioner 

1198 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BENTLEY COAL COMPANY 

June 14, 1990 

Docket No. WEVA 90-52 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)( 11Mine Act"). On 

May 31, 1990, Commission Chief Administrative Law Judge Paul Merlin 

issued an Order of Default finding Bentley Coal Company ("Bentley") in 

default for its failure to answer the Secretary of Labor's civil penalty 

proposal and the judge's order to show cause. The judge assessed the 

civil penalty of $786 proposed by the Secretary. For the reasons that 

follow, we vacate the default order and remand this case for further 

proceedings. 

The judge's jurisdiction over this case terminated when his 

default order was issued on May 31, 1990. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Commission's procedural rules, once a judge's 

decision has issued, relief from the decision may be sought by filing 

with the Commission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). 

Bentley mailed to the Commission a letter, dated June 4, 1990, that 

appears to be its answer to the Secretary of Labor's civil penalty 

proposal. Bentley's June 4 letter was received by the Commission on 

June 7, 1990. We will treat Bentley's letter as a timely filed petition 

for discretionary review. See~· Middle States Resources, Inc., 

10 FMSHRC 1130 (September 1988). 

Although Bentley filed a "Blue Card" request for a hearing in this 

matter, neither its June 4 letter nor any other part of the record 

il99 
reveals the reasons for its failure ~v file its answer within 30 days 

after receipt of the Secretary's penalty proposal petition, as required 

by 29 C.F.R. § 2700.28, or its failure to respond to the judge's show 

cause order. We grant the petition arid vacate the judge's default 

decision in order to allow Bentley, which is apparently proceeding pro 

se, an opportunity to present the reasons for these failures, and for 

the Secretary to interpose any objections to relief from the default 

decision. 

Distribution 

Ernest R. Mikles, Vice President 

Bentley Coal Company 

Star Rt., Box 44-C 

Coalton, West Virginia 26257 

Page H. Jackson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

L. Clair Nelson, Conunissioner 

Chief Administrative Law Judge Paul :Merlin 

Federal Hine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1200 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HICKORY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 18, 1990 

Docket No. PENN 90-49 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988) ("Mine Act"). On 

May 24, 1990, Commission Chief Administrative Law Judge Paul Merlin 

issued an Order of Default finding respondent Hickory Coal Company 

("Hickory") in default for failure to answer the Secretary of Labor's 

civil penalty proposal and the judge's order to show cause. The judge 

assessed the civil penalty of $850 proposed by the Secretary. By letter 

to the Commission dated May 31, 1990, Hickory requests that this matter 

be reopened on the grounds that it mistakenly thought that it had filed 

its answer in this proceeding but, in fact, the answer applied to 

another Commission proceeding. We deem Hickory's May 31 letter a timely 

petition for discretionary review of the judge's default order, grant 

the petition, and remand this matter to the judge for further 

proceedings. 

The judge's jurisdiction in this proceeding terminated when his 

default order was issued on May 24, 1990. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Commission's procedural rules, once a judge's 

decision '.has issued, relief from the decision may be sought by filing 

with thej.Gommission a petition for discretionary review within 30 days 

of the deCiision. 30 U.S.C. § 823(d)(2); 29 C.F .R. § 2700. 70(a). Here, 

Hickory 1 s'May 31 letter to the Commission seeks relief from the judge's 

default:order and we will treat it as constituting a timely filed 

petitio.nJ,for discretionary review. See, ~. Middle States Resources, 

Inc., 10 FMSHRC 1130 (September 1988). 

1201 
Hickory appears to be a small co:·. company proceeding without 

benefit of counsel. It also appears from the record that Hickory may 

have raised a colorable explanation for its failure to respond to the 

judge's show cause order. In conformance with the standards set forth 

in Fed. R. Civ. P. 60(b)(l), the Commission will afford relief from 

default upon a showing of inadvertence, mistake, or excusable neglect. 

~.Amber Coal Co., 11 FMSHRC 131, 132 (February 1989). 

We are unable on the basis of the present record to evaluate the 

merits of Hickory's position but, in the interest of justice, we will 

permit Hickory the opportunity to present its position to the judge, who 

shall determine whether final relief from the default order is 

warranted. See;~· Kelley Trucking Co., 8 FMSHRC 1867 (December 

1986). 

Accordingly, we vacate the judge's default order and remand this 

matter for further proceedings. Hickory is reminded to serve the 

opposing party with copies of all its correspondence and other filings 

in the matter. 29 C.F.R. § 2700.7. 

Distribution 

William Kutsey 

Hickory Coal Company 

RD Ill , Box 4 7 9 

Pine Grove, PA 17963 

Susan M. Jordan, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

~~ 

Joyce 

a~t?r~ A. Doyle, CommiSSiOJlr 

t 

Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal ML1~ Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 28, 1990 

JOHN A. GILBERT 

v. 

SANDY FORK MINING COMPANY, INC. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JOHN A. GILBERT 

v. 

SANDY FORK MINING COMPANY, INC. 

Docket No. KENT 86-49-D 

Docket No. KENT 86-76-D 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

This discrimination proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S. C. § 801 et seg. ( 1988 )("Mine 

Act"), is on remand to the Commission pursuant to an opinion of the 

United States Court of Appeals for the District of Columbia Circuit 

reversing and remanding our prior decision in this matter. John A. 

Gilbert v. FMSHRC, 866 F.2d 1433 (1989), rev'g, John A. Gilbert v. Sandv 

Fork Mining Co., 9 FMSHRC 1327 (August 1987). In response to the 

Court's decision, the Commission resolved at the Commission level all 

factual issues remanded by the Court in favor of Gilbert. We ordered a 

remand, however, so that Commission Administrative Law Judge Gary Melick 

could address remaining remedial issues. 12 FMSHRC 177 (February 1990). 

Sandy Fork Mining Company, Inc. ("Sandy Fork") filed a Petition for 

Reconsideration requesting that we reconsider our decision entering 

factual findings at the review level and that we remand to the 

administrative law judge the issues remanded by the Court concerning the 

merits of this case. l/ Mr. Gilbert opposes this motion. For the 

l/ Sandy Fork's Petition for Reconsideration does not question that 

part of the Commission's decision reinstating Gilbert's individual 

1203 
reasons set forth below, the Petition for Reconsideration is granted. ~/ 

The facts and procedural history of this proceeding are set forth 

in detail in the Conunission's prior decisions and will not be repeated 

here. See 9 FMSHRC 1327 (August 1987) and 12 FMSHRC 117 (February 

1990). Following an evidentiary hearing, the administrative law judge 

determined that Sandy Fork had not violated section 105(c)(l). 8 FMSHRC 

1084 (July 1986). The Conunission affirmed his decision on substantial 

evidence grounds. The Court reversed the Conunission's decision and 

remanded the case back to the Conunission for further consideration. 

The Court raised a number of specific questions to be resolved by 

the Conunission. The Court explained: 

On the record as we understand it, it is plain 

that Gilbert made a good faith attempt to 

conununicate his reasonable fears to management. 

What is not clear, however, is whether management 

addressed Gilbert's concerns in a way that his fears 

reasonably should have been quelled. In other 

words, did management explain to Gilbert that the 

problems in his work area had been corrected? Or 

did management indicate to Gilbert that he would be 

assigned to another area in the mine that was free 

of safety problems? Or did management indicate to 

Gilbert that the situation was unsettled, and that 

he should wait five hours (until the start of his 

assigned shift) before inquiring further about 

safety conditions in his area? These questions must 

be answered by the Conunission in order for it to 

determine whether the management at Sandy Fork 

reasonably addressed Gilbert's fears on the morning 

of August 7. If management effectively 

"stonewalled" Gilbert in responding to his inquiries 

on the 7th, then his continued fears regarding work 

hazards were reasonable, and his refusal to return 

to work cannot be viewed as either unreasonable or 

in bad faith. On remand, the Conunission will be 

required to make the necessary factual findings to 

address these issues. 

complaint brought under section 105(c)(3) of the Mine Act, 30 U.S.C. 

§ 815(c)(3). 12 FMSHRC at 182-83. In its original decision, a majority 

of the Conunission had granted the Secretary of Labor's motion to dismiss 

the complaint brought by Gilbert on his own behalf. The Court reversed 

this conclusion. In light of the Court's decision, in our February 16, 

1990 decision we reinstated Gilbert's private complaint. That aspect 

of the Conunission's decision is not affected by this order. 

~/ Sandy Fork petitioned for review of the Conunission's February 16, 

1990 decision with the U.S. Court of Appeals. Sandy Fork Mining 

Company, Inc. v. John A. Gilbert, No. 90-1145 (D.C. Cir. filed March 19, 

1990). This proceeding has been stayed pending the Conunission's 

consideration of the Petition for Reconsideration. 

1204 
866 F.2d 1441 (footnote omitted). 

On remand, the Commission discussed the evidence and concluded 

that Gilbert's safety concerns were not addressed by Sandy Fork in a 

manner sufficient to reasonably quell his fears. 12 FMSHRC at 180-81. 

The Commission determined that given the Court's belief that Gilbert did 

not act precipitately and its finding that he entertained a good faith, 

reasonable belief in a hazard, Gilbert's departure from the mine 

constituted a discriminatory constructive discharge in violation of 

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

In its Petition for Reconsideration, Sandy Fork argues that, given 

the nature of the record in this case and the questions posed by the 

Court, the Commission should have remanded the case to the trier of fact 

for the "necessary factual findings" ordered by the Court. It suggests 

that the findings may turn on the demeanor or credibility of the 

witnesses and that the administrative law judge is in the appropriate 

position to make such determinations. In addition, it argues that the 

Commission exceeded the scope of its authority under the Mine Act by 

engaging in independent fact finding at the review level. In reply, 

Gilbert argues that the Commission's decision on remand was mandated by 

the undisputed testimony of record, that it was unnecessary to remand 

the case to the administrative law judge, and that the Commission was 

within its authority in making the narrow determinations ordered by the 

Court. 

Further proceedings before the administrative law judge are 

already necessary pursuant to our remand order of February 16, 1990. 

Sandy Fork has explained with some force its concern that the 

administrative law judge, who is familiar with the witnesses and the 

testimony, was not given an opportunity to "make the necessary factual 

findings" ordered by the Court's remand. Although we do not agree with 

Sandy Fork's contention that the Commission was required under the 

circumstances to remand this issue to the judge, upon reconsideration 

and in the exercise of our discretion, we believe it is more appropriate 

to do so in order to assure that all parties are given a full and fair 

opportunity to respond to the Court's order. Therefore, we grant Sandy 

Fork's Motion for Reconsideration and remand this proceeding to the 

judge to respond to the Court's remand on the merits of Gilbert's 

complaint. To the extent, however, that Sandy Fork is requesting that 

the record be reopened for the introduction of further evidence in this 

case, the motion is denied. The record was fully developed in the 

hearing before the administrative law judge. All that is necessary at 

this juncture is the entry of further findings. 

1205 
For the foregoing reasons, we vacate that portion of our decision 

of February 16, 1990, resolving the merits of Gilbert's discrimination 

complaint.. We remand this matter to the judge for determination, on the 

existing record, of the issues raised by the Court on the merits of 

Gilbert's discrimination complaint, as set forth above, and for 

determination of any outstanding remedial issues • 

Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Ronald E. Meisburg, Esq. 

Smith, Heenan & Althen 

1110 Vermont Ave., N.W. 

Washington, D.C. 20005 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22204 

Administrative Law Judge Gary Melick 

. 

Richard 

~/~ V. Backley, Commissione¥ 

&e;~er 

L. Clair Nelson, Commissioner 

Federal Mine Safety and Health Review Commission 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

1206 
ADMINISTRATIVE LAW JUDGE DECISIONS 
, .. :, 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 5 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) Docket No. LAKE 89-92-M 

Petitioner A.C. No. 20-00024-05514 

v. 

FRANCE STONE COMPANY, 

Respondent 

Monroe stone Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

Following remand of this case to me by the Review 

Commission, the parties on May 29, 1990, filed a Joint Motion to 

Amend Settlement, Approve Amended Settlement and Dismiss. 

The two violations charged in this proceeding were 

originally assessed at $2000 and $10,000. The motion states that 

the parties agree to settle for the amounts originally assessed. 

Citation 3265648, charging a violation of 30 C.F.R. § 

56.14131 because of the failure of the operator of a haul truck 

to wear seat belts, was assessed at $2000. The parties agree 

that Respondent demonstrated a low degree of negligence in that 

it would have been extremely difficult for Respondent to know 

that the operator was not wearing seat belts. The violation was 

significant and substantial. 

Citation 3265649, charging a violation of 30 C.F.R. 

§ 56.9301 because a berm or bumper block to prevent overtravel 

was not provided at the top edge of a dumping location, was 

assessed at $10,000. The parties agree to amend the § 104(d) (1) 

citation to a § 104(a) citation and to reduce the negligence from 

high to moderate because, while Respondent had established a rule 

and practice of not permitting haul trucks to dump in areas above 

loading operations, it was not followed in this case. A fatality 

occurred when a haul truck backed over the edge of a stock pile 

ramp. The parties agree that the violation is significant and 

substantial in that dumping above a loading area creates a 

reasonable probability of a reasonably serious injury or death. 

The parties agree that Respondent asserts and the evidence shows 

that employees unsuccessfully tried to warn the truck driver 

1207 
prior to the accident that he was about to dump at a hazardous 

place on the stockpile. 

The parties further agree that except for these proceedings, 

and any other subsequent MSHA proceedings between the parties, 

none of the foregoing agreements; ~tatements, findings, and 

actions taken by Respondent shall be deemed an admission by the 

Respondent of allegations contained within the citations. The 

agreement, statements, for the purpose of compromising and 

settling this matter economically and amicably, and they shall 

not be used for any other purpose whatsoever, except as herein 

stated. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act and conclude that it should be 

approved. 

Accordingly, the Motion to Amend Settlement and Approve 

Amended Settlement is GRANTED. The Amended Settlement is 

APPROVED and Respondent is ORDERED to pay the sum of $12,000 

within 30 days of the date of this order. 

Distribution: 

t

1 

fl!U!s ~{'?,,d:rr-c~-K_· James A. Broderick 

Administrative Law Judge 

Rafael Alvarez, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Henry Chajet, Esq., Jackson & Kelly, 1701 Pennsylvania Avenue, 

N.W., Suite 650, Washington, D.C. 20006 (Certified Mail) 

slk 

1208 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 5 1990 

JOSEPH PELEHAC, JR., DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. PENN 89-226-D 

MSHA Case No. PITT CD 89-15 

CONSOLIDATION COAL COMPANY, 

Appearances: 

Before: 

Respondent Dilworth Mine 

DECISION 

Edward D. Yankovich, Jr., President, UMWA District 

No. 4, Masontown, Pennsylvania; Michael J. Healey 

and Paul Girdany, Esqs., HEALEY WHITEHILL, 

Pittsburgh, Pennsylvania, for the Complainant; 

Walter J. Scheller, III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

the complainant Joseph Pelehac against the respondent pursuant to 

section 105{c) of the Federal Mine Safety and Health Act of 1977, 

(the Act). Mr. Pelehac filed his initial complaint with the 

Secretary of Labor, Mine Safety and Health Administration (MSHA), 

and he was advised by MSHA that after review of the information 

gathered during its investigation of his complaint, MSHA determined that a violation of section 105(c) had not occurred. A 

hearing was held in Washington, Pennsylvania, and the complainant 

filed a posthearing brief. The respondent did not file a brief, 

but I have considered all of the oral arguments made by the 

parties during the course of the hearing. 

The complainant contends that the respondent discriminated 

against him when it refused to pay him wages or overtime pay 

after he was required to remain at work after his normal work 

shift on 3 days in order to be interviewed by company safety 

officials in connection with a company accident investigation, · 

and to give testimony in the course of an MSHA accident investigation. The complainant asserts that two of his fellow miners 

1209 
who participated in the accident investigation were paid overtime 

for the extra time they were required to stay over beyond their 

normal shifts, and that the respondent's refusal to pay him was 

based on th_e fact that his testimony was not favorable to the 

respondent and did not absolve the respondent of all responsibility for the accident. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et seg. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2) and 

( 3) • 

3. Commission Rules, 29 C.F.R. § 2700.l, et seg. 

Issue 

The issue presented in this case is whether or not the 

respondent's refusal to pay the complainant for his time beyond 

his normal work shifts during the accident investigations constituted illegal discrimination under the Act. Additional issues 

raised by the parties are disposed of in the course of my adjudication of this matter. 

Complainant's Testimony and Evidence 

Complainant Joseph Pelehac confirmed that on Tuesday, 

January 24, 1989, an accident occurred on one of the barges where 

he was working. His normal quitting time was 2:15 p.m., but mine 

superintendent Louis Barletta informed him that he could not 

leave the mine because safety inspectors were on their way to 

investigate the accident. Mr. Pelehac stated that he did not 

leave work until 5:45 p.m., and was not paid for the extra hours 

he was required to stay at work that day. 

Mr. Pelehac stated that he was scheduled to work the 

12:01 a.m. night shift on Tuesday, January 24, 1989, but since he 

got home so late, he asked Mr. Barletta if he could work the day 

shift on Wednesday, January 25, 1989, and Mr. Barletta agreed. 

Mr. Pelehac stated that he reported to work at 8:00 a.m., that 

morning, but was called out of the mine to be interviewed by the 

inspectors. After speaking with an inspector for an hour, he 

returned to work and finished his work shift at 4:00 p.m., and 

was paid for the entire shift, including the hour he spent with 

the inspector. After finishing his work, he was again required. 

to stay over to speak with the inspectors, and remained at the 

mine for approximately 2 hours beyond his normal 4:00 p.m., 

quitting time, and was not paid for these extra hours. He was 

1210 
also required to stay two extra hours on Thursday, January 26, 

1989, and was not paid. 

Mr. Pel·ehac stated that he has worked at the mine for 

12 years, and has worked for the respondent for six years. He 

confirmed that he has worked overtime "off and on" during these 

years, was always paid when asked to stay over, and has always 

assumed that he would be paid when told by management to stay. 

The instant case was the first time he was told to stay and was 

not paid. He conceded that this was the first time he was asked 

to stay to participate in an accident investigation (Tr. 8-14). 

The parties stipulated that during the 3 days in question 

when Mr. Pelehac was requested to stay over to be interviewed by 

the accident investigators or mine management, he performed no 

work in his regular job classification (Tr. 16-17). 

Mr. Pelehac confirmed that he made no safety complaint 

concerning the accident (Tr. 18). Respondent's counsel pointed 

out that the first day Mr. Pelehac was required to stay over, 

January 24, 1989, was in connection with the accident investigation conducted by mine management to ascertain the facts, and 

that the following 2 days, January 25, and 27, 1989, were in 

connection with the accident investigation conducted by the state 

and Federal mine inspectors (Tr. 20; 68). Mr. Pelehac confirmed 

that this was the case (Tr. 22-24). 

Mr. Pelehac conceded that when he filed his initial complaint with MSHA on March 10, 1989, he did not allege that he was 

not paid because he gave unfavorable testimony against the 

respondent, and simply stated that he was discriminated against 

because he was not paid for the extra time he stayed at work (Tr. 

25). When asked why he not mentioned his "unfavorable testimony" 

allegation, he responded "I didn't think it was necessary'' (Tr. 

26) . 

Mr. Pelehac stated that the respondent was attempting to 

establish that the accident victim, Paul Bandish, had violated a 

safety procedure when he was injured and that his injuries were 

the result of his violation. Mr. Pelehac believed that the 

respondent refused to pay him for the extra hours in question 

because "because I couldn't give testimony to the fact to say 

that he was doing something wrong" (Tr. 27). Mr. Pelehac confirmed that no one from management ever suggested or inferred 

that he should testify "one way or the other" (Tr. 28). 

Mr. Pelehac did not believe that Mr. Bandish violated any 

safety rules, and he stated that he (Pelehac) was only a trainee 

and that Mr. Bandish was training him to take his job. 

Mr. Pelehac stated that he had no idea why the respondent may 

have taken the position that Mr. Bandish may have violated a 

1211 
safety rule and caused the accident (Tr. 28). He further 

explained as follows at (Tr. 28-29): 

A. In the investigation they kept saying like, you're 

sure he didn't do this, you're sure he didn't do that, 

you're sure he didn't hit this thing with a hammer 

instead of doing it the proper way. And I said, no. 

They kept inferring, did he hit this with a hammer, did 

he hit this with a hammer. 

JUDGE KOUTRAS: Okay. 

A. And I said no. 

JUDGE KOUTRAS: Who? 

A. Lou in particular said that several times. 

JUDGE KOUTRAS: How about during the investigation on 

the 25th and the 26th by the MSHA and State people? 

Did those inspectors or investigators ask you the same 

questions? 

A. No. I don't believe they ever asked me. 

JUDGE KOUTRAS: Okay. 

A. But on each day he asked me or someone from management asked me. 

Mr. Pelehac confirmed that he filed a grievance with his 

foreman over the pay issue, and that after he was informed that 

the respondent had no contractual obligation to pay him, this 

"ended" his grievance (Tr. 30). 

Mr. Pelehac confirmed that the respondent was not served 

with any violations as a result of the testimony which he gave 

during the accident investigation. He believed that it would be 

in the respondent's best interest to try and establish that 

Mr. Bandish was negligent and "that they would want me to say 

that he did, in fact, do something wrong which I wasn't on the 

job long enough to know if he did something wrong or not" (Tr. 

33). He confirmed that no one from management ever suggested 

that he not tell the truth (Tr. 34). 

Mr. Pelehac believed that the repeated questioning by 

management was for the purpose of determining whether or not 

Mr. Bandish may have been negligent or violated any safety rule. 

that resulted in his injuries in order to mitigate the respondent's liability, and that he did not find this unusual (Tr. 35). 

When asked to specify any testimony on his part that he believed 

would have been damaging to the respondent, Mr. Pelehac responded 

1212 
as follows (Tr. 35): "Because if Mr. Bandish tries to assume at 

a later date, which I don't believe he has yet, they would have 

evidence that I, in fact, said that Mr. Bandish did violate a 

safety rule." 

Mr. Pelehac stated that he gave no testimony which would 

indicate that Mr. Bandish violated any safety rule, and he 

believed that the respondent suspended Mr. Bandish for 5 days, 

effective when he returned to work, but that to his knowledge, 

Mr. Bandish has not returned to work since he is still recovering 

from his injuries (Tr. 36). Mr. Pelehac confirmed that 

Mr. Bandish contested his 5-day disciplinary suspension through 

arbitration, and that he (Pelehac) testified at the arbitration 

hearing held on November 13, 1989, and that the decision of the 

arbitrator is still pending (Tr. 38). Mr. Pelehac further confirmed that he was again questioned by the respondent during the 

arbitration hearing (Tr. 38). 

Mr. Pelehac stated that he filed a "verbal grievance" 

because he was not paid for the time he spent during his accident 

investigation questioning, and it was verbally denied when his 

foreman who considered the grievance made a determination that 

the labor-management contract did not provide for such payments. 

Mr. Pelehac confirmed that he did not further pursue the grievance (Tr. 40; exhibit R-1). 

Respondent's Testimony and Evidence 

Louis Barletta, Jr., respondent's mine superintendent, 

testified that Mr. Pelehac has never filed any safety grievances 

or made any safety complaints, and that he considers him to be a 

good employee. Mr. Barletta stated that after being informed of 

the accident he went to the scene and observed Mr. Bandish 

receiving medical attention, and he spoke with Mr. Pelehac and 

two other employees, and requested Mr. Pelehac to remain after 

his normal work shift on January 24, 1989. Mr. Barletta 

explained that Mr. Bandish's injuries did not initially appear to 

be serious, but when it was later determined from the hospital 

report that they were, MSHA and the appropriate state agency were 

informed of the accident. 

Mr. Barletta stated that he conducted the respondent's 

accident investigation and that it began at 1:15 or 1:30 p.m., 

shortly after Mr. Bandish was taken to the hospital, and he spent 

the rest of the day on his investigation. After Mr. Pelehac left 

the mine, MSHA and the state inspectors arrived at the mine, and 

Mr. Barletta was involved in the investigation until 9:30 p.m. 

that day, and it continued on January 25-27, 1989, and a few days 

in February (Tr. 50). He confirmed that Mr. Pelehac was not 

interviewed by the inspectors on January 24, and that he had 

requested to go home before the inspectors arrived, and he permitted him to leave (Tr. 50). Mr. Barletta stated that at the 

1213 
time he conducted his interviews up to 5:00 p.m., on January 24, 

he did not believe that the accident would be investigated by 

MSHA (Tr. 51). 

Mr. Barletta stated that he investigated the accident 

because it was the second serious accident in 15 years, and that 

since he was the superintendent, it was his responsibility to 

investigate accidents, and it was important for him to know how 

Mr. Bandish was injured. He confirmed that in addition to 

Mr. Pelehac, he also interviewed dockman Dan Bailey and barge 

loader operator Ronnie Seliga. He was not sure whether or not 

Mr. Bailey and Mr. Seliga remained over their normal work shift 

hours and stated that "I'm not positive but I know they are not 

paid for the investigation unless it was on their normal shift" 

(Tr. 52). He confirmed that Mr. Pelehac made no complaints about 

the accident in question (Tr. 52). 

Mr. Barletta confirmed that in prior instances when he has 

requested to speak to miners before or after their work shifts, 

they were never compensated for their time because company policy 

only requires that employees be paid for work performed, and that 

investigations, counselling, matters dealing with employee problems, including discipline, are not considered to be "work performed," and that no one has been compensated for the time spent 

on such matters (Tr. 53). In response to certain bench questions 

concerning an employee's refusal to stay over and beyond his 

normal work shift unless he were paid, Mr. Barletta responded as 

follows (Tr. 53-54): 

JUDGE KOUTRAS: Can I just ask one question? What 

happens if an employee declines to stay? He says, I'm 

not getting paid, I'm not staying. 

A. Well, I don't believe that case ever occurred to 

me. I could answer that if it would. 

JUDGE KOUTRAS: Answer it in a hypothetical. 

A. If it would, I would give them a direct work order 

to make them stay. 

JUDGE KOUTRAS: How can you give them a work order if 

he's not going to do any work? 

A. Okay. 

* * * * * * 

A. It depends on the situation. It would depend on 

the situation. I have had people saying they couldn't 

stay because they had other engagements. Then I would 

talk to them at the start of the next shift. 

1214 

* 
Mr. Barletta stated that an employee must report any accident on his shift to his supervisor prior to the end of the 

shift, and no later than the end of the shift. An employee must 

also fill out an accident report, and if this occurs after his 

normal shift, the report is reviewed with the employee, and he 

may be "tagged" to stop by the office at the end of his shift. 

The employee would not be compensated for his time because there 

are no contractual requirements for payment for time spent 

investigating accidents before or after a shift (Tr. 55). 

Mr. Barletta testified that in September, 1988, he conducted 

an investigation of an incident involving an employee who was 

observed walking under an unguarded belt conveyor, which resulted 

in an imminent danger order issued by an MSHA inspector (exhibit 

R-3). He confirmed that the employee was suspended for 3 days 

without pay, and that during his investigation of the incident, 

the employee was asked to stay after her normal work shift for 

2 days. The employee stayed over for 45 minutes after her shift 

on September 1, and for approximately 30 minutes on September 2, 

and she was not compensated for this time (Tr. 60-61). 

Mr. Barletta stated that on Wednesday, January 25, 1989, an 

MSHA investigator began his formal accident investigation, and 

through a prior agreement with Mr. Pelehac, he was working the 

daylight shift that day. He was called out of the mine at 

9:00 a.rn., because the MSHA inspector wanted to hear his accident 

testimony. Mr. Pelehac was questioned by the inspector, management, and the mine safety committee, and then returned to his 

underground job assignment (Tr. 63). That evening, Mr. Pelehac 

was requested to stay over because another MSHA special investigator was corning to the mine and wanted to speak with witnesses. 

Mr. Barletta stated that he informed the inspector by telephone 

before he arrived that Mr. Pelehac was the only eye witness, and 

the inspector requested an opportunity to speak with him. 

Mr. Barletta then advised Mr. Pelehac that he was requested to 

stay at the end of his shift to testify about the accident (Tr. 

64, exhibit R-2, MSHA accident report of investigation). 

Mr. Barletta stated that the MSHA, state, and company investigation continued on Thursday, January 26, and Mr. Pelehac was 

not interviewed that day (Tr. 65). Mr. Barletta confirmed that 

Mr. Pelehac's claim for pay for 2 hours on January 26, is in 

error, and that he confused the days, and that the correct day 

for this claim should be Friday, January 27 (Tr. 67). 

Mr. Pelehac's representative confirmed that this was the case, 

and that the correct day was January 27 (Tr. 68). 

Mr. Barletta stated that Mr. Pelehac requested to return to 

his normal midnight work shift, and that he worked that shift on 

January 27, from 12:01 a.rn. to 8:00 a.rn. Mr. Barletta requested 

Mr. Pelehac to stay over because the MSHA inspector requested 

1215 
that he be available for testimony that morning during the continuing investigation. The investigation meeting was conducted 

by the MSHA inspector and special investigator, and other than 

their normal onshift work time, no one was compensated for the 

time spent during the investigation because of the company practice and policy pursuant to the contract that does not allow 

compensation for people involved in accident investigations (Tr. 

69) • 

Mr. Barletta identified exhibit R-4, as the list of people 

who participated in the MSHA accident investigation, and the time 

sheets of the employees who were interviewed and questioned. He 

confirmed that none of these employees were paid for any time 

other than their regularly scheduled work times (Tr. 70-71). 

Mr. Barletta confirmed that there have been other instances 

when MSHA has conducted investigations and miners were questioned 

after their work shift and were not compensated, and that this 

was a common occurrences in instances where miners have filed 

safety complaints pursuant to section 103(g) of the Act, and 

requested an MSHA investigation (Tr. 73). He stated that this 

occurred on April 13, 1989, when seven hourly and salaried 

employees working on the midnight shift were requested to stay 

over by MSHA and state inspectors who were conducting a section 

103(g) investigation, and that none of these employees were 

compensated for the time spent during that investigation (Tr. 74, 

exhibit R-5). Although some of the time sheets for these 

employees reflects overtime pay, he explained that "there is some 

overtime but that was for production purposes because we do not 

change in the face on two or three hourly employees in question." 

He reiterated that management did not pay any of these employees 

for the time spent on the investigation, nor has it paid any 

overtime for such time (Tr. 74). He also confirmed that compensation has never been paid for extra time spent on state or 

company investigations (Tr. 75). 

When asked about Mr. Pelehac's belief that he was discriminated against because his testimony did not absolve the respondent of liability for the accident, and whether he would have 

been paid if his testimony was "favorable," Mr. Barletta 

responded as follows (Tr. 75-77): 

A. I can't say his testimony was unfavorable. 

Favorable or unfavorable, no, I wouldn't have paid him 

either way. There was no reason to based on my policy 

and the policy Consolidation Coal has. But his testimony --- I can't do --- whoever determined it was 

unfavorable, I don't know. He basically said that he 

saw nothing of the accident. He turned his back and it 

happened. He turned around, the man was injured. 

1216 
Q. Mr. Pelehac stated during his testimony that you - repeatedly asked him about hammering and, in essence, 

that you were harassing him. Could you tell us why you 

were asking him about the accident? 

A. I repeatedly asked him about a hammer. The reason 

I asked him about a hammer, that I observed a hammer 

laying on the landing on the empty side of the dock and 

Mr. Pelehac observed it too after I pointed it out to 

him. Our employees were trained not to use a hammer to 

knock down and bring them loose while it was under 

tension. Mr. Pelehac stated to me on the 24th he was 

informed by the victim, Mr. Bandish, and another person 

training him, you don't ever hit it while under 

tension. 

When we looked --- when I say we looked, 

Consolidation Coal Company, and their employees looked 

at the accident scene, there was no hammer on the 

barges which came out in the testimony and the MSHA 

report. But the concern was that when the accident 

scene was recreated, the rope, the chain and the rachet 

assembly all functioned properly. 

And later on that evening it was found out by Rich 

Werth, W-E-R-T-H, he is a safety inspector for management at Dilworth Mine, there were statements made at 

the hospital by the victim. And that's why the question was asked so many times. The statements made at 

the hospital by the victim was that he's never screwed 

up, and he used other four letter words, so bad that he 

beat high, he beat low, he beat high and everything 

just blew apart. And the victim said 

* * * * * * 

A. I had a reason to question it and I continue to 

question it. 

JUDGE KOUTRAS: You suspected that the accident victim 

may have beat on this thing with a hammer? 

A. Yes, sir. 

* 

On cross-examination, Mr. Barletta stated that he requested 

Mr. Pelehac to stay over his normal work shift hours on one day 

for his own investigation, and for 2 days for MSHA's investigation. When asked whether he makes it clear to an employee that. 

such requests are a "direct work order," Mr. Barletta responded 

that this is not needed because "our employees should be responsible enough that they will do what they are told" (Tr. 78). 

1217 
Mr. Barletta reviewed the time sheets of Tuesday, 

January 24, 1989, for Mr. Pelehac, Mr. Bailey, and Mr. Seliga, 

and he explained the entries made (Tr. 78-80, exhibit R-4). He 

confirmed that he shut the dock loading facility down when the 

accident occurred in order to investigate it and to prevent 

further accidents (Tr. 81). He also confirmed that he probably 

ordered a foreman to tell Mr. Pelehac that he was requested by 

MSHA to stay over on January 25 and 27, for the investigation 

(Tr. 82). 

Mr. Barletta confirmed that the accident occurred at approximately 1:00 p.m., on January 24, and he, rather than MSHA, 

requested Mr. Pelehac to stay over beyond his normal quitting 

time at 2:15 p.m. (Tr. 85). In response to further questions on 

direct, Mr. Barletta confirmed that Mr. Pelehac performed no work 

in his job classification after his normal work shift ended on 

January 24, but that Mr. Bailey, who was asked to work a double 

shift for an employee who was absent, worked in his own job 

classification for nine and three-quarter hours during the entire 

shift. Mr. Barletta stated that in the course of the investigation, some of the witnesses were interviewed during their work 

shifts and were paid, including Mr. Pelehac who was called out of 

the mine on the morning of January 25, and that this was analogous to Mr. Bailey being paid when he was interviewed while 

working a double shift. With regard to Mr. Seliga, who was 

scheduled to work overtime every day of the week of January 23, 

although he was required to perform his work, he did not do so 

because the facility was shutdown, and he was not present to be 

interviewed (Tr. 86-88). 

In response to questions concerning the time sheets and 

hours recorded for Mr. Pelehac, Mr. Bailey, and Mr. Seliga, 

Mr. Barletta further explained the time entries. He stated that 

Mr. Bailey's participation in the accident investigation consumed 

approximately 30 minutes, and Mr. Seliga consumed approximately 5 

to 10 minutes because he observed nothing at the time of the 

accident. He further stated that Mr. Bailey and Mr. Seliga were 

both performing work during his investigation, but that 

Mr. Pelehac stayed with him (Barletta) for 3-1/2 hours while 

trying to resolve how the accident occurred. Mr. Barletta could 

not explain why Mr. Pelehac's time sheet for January 24, showed 

an entry for 3 hours overtime, and was then scratched out and 

initialed by the individual who signed the sheet (Tr. 89-102). 

Mr. Pelehac was recalled in rebuttal, and he testified that 

on the afternoon of the accident on January 24, 1989, from 

2:15 p.m. until 5:00 p.m., no coal was loaded on the barges. He 

stated that Mr. Bailey and Mr. Seliga were present with him, . 

Mr. Barletta, and other management personnel during the questioning of the barge specialist which took place until he went home 

at 5:45 p.m. Mr. Pelehac stated that he assisted in carrying out 

the accident victim on a stretcher, and Mr. Bailey and Mr. Seliga 

1218 
were assigned no other work duties, and he did not observe them 

doing any work. He further confirmed that no one did any work, 

and that "everything was left alone just the way it was, I guess, 

to preserve the evidence so the barge specialist from Clariton 

could come up and look at it." Mr. Bailey and Mr. Seliga were 

with him the entire time "in a group" (Tr. 112-113). 

Complainant's Arguments 

In his closing arguments at the hearing, the complainant's 

representative argued that Mr. Barletta's testimony reflects that 

Mr. Bailey and Mr. Seliga, two employees who were involved in the 

accident investigation, were compensated for their time, but that 

the complainant was not. The complainant concluded that he was 

discriminated against because he did not supply the testimony the 

respondent was seeking with respect to the employee who was 

injured. Complainant asserted that he was repeatedly questioned 

by the respondent's management in an effort to have him say that 

the injured employee caused the accident by beating on the pelican hook with a hammer. 

The complainant further argued that the respondent failed to 

provide a satisfactory explanation as to why the other two 

employees (Bailey and Seliga) were paid, or why the complainant's 

time sheet on the day of the accident initially reflected 3 hours 

of overtime, and then subsequently marked out. He also pointed 

out that the complainant testified that Mr. Bailey and Mr. Seliga 

were with him the entire time on the day of the accident (Tr. 

114-118) . 

In a posthearing brief filed on his behalf by counsel who 

entered a simultaneous appearance when they filed the brief, 

complainant asserts that he had been ordered in the past to 

remain past the end of his workshift by supervisors, but that the 

3 days in question were the only times that he had ever been 

ordered to remain past the end of his workshift and received no 

overtime pay compensation. 

The complainant points out that Mr. Bailey and Mr. Seliga 

also remained past the end of their shifts to assist in the 

accident investigation of January 24, 1989, and were compensated 

in overtime wages for their time. Complainant asserts that the 

respondent never offered a plausible explanation for this disparate treatment, and the fact that the respondent repeatedly and 

unsuccessfully tried to elicit testimony and information from him 

that the accident victim, through his own negligence, had caused 

the accident becomes extremely relevant. 

The complainant argues that section 105(c) of the Act protects miners against retaliation by mine operators for their 

exercise of safety rights protected under the Act, and that 

section 105(c) (1) specifically protects a miner who "has 

1219 
testified or is about to testify" in any proceeding "under or 

related to this chapter" or one who has exercised "any statutory 

right afforded by this chapter." Complainant asserts that it is 

undisputed· that he was interviewed by MSHA inspectors, and that 

he assisted in the investigation and provided information to MSHA 

during its investigation of the January 24, 1989, accident. 

Complainant takes the position that such participation on his 

part is akin to delivering testimony in an MSHA proceeding and is 

clearly one of the statutory rights afforded by the Act. 

Citing several NLRB decisions under the Labor Management 

Relations Act, the complainant asserts that the NLRB has consistently held that participation and assistance in NLRB investigations by an employee, even when such employee has not actually 

filed charges or testified in any formal proceedings, is protected activity which an employer may not retaliate against in 

any way, whether through disciplinary action or failure to pay 

proper wages. Complainant concludes that it is clear that he 

engaged in protected activities under the Act when he stayed past 

the end of his shift on the 3 days in question to assist in the 

investigation of the January 24, 1989, accident. 

The complainant maintains that he exercised his protected 

rights by submitting to the interviews during the course of the 

accident investigation, and that the respondent was aware of the 

exercise of those rights but refused to pay him for the hours he 

remained at the mine despite the fact that it had ordered him to 

remain at work to assist in the investigation. Complainant 

concludes that the respondent's refusal to pay him overtime wages 

was an act of discrimination because there was no legitimate 

business reason not to do so. 

Complainant argues that the cooperation of witnesses in 

accident investigations is essential for proper administration 

and enforcement of the Act, and he concludes that the refusal of 

the respondent to pay him for his time discourages witness 

cooperation and constitutes discrimination and impairs enforcement of the Act. 

Complainant cites a West Virginia Supreme Court of Appeals 

decision in carpenter v. Miller, 325 S.E. 2d 123 (1984), involving a state law similar to section 105(c) (1) of the Act. 

Complainant asserts that the court held that the withholding of 

compensation by employers from a miner who testifies at a mine 

safety proceeding is a form of discrimination prohibited by the 

statute, and that coal companies were required to fully compensate each miner whose pay was docked on days they testified in a 

mine safety proceeding. 

Complainant also cites a decision by Commission Judge 

William Fauver in Joseph G. DeLisio v. Mathies Coal Company, 

11 FMSHRC 2353 (November 1989), holding that the failure by a 

1220 
mine operator to pay a miner the difference between his regular 

daily wage and the $30 statutory witness fee he received for 

appearing as.a subpoenaed witness on behalf of MSHA in a 

Commission proceeding constituted a violation of section 105(c) 

of the Act. In that case, Judge Fauver held that the operator's 

refusal to pay the wages of the miner who testified against it at 

the hearing, while at the same time paying the wages of other 

miner witnesses who testified on its behalf, constituted discriminatory treatment of witnesses in violation of the Act. 

The complainant concludes that the public policy in the Act 

favors far ranging enforcement of its provisions, and that one 

manner of enhancing enforcement is the ability to interview 

employees/witnesses who will provide first hand information about 

the cause and circumstances surrounding mine accidents. The 

complainant believes it is clear that if a witness/employee must 

remain on the mine site after he has completed a full work shift 

in order to be accessible to MSHA investigators, that there will 

be less incentive for him to remain at the mine site if he must 

give up several hours of his free time without receiving any 

compensation after having completed a full work shift, and that 

this obviously undercuts the public policy embodied in the Act. 

Respondent's Arguments 

In his closing oral arguments, the respondent's counsel 

asserted that the complainant has not establish that he engaged 

in any protective activity under the Act, made no safety complaint, and that the respondent took no adverse action against 

him because of any protected activity on his part on January 24, 

1989. With regard to the other 2 days, counsel asserted that the 

accident investigation was an official MSHA investigation, that 

the respondent was not in charge, and that the MSHA inspectors 

requested that the complainant be present for testimony. Counsel 

concluded that the complainant has failed to establish any 

qdverse motive by the respondent, and has not established that he 

was treated any differently than any other employee. 

Counsel further asserted that the work time sheets show that 

the union has paid its safety committeemen for union business 

during the accident investigation, while the respondent did not. 

Counsel suggested that the union could have paid the complainant 

for his time, and that in the event the respondent paid him, his 

testimony would have been suspect because someone could point out 

that he was paid to give favorable testimony for the respondent. 

Counsel pointed out that the respondent does not even compensate 

foremen or management personnel for staying over during an accident investigation. 

1221 
Counsel asserted that any protected activity pursuant to the 

Act must be in connection with complaints to MSHA, mine management, or to the union, and that the complainant has not shown 

that he engaged in this kind of activity (Tr. 120-124). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

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

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

defend by proving that it was also motivated by the miner-' s 

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

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

Fasula-Robinette test). See also NLRB v. Transportation 

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

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in -

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965): 

1222 
It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

The record in this case establishes that while in the course 

of his regularly scheduled work duties on January 24, 1989, the 

complainant was a witness to a serious, non-fatal injury accident 

involving Mr. Paul Bandish, a fellow miner. Although the complainant's normal quitting time was 2:15 p.m., mine superintendent Barletta requested him to stay at the mine in order to be 

interviewed by the respondent about the accident. At the conclusion of the interviews, the complainant was released from work 

at 5:45 p.m. The following day, January 25, 1989, the complainant was again notified by the respondent that he had to remain at 

the mine in order to be interviewed by the respondent and State 

and Federal mine inspectors who were conducting an accident 

investigation. He was again interviewed and was not released to 

go home until after 6:00 p.m. His normal work shift on this day 

ended at 4:00 p.m. On January 27, 1989, the complainant was 

again required to stay after completing his work shift, to be 

interviewed by the respondent and government mine inspectors, and 

he was not released to go home until approximately 2 hours later. 

The complainant spent approximately 7-1/2 hours past his 

normal work times during a 3-day period while being interviewed 

as part of the accident investigations conducted by the respondent and State and Federal mine inspectors. Superintendent 

Barletta confirmed that if the complainant had declined to stay 

and make himself available for the investigations he would have 

given him a direct work order to stay. Under the circumstances, 

I conclude and find that the complainant's staying over beyond 

his normal work shifts on the days in question was involuntary. 

Despite his involuntary presence at the mine, the respondent 

refused to pay the complainant the overtime wages he would 

normally be entitled to if he had remained and worked. These 

wages would have been $171.64. 

The parties agreed that although the applicable UMWA/management bargaining agreement allows for compensation for safety 

1223 
committeemen in connection with a fatality, mine explosion, or 

disaster inquiry, it does not allow or provide for compensation 

for miners who participate in accident investigations which take 

place after their normal working shifts (Tr. 102-102). 

Complainant's representative confirmed that in the event the 

union initiates the investigation, i.g., pursuant to section 

103(g) of the Act, a miner may be made an "employee" of the union 

for purposes of the investigation, and he would be compensated by 

the union for the time spent on the investigation (Tr. 103-104). 

This was not done in this case because the union did not initiate 

the accident investigation in question (Tr. 104). 

The respondent contended that in this case, the union could 

have placed the complainant on union business and paid him for 

his time after his normal work shift, as it did in the case of 

the safety committeemen who participated in the investigation, 

but that it did not do so (Tr. 105). The respondent confirmed 

that in the event of an MSHA investigation with respect to a 

union initiated section 103(g) complaint, an employee who is "on 

the clock" is made available to the inspectors (Tr. 106). 

Mr. Barletta confirmed that if an inspector requests access to an 

employee during his work shift, the employee is made available to 

the inspector, and if the request is made by the inspector after 

the employee's work shift, management will notify the employee 

that the inspector wishes to see him and will request the 

employee to stay over (Tr. 107-108). 

The complainant asserts that he had been ordered in the past 

to remain past the end of his workshift by supervisors, but that 

the 3 days in question were the only times he had been ordered to 

remain and received no overtime pay. While this may be true, the 

complainant conceded that he had never previously been involved 

in an accident investigation and had never been asked to stay 

over to participate in such an investigation. He also conceded 

that when he was asked to stay over in the past, he was paid 

overtime for work which he performed, and that at no previous 

time during his employment with the respondent was he ever asked 

to stay and did not perform his normal work duties (Tr. 12, 16). 

The complainant has stipulated that he performed no work in his 

job classification on the 3 days that he stayed over to participate in the accident investigation. 

The Protected Activity 

Section 105(c) (1) of the Mine Act provides in pertinent part 

as follows: 

f 

(c) (1) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner * * * 

because such miner * * * has filed or made a complaint 

1224 
under or related to this Act * * * 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 * * * of 

any statutory right afforded by this Act. 

A threshold determination to be made in this case is whether 

or not Mr. Pelehac was engaged in any protected activity at the 

time of the alleged discriminatory act. The alleged discriminatory act is the failure by the respondent to compensate 

Mr. Pelehac for the extra time he spent answering questions and 

giving information in connection with the accident investigation. 

Mr. Pelehac claims that the respondent refused to pay him because 

he failed to give favorable testimony absolving the respondent of 

responsibility for the accident. 

In Donovan v. Stafford Construction Company, 732 F.2d 954 

(D.C. Cir. 1984), the court held that an employee was protected 

by the Mine Act against retaliation for providing testimony in 

connection with an MSHA investigation concerning a discrimination 

complaint filed by a miner. The court took a broad view of 

section 105(c) of the Act, and stated as follows at 732 F.2d 959: 

There can be little doubt that an employee's right 

to testify freely in mine safety proceedings encompasses the giving of statements to MSHA personnel 

conducting preliminary investigations. * * * Although a 

literal reading of the statute might indicate that a 

discharge is illegal only if the employee has testified 

or is about to testify against the employer, we decline 

to adopt such a hypertechnical and purpose-def eating 

interpretation. Instead, we hold that an employee's 

refusal to agree to provide MSHA investigators with 

testimony that the employee in good faith believes to 

be false is protected activity, regardless of whether 

the employee eventually happens to be asked for a 

statement. 

In Elias Moses v. Whitley Development Corporation, 4 FMSHRC 

1475 (August 1982), the Commission held that the coercive interrogation, harassment, and subsequent discharge of a miner suspected of reporting an accident to MSHA was discriminatory and 

constituted a violation of section 105(c) (1) of the Act. The 

Commission found that discrimination based upon a suspicion or 

belief that a miner has engaged in protected activity, even 

though, in fact, he has not, is proscribed by section 105(c) (1). 

The Commission stated in relevant part as follows at 4 FMSHRC 

1478-1479: 

We find that among the "more subtle forms of 

interference" are coercive interrogation and harassment 

1225 
over the exercise of protected rights. A natural 

result of such practices may be to instill in the minds 

of employees fear of reprisal or discrimination. such 

actions may not only chill the exercise of protected 

rights by the directly affected miners, but may also 

cause other miners, who wish to avoid similar treatment, to refrain from asserting their rights. This 

result is at odds with the goal of encouraging miner 

participation in enforcement of the Mine Act. We 

therefore conclude that coercive interrogation and 

harassment over the exercise of protected rights is 

prohibited by section 105(c) (1) of the Act. ~ 

In the footnote noted at 4 FMSHRC 1479, the Commission 

stated as follows: 

This is not to say that an operator may never 

question or comment upon a miner's exercise of a protected right. Such question or comment may be innocuous or even necessary to address a safety or health 

problem and, therefore, would not amount to coercive 

interrogation or harassment. Whether an operator's 

actions are proscribed by the Mine Act must be determined by what is said and done, and by the circumstances surrounding the words and actions. (Emphasis 

added) • 

In upholding the judge's finding of discrimination, the 

Commission concluded that the persistence with which the subject 

of Moses' supposed accident reporting was raised by the operator, 

and the accusatory manner in which it was done, could logically 

result in a fear of reprisal and a reluctance by Moses to exercise his rights in the future, and therefore constituted prohibited interference under section 105(c) (1). 

In Joseph G. DeLisio v. Mathies Coal Company, 11 FMSHRC 2353 

(November 1989), Commission Judge William Fauver held that the 

withholding of a miner's wages from a miner who is subpoenaed to 

testify at a hearing before a Commission judge on behalf of MSHA 

and against a mine operator was discriminatory. Judge Fauver 

took a broad view of section 105(c) of the Act and held that it 

prohibits "any manner'' of discrimination. With regard to the 

mine operator's discriminatory motive in refusing to pay DeLisio 

the difference between his regular daily wages and the witness 

fee paid by MSHA, Judge Fauver found that the refusal by the mine 

operator to pay wages to DeLisio, who was an opposition witness, 

while at the same time paying the wages of the witnesses who 

testified on behalf of the operator, was discriminatory on its. 

face and required no further examination of the operator's discriminatory motive. 

1226 
In the instant case, the evidence establishes that 

Mr. Pelehac made no safety complaints to mine management or to 

MSHA, and the~e is no evidence that he refused to perform any job 

tasks because of any safety concerns, or that he reported or 

complained about the accident. He was simply required to remain 

beyond his normal work shift in order to testify or give information about the accident which he purportedly witnessed. 

The respondent's assertion that Mr. Pelehac's protected 

rights under the Act are limited to safety complaints is 

rejected. The applicable case law clearly established that the 

protections afforded miners in the exercise of their rights 

pursuant to the Act must be broadly construed. Section 105(c) (1) 

of the Act prohibits a mine operator from discriminating against 

a miner because he has testified in any proceeding related to the 

Act. 

Section 103(a) of the Act requires the Secretary of Labor 

(MSHA) to investigate a mine accident to determine its cause, and 

to determine whether a mine operator has violated any mandatory 

safety or health standard. Section 103(d) of the Act requires a 

mine operator to likewise investigate all mine accidents to 

determine the cause and means of preventing a recurrence. The 

operator is also required to retain all accident investigation 

information and records and to make them available to MSHA, and 

section 103(j) requires the operator to prevent the destruction 

of any evidence which would assist in investigating the cause of 

an accident. 

Section 103(b) of the Act authorizes the Secretary to hold a 

public hearing, after notice, and to subpoena witnesses to testify in connection with an accident investigation. In this case, 

although the testimony of Mr. Pelehac was not presented at any 

formal public hearing, and he was not subpoenaed, the information 

sought to be elicited from him in connection with the accident 

was part of the fact finding inquires being conducted by mine 

management and the MSHA inspectors pursuant to their obligations 

under sections 103(a), (d), and (j) of the Act. 

In view of the foregoing, I conclude and find that the 

accident investigations in question were proceedings related to 

the Act and that Mr. Pelehac's participation in those investigations as a witness to the accident was a protected activity 

within the meaning and intent of section 105(c) (1) of the Act, 

Donovan v. Stafford Construction Company, supra. I further 

conclude and find that the respondent is prohibited from interfering with this activity on the part of Mr. Pelehac, and is 

prohibited from harassing, intimidating, or otherwise impeding 

Mr. Pelehac's participation in these kinds of accident investigations or inquiries. 

1227 
The Respondent's Alleged Discriminatory Actions 

Mr. Pelehac confirmed that he had worked overtime on an 

intermittent basis while employed with the respondent and that he 

was always paid for this work. He apparently assumed that he 

would be paid when he was asked to stay beyond his normal work 

shift on the 3 days in question, even though he conceded that he 

performed no work in his regulation job classification during 

this time. I take note of the fact that at the time Mr. Pelehac 

filed his complaint with MSHA he did not allege that the respondent refused to pay him because he gave unfavorable testimony. 

He explained that he did not do so because he did not believe it 

was necessary, and during the hearing he asserted that the 

respondent refused to pay him because he could not testify that 

the accident victim (Bandish} had done anything wrong, or that 

the accident was the result of his own negligence. I also take 

note of the fact that Mr. Pelehac filed a grievance for overtime 

pay, but it was apparently not pursued further because he had no 

contractual right to be paid for time spent away from his regular 

work duties (exhibit R-1). 

In order to prevail in this case, there must be some credible showing by the complainant that the refusal by the respondent 

to compensate him for the extra time spent in the accident 

inquiries was motivated by its desire to punish him or retaliate 

against him because of his alleged failure to give favorable 

testimony on behalf of the respondent. Such a showing may be 

established by direct evidence, or by circumstantial evidence 

establishing a strong and unrebutted inference of discriminatory 

motive. In the Elias Moses case, the Commission held that a mine 

operator's coercive and harassing interrogation of a miner to 

support its suspicion that he had reported an accident to MSHA 

was discriminatory. In the Joseph G. DeLisio case, supra, Judge 

Fauver found that the refusal by the mine operator to pay him for 

his,time as an opposition witness, while at the same time paying 

witnesses who appeared on behalf of the operator, was discriminatory on its face. 

Although it is clear that Mr. Pelehac filed no safety complaints or reported the accident, he is protected against any 

harassing and coercive interrogations of the kind found by the 

Commission to be discriminatory in Elias Moses. With regard to 

the application of the DeLisio decision to the facts of this 

case, I take note of the fact that DeLisio was subpoenaed as an 

adverse witness by MSHA to testify against the operator in a 

hearing before a Commission judge involving an alleged violation 

of a mandatory safety standard. In the instant case, Mr. Pelehac 

was but one of several employees who were interviewed and gave, , 

information or "testimony" regarding the accident, an:d I find no 

support for any conclusion that any of these employeeS: were 

"adverse" witnesses. The record reflects that the accident 

1228 
investigation revealed no violations on the part of the respondent which would have contributed to the cause of the accident, 

and Mr. Barletta testified credibly that he could not conclude 

that the information given by Mr. Pelehac during the accident 

inquiries was "unfavorable" to the respondent because he basically testified that he did not actually see the accident because 

he had his back turned at the time that it occurred and that when 

he turned around he saw that Mr. Bandish was injured (Tr. 75). 

Mr. Pelehac believed that his failure to exonerate the 

respondent of any fault or liability for the accident was "the 

damaging testimony" which served as the basis for the respondent's refusal to pay him for the extra time in question. However, as noted earlier, the MSHA accident investigation revealed 

no violations on the part of the respondent which may have contributed to the cause of the accident, and Mr. Pelehac conceded 

that his questioning by mine management with respect to the 

accident victim's purported negligence and possible violation of 

company safety rules was not unusual. Further, as previously 

noted, Mr. Pelehac agreed that mine management at no time ever 

suggested that he not tell the truth about what he knew about the 

accident. Although Mr. Pelehac believed that it would be in the 

best interest of the respondent to establish that Mr. Bandish was 

negligent, he nonetheless agreed that it was not unusual for the 

respondent to attempt to mitigate its liability in the event it 

were sued by Mr. Bandish, and that he would probably do the same 

thing if he were sued. 

Mr. Pelehac asserted that the respondent "repeatedly" questioned him during the course of the accident inquiries, as well 

as in the course of the grievance hearing involving the respondent's disciplinary action against Mr. Bandish. Mr. Pelehac 

suggested that he was "hounded" by the respondent in its attempts 

to elicit testimony from him to support the respondent's belief 

that Mr. Bandish was negligent and caused the accident by striking the piece of equipment which injured him with a hammer. 

Superintendent Barletta confirmed that he repeatedly asked 

Mr. Pelehac about Mr. Bandish's possible use of a hammer because 

he had reason to believe that Mr. Bandish may have used a hammer 

to beat on the piece of equipment which blew apart and struck him 

in the head. Although MSHA's accident report contains information that Mr. Bandish did not have a hammer in his possession 

when he was last observed by Mr. Pelehac, the report also 

reflects a statement by a company safety inspector that during a 

conversation with Mr. Bandish at the hospital on the day of the 

accident, Mr. Bandish informed the inspector that he used a 

hammer to beat on the piece of equipment in question "when all.of 

a sudden everything let loose" (exhibit R-2, pg. 7). In these 

circumstances, and given the fact that the respondent had an 

obligation to ascertain the cause of the accident, and to prevent 

1229 
a recurrence in the future, I find nothing unusual or unreasonable in Mr. Barletta's pursuing the question of the possible use 

of the hammer by Mr. Bandish. I also find nothing unusual or 

unreasonable in the respondent's attempts to mitigate its liability by pursuing this question with Mr. Pe.lehac, the only other 

person at the immediate scene of the accident at the time 

Mr. Bandish was injured. 

During the course of the hearing, Mr. Pelehac•s representative confirmed that there was no transcript of the testimony 

given during the arbitration hearing in connection with 

Mr. Bandish's grievance. The transcript of Mr. Pelehac's testimony in connection with MSHA's accident investigation, if it 

exists, was not produced or offered by any of the parties in this 

proceeding, and it is not a matter of record in this case. Under 

the circumstances, I have no basis for concluding that 

Mr. Pelehac was "hounded" because the respondent "repeatedly" 

questioned him about Mr. Bandish's use of a hammer. Although 

Mr. Pelehac testified that Mr. Barletta or someone from management questioned him each day as to whether or not Mr. Bandish may 

have struck the equipment with a hammer, and that Mr. Barletta in 

particular asked him about this "several times," I find no credible or probative evidence to support any conclusion that the 

respondent's questioning of Mr. Pelehac was coercive, or that it 

constituted harassment of Mr. Pelehac, or an attempt by the 

respondent to intimidate him. To the contrary, based on the 

record in this case, I cannot conclude that the respondent's 

questioning of Mr. Pelehac, and its request that he remain beyond 

his normal work shift to make himself available to mine management and the inspectors investigating the accident was anything 

other than a bona-fide good faith effort on the part of the 

respondent to ascertain all of the facts in connection with the 

accident in question. 

The Alleged Disparate Treatment of Mr. Pelehac 

There is no evidence in this case that mine management 

harbored any ill towards Mr. Pelehac, and he agreed that no one 

ever suggested that he not tell the truth during the course of 

the accident investigations. Superintendent Barletta considered 

Mr. Pelehac to be a good employee, and the record reflects that 

he granted Mr. Pelehac's request to leave the mine on January 24, 

after the accident was reported, and before the arrival of an 

MSHA accident investigator. Mr. Barletta also accommodated 

Mr. Pelehac by agreeing to certain changes in his work shifts 

during the accident inquiries (Tr. 62). Although Mr. Barletta 

indicated that he would have issued a direct order to Mr. Pelehac 

to remain at the mine if he had refused to do so, he also indi~­

cated that if an employee advised him that he could not stay 

because he had other engagements, he would talk to him at the 

beginning of his next shift. Mr. Barletta confirmed that during 

a prior MSHA investigation on April 17, 1989, one of his 

1230 
employees, Bobby Clark, went home because he did not want to get 

involved in the investigation, and he was interviewed a week 

later by the inspector at the beginning of his shift (Tr. 109, 

exhibit R-5).· In this case, there is no evidence that 

Mr. Pelehac requested to go home at the end of his work shifts, 

and was refused. 

The parties are in agreement that the applicable bargaining 

agreement does not provide for compensation for the extra time 

spent by miners on matters dealing with accident investigations. 

The record also establishes that in the absence of any contractual obligation to compensate miners for time spent on matters 

other than work, the respondent has a policy of not compensating 

miners for any time spent beyond their normal work shift on such 

matters as counselling, disciplinary problems, and accident 

investigations. If an employee is required to remain at the mine 

after his normal work shift to give information, or to otherwise 

participate in the fact-finding process with respect to these 

matters, he is not paid for his time. However, if an employee is 

called out of the mine during his normal work shift to give 

information during an accident investigation, or is interviewed 

during his shift at his work location, he continues to receive 

his regular pay even though he is not performing any work. 

Mr. Barletta's credible testimony establishes that those 

employees interviewed during their normal work shifts, including 

Mr. Pelehac, were paid for their regular shift. With regard to 

the respondent's failure to pay Mr. Pelehac for the time spent on 

an investigation beyond his normally scheduled work shift, 

Mr. Barletta's credible testimony further establishes that in the 

absence of any contractual obligation to do so, the respondent 

has not compensated other employees who were required to stay 

beyond their normal work shifts in order to participate in an 

accident investigation or similar inquiries dealing with employee 

safety and disciplinary matter. 

Mr. Barletta testified that in April, 1989, seven employees 

were asked to stay beyond their normal work shifts by MSHA and 

state mine inspectors who were investigating a safety complaint, 

and that none of these employees were compensated from their 

time. He also testified to an investigation which he conducted 

in September, 1988, in connection with an imminent danger order 

issued by MSHA involving an employee who was observed walking 

under an unguarded belt conveyor. Mr. Barletta stated that the 

employee was required to stay over her normal work shift on 

2 days and that she was not compensated for the extra time (Tr. 

61, exhibits R-3 and R-5). 

Mr. Pelehac's allegation of disparate treatment lies in his 

assertion that hourly employees Daniel Bailey and-Ronald Seliga, 

both of whom stayed beyond their normal work shift.during the 

accident inquiry on Tuesday, January 24, were paid overtime, and 

1231 
he was not. Mr. Pelehac does not suggest, nor has he established, that these individuals were paid overtime by the respondent because they may have given "favorable" testimony or 

information. He simply concludes and suggests that since 

Mr. Bailey and Mr. Seliga were paid, and he was not, he was 

discriminated against. In support of this argument, Mr. Pelehac 

relies on the payroll time records which reflects that Mr. Bailey 

was paid for 9-3/4 hours of overtime for January 24, and that 

Mr. Seliga was paid for 3 hours of overtime that day (exhibit 

R-4). Mr. Pelehac points out that his time record for that day 

reflects that he was initially credited for 3 hours of overtime, 

but that the timekeeper scratched it out, and that the respondent 

has not satisfactorily explained why this was done. 

Superintendent Barletta testified that the initials of the 

individual who scratched out the 3 hours of overtime on 

Mr. Pelehac's time record appears to be those of Mr. Pelehac's 

underground section foreman Mel Robinson, who was located 2 miles 

from the office where the records are kept. Mr. Barletta confirmed that Mr. Pelehac was working on temporary assignment at 

the river barge location on Monday and Tuesday, January 23 and 

24, and that the outside foreman would have probably reported 

Mr. Pelehac's work time. However, Mr. Barletta stated that he 

had no actual knowledge as to how Mr. Pelehac's time may have 

been reported, who reported it, and he did not know why 

Mr. Robinson may have scratched out and initialed the overtime 

entry made on Mr. Pelehac's time record (Tr. 90-93). 

Mr. Barletta confirmed that he interviewed Mr. Bailey and 

Mr. Seliga on Tuesday, January 24, and he stated that "I know 

they were not paid for the investigation unless it was on their 

normal shift" (Tr. 52). He further confirmed that in keeping 

with company policy, employees are paid their wages if they are 

interviewed during a scheduled shift while "on the clock," but 

that no employee would be paid for an extra time beyond his 

normal shift (Tr. 69, 71). He explained that Mr. Seliga was paid 

for 3 hours overtime on January 24 because he was scheduled to 

work 3 hours overtime that day, as well as on Monday, January 23, 

and the rest of the week loading barges (Tr. 80). Mr. Bailey was 

paid overtime because he was scheduled to work a double shift 

that day replacing another employee who was absent from work (Tr. 

79) • 

Mr. Barletta testified that Mr. Bailey's participation in 

his investigation on January 24, consumed approximately 

30 minutes, and that Mr. Seliga's participation lasted for 5 or 

10 minutes (Tr. 100). MSHA's official accident investigation 

report reflects that the accident occurred at approximately 

1:55 p.m., on January 24, and Mr. Barletta testified that the 

dock loading facility was shutdown for 3 hours, and that no work 

was performed by anyone during the shutdown, including Mr. Bailey 

1232 
and Mr. Seliga, but that they continued working after the facility was reopened (Tr. 89). He testified that Mr. Bailey performed work "dumping the sampler" and sweeping the barges, and 

that Mr. Seliga was assigned other work while his investigation 

continued (Tr. 97, 101). He confirmed that Mr. Seliga and 

Mr. Bailey were both "on the clock" during the investigation, but 

that Mr. Pelehac was not because his regularly scheduled shift 

ended at 2:15 p.m. (Tr. 97-99). Mr. Barletta had no knowledge 

that Mr. Pelehac was also previously scheduled to work 3 hours 

that day (Tr. 99). 

Mr. Pelehac confirmed that no coal was loaded on the barges 

from 2:15 p.m. until 5:00 p.m., on Tuesday, January 24. He 

testified that Mr. Seliga and Mr. Bailey were with him during the 

time that Mr. Barletta was conducting his interviews, but that he 

(Pelehac) went home at 5:45 p.m. Mr. Pelehac further testified 

that Mr. Seliga and Mr. Bailey were not assigned any work duties 

and he observed them doing no work during this time (Tr. 

112-113) . 

MSHA's accident report reflects that the accident was not 

immediately reported because it was not initially considered to 

be life threatening. However, when it was learned at approximately 5:00 p.m., that Mr. Bandish had sustained a skull fracture 

and was being transferred to another hospital for possible 

surgery, the mine safety supervisor notified MSHA of the accident 

by telephone, and an MSHA inspector was dispatched to the mine to 

obtain facts pertaining to the accident. 

Mr. Seliga and Mr. Bailey were not called to testify in this 

case. Although the evidence reflects that no one may have performed any work during the 3-hour shutdown period immediately 

following the accident, since Mr. Pelehac left the mine at 

5:45 p.m., he would have no way of knowing whether or not 

Mr. Bailey or Mr. Seliga continued to perform any work while 

Mr. Barletta was continuing his inquiry, and Mr. Barletta's 

testimony that work resumed stands unrebutted. Mr. Seliga's time 

record reflects that he was paid 3 hours of overtime for each day 

of the week in question, and this lends credence Mr. Barletta's 

testimony that he had been previously scheduled to work overtime 

and was in fact "on the clock." Mr. Pelehac offered no testimony 

that he too was previously scheduled to work 3 hours of overtime 

on January 24, and in these circumstances, I find Mr. Barletta's 

testimony explaining Mr. Seliga's overtime pay to be credible, 

particularly in light of his unrebutted testimony that 

Mr. Seliga's interview time only consumed 5 or 10 minutes. With 

regard to Mr. Bailey's overtime pay for January 24, 

Mr. Barletta' s testimony that his interview with Mr.. Bailey only 

consumed 30 minutes, and that he was scheduled to work a double 

shift on January 24, is unrebutted, and I find Mr. Barletta's 

explanation as to why he was paid to be likewise credible. 

1233 
Mr. Barletta's investigation notes (exhibit R-4), for 

Wednesday, January 25, include a list of individuals who participated in the MSHA and state investigations, and although 

Mr. Pelehac's name is included as one of the individuals who 

participated in a 5:30 p.m. meeting on that day, the names of 

Mr. Bailey and Mr. Seliga are not included among those individuals who participated in the investigation on that day. 

Mr. Pelehac did not participate in the investigation which continued on Thursday, January 26, and although Mr. Seliga and 

Mr. Bailey are listed among those who were interviewed that day, 

there is no evidence that they were interviewed on or off their 

regular work shift. Further, although Mr. Pelehac's name is 

included as a i•witness" who participated in the investigation on 

Friday, January 27, Mr. Seliga and Mr. Bailey are not listed as 

participants on that day. 

As noted earlier, Mr. Seliga and Mr. Bailey did not testify 

in this matter. Mr. Pelehac's underground foreman, Mel Robinson, 

the individual who apparently signed Mr. Pelehac's work attendance and time record, and who apparently initialed and scratched 

out the entry crediting Mr. Pelehac with 3 hours of overtime on 

January 24, did not testify. I take note of the fact that the 

time records for Mr. Bailey and Mr. Seliga were signed by an 

individual other than Mr. Robinson. In the absence of any credible or probative evidence to the contrary, I cannot conclude that 

the deletion made on Mr. Pelehac's work time record crossing out 

the 3 hours of overtime was the result of mine management's 

desire to retaliate or otherwise penalize Mr. Pelehac. Nor can I 

conclude that this deletion supports any reasonable inference of 

any disparate treatment of Mr. Pelehac. To the contrary, I 

conclude and find that Mr. Barletta's explanations as to why 

Mr. Bailey and Mr. Seliga were paid overtime, and Mr. Pelehac was 

not; is credible and plausible. 

I conclude and find that the respondent has established that 

it has consistently applied its policy of not compensating its 

employees by paying overtime for time spent on accident investigations to all of its work force. The policy is based on the 

fact that the union/management agreement does not provide for 

such compensation. Absent any evidence of any discriminatory 

motive on the part of the respondent, I simply cannot conclude 

that the record in this case supports any conclusion that its 

failure to pay Mr. Pelehac overtime was the result of his giving 

unfavorable testimony or information, or his failure to exonerate 

the respondent from all liability for the accident. As noted 

earlier, I find no evidentiary support for any conclusion that 

any information given by Mr. Pelehac was unfavorable, and MSHA's 

accident investigation failed to reveal any violations by the 

respondent which would have contributed to the cause of the 

accident. 

1234 
In my view, the facts presented in this case are distinguishable from those presented in the Elias Moses and Joseph 

DeLisio cases, supra. In the Elias Moses case, the mine operator 

indulged in conduct which amounted to coercive interrogation and 

harassment of a miner suspected of reporting an accident to MSHA, 

and the Commission concluded that this was a subtle form of 

interference with the miner's protected rights under the Act. I 

find no such conduct on the part of the respondent in this case. 

In the Joseph DeLisio case, Judge Fauver found that the withholding of wages from a miner subpoenaed by MSHA as an adverse 

witness to testify against a mine operator, while paying other 

miners who testified on behalf of the operator was discriminatory 

on its face, and required no further examination of the operator's discriminatory motive. I simply cannot reach such a 

conclusion in this case. 

The complainant's assertion that the respondent's refusal to 

pay him was an act of discrimination because there was no legitimate business reason not to pay him is rejected. The parties 

agreed that the applicable UMWA/Management bargaining agreement 

does not provide for payment of wages for a miner's participation 

in accident investigations which take place after their normal 

work shift. The respondent's credible and unrebutted evidence 

reflects that in the absence of any contractual obligation to 

compensate a miner for the time spent on such investigations, 

company policy only allows the payment of wages for work performed by an employee, and that pursuant to this policy, the time 

spent by an employee beyond his normal work shift participating 

in accident investigations, counselling sessions, and employee 

disciplinary matters, is not considered compensable "work performed" under the contract. 

The record in this case suggests that Mr. Pelehac's union 

could have placed him on "union business" and compensated him for 

his time after his normal work shift while participating in the 

accident investigations, as it apparently did in the case of the 

safety committeemen who participated in the investigations. 

Mr. Pelehac conceded that this was true, but asserted that union 

compensation was only available in a case where the union 

initiates the accident investigation. In this case, although it 

is true that the union did not initiate the investigation, it 

would appear that the union nonetheless apparently paid the 

safety committeeman, but did not pay Mr. Pelehac. 

Absent any evidence of discrimination within the parameters 

of section 105(c) of the Act, it is not my function to mediate or 

arbitrate the question of whether or not Mr. Pelehac should have 

been paid for the time spent on the accident investigations. I. 

find no statutory right to such payment, and it seems clear from 

the record that the respondent was not obliged to pay Mr. Pelehac 

pursuant to the bargaining agreement, and Mr. Pelehac's grievance 

was apparently not pursued further because of this fact. Under 

1235 
all of these circumstances, I conclude and find that the respondent's refusal to pay Mr. Pelehac was a reasonable and plausible 

management business decision unrelated to any unfavorable or 

adverse information or testimony which may have been given by 

Mr. Pelehac in the course of the accident inquiries. In this 

regard, I take particular note of the Commission's decision in 

Bradley v. Belva Coal Company, 4 FMSHRC 982 (June 1982). Citing 

its Pasula and Chacon decisions, the Commission stated in part as 

follows at 4 FMSHRC 993: "* * * Our function is not to pass on 

the wisdom or fairness of such asserted business justifications, 

but rather only to determine whether they are credible and, if 

so, whether they would have motivated the particular operator as 

claimed." · 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony and 

evidence adduced in this case, I conclude and find that the 

complainant has failed to establish a violation of section 105(c) 

of the Act. Accordingly, his complaint IS DISMISSED, and his 

claims for relief ARE DENIED. 

,,--./ d ) .. / / {//. /T:. ~~---·-

C/~ ~. Koutra~ . 

Administrative Law Judge 

Distribution: 

Edward D. Yankovich, Jr., President, UMWA District No. 4, 

32 South Main Street, Masontown, PA 15461 (Certified Mail) 

Walter J. Scheller, III, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Michael J. Healey and Paul Girdany, Esqs., Healey Whitehill, 

Fifth Floor, Law & Finance Building, Pittsburgh, PA 15219 

(Certified Mail) 

/fb 

1236 
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 CMSHA), 

Respondent 

v. 

MANALAPAN MINING COMPANY, 

Respondent 

Before: Judge Fauver 

JUN 71990 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-187 

A.C. No. 15-05423-03618 

No. 1 Mine 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, 

for the Petitioner, 

Richard D. Cohelia, Safety Director, Evarts, KY, 

for the Respondent. 

At the hearing of this case on May 16, 1990, in Big Stone 

Gap, Virginia, the parties moved for approval of a settlment on 

the record. For the reasons stated on the record, the motion is 

GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

approved civil penalties of $2,600 within 30 days and upon such 

payment this proceeding is DISMISSED. 

Distribution: 

w~~vtA William Fauver 

Administrative Law Judge 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Richard D. Cohelia, Safety Director, Manalapan Mining Co., Inc., 

Rt 1, Box 374, Evarts, KY 40828 (Certified Mail) 

iz 

1237 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 71990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CALDRON COAL CORPORATION, 

Respondent 

Before: Judge Fauver 

DECISION 

Docket No. KENT 89-204 

A.C. No. 15-15473-03515 

No. 1 Mine 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennesse, 

for the Petitioner, 

Bruce Hawkins, Consultant, Phelps, Kentucky, 

for the Respondent. 

At the hearing of this case on May 15, 1990, in Big 

Stone Gap, Virginia, the parties moved for approval of a 

settlment. For the reasons stated on the record, the motion 

is GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

approved civil penalties of $120 within 30 days and upon such 

payment this proceeding is DISMISSED. 

~:Y~v~ William Fauver 

Administrative Law Judge 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville~ TN 

37215 (Certified Mail) 

Bruce Hawkins, Consultant, Caldron Coal Corp., P.O. Box 321, 

Phelps, KY 41553 (Certified Mail) 

iz 

1238 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 71990 

DONALD H. GIBSON, 

Complainant . 

. DISCRIMINATION PROCEEDING 

v. 

CYPRUS BAGDAD COPPER COMPANY, 

Respondent 

Docket No. WEST 89-11-DM 

: MD 87-47 . . 

DECISION 

Appearances: ~. Henry Moore, BUCHANAN INGERSOLL, 600 Grant 

Street, 58th Floor, Pittsburgh, Pennsylvania 15219, 

for Complainant. 

Donald H. Gibson, pro se, 885 Munley Drive, Reno, 

Nevada 89503 

Before: Judge Cetti 

This case is before me upon the pro ~ discrimination complaint of Donald H. Gibson, under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 802, et 

~' the "Act," alleging unlawful discharge by Cyprus Bagdad 

Copper Company (Cyprus) in violation of section 105(c)(l) of the 

Act. 2:/ 

ll Section 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the 

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 the 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 sμbject of 

medical evaluations and potential transfer under a 

standard published pursuant to section 101 or because 

1239 
Mr. Gibson initially filed his complaint with the Secretary 

of Labor, Mine Safety and Health- Administration (MSHA), at its 

Phoenix, Arizona, office, on July 22, 1987. In a statement executed by Mr. Gibson on that day on an MSHA complaint form, he 

made, in pertinent part, the following complaint: 

Mr. Walz came out to my job to inspect my job performance. 

During one of these visits I asked him about the drug 

traffic inside of this mine, and specifically about 

the drugs found, since I work around a lot of moving 

equipment. He told me, "It's none of your business," 

and that I am good for nothing but lube and fuel driver. 

I never seem to see my foremen only Larry Walz. I have 

brought this to the attention of Employee Relations but 

they have refused to act on any of my requests about this 

man's behavior towards me. Since this incident occurred, 

Mr. Walz gave me an unexcused absence. I had already 

taken care of this with my immediate foreman and had my 

job secured. 

Mr. Walz overode this absence and told me to appeal it. 

I did so, and it was rescinded. Mr. Walz received a copy 

of this and was upset about this and stated that it was 

immaterial. Since then, I received a 30-day suspension 

for not greasing rippers. In my PM sheets there is no 

mention of these rippers. I was again told it was immaterial. Mr. Walz at that time called me "a safety hazard." 

Again I brought up the drug use and stated, "How come there 

no suspension pending investigation for possession of cocaine on these premises?" He told me, "It's none of your 

business. Stay out of it." I seem to feel that, because I 

am the only person who has actually faced these gentlemen 

with this information, that I am continuing to be harrassed. 

1/ (continued) 

such representative of miners or applicant for employment has instituted or caused to be instituted any proceedings 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 or miners 

or applicant for employment on behalf of himself or of 

any statutory right afforded by this Act. 

1240 
No one else has ever received a suspension for that 

amount of time, even for damaging equipment. I have 

broken no rules and only try to do my job. I was recalled ·on the layoff with no problems. Again, since 

Mr. Walz came to this company in 1986 and I confronted 

him about the use of drugs, I have had nothing but 

problems •••• I really do enjoy my job and pray for 

reinstatement with Cyprus Bagdad, and that my 30-day 

suspension be looked into also. 

MSHA conducted an investigation of Mr. Gibson's complaint, 

and by letter dated September 16, 1988, advised him that, on the 

basis of the information gathered during the course of its investigation, a violation of section 105(c) of the Act had not 

occurred. Mr. Gibson then pursued his complaint with the 

Commission. 

Respondent filed an answer to the complaint stating in part: 

Cyprus Bagdad specifically denies that it or any 

person acting on its behalf violated section 105(c) of 

the 1977 Act. 

Complainant was terminated from his employment 

with Cyprus Bagdad on July 21, 1987, because he had 

an unacceptable work record and continuing irregular 

attendance after being repeatedly warned that, unless his work and attendance record improved, he 

would be subject to termination. 

Cyprus's answer enumerates a partial listing of the events 

which lead up to the decision to terminate complainant and 

attached numerous exhibits documenting its answer. 

Mr. Gibson, in his initial complaint filed on an MSHA 

complaint form, left blank the line that asked for the date of 

the discriminatory action. In the line asking for the person(s) 

responsible for the discriminating action, Mr. Gibson typed in 

the name "Larry C. Walz," one of Cyprus's superintendents. 

To help clarify Mr. Gibson's allegations against Cyprus, 

his response to my prehearing order is set forth in pertinent 

part as follows: 

During my employ with Cyprus Bagdad Copper Corporation (1980-1987) myself and any other employee 

could request time off as needed. (Immediate supervisor approval) There was no rules stating how many 

1241 
days a year you were allowed. I have never had an 

"unexcused absence." I mentioned that there was a 

drug problem within the mine. They (Mr. Walz) told 

me it was none of my business. I did file a formal 

complaint with MSHA during this period, stating that 

I felt a need for an investigation was needed because 

of two separate incidents that occurred in the mine. 

From then on it was continuous harrassment. There is 

noted in the rule book of the company CCBCC) that 

there is a "chain of command" that has to be followed. 

This was not how it was in my case at all. Mr. Walz 

completely overrode my immediate supervisor and any 

other foreman or salaried personnel who might have 

tried to intervene. 

This is what I hope to be able to bring forth is 

that in fact it was not my absenteeism that caused my 

termination but the fact that I requested an investigation of the mine for safety reasons and for that 

reason only I was terminated. 

STIPULATIONS 

At the hearing, the parties stipulated to the following, 

which I accept as established facts: 

1. That the presiding administrative law judge, August F. 

Cetti, has jurisdiction over this matter. 

2. The Bagdad Mine Company was owned and operated by Bagdad 

Copper Company (Cyprus), and had MSHA ID No. 02-00137. 

3. The Bagdad Mine is located in Bagdad, Arizona, and 

employs approximately 550 persons. 

4. Donald H. Gibson was first employed by Cyprus, or its 

predecessor corporation, in 1980. 

5. On February 12, 1984, Mr. Gibson was laid off during a 

reduction in force. He was rehired on October 23, 1984. 

6. At the time of his termination, Mr. Gibson was an hourly 

employee assigned to the mine maintenance department. 

7. The company records show that on June 7, 1983, 

Mr. Gibson was given an unexcused absence for his failure to 

report to work on that day. 

1242 
8. Company records show that on July 22, 1983, Mr. Gibson 

was given a verbal reprimand for his failure to report to work on 

July 18, 1983. 

9. The company records show that on August 8, 1983, a general report was made concerning Mr. Gibson's excused absence from 

work on August 7, 1983. 

10. The company records show that Mr. Gibson received a 

Notice of Termination for unexcused absence from work on October 

16, 17, 18, 1983. The termination was modified to a 10-day suspension on October 25, 1983. 

11. The company records show that on March 7, 1985, 

Mr. Gibson received a warning concerning excessive absenteeism. 

12. The company records show that on March 11, 1985, 

Mr. Gibson received a supension for two working days and two 

hours of another day for poor judgment in utilizing his time on 

duty. 

13. Company records show that on September 19, 1986, 

Mr. Gibson received a written warning which included attendance 

guidelines for excess absenteeism. 

14. The company records show that on March 6, 1987, 

Mr. Gibson was given attendance guidelines because of his poor 

attendance record. 

15. Company records show that on April 29, 1987, Mr. Gibson 

received a written warning for an unexcused absence from work on 

April 24, 1987. 

16. On May 22, 1987, Mr. Gibson was given a suspension 

pending an investigation concerning his failure to perform his 

job duties. 

17. On May 27, 1987, at the conclusion of the investigation, 

Mr. Gibson received a suspension for 18 additional working days. 

18. On July 16, 1987, Mr. Gibson was given a suspension 

pending an investigation for termination because of unexcused 

absences on July 14 and 15 of 1987. 

19. On July 21, 1987, Mr. Gibson's employment was terminated. 

20. On July 17, 1987, Mr. Gibson first contacted the Mine 

Safety and Health Administration concerning complaints he had 

concerning the drug and alcohol abuse at Cyprus. 

1243 
21. On July 29-30, 1987, MSHA inspectors, Gary Day and 

Virgil Wainscott, investigated Mr. Gibson's complaint concerning 

drug and alcohol abuse, and issued a notice of negative finding 

concerning.the complaint. 

22. On July 21, 1987, Mr. Gibson filed a complaint of discrimination with the Mine Safety and Health Administration which 

is now at issue in this case. 

23. On September 16, 1988, the Mine Safety and Health Administration issued a determination that no violation of section 

105(c) of the Federal Mine and Health Safety Act of 1977 has 

occurred. 

ISSUES 

1. Whether Mr. Gibson's complaint that he was being treated 

unfairly in comparison to other employees, made at the time that 

he was told of his suspension for deficient work performance in 

May 1987, was activity protected under the Act. 

2. Whether Mr. Gibson's complaints concerning disparate 

treatment of Robert Otteson constituted protected activity under 

the Act. 

3. Whether Mr. Gibson's telephone call to MSHA concerning 

the issue of whether his wife could attend his disciplinary hearing was activity protected under the Act. 

4. Whether any protected activity that Mr. Gibson might 

have engaged in motivated in any part his suspension on May 27, 

1987, or his discharge on July 21, 1987. 

5. If protected activity motivated in any part the decisions to suspend Mr. Gibson and to discharge him~ whether such 

discipline would have been taken in any event, because of his 

history of absenteeism and his poor work performance. 

At the hearing of August 24, 1989, the following witnesses 

testified for the complainant: 

Donald Gibson, complainant 

Irene Gibson, complainant's wife 

Mervin Corbitt, supervisor of equipment operators 

Larry P. Burkhead, heavy equipment operator 

A continued hearing was delayed at the request of complainant, Mr. Gibson who was temporarily unable to go to the hearing 

as a result of injuries he sustained when he was struck by a car 

while he was crossing a street. 

1244 
At the continued hearing in Phoenix, Arizona, credible testimony on the relevant issues was taken from the following 20 

Cyprus employees. 

Charles Rising 

Patsy c. Morris 

Harry Cosner 

Junior Morgan 

Vernon Swinson 

Don Berdine 

Raphael Perkins 

Daniel L. Mead 

Ron Foster 

Harold R. Rubash 

Robert Otteson 

Joe Mortimer 

Robert Swain 

Janette Bush 

Larry Walz 

Pete Mendibles 

Floyd Chandler 

Peter Gray 

Raphael H. Perkins -

William T. Watson 

Manager, Human Resources 

Mine Maintenance Supervisor 

Mine Manager 

General Mine Foreman 

Mill Maintenance Supervisor 

Mill Maintenance Superintendent 

Mine Maintenance Supervisor 

Manager Community Services 

Master Equipment Operator 

Lubrication Maintenance 

Mine Supervisor 

Safety Director 

Mine Maintenance Supervisor 

Manager, Human Resources (as of 7/88) 

Mine Maintenance Superintendent 

Equipment Operator 

Equipment Operator 

Mine Supervisor 

General Supervisor of Maintenance 

Maintenance Supervisor 

Messrs. Rising, Walz, and Ms. Morris testified as to the 

facts and circumstances surrounding the termination of 

Mr. Gibson's employment, including the unexcused absences he 

received in July 1987, his suspension for substandard work performance in May 1987, his unexcused absence in April 1987, his 

work history in general, and the motivation for the termination 

of his employment. In addition, Ms. Morris testified as to certain conversations she had with Mr. Gibson during the middle of 

July 1987. Mr. Rising also testified as to the drug and alcohol 

program at the mine and to the discipline of other miners. 

Mr. Cosner testified concerning the facts and circumstances 

surrounding the termination of Mr. Gibson's employment, including 

the unexcused absence he received in April 1987, his suspension 

for substandard work performance in May 1987, the unexcused 

absences he received in July 1987, and his work history. 

Messrs. Morgan, Swinson, Linger, and Foster testified as to 

the facts and circumstances surrounding Mr. Gibson's suspension n 

May 1987 for substandard work performance. 

1245 
Mr. Berdine testified as to the facts and circumstances 

surrounding Mr. Gibson's suspension in May 1987 for substandard 

work performance, Mr. Gibson's unexcused absence in April 1987, 

and an incident in March 1985, when Mr. Gibson was suspended. 

Messrs. Perkins and Watson testified as to Mr. Gibson's work 

history. 

Mr. Rubash testified as to the circumstances of his assignment to a job performing lubrication work at the concentrator. 

Mr. Meade testified generally as to his contacts with 

Mr. Gibson, including the housing problem after Mr. Gibson's termination. 

Mr. Otteson testified as to an incident for which he was 

disciplined in June 1987. 

Chris Crowl testified as to his conversations with 

Mr. Gibson in May - June 1987. 

Ms. Bush testified generally as to discipline records maintained at the mine, to the drug and alcohol program at the mine, 

and to discipline of other miners. 

At the conclusion of the hearing, the matter was left open 

for post-hearing briefs and proposed findings and orders. 

Respondent filed a helpful brief; complainant filed no brief. 

The matter was submitted for decision on May 17, 1990. 

FINDINGS OF FACT 

I 

Cyprus operates an open pit copper mine in Bagdad, Arizona, 

employing approximately 550 persons. 

II 

Complainant, Donald H. Gibson, became employed by the predecessor company to Cyprus in 1980. He was employed in the mine 

maintenance department as an hourly employee. Early in his employment, he began to have attendance problems. He missed days 

of work and frequently did not follow the procedures for notifying his supervisors that he was not going to come to work. On 

June 7, 1983, he was given a verbal warning for an unexcused 

absence. 

1246 
III 

In July 1983, Mr. Gibson's absentee problems had become 

serious enough that his supervisor, Patsy Morris, invoked formal 

discipline against him. On July 18, 1983, she gave him a verbal 

reprimand for an unexcused absence from work. After he had 

returned to work, he gave as an excuse the inability to return 

to Bagdad in time to work after taking a family member to the 

airport. Mrs. Morris had previously counseled Mr. Gibson about 

his absences, as had other supervisors. 

IV 

Mrs. Morris and Robert Swain again noted their concern over 

Mr. Gibson's attendance in August 1983 when he took a day off 

that was unexcused. Not long after their concern was conveyed to 

Mr. Gibson, he again took three days off, resulting in unexcused 

absences for October 16, 17, and 18, 1983. Initially, it was 

determined that his employment should be terminated but that 

determination was changed to a ten-day suspension. 

v 

On February 12, 1984, Mr. Gibson was laid off as part of a 

general reduction in force. This layoff continued until October 23, 1984, when Mr. Gibson returned to work as an hourly 

employee in the maintenance department. He had previously been a 

leadman, an hourly employee with certain supervisory authority, 

but did not hold that position when he returned from layoff. 

VI 

After Mr. Gibson returned from layoff, he again accumulated 

unexcused absences. In March of 1985, he was formally counseled 

by his supervisor, Raphael Perkins, conerning his absences. He 

had two more absences in 1985, after he was counseled. 

VII 

Not long after his counseling session, he received a suspension for failing to utilize his time properly. He was 

observed at a remote location in a company truck parked in a 

fashion and for a period that suggested to Cyprus that he had 

been sleeping. The investigation concerning that incident raised 

questions as to the accuracy of Mr. Gibson's statements concerning his behavior. 

124 7 
VIII 

There was a change in supervisors in the maintenance department in the first half of 1986, and it was September 1986, before 

the new maintenance superintendent, Larry Walz, realized that 

Mr. Gibson had developed a serious absentee problem. At that 

time, he placed Mr. Gibson on attendance guidelines that required 

that any absence from work would be considered unexcused and 

would result in a suspension or possible termination. At that 

time, Mr. Gibson's absentee rate was the worst in his department, 

over 10 percent, as opposed to a plant average of 2 .5 percent. 

IX 

In March 1987, the guidelines were reissued, but were somewhat less stringent. Mr. Gibson was told that, if he was absent 

from work, he would receive a written warning for his first absence before he would be subject to termination for a second 

absence. 

x 

Not long after the guidelines were relaxed, Mr. Gibson took 

a day off from work because of some personal business he wanted 

to attend to concerning a court appearance of his stepson. He 

was given a written warning for this absence and was told that 

a further absence would result in his discharge. 

XI 

When he received the written warning, Mr. Gibson appealed 

the discipline to Harry Cosner, the Mine Manager. Mr. Cosner 

considered the fact that Mr. Gibson's attendance had improved, 

that Mr. Berdine, the maintenance supervisor at the concentrator 

where Mr. Gibson was assigned, had not had any negative reports 

about Mr. Gibson's job performance, and the fact that 

Mr. Gibson's absence was a result of his attendance at Court proceedings for his stepson. He wanted to motivate Mr. Gibson to 

continue his improvement and indicated that if Mr. Gibson did not 

miss any work through July 1, then the written warning would be 

rescinded. The guidelines issued in March would, however, remain 

in effect, and if Mr. Gibson was absent during this probation 

period it would result in discharge. 

XII 

In May 1987, Mr. Gibson's job was to service equipment out 

at the concentrator associated with the mill, rather than at the 

1248 
mine. Responsibility for his supervision was divided between the 

mine and mill maintenance departments. Mr. Walz would, however, 

be responsible for any discipline given to him. As part of his 

duties Mr. Gibson was also responsible for servicing the equipment involved in what was known as the tailings project. That 

project was supervised directly by an hourly person, Ron Foster. 

XIII 

Early in May some of the employees on that site came to 

Mr. Foster and complained that Mr. Gibson was not properly servicing the equipment. Mr. Foster took the matter to his supervisor, Junior Morgan. On May 18, Junior Morgan brought the probem to Patsy Morris, who he knew was familiar with servicing of 

equipment. They inspected the equipment that day and found def iciencies in the lubrication. The next day Mrs. Morris returned 

to inspect the equipment again with Vernon Swinson who was in 

charge of maintenance at the concentrator. They determined that 

the equipment had not been lubricated. While they were at the 

site, they also determined that several pieces of the equipment 

had not been fueled. They also examined the worksheets 

Mr. Gibson was required to fill out concerning the equipment he 

serviced and found them to be confusing. Their findings were 

reported to their supervisors, Mr. Berdine in Mr. Swinson's case 

and Mr. Walz in Mrs. Morris's case. 

XIV 

On May 20, Mr. Berdine and Mr. Swinson inspected two bulldozers and a front-end loader which were of concern. They found 

that the equipment had not been lubricated. In particular, there 

was no lubrication done on the rippers, which were in regular use. 

xv 

On May 21, Mr. Walz, Mr. Swinson, and Joan Schmidt, a representative from the Cyprus Human Resources Department, inspected 

these two dozers as well as a loader. Again they determined that 

this equipment had not been property serviced. 

XVI 

As a result of this investigation, on May 22 Mr. Gibson was 

suspended from work until an investigation was completed to 

determine whether he had also falsified his worksheets. 

XVII 

A meeting was held on May 27 to give Mr. Gibson the opportunity to present evidence on his behalf. He was accompanied to 

the meeting by another hourly employee, Bruce Covey. The meeting 

1249 
was conducted by Charles Rising, the Manager of Cyprus's Human 

Resources Department and Mr. Walz. The first part of the meeting 

involved a discussion of the issues and the evidence. A break 

was then called so that Mr. Walz and Mr. Rising could determine 

the appropriate discipline to be given to Mr. Gibson. 

XVIII 

They decided that because of the inconsistencies in how 

Mr. Gibson filled out company forms they could not prove he 

deliberately falsified these records. They also decided during 

the break to suspend Mr. Gibson for an additional 18 working 

days, making the full suspension to encompass a calendar month. 

They arrived at their relatively severe penalty because they felt 

they had to get Mr. Gibson's attention. He had not responded 

particularly well to earlier discipline and they thought they 

would give him one last chance to correct his deficiencies as an 

employee. 

XIX 

When the meeting resumed, Mr. Gibson was informed of his 

suspension. At that time he asked why he was being suspended 

when other miners who wrecked equipment or used alcohol or drugs 

might not be. Mr. Rising directed the discussion back to 

Mr. Gibson's situation and told him that he should use his time 

during suspension to decide whether he wanted to be a Cyprus 

employee. This was the first time that Mr. Gibson mentioned drug 

and alcohol use at the mine. 

xx 

Mr. Gibson appealed his suspension to W.J. Lampard, Cyprus's 

Vice President and General Manager. His suspension was upheld. 

Mr. Gibson met with Mr. Lampard and Mr. Rising. At that meeting 

Mr. Gibson complained that Mr. Walz was treating him unfairly but 

did not raise any safety related issues. 

XXI 

As a result of Mr. Gibson's suspension, the 60-day probation 

period for eliminating his unexcused absence for April 24 was extended. The probation was not completed on July 13 when 

Mr. Gibson asked his supervisor Patsy Morris if he could take a 

portion of the day off to attend a court hearing for his stepson~ 

he indicated he would make up the time on Saturday. She permitted him to ·ao so, but the next morning, after the shift had 

1250 
started, Mr. Gibson called her and told her that he would not be 

coming to work that day. Mrs. Morris asked him if he knew the 

consequences of his action and he indicated that he did. That 

evening he called Mrs. Morris at home to ask if he could take the 

July 15 as a vacation day. She indicated that she would see what 

she could do, but did not indicate.·. that he could have the day as 

vacation. 

XXII 

Mr. Gibson did not come to work on July 14 and 15. Mr. Walz 

made the decision atthis point that he should be discharged and 

determined to suspend him for that purpose. Mr. Gibson had violated the attendance guidelines in effect since March by taking 

unexcused absences on July 14 and 15. Mr. Gibson was informed of 

his suspension after he had reported for work on July 16. 

XXIII 

An investigation was conducted concerning Mr. Gibson's reason for having to leave work on July 13. It was determined that 

he may not have actually gone to court as he had indicated to 

Mrs. Morris. 

XXIV 

A meeting was held on July 21 and Mr. Gibson was give~ an 

opportunity to present evidence that would mitigate his actions. 

The decision had been made prior to the hearing that discharge 

was appropriate unless information of extenuating circumstances 

was presented by Mr. Gibson. Prior to the meeting, Mr. Rising 

consulted with Messrs. Cosner and Lampard, who concurred in this 

decision. No evidence of extenuating circumstances was presented 

and Mr. Gibson was informed that he was discharged. 

xxv 

Cyprus had disciplined other employees for excessive absenteeism. Some of these employees were also discharged. Some· 

employees were placed on similar attendance guidelines prior to 

Mr. Gibson's discharge. 

XXVI 

On July 17, after his suspension pending discharge, 

Mr. Gibson made a complaint to MSHA concerning discipline for 

drug and alcohol use at Cyprus. He made such complaint initially 

by telephone and confirmed that complaint in writing the same day. 

1251 
Neither Mr. Rising nor Mr. Walz nor anyone else in management involved in Mr. Gibson's discharge was aware of such complaint 

prior to his discharge. This complaint was investigated by MSHA 

and was found to be without foundation. Cyprus had an existing 

drug and alcohol policy and no violation of any mandatory standard was found. Cyprus had begun developing a drug-testing program that included testing for cause in 1986. They had an existing program in place in 1987 that included testing applicants for 

employment. Their drug and alcohol policy prohibited use on the 

property. If employees were under the influence of drugs or 

alcohol on duty, they could be discharged. 

XXVII 

Earlier in 1987, there had been incidents at the mine involving the discovery of a vial of cocaine in a truck and marijuana in a drill. These incidents were investigated but the 

persons responsible could not be identified. Credible evidence 

was presented that if the persons responsible for the presence of 

the drugs were identified under the existing discipline policy, 

they could have been discharged. Under the testing, which was 

put into effect after Mr. Gibson's discharge, persons have been 

discharged. 

'XXVIII 

At the time of the meeting on July 21 concerning his discharge, Mr. Gibson expressed a desire to have his wife accompany him into the meeting. The policy was that only employees 

could so accompany an employee into such a meeting and his request was refused. At that time, he asked to call MSHA to see if 

the company's position could be overridden. Mr. Rising dialed 

the MSHA number for Mr. Gibson and then left the room when he 

talked to the MSHA personnel. 

XXIX 

After his discharge, Mr. Gibson sought unemployment compensation. Such compensation was denied because he had been discharged for proper reasons. 

After his discharge, pursuant to the usual practice, 

Mr. Gibson and his wife were asked to terminate their occupation 

of the company-owned housing that they were renting. Cyprus 

offered to make available other housing, so long as they could 

qualify under the company's income requirements. Eventually, 

Cyprus was compelled to seek to have the Gibsons evicted under 

the month-to-month rental agreement which contained a 30-day 

notification provision. The Gibsons were given a number of 

1252 
extensions of their occupancy of the house. A court order was 

eventually entered with the Gibsons' agreement that they would 

vacate the house in March 1988. They complied with the court 

order. 

xxx 

On June 12, 1987, while Mr. Gibson was on suspension, a 

supervisor named Robert Otteson attempted to conduct a tour of 

the mine for some friends on a day when he was not scheduled to 

work. It was the belief of the security guard and Mervin Corbitt, a supervisor, that Mr. Otteson was intoxicated. Pursuant 

to company policy, he was not permitted to go beyond the entrance 

to the mine property. 

XXXI 

Mr. Otteson reported the incident to his supervisor, 

Kent Watson, the next morning. As a result, Mr. Otteson was 

given, on July 8, a written warning that a repeat of the incident 

would result in his discharge. 

XXXII 

Some time after the incident occurred, Mr. Gibson apparently 

called Chris Crowl, the former Human Resources Manager at Bagdad 

to inquire as to why Mr. Otteson had not been disciplined. 

Mr. Crowl inquired concerning the issue with Mr. Rising who told 

him that the matter had been investigated and was proceeding to 

discipline. 

DISCUSSION 

I. ESTABLISHED LAW 

It is well established that, in order to make out a prima 

f acie case, a complainant bears the burden of production and 

proof in establishing that he engaged in protected activity, 

that adverse action was taken against him, and that the adverse 

action was motivated, in part, by the protected activity. Secretary of Labor/Paula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 (Rev. Comm. October 1980), rev'd on other grounds, 663 

F.2d 1211 C3d Cir. 1981); Secretary of Labor/Robinette v. United 

Castle Coal, 3 FMSHRC 803, 817-18 (Rev. Comm. April 1981). The 

operator may rebut by showing that no protected activity occurred, that there was no adverse action, or that the adverse 

action was not motivated in any part by protected activity. The 

operator may also defend affirmatively by showing that the 

1253 
adverse action was also motivated by the miner's unprotected 

activity and that it would have taken the adverse action in any 

event for.the unprotected activity alone. Secretary of Labor/ 

Paula v. Consolidation Coal Co., 2 FMSHRC at 2797-28001 Secretary 

of Labor/Robinette v. United Castle Coal Co., 3 FMSHRC at 

817-818; Bolch v. FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983). 

The ultimate burden of proof never shifts from the miner. See 

Robinette, 3 FMSHRC at 8171 Secretary of Labor/Paula v. ConSOiidation Coal Co., 2 FMSHRC at 2797-2800; Secretary of Labor/Robinette v. United castle Coal Co., 3 FMSHRC at 817-818; Bolch v. 

FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983). The ultimate burden of proof never shifts from the miner. See Robinette, 

3 FMSHRC at 8i7; Secretary of Labor/Bush v.--uriion Carbide, 5 

FMSHRC 993, 997, n.8 (Rev. Comm., June 8, 1983); Schultz v. Lizza 

Industries, Inc., 6 FMSC~C 8, 16 (Rev. Comm., January 9, 1984). 

II. CYPRUS'S POSITION 

It is Cyprus's position that there was no evidence of protected activity prior to Mr. Gibson's suspension on May 27, 1987, 

and that Mr. Gibson did not make out a prime facie case concerning this discipline. Further, the raising of disparate treatment 

by Mr. Gibson at the meeting of May 27 was not, in fact, protected activity but concerned only his treatment in comparison to 

other employees. It is also Cyprus's position that the complaints concerning Mr. Otteson did not constitute protected activity. While Mr. Gibson did make a complaint concerning discipline for drug and alcohol use to MSHA on July 17, after he was 

suspended pending discharge, there was no knowledge of this protected activity by management prior to his discharge. Mr. Gibson 

did call MSHA on the morning of the meeting concerning his discharge but such activity was not protected because it did not 

involve a safety issue but rather the attendance of his wife at 

the meeting. 

Cyprus contends that even if Mr. Gibson did engage in protected activity prior to his discharge, such activity did not 

motivate his discharge in any part. Even if it did, Mr. Gibson 

would have been discharged for unprotected activity alone; his 

chronic absenteeism had reached a point at which Cyprus decided 

that discharge was the only reasonable action Cyprus could take 

since Mr. Gibson had failed to correct his attendance problems. 

III. THE MAY SUSPENSION 

Mr. Gibson did not engage in any protected activity prior to 

his suspension on May 27, 1987, for failing to perform his duties. 

He made no complaints to either MSHA or the persons involved in 

1254 
his discipline concerning safety-related matters prior to his 

suspension. 

It has been stipulated that Mr. Gibson did not contact MSHA 

with any complaints about discipline for drug and alcohol use at 

the mine until July 17, 1987, long after his suspension in May. 

The question the arises as to whether, prior to his suspension on 

May 27, he made any safety complaints to the operator which could 

arguably be construed as protected activity and thus a basis for 

an argument that protected activity motivated his suspension. 

Mr. Gibson conceded that he first raised the issue of discipline of persons who used drugs and alcohol on May 27 at the 

meeting concerning his suspension. The context of his mentioning 

of the issue, must, however, be examined. On May 22, Mr. Gibson 

had been suspended pending investigation for failing to perform 

his duties. After further investigation and consideration of the 

issues by Cyprus, a meeting was held on May 27 to discuss this 

matter with him. Mr. Gibson was given the opportunity to present 

information in order to explain his notations on company forms 

and the deficiencies discovered by Messrs. Walz, Berdine, 

Swinson, Foster, Morgan, and Mrs. Morris. These issues were 

discussed in the first part of the meeting and then a recess was 

held. During the recess, Messrs. Walz and Rising discussed the 

information and arguments presented by Mr. Gibson and determined 

that a suspension was warranted. They decided on an additional 

18 working-day suspension in order to try to bring home the point 

to Mr. Gibson that this performance needed to be corrected. 

The meeting was then reconvened. When Mr. Rising told 

Mr. Gibson that he was going to be suspended, Mr. Gibson reacted 

and asked why he was being suspended when other persons who damaged equipment or used drugs or alcohol were not disciplined. It 

was not until after the suspension was announced that Mr. Gibson 

raised this issue. 

This complaint of disparate treatment was not activity protected under the Act. It was not directed to a safety issue but 

rather to a fairness issue. The circumstances of the making of 

the statements clearly indicate that it was not intended to be a 

safety complaint but rather was related solely to Mr. Gibson's 

perception of the fairness of the discipline he was receiving. 

It was raised defensively not out of a concern for safety miners 

but rather out of reaction to the discipline he had received. 

Under these circumstances, his statements should not receive the 

protection of the Act. The Commission has indicated that its 

function under section 105(c) is not to determine the fairness of 

a particular action but to provide protection for activity under 

1255 
the Act. See,~' Bradley v. Belva Coal Co., 4 FMSHRC, 982 

(Rev. Comm. June 4, 1982). 

The question arises as to what constitutes proteced activity. 

Section 105(c)(l) indicates that protection is offered to a complaint of an alleged danger or safety and health violation. See 

Secretary of Labor/Gabossi v. Western-Fuels Utah, Inc., 10 FMSHRC 

953, 958 (Rev. Comm. August 15, 1988). In this cae, Mr. Gibson's 

"complaint" was not made for reason of safety. It appears that 

it was designed only to divert attention from his own poor work 

performance. · 

There is no evidence in the record that Mr. Gibson made any 

other safety-related complaints to either Larry Walz or Charles 

Rising prior to his supension meeting. The only evidence on the 

record that could arguably be construed as a complaint is testimony about a dispute Mr. Walz and Mr. Gibson had in March 1986, 

concerning the installation of a backup alarm. It was clear from 

the credible evidence that this dispute involved no safety complaint but only a dispute as to how the job was to be performed. 

This activity, even if it were considered to be protected, is too 

remote in time from May 1987 to have any bearing on the issues 

here. See Klimczak v. General Crushed Stone Co., 5 FMSHRC 684, 

690 (ALJ Melick, April 6, 1983) (4 months too long to support 

reference of connection>i Frazier v. Morrison-Knudson, Inc., 5 

FMSHRC (ALJ Morris, January 19, 1983) (4 months too long to 

support reference). 

The May 27 suspension was not motivated in any part by purportedly protected activity involving Mr. Gibson's complaint of 

disparate treatment since it was made after he was informed of 

his additional suspension. Protected activity close in time to 

adverse action may in some circumstances be considered as showing 

a discriminatory motive but it can hardly be argued that protected activity, if Mr. Gibson's complaint of disparate treatment 

was such, after the discipline has been decided upon and announced, in any way motivated the adverse action. 

Even if the circumstances of this suspension are examined 

further, it is clear that it was not motivated in any part by 

protected activity. 

Early in May there had been complaints from members of Ron 

Foster's crew that Mr. Gibson was not servicing their equipment 

properly, both from a lubrication standpoint and a fueling standpoint. These complaints were brought to Mr. Foster's supervisor, 

Junior Morgan, who approached Patsy Morris. Mrs. Morris had prepreviously been involved in servicing of equipment and, upon 

1256 
inspection of the equipment, she and Mr. Morgan found that it was 

not being serviced properly. In order to make sure of their 

conclusions, Mrs. Morris and Vernon Swinson, who was normally in 

charge of the equipment at the concentrator, reinspected it the 

next day and determined that the servicing had not been done or 

was inadequate. 

They then brought it to the attention of their supervisors 

Messrs. Walz and Berdine, who also examined the equipment. 

There was no doubt in any of their minds that the servicing had 

not been done. They felt that the lack of servicing was obvious 

and undisputable. The only question was whether Mr. Gibson had 

also falsified the company records concerning his activities. 

Even after all of the inspections, Mr. Gibson was given an 

opportunity to explain his actions. He was unable to do so, 

although Messrs. Rising and Walz came to the conclusion that they 

could not prove that Mr. Gibson had falsified the company records 

because the records were too confusing and inconsistent. For 

that reason, they did not discharge him but decided to give him 

one last chance to correct his behavior. 

The conclusion that the equipment was not serviced properly 

is confirmed by the testimony of Ray Rubash, who had held the 

particular position previously and had trained Mr. Gibson, and 

who was assigned to it after Mr. Gibson was removed from it. 

When Mr. Rubash resumed the position, he was required to do additional lubrication because it had not ben done for some time. He 

also had to repair equipment and replace parts because of the 

failure to properly lubricated the equipment. The preponderance 

of the evidence clearly establishes that Mr. Gibson had not been 

performing his duties. 

The suspension given to Mr. Gibson was severe, but it must 

be considered in context. He had and extensive history of discipline and it appears from the record that his failure to perform his duties was deliberate. He could have been discharged, 

but Messrs. Rising and Walz decided he could have one last chance. 

By way of comparison, evidence was presented that an employee who 

had damaged equipment through momentary inattention, was given a 

suspension almost as long, and other employees who damaged equipment were discharged. 

Even the testimony of Mr. Gibson casts doubt on the argument 

that the May 27 suspension was motivated by protected activity. 

Mr. Gibson stated that all the discipline that he received was a 

result of personal animus against him by Larry Walz. For example, he claimed that the May 27 suspension was motivated by the 

1257 
fact that Mr. Cosner modified the warning issued on April 29 by 

Mr. Walz. He also said his first confrontation with Mr. Walz 

occurred when he told Mr. Walz that he did not know what he was 

doing. He claimed that his assignment to the job at the concentator upset Mr. Walz because he displaced Mr. Rubash, a friend of 

Mr. Walz. 2/ If, in fact, these incidents were the basis of a 

dislike of-Mr. Gibson by Mr. Walz, they are not protected activity under the Act. If Mr. Gibson's conjectures are to be believed, Mr. Walz acted against him for personal reasons unrelated 

to protected activity. 

IV. THE JULY DISCHARGE 

A. No protected activity prior to July 17 

Between his supension on May 27 and his suspension with intent to discharge on July 17, Mr. Gibson did not engage in protected activity. The fact that he did not do so supports the 

argument that his discharge on July 21, for absenteeism and for 

his poor work history, was not motivated in any part by protected 

activity. 

After his suspension on May 27, Mr. Gibson appealed it to 

the Vice President and General Manager, W.J. Lampard. He and his 

wife met with Messrs Lampard and Rising in early June. At that 

time, Mr. Gibson did not raise the issue of drug and alcohol use 

at the mine, rather, he told Mr. Lampard that Mr. Walz was treating him unfairly. 

On June 12, there was an incident involving Robert Otteson, 

a.supervisor at the mine, who sought admission to the mine when 

he was off duty. The guard at the security gate believed that 

Mr. Otteson was intoxicated and referred his request for admission to Mr. Corbitt, who was on duty that night. After some 

discussion with Mr. Corbitt, Mr. Otteson left the mine because 

he had been refused entry consistent with the existing policy at 

the mine. The next day, Mr. Otteson reported the incident to his 

supervisor Kent Watson. The incident was investigated and 

Mr. Otteson was warned that he would be discharged if a similar 

~/ The evidence indicates that Mr. Gibson's belief concerning 

personal animus was unfounded. Credible evidence was presented 

that Mr. ~ubash gave up the job at the concentrator in an effort 

to upgrade his pay scale. 

1258 
incident ever occurred. Credible evidence was presentd that if 

Mr. Otteson had been on duty, he would have been discharged at 

the time. 

Apparently, Mr. Gibson, as a follow-up to his belief that 

his suspension was not proper, complained to Chris Crowl, formerly the Human Resources Manager at Bagdad, at the time located 

in the parent company's office in Englewood, Colorado, about the 

Otteson incident •. It was Mr. Gibson's perception that 

Mr. Otteson had not been disciplined and Mr. Gibson apparently 

felt that this was unfair when considered with respect to his own 

suspension. 

Again, this contact with Mr. Crowl does not appear to constitute protected activity. It appears to be a defensive measure by Mr. Gibson to bolster his arguments that his suspension 

was unfair. As such, it does not represent protected activity. 

B. No protected activity motivated the July discharge 

Mr. Gibson stipulated at the hearing that he did not contact 

MSHA until July 17. At that time, he called them and discussed 

his belief that Cyprus was not dealing appropriately with drug 

and alcohol use at the mine. He followed up that telephone contact with a letter dated and sent on July 17 concerning this 

issue. There is no evidence on this record that anyone in management who was involved in the decision to discharge Mr. Gibson, 

was aware of this telephone contact or of the writing of the 

letter. 

It is well established that an operator must be aware of 

protected activity to motivate action against an employee. 

Schulte v. Lizza Industries, Inc., 6 FMSffRC 8, 15 (Rev. Comm. 

January 9, 1984): Secretary of Labor/Bishop v. Mountin Top Fuel, 

Inc., 2 FMSHRC 1126, (March 31, 1981): Buford Smith v. R.J.F. 

CQaI Co., Inc., 11 FMSJRC 2050, 2055-6 (October 24, 1989): 

Luttrell v. Jericaol Mining, Inc., 10 FMSHRC 1328, 1334 (September 30, 1988). There was no such knowledge here and the July 17 

letter is found to be no part of any motivation for the 

discharge. 

It should, of course, also be noted that this contact with 

MSHA occurred after Mr. Gibson had been suspended with the intent 

to discharge him. He was suspended shortly after the start of 

the shift on July 16 and this contact came after that. 

Mr. Gibson did telephone MSHA on the day of his meeting 

concerning his discharge. A dispute arose that morning about 

1259 
whether his wife would be permitted to attend the meeting. When 

Mr. Gibson was told that he was entitled to have another employee 

at the meeting but that his wife could not attend, he asked to 

call MSHA. Mr. Rising dialed the number for him and left the 

room during the conversation. 

It does not appear that this contact was the type of activity intended to be protected by the Act. As far as the evidence 

indicates, it did not involve a safety complaint, but one of disciplinary procedure. As such, it was not the sort of activity to 

be protected under section 105(c). 

Even if it is assumed, for the sake of argument, that 

Mr. Gibson engaged in protected activity and that management was 

aware of it, the evidence at hearing did not indicate that the 

discipline given to Mr. Gibson was motivated in any part by the 

protected activity. While it is often difficult to prove discriminatory intent directly, the Commission has discussed the 

sorts of cirumstantial evidence of discriminatory intent that are 

appropriate to consider. These include knowledge by the operator 

of the miner's protected activities, hostility toward the miner 

because of his protected activity, coincidence in time between 

the protected activity and the adverse action and disparate 

treatment of the complaining miner. See Secretary of Labor/ 

Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (Rev. Comm. November 

1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391 (Rev. Comm. June 

1984); Sharp v. Big Elk Creek Coal Co., 11 FMSHRC 382, 394 

(March 20, 1989). An examination of these factors does not 

indicate that the discharge was motivated, in any part, by protected activity. There was limited knowledge of his protected 

activity, no hostility toward the protected activity was shown 

and there was no disparate treatment of Mr. Gibson. 

The only action by Mr. Gibson which arguably can be considered protected is his telephone call on July 21 to MSHA about 

the attendance of his wife at the meeting concerning his discharge. His letter of July 17 was not then known to management 

1260 
and could not have played a role in his discharge. His complaints concerning Mr. Otteson were simply coqsidered to be 

concerned about fairness of his suspension. ~/ 

The fact that a miner has a conversation with MSHA personnel 

does not necessarily mean such conversation is protected activity. 

See Hacker v. Black Streak Mining Co., 11 FMSHRC 2240, 2265 CALJ 

Koutras November 9, 1989). Even protected activity close to time 

to the adverse action may not be sufficient to show the connection between the two. Grafton v. National Gypsum, 12 FMSHRC 63, 

66-67 CALJ Weisberger, January 12, 1990) Cone day). 

In this case, the decision to discharge Mr. Gibson had, in 

effect, been made prior to the meeting on July 21. Before the 

meeting, Mr. Rising had consulted with both Messrs. Cosner and 

Lampard concerning a discharge and they had concurred in the 

decision. The purpose of the meeting was to give Mr. Gibson one 

last chance to explain his absences on July 14 and 15, which he 

failed to do at the meeting. 

Under such circumstances, no reliance on the closeness in 

time is proper. See, ~' Lester v. Garden Creek Pocahontas 

Co., 11 FMSHRC 1763 (decision made to discontinue position made 

before safety complaints were made); Luttrell v. Jericoal Mining, 

Inc., 10 FMSHRC 1320, 1331 (September 30, 1988). 

Essentially, Mr. Gibson is relying here on conjecture to 

show a nexus between any protected activity and his discharge. 

This does not provide sufficient basis for showing that the protected activity is motivated in any part his discharge. See 

Buelke v. Thunder Basin Coal Co., 11 FMSHRC 238, 244 February 16, 

1989); Buford Smith v. R.J.F Coal Co., Inc., 11 FMSHRC 2050, 

3/ Mr. Gibson offered certain evidence that Cyprus did not have 

a policy on drug and alcohol abuse. The credible testimony was 

that a policy existed and was enforced and that a new policy had 

been in the process of development for a considerable period before Mr. Gibson even claimed to make any complaints about the 

lack of such a policy. Moreover, the tesimony about specific 

incidents of discovery of drugs on the property is irrelevant 

because there is no credible evidence that Mr. Gibson ever 

discussed these incidents with Messrs. Walz, Rising, Morris, 

Cosner, or Lampard. 

1261 
2055, n.2 (October 24, 1989). There was not evidence that either 

the telephone call to MSHA or any other matter related to complaints about drug and alcohol abuse was discussed at the July 21 

meeting or was a factor in the decision to discharge Mr. Gibson. 

Also, it was undisputed that even if some of the incidents 

that Mr. Gibson would rely upon are considered protected activity, there was a lack of knowledge of those incidents by all the 

parties involved in his discharge. Mrs. Morris did not know of 

the discussions at the May 27 meeting, was not aware of 

Mr. Gibson's complaints about Mr. Otteson, and did not know of 

the July 17, letter. Yet she recommended Mr. Gibson be 

discharged. 

Mr. Walz did not know about the July 17 letter or about 

Mr. Gibson's complaints about Mr. Otteson, yet he believed 

discharge was proper. Mr. ~ising did not know of the July 17 

letter, yet he believed that discharge was appropriate. 

I am satisfied from the record, that Mr. Gibson's discharge 

was not related to any arguably protected activity. It is undisputed that Mr. Gibson was absent on the two days in question. It 

is also undisputed that the attendance policy that he was subject to indicated that in the event of a second unexcused absence, he would be subject to discharge. When he called 

Mrs. Morris to say that he would not be coming to work on July 14 

he admitted that he knew the consequences of his actions. 

In September 1986, prior to any arguably protected activity 

by Mr. Gibson, he was placed on attendance guidelines that required him to maintain an unblemished attendance record and it 

was clearly warranted. He had a history of discipline for attendance problems, a history that included a ten-day suspension 

in lieu of discharge. In 1986 his attendance was the worst of 

any employee in the maintenance department. 

When Mr. Gibson showed some improvements in his attendance, 

the guidelines were reissued and relaxed to a degree. Unfortunately, Mr. Gibson almost immediately violated those guidelines 

and was absent from work on April 24. Under the guidelines he 

was to receive a warning and that is what Mr. Walz gave him. His 

appeal to Mr. Cosner raised the possibility that this warning 

could be removed from his file, but reemphasized that the guide1 ines remained in effect. 

On July 13, his supervisor permitted him to take partial day 

off to attend a court hearing that he may well not have attended. 

On July 14, after the start of the shift, Mr. Gibson called 

1262 
Mrs. Morris and told, not asked her, that he was taking the day 

off. Their conversation made it clear that he was aware of the 

consequences of his action. Later that day he called Mrs. Morris 

at home to try to get a vacation day for the next day. This day 

of vacation was neither promised to him by Mrs. Morris, nor ultimately granted. 

He thus had two more unexcused absences from work. One was 

sufficient basis for his discharge. He was unable to justify 

either absence at the time of his meeting and his employment was, 

by general consensus, terminated. This sort of action by an employee can properly be the basis of a discharge. See, ~' 

Secretary of Labor/Brock v. Blue Circle, Inc., 11 FMSHRC 2181 

CALJ Koutras, November 7, 1989) (abuse of breaks and unsatisfactory job performance); Sharp v. Elk Creek Coal Co., 11 FMSHRC 382 

CALJ Koutras, March 20, 1989) (discharge for missing work); 

Thompson v. Island Creek Coal Co., 11 FMSHRC 17 CALJ Maurer, 

September 13, 1989) (employee discharged for failing to report to 

work on one day). 

Although Mr. Gibson claimed he was singled out by Mr. Walz, 

an examination of the record of other employees who were placed 

on attendance control programs shows no such disparate treatment. 

On April 21, 1986, Clyde Burke was placed on attendance guidelines requiring him to have perfect attendance for 90 days. On 

June 2, 1987, he was once again placed on such guidelines. He 

arrived one hour late to work on June 30, 1987, and was suspended 

for five days, a greater penalty than Mr. Gibson received for the 

first violation of his guidelines. On November 21, 1987, 

Mr. Burke was again one hour late to work and his employment was 

terminated. 

On March 18, 1987, Clifford Minter was placed on such guidelines. He missed a portion of one day to go to court and all of 

the next day. He was suspended and was told that any further 

absences would result in his termination. Duane Dahlin was 

placed on similar guidelines also, in that he was given a final 

warning that if he had further absences, his employment would be 

terminated. It is clear that Mr. Gibson was not singled out. In 

fact, it appears that he was treated somewhat more leniently than 

his co-workers. 

I 

Mr. Gibs'on attempted to make an issue of the fact that 

Mr. Walz, a superintendent, was directly involved in his discipline. The evidence was that Mr. Walz's involvement was not 

unusual. For/ example, the memorandum concerning the termination 

of Mr. Burke'/s employment was signed by a superintendent, as were 

his attend'a.n~e guidelines. The memorandum terminating Robert 

I : 

I . 

1263 
Kesterson's employment for three absences was signed only by 

Mr. Walz. Mr. Neely's letter of discipline was signed by his 

superintendent. 

The procedure was that the Vice President and General 

Manager must concur in a decision to discharge an employee, 

although he need not sign the letter of termination. In this 

case, both Mr. Lampard and Mr. Cosner, the Mine Manager, were 

consulted and concurred on the decision. 

It must also be recognized that in May, when he was suspended, Mr. Gibson was told that he should decide whether he 

wanted to continue employment at Bagdad. He was instructed at 

that time: "If you fail to make a substantial improvement in 

your overall performance, you will be terminated." Mr. 'Rising 

was trying, by means of the lengthy suspension, to finally communicate to Mr. Gibson that he had to improve or he would be 

terminated. Mr. Gibson's response was to take almost three days 

off soon after he returned from his suspension. He took those 

days off knowing that Mr. Walz would act against him. 

violation of such a "last chance" policy such as Mr. Gibson 

was under is not a violation of section 105(c). Mullins v. 

Clinchfield Coal Co., 11 FMSHRC 1948 CALJ Koutras, October 3, 

1989). Application of the absentee policy was not directed 

solely at Mr. Gibson and no disparate treatment was shown. See 

Sharp v. Big Elk Coal Co., 11 FMSHRC 382 (ALJ Koutras, March 

1989). ?urther the policy was applied to Mr. Gibson long before 

he even engaged in any arguably protected activity. 

In evaluating the motivation in discharging Mr. Gibson, some 

discussion is appropriate of Mr. Gibson's history of excuses concerning his absences. There was undisputed testimony from persons other that Mr. Walz that Mr. Gibson was in the habit of giving suspect excuses, usually after the fact, for his absences. 

When Mr. Gibson's work record at Cyprus is considered as a 

whole, it is clear that, as an employee, he had been given a 

number of chances to demonstrate that his employment should be 

continued. His discharge on July 21, 1987, was really the culmination of a career at Bagdad of absenteeism and unreliability. 

The evidence shows that his discharge was not motivated in any 

part by protected activity, and it also shows that, even if 

protected activity played a part in his discharge, Mr. Gibson 

would have been discharged in any event for his unprotected 

activity in absenting himself from work. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

1264 
As we emphasized in Pasula, and recently reemphasized in Chacon, the operator must prove that 

it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

can attempt to demonstrate this by showing, for 

example, past discipline consistent with that meted 

out to the alleged discriminatee, the miner's unsatisfactory past work record, prior warnings to the miner, 

or personnel rules or practices forbidding the conduct 

in question. our function is not to pass on the wisdom or fairness of such asserted business justif ications, but rather only to determine whether they 

are credible and, if so, whether they would have 

motivated the particular operator as claimed. 

Cyprus has satisfactorily shown with credible evidence a 

business justification for Mr. Gibson's May 27th suspension and 

his July 21st discharge. 

CONCLUSION OF LAW 

1. Cyprus did not violate Section 105(c) of the Federal 

Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. 

§ 815(c}. 

2. Any protected activity that Mr. Gibson engaged in did 

not in any part motivated his suspension on May 27 or his 

discharge on July 21. 

3. Even if the suspension and discharge of Mr. Gibson were 

motivated in any part by the fact that he engaged in protected 

activity, he would have been suspended and discharged for unprotected activity alone. 

1265 
ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony and 

evidence adduced in this case, I conclude and find that 

Mr. Gibson has failed to establish that the respondent has discriminated against him or has otherwise harassed him or retaliated against him because of the exercise of any protected rights 

on his part. Accordingly, his claims for relief ARE DENIED and 

the Complaint and this proceeding and are DISMISSED. 

AUG 

Administrative 

T F. CETTI ~~ Law Judge 

Distribution: 

Mr. Donald H. Gibson, 885 Munley Drive, Reno, NV 89503 

R. Henry Moore, Esq., Buchanan Ingersoll, 57th Floor, USX Tower, 

600 Grant Street, Pittsburgh, PA 15219 

/ek 

1266 
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. 

KENT COAL MINING COMPANY, 

Respondent 

JUN 8 1990 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-205 

A.C. No. 36-07756-03508 

Kent No. 55 Mine 

Appearances: Evert Van Wijk, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania, for the Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for the Respondent. 

Before: Judge Maurer 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to Section 105(d) of the 

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

seq., the "Act," charging the Kent Coal Mining Company (Kent) 

with a violation of the mandatory standard found at 30 C.F.R. 

§ 48.26(a) and proposing a civil penalty of $1,000 for that 

violation. The general issue before me is whether Kent violated 

the cited standard and, if so, the appropriate civil penalty to 

be assessed in accordance with Section llOCi) of the Act. 

Pursuant to notice, a hearing on the merits was held in this 

matter on January 18, 1990, in Pittsburgh, Pennsylvania. A 

post-hearing brief was filed by the respondent on March 2, 1990, 

and the Secretary waived its right to file post-hearing argument 

by letter dated March 7, 1990. I have considered the entire 

record of proceedings and the contentions of the parties in 

making the following decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I ,accept: 

1. That Kent Mine Number 55 is owned and operated by the 

Kent Coal Mining Company and is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

1267 
2. The Administrative Law Judge has jurisdiction over these 

proceedings. 

3. Citation No. 2894017 and Order No. 2894016 were properly 

served by a duly authorized representative of the Secretary of 

Labor on an agent at the Ken·t Coal Mining Company and may be 

admitted into evidence for the purpose of establishing due 

issuance but not for the truth of the matters asserted therein. 

4. Kent Coal Mining Company demonstrated good faith in the 

abatement of the Citation and Order. 

5. The assessment of a civil penalty in the proceeding will 

not affect the Kent Coal Mining Company's ability to continue 

business. 

6. The appropriateness of the penalty, if any, to the size 

of the coal operator's business should be based on the fact that 

Kent Coal Mining Company No. 55's annual production is 30,440 

tons and the annual production of it and its affiliated companies 

which are also subsidiaries of the Rochester and Pittsburgh Coal 

Company is 9,386,168 tons. 

7. Fred Albright, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on May 12, 1980. Prior to becoming an employee of Kent, 

Mr. Albright had been, since April 12, 1978, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation No. 2894017 on 

March 10, 1989, he had last received annual refresher training 

pursuant to 30 C.F.R. § 48.28 on October 28, 1988. His job 

classification was that of a dragline oiler. 

8. Ronald Boltz, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. Boltz had been, since September 5, 1972, an employee of a 

predecessor surf ace coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 21, 1988. His job classification was that of a highlift 

operator. 

9. William c. Guntrum, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on April 27, 1982. Prior to becoming an employee of Kent, 

Mr. Guntrum had been, since September 5, 1972, an employee of a· 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

1268 
annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 16, 1988. His job classification was that of a dozer 

operator. 

10. Charles D. James, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. James had been, since April 9, 1973, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 21, 1988. His job classification was that of a dozer 

operator. 

11. Charles R. James, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. James had been, since May 21, 1974, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on . 

October 28, 1988. His job classification was that of a highlift 

operator. 

12. Ronald G. Peiffer, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. Peiffer had been, since May 24, 1972, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 28, 1988. His job classification was that of a dragline 

operator. 

13. David A. Scholl, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an e~ployee of Kent, 

Mr. Scholl had been, since April 12, 1978, an employee of a 

predecessor surf ace coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 21, 1988. His job classification was that of a truck 

operator. 

14. James w. Tarr, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. Tarr had been, since April 3, 1978 an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

1269 
annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 21, 1988. His job classification was that of a truck 

operator. 

15. Gilbert Woodley, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. Woodley had been, since June 13, 1974, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 21, 1988. His job classification was that of a dozer 

operator. 

16. Daniel R. Dunlap, Jr., who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on May 19, 1980. Prior to becoming an employee of Kent, 

Mr. Dunlap had been, since June 4, 1979, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 21, 1988. His job classification was that of a mechanic. 

17. W.R. Shondelmeyer, Jr., who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on May 12, 1980. Prior to becoming an employee of Kent, 

Mr. Shondelmeyer had been, since April 17, 1978, an employee of a 

predecessor surf ace coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 28, 1988. His job classification was that of a fuel 

truck operator. 

18. Kevin J. Buggey, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on May 14, 1982. Prior to the issuance of the Citation, he 

last received annual refresher training pursuant to 30 C.F.R. 

§ 48.28 on October 28, 1988. His job classification was that of 

a serviceman. 

19. Galen L. Smith, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. Smith had been, since May 22, 1972, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to C.F.R. § 48.28 on 

October 21, 1988. His job classification was that of a highwall 

miner operator. 

1270 
20. Carl A. Smith, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979~ Prior to becoming an employee of Kent, 

Mr. Smith had been, since December 29, 1970, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 28, 1988. His job classification was that of a highwall 

miner operator. 

21. Samuel T. Peace, Jr., who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on September 27, 1979. Prior to the issuance of the Citation, he 

last received annual refresher training pursuant to 30 C.F.R. 

§ 48.28 on October 21, 1988. His job classification was that of 

a serviceman. 

22. John E. Valkosky, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on December 3, 1979. Prior to becoming an employee of Kent, 

Mr. Valkosky had been, since April 19, 1974, an employee of a 

predecessor surface coal mining company which was acquired by 

Kent. Prior to the issuance of the Citation, he last received 

annual refresher training pursuant to 30 C.F.R. § 48.28 on 

October 28, 1988. His job classification was that of a fork 

lift operator. 

23. Herman M. Blakley, who was referred to in Citation 

No. 2894017, became an employee of the Kent Coal Mining Company 

on May 21, 1984. Prior to the issuance of the Citation, he last 

received annual refresher training pursuant to 30 C.F.R. § 48.28 

on October 20, 1988. His job classification was that of a shift 

foreman. 

24. At the time of the issuance of Citation No. 2894017, 

Edward F. Nett, Jr., who was referred to in Citation No. 2894017, 

was an employee of Metec, Inc., a contractor at the Kent No. 55 

Mine. Prior to the issuance of the Citation, he last received 

his annual refresher training, pursuant to 30 C.F.R. § 48.28, on 

October 21, 1988. 

25. At the time of the issuance of Citation No. 2894017, 

Vince Henderson, who was referred to in Citation No. 2894017, was 

an enployee of Metec, Inc., a contractor at the Kent No. 55 Mine. 

Prior to the issuance of the Citation, he last received his 

annual refresher training, pursuant to 30 C.F.R. § 48.28, on 

October 21, 1988. 

26. At the time of the issuance of Citation No. 2894017, 

Paul Gilbert, who was referred to in Citation No. 2894017, was an 

1271 
employee of Metec, Inc., a contractor at the Kent No. 55 Mine. 

Prior to the issuance of the Citation, he last received his 

annual refresher training, pursuant to 30 C.F.R. § 48.28, on 

October 28, 1988. 

27. At the time of the issuance of Citation No. 2894017, 

Randall K. Oslonian, who was referred to in Citation No. 2894017, 

was an employee of Metec, Inc., a contractor at the Kent No. 55 

Mine. Prior to the issuance of the Citation, he last received 

his annual refresher training, pursuant to 30 C.F.R. § 48.28, on 

February 6, 1989. 

28. Prior t6 being assigned to the Kent No. 55 site, the 

miners who were referred to by name in the Citation had 

previously worked at other mine sites operated by Kent but having 

different MSHA identification numbers. They did not receive 

newly experienced miner training pursuant to 30 C.F.R. § 48.26(a) 

related specifically to this particular mine site prior to 

crnnmencing work at the Kent No. 55 mine site. 

29. The miners referred to by name in the Citation were, as 

of the date of the Citation, experienced miners as defined in 

30 C.F.R. § 48.22(b). 

DISCUSSION AND FINDINGS 

Citation No. 2894017, issued on March 10, 1989, charges a 

violation of the mandatory standard found at 30 C.F.R. § 48.26(a) 

and alleges: 

The following employees of Kent No. 55 mine, Ronald 

Boltz, Bill Guntrum, David Scholl, Kevin Buggey, Dan 

Dunlap, James Tarr, Bill Shondelmeyer, Fred Albright, 

Sam Peace, Gilbert Woodley, Edward Nett, Jr., Randall 

Oslonian, Galen Smith, Vince Henderson, Paul Gilbert, 

John Valkosky, Charles James, Carl Smith, Ronald 

Peiffer, Charles James and Herman Blakley were working 

at the 001 pit without first being given training under 

48.26(a) 30 C.F.R. The employees were transferred to 

this mine approximately three weeks ago and have had 

annual training under ID No. 36-02854 but, no such 

training was provided for this mine site. A 1045/order 

(No. 2894016) has been issued in conjunction with this 

citation. 

At the hearing and on the record, the above citation was 

amended to allege a non-S&S violation and also to delete the name 

of Herman Blakley, who was a supervisor at the mine. It is MSHA 

policy that supervisors are not required to undergo the training 

requirements of Part 48. 

1272 
That amendment left twenty miners named in the citation. 

All are experienced miners. Sixteen of them are Kent employees 

of relatively long standing. Most have been with Kent for over 

ten years. The other four named miners are employees of Metec, 

Inc., a contractor hired by Kent to assist in the operation of 

the highwall mining machine leased from Metec. These four miners 

had worked at Kent locations for approximately one year. They 

had most recently been assigned to the Brick Church site along 

with the majority of the Kent employees cited herein. 

Kent operates a number of relatively small surface mining 

sites under various MSHA ID numbers. In early 1989, February or 

March, Kent began to move some of its mining equipment and miners 

from its Iselin 10 and Brick Church sites to its Kent No. 55 site. 

The MSHA ID number for this site (No. 55) had previously been 

assigned to another site approximately 2000 feet away known as 

the Kent No. 56 Mine. 

The miners at the Kent No. 55 site were operating the same 

equipment that they operated at the sites where they had 

previously been assigned and performing the same sort of tasks. 

The Brick Church and Iselin 10 sites were similar to the Kent No. 

55 site. All had highwalls; the ground control plans and 

communications set-ups were similar, and the safety procedures 

were the same. Furthermore, they worked for the same Kent 

supervisory personnel that they had worked for at the previous 

mine sites. 

When a miner was assigned to a new work location, he would 

receive instructions from his supervisor as to his duties when he 

arrived at the site, but he was not formally given the newly 

employed experienced miner training set out in 30 C.F.R. 

§ 48.26(a). 

Inspector Kopsic based the citation he issued on an 

unwritten MSHA policy which mandates newly employed experienced 

miner training whenever a miner transfers from one mine site to 

another if the MSHA mine identification numbers are different. 

The critical feature of this policy is the mine identification 

number. If the mine site has a different ID number than the mine 

site where the miner was previously assigned to work, even if 

for the same employer, this triggers a requirement for newly 

employed experienced miner training. This is the case even if 

the two mines are right next to each other. On the other hand, 

an operator can have as many different mines as he wants under 

the same ID number, miles apart from each other, as long as all 

the mines are in the same county and inspected out of the same 

MSHA field office. In the latter case, the employer is free to 

1273 
transfer his workers to and among his various sites without 

concerning himself with the newly employed experienced miner 

training. 

Kent's position in this case is that the twenty miners at 

issue here are not newly employed experienced miners required to 

be trained under 30 C.F.R. § 48.26(a) because they did not change 

employers when they changed job sites. "Newly employed" is not 

specifically defined in the regulations and Kent urges that a 

commonly accepted definition of the term be used. That is, that 

a "newly employed" person is a "newly hired" person, not an 

employee who merely shifts his worksite, but does not change his 

employer. 

As between the two interpretations, Kent's is clearly the 

more reasonable. It gives effect to the usual meaning of the 

words "newly employed". Moreover, the Secretary's interpretation 

as implemented by its unwritten policy, creates a distinction 

based solely on mine ID numbers which is arbitrary at best. 

Using that interpretation, if the three Kent surface mine sites 

mentioned herein were located in the same county in Pennsylvania 

and were inspected out of the same MSHA field off ice, and if the 

operator requested it, they could be assigned the same Mine ID 

number and no section 48.26(a) training would be required in this 

instance. However, in this situation, the operator requested a 

different ID number for this particular site, and the training is 

therefore required. This policy/interpretation lacks any 

rational basis in my opinion. 

Therefore, I find that the Secretary's policy in this case 

is not entitled to deference. To begin with, it just doesn't 

make any common sense as a practical matter. If a miner can be 

transferred by his employer from one job site to another, ten or 

fifteen miles away, and be required to undergo section 48.26(a) 

training depending only on whether or not his employer put the 

same mine ID number on the second worksite, that is nonsense. It 

also has nothing to do with being newly employed. Secondly, the 

"policy" is unwritten. It is not included in the 1988 Program 

Policy Manual which purports to contain all MSHA policies 

concerning training and retraining of miners under Part 48. 

Accordingly, even assuming this interpretation of the standard or 

"policy" exists, there apparently was no notice of it to the 

public or more specifically to the mine operators. 

In Secretary v. Garden Creek Pocahontas Co., 11 FMSHRC 2148 

(1989), the Commission addressed a particular interpretation of 

the Secretary that was not contained within the plain language of 

the standard in the following language: 

A regulation cannot be applied in a manner that fails 

to inform a reasonably prudent person of the conduct 

required. 

11 FMSHRC at 2152. 

1274 
In this case, the interpretation of "newly employed 

experienced miner" espoused by the Secretary, fails to provide 

any reasonable notice of the conduct required and, for that 

reason also should be rejected. 

The miners involved in this case were all experienced miners 

and they all had current annual refresher training under 30 C.F.R. 

Part 48. I conclude that this is all that Part 48 requires given 

the facts of this case. No violation of 30 C.F.R. § 48.26(a) 

existed because none of these miners was a newly employed miner 

by virtue of the fact that his employer moved him from Iselin 10 

or Brick Church to Kent No. 55. Nothing concerning their 

employment status changed as a result of this transfer. 

ORDER 

Based on the above findings of fact and conclusions of law, 

I;r IS ORDERED: 

Citation No. 2894017 IS VACATED, and no penalty may be 

assessed. 

urer 

s rative Law Judge 

Distribution: 

Evert H. van Wijk, Esq., U.S. Department of Labor, Office of the 

Solicitor, Room 14480-Gateway Building, 3535 Market St., 

Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp., 58th 

Floor, 600 Grant St., Pittsburgh, PA 15219 (Certified Mail) 

/ml 

1275 
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. 

FLIPPY COAL COMPANY, INC. 

Respondent 

JUN 81990 

CIVIL PENALTY PROCEEDING 

Docket No. VA 90-8 

A.C. No. 44-06497-03503 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed a motion to 

approve a settlement agreement and to dismiss the case. A 

reduction in penalty from $1486 to $1286 is proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llOCi) of the 

Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that respondent pay a penalty of $1286 within 

30 days of this order. 

urer 

ative Law Judge 

Distribution: 

Javier I. Romanach, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mr. Carl Davis, Flippy Coal Company, 106 Suffolk Avenue, 

Richlands, VA 24641 (Certified Mail) 

/ml 

1276 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 111990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLUE RANGE MINING COMPANY, 

L.P., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-425-M 

A.C. No. 04-05021-05501 

Darwin UG 

Appearances: George B. O'Haver, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California 

R.D. Haddock, HOLME ROBERTS & OWEN, Salt Lake City, 

Utah, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the fililng of a proposal 

for assessment of civil penalty by Petiioner on October 2, 1989, 

pursuant to Section llO(a) of the Federal Mine Safety and Health 

Amendments Act of 1977, 30 u.s.c. § 801, et~ 

At the outset of hearing on May 23, 1990, the parties entered negotiations and ultimately announced their amicable resolution of the issues arising out of the four enforcement documents (three withdrawal orders and one citation). Pursuant to 

their agreement, and upon further review and re-evaluation by 

Petitioner, various modifications of the four enforcement documents (described in my order below) are to be made which, because 

of their mollification of the original evaluations of the penalty 

assessment factor of gravity as to each violation, result in 

reductions in the penalties originally and administratively 

assessed by Petitioner. The settlement agreement was proposed 

and considered on the record at the hearing and my bench decision 

approving such is here affirmed. 

ORDER 

1. Withdrawal Order No. 3463394 is MODIFIED to change the 

"Gravity" of the violation described in Section 10.A. of the 

Order from "Highly Likely" to "Unlikely," to change the degree of 

"Negligence" involved appearing in paragraph 11 of the Order from 

"Moderate" to "Low," and to delete the "Significant and Substantial" designation of the violation appearing at paragraph 10.C. 

of the Order. A penalty of $50 is assessed for this violation. 

1277 
2. Citation No. 3463395 is MODIFIED to change the degree of 

"Negligence" involved from "Moderate" to "Low." A penalty of $55 

is assessed for this violation. 

3. Withdrawal Order No. 3463396 is MODIFIED to change the 

degree of Negligence involved from "Moderate" to "Low." A penalty of $300 is assessed. 

4. Withdrawal Order No. 3463398 is MODIFIED to change the 

"Gravity" Designation from "Highly Likely" to "Unlikely," to 

change the degree of Negligence involved from "Moderate" to 

"Low," and to delete the "Significant and Substantial" designation of the violation appearing in the Order. A penalty of $50 

is assessed. 

5. Respondent, if it has not previously done so, shall pay 

to the Secretary within 30 days from the date hereof the sum of 

$455 as and for the civil penalties agreed to and above assessed. 

Distribution: 

~t:---·~,/-~ ;;:;~~-.! /t -· 

Michael A. Lasher, Jr. 

Administrative Law Judge 

R.D. Haddock, Esq., HOLME ROBERTS & OWEN, 50 South Main Street, 

Suite 900, Salt Lake City, UT 84144 (Certified Mail) 

George B. O'Haver, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, 

CA 94105 (Certified Mail) 

Mr. Larry c. Hoffman, President, Blue Range Mining Company, L.P., 

56 East Mercury, Butte, MT 59701 (Certified Mail) 

/ek 

1278 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 13, 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

J. R. THOMPSON INCORPORATED, 

Respondent 

Docket No. CENT 89-161-M 

A. C. No. 41-03014-05507 

Nunneley Quarry 

ORDER VACATING DEFAULT 

ORDER APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This matter is before me pursuant to Order of the Commission 

dated June 12, 1990. 

Upon review of the file I determine that sufficient grounds 

exist to grant relief from the default. Accordingly, it is 

ORDERED that the default dated February 6, 1990, be and is hereby 

VACATED. 

Upon review of the proposed settlement agreement I determine 

that the settlement amounts are appropriate and that the suggested mode of payment is reasonable. The Solicitor has orally 

advised that the operator is making payments in accordance with 

the settlement agreement. Accordingly, it is ORDERED that the 

proposed settlement agreement in all respects be and is hereby 

APPROVED. 

It is further ORDERED that the operator continue to make 

payments in accordance with the settlement agreement until the 

entire sum due is paid. 

Paul Merlin 

Chief Administrative-Law Judge 

1279 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 13 1990 

DONALD F. DENU, 

·complainant 

DISCRIMINATION PROCEEDING 

v. 

AMAX COAL COMPANY, 

Respondent 

. . Docket No. LAKE 90-26-D 

VINC CD 90-02 

Ayrshire Mine 

ORDER LIFTING STAY AND DISMISSING PROCEEDINGS 

Before: Judge Melick 

Complainant requests approval to withdraw his Complaint 

the captioned case. Under the circumstances her in, the 

request is granted. 29 C.F.R. § 2700.11. The S ay Order 

previously issued is accordingly w lifted and :his case is 

therefore dismissed. 

Distribution: 

Susan E. Chetlin, Esq., Crowell & 

Avenue, N.W., Washington, DC 200 

udge 

100 Pennsylvania 

(Certified Mail) 

Mr. Donald F. Denu, R.R. #1, Box 333, Rockport, IN 47635 

(Certified Mail) 

Amax Coal Company, P.O. Box 40, Chandler, IN 47610 

(Certified Mail) 

nt 

1280 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

~JUN 1 j 1990 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION CMSHA), 

on behalf of 

DONALD F. RADOS, 

Complainant 

v. 

BETH ENERGY MINES, INC., 

Respondent 

Docket No. PENN 90-106-D 

PITT CD 90-06 

Livingston Portal 

Eighty-Four Complex 

ORDER OF DISMISSAL 

Before: Judge Melick 

The Secretary of Labor requests approval to withdraw its 

Complaint in the captioned case on the grounds that she now 

believes there is insufficient evidence to establish a 

violation of Section 105Cc) of the Federal Mine Safety and 

Health Act of 1977. Under the circumstances herein, 

permission to withdraw is granted. 29 C.F.R. § 2700.11. 

This case is therefore dismissed. The undersig ed has no 

authority in this case to modify the statutory filing 

requirements in a potential fut re case so the request of the 

Secretary to permit the ind'vi al miner "a pe iod of 30 days 

to file a complaint on his wn b half" is deni d. 

Distribution: 

Linda M. Henry, Esq., Office of th Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Bldg., 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, Professional 

Corporation, 57th Floor, 600 Grant Street, Pittsburgh, PA 

15219 (Certified Mail) 

Paul Girdany, Esq., Healey Whitehill, 5th Floor, Law & 

Finance Bldg., Pittsburgh, PA 15219 (Certified Mail) 

nt 

1281 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 13 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

NOONE ASSOCIATES, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-6 

A. C. No. 46-07679-03501 Z2J 

Wolfe Mine 

Appearances: Wanda M. Johnson, Esq., Office of the Solicitor, 

U. S. Department of Labor, Arlington, Virginia, 

for the Secretary~ 

Mr. Robert A. Kaufman, Treasurer, Noone 

Associates, Inc., Stanaford, West Virginia, for 

the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this case, the Secretary (Petitioner) seeks a civil 

penalty for the alleged violation by the Operator (Respondent) of 

30 C.F.R. § 48.26(a). Pursuant to notice, the case was heard in 

Charleston, West Virginia, on April 3, 1990. Ronald Vincent 

Marrara and Thomas P. Stockdale testified for Petitioner, and 

Clifford William Farris testified for Respondent. At the 

hearing, time was reserved for the Parties to submit Proposed 

Findings of Fact and a Brief. Petitioner submitted its Proposed 

Findings of Fact and Memorandum of Law on May 9, 1990. 

Respondent did not file any Proposed Findings of Fact or Brief, 

but filed, on May 16, 1990, a rebuttal to Petitioner's 

submission. 

Stipulations 

At the hearing, the Parties indicated that they entered into 

the following stipulations: 

1. The Administrative Law Judge has the jurisdiction to 

hear and decide this case. 

1282 
2. Inspector Ronald Marrara was acting in his official 

capacity when he issued Citation No. 3114222. 

3. Citation No. 3114222 was prciperly served to the 

Respondent's agents. 

4. Abatement of the conditions cited in Citation No. 3114222 

was timely. 

5. The proposed penalty of $56.00 will not adversely affect 

the Respondent's ability to continue in business. 

6. If the Secretary establishes that the violation existed, 

then the amount of $56.00 is an appropriate civil penalty under 

30 u.s.c. § 820(i). 

7. As of this date, the Respondent has no history of previous violations. 

8. The training requirements under 30 U.S.C. § 825(a) and 

30 C.F.R. § 48.21 et ~· were in effect at the time the Citation 

was issued. 

9. The employee had not received training under 30 C.F.R. 

§ 48.26 prior to the date of the Citation. 

10. On the date of the alleged violation, the employee was 

performing the same duties as a coal sampler that he had 

performed at other mine sites. 

11. The employee was working as a coal sampler on the mine 

site at the time that the Order was issued. 

12. For purposes of 30 U.S.C. § 713(d) and 30 C.F.R. 

§ 48.21-§ 48.31, on the date of the alleged violation, the 

Respondent was operating as an independent contractor who was 

performing coal testing/sampling services. 

13. The Respondent had an agreement with a third party to 

perform coal testing/sampling at the Wolfe Mine site. 

Findings of Fact and Discussion 

I. 

In May of 19.39, Respondent had an agreement with a third 

party to perform coal testing/sampling at the Wolfe Mine site.· 

On M.ay 3 0, 19 89, .Respond.=nt' s employee, Cl if ford William Farris, 

was wor;cin<J at the Wolfe Mine site performing modified flow 

sam;;>ling, which required him to taKe coal samples from the pile. 

1283 
Farris had approximately 5 years experience as a coal sampler and 

in addition, performed this type of testing approximately 

100 times at other localities. Farris indicated that, as part of 

his duties·, at each site that he takes coal samples, he is 

required once a year to sign a form indicating that he had 

received hazard training. When he entered the site in question 

on May 30, he received and read a one page statement entitled 

Hazard Training (Surface). Among the items set forth in this 

document is a Section entitled "Heavy Equipment Hazards." 

(Secy. Ex. 6, Page 2). Subparagraph C. provides as follows: 

"Beware of where equip1nent is moving at all times and make sure 

the operator is aware of your presence before boarding any 

equipment." (Secy. Ex. 6, page 2). In essence, Farris indicated 

that when he entered the subject site, he asked the end-loader 

operator where he should stand, and he informed the latter what 

he planned to do at the site that day. 

Ronald Vincent Marrara, an MSHA Inspector, indicated that 

when h~ inspected the pit area on May 30, 1989, he observed 

Farris taking samples out of the pile and that " ••• it seemed to 

me that he was not aware of his surroundings." (Tr. 11). 

Thomas P. Stockdale, the Owner and President of Tri-State Safety 

Services, Incorporated, who provides safety training to employees 

of the Wolfe Mines, indicated that he had also observed Farris. 

He opined that Farris was" ••• not really observant about the 

end-loader," and was" ••• more concerned with his sampling." 

(Tr. 66). According to Marrara, Farris was not making eye 

contact with the end-loader operator. He indicated that he 

observed Farris walking away from the coal pile and the 

end-loader. He said that Farris did not look around at the 

end-loader which was backing up, and that the loader stopped 

within a few feet of Farris before it went forward to drop its 

load of coal. According to Stockdale, the end-loader was a new 

machine and the operator had been on that machine for only 

2 weeks. A.ccording to Marrara, the manner in which the 

end-loader was being operated, i.e., backing up and turning 

around at the same time after picking up a load of coal, was not 

unusual. 

Marrara indicated that he was of the opinion that there was 

not adequate communication between Farris and the end-loader 

operator. When he ascertained from Farris that the latter did 

not have training pursuant to 30 C.F.R. § 48.26(a), hs issued a 

Section 104(a) Citation and a Section 104(g)(l) Order. 

Subsequent to the issuance of the Citation and Order, and in 

order to abate the same, Stockdale conducted oral training with 

Farris. He indic'.'l.ted that in his opinion Farris was knowledgable 

and had told him (Stockdale) that he knew the machine (end-loader), 

and the work that was being performed at the site. Accordin9 to 

Stockdale, he reviewed with Farris the particulars of safety pursuant to Section 48.26, supra. Specifically, with regard to hazards 

1284 
occasioned by the work environment and the end-loader, he explained 

to Farris that the end-loader was a new machine, and the work being 

performed at ·the site constituted a new job. He indicated that he 

told Farris to make sure that he caught the eye of the end-loader 

operator, to keep a safe distance back of the end-loader, and not to 

approach until the operator waved him on. He explained, that due to 

the height at which the end-loader sits on the machinery, it is 

difficult for the operator to see an individual close to the loader. 

He explained to Farris various head movements in order to signal the 

operator. He indicated that, if the safety training had not been 

provided, then the following could have happened: "If Mr. Farris 

was unobservant as to the danger in the pit" he could be "obviously" 

hurt by the end-loader or one of the environmental hazards of the 

highwall (Tr. 64). 

Farris was asked, essentially, to indicate the matters contained in Stockdale's training that he was not familiar with. As 

a response, he indicated the location of an amergency telephone, 

and the fact that the operation at the site did not involve 

shooting dynamite. Marrara indicated that after the Citation and 

Order in question had been abated, the basic procedures at the 

site were the same. He offered his opinion that, after the citation had been abated, and Farris n~sumed working, he was "more 

alert to his surroundings." (Tr. 90). 

II. 

At the hearing, the Parties indicated that they stipulated 

that the only issue was that of the gravity of the violation, and 

Respondent indicated that it conceded that it did violate 

Section 48.26Ca), supra. Based upon the evidence of record, as 

well as Respondent's concession, I find that Respondent did 

violate Section 48.26Ca) as alleged. 

III. 

It is the position of Petitioner that the violation herein 

should be considered to be significant and substantial. An 

analysis of this aspect of the cade is to be governed by the 

principles set forth by the Commission, in Mathies Coal Company, 

6 FMSHRC 1 (January 1984). In Mathies, supra, the Commission set 

forth the elements of a "significant and substantial" violation 

as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that 

is, a measure of danger to safety--contributed to by 

1285 
the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and, 

( 4 > a ·reasonable likelihood that the injury in question will be of a reasonably serious nature. 

(6 FMSHRC, supra, at 3-4.) 

As set forth above, (II., infra), the evidence has established chat Respondent did violate Section 48.26(a), supra, and 

as such the first element of Mathies, supra, has been met. The 

Secretary, pursuant to Mathies, supra, must now establish "a 

discrete safety hazard - that is, a measure of danger to safety 

contributed to by the violation;" (Mathies, supra, at 3-4). In 

essence, according to Marrara, a hazard was present inasmuch as 

Farris did not have eye contact with the end-loader operator, was 

not fully aware of his surroundings, and that accordingly, "it 

was most probably highly likely", that he was going to be seriously injured. (Tr. 17). In this connection, Farris did not 

contradict the version testified to by Marrara, that he (Farris) 

was not looking at the end-loader when it backed up, and stopped 

within a few feet of him. Also, according to Marrara, inasmuch 

as Farris did not make eye contact with the operator, to ensure 

that the latter would know his location, the operator would worry 

as to the former's location, could be distracted, and thus an 

accident causing an injury to the operator was likely to occur. 

In 9ssence, Marrara was asked specifically to indicate how 

Farris' lack of training contributed to the hazard involving the 

end-loader. He indicated, in essence, that the safety training, 

(Section 48.26(a), supra), as contrasted to the hazard training 

contained in the document read by Farris on the morning of 

May 30, is "in greater depth and detail" (Tr. 19). Stockdale, 

who actually gave the training under Section 48.26Ca), supra, 

noted that training thereunder is specific for a particular job 

site and its hazards. Further, with regard to the impact of the 

Section 48.26(a) training, Marrara opined that prior to such 

training, Farris was not fully awar~ of his surroundings, and 

Stockdale indicated that he (Farris) was more concerned with 

sampling. Marrara indicated that subsequent to the training, 

Farris was more alert to the surroundings. 

I find this evidence inadequate to positively establish that 

the lack of training in the specifics contained in Section 48.26(a), 

contributed to the hazard of Farris being injured by the end-loader. 

The fact that Farris appeared more alert to Marrara after the 

Section 48.26(a) training was provided to him, does not establish 

that the specific information provided to him by Stockdale minimized 

the hazard of an injury caused by the end-loader. It is conceivable 

that the enhanced alertness exhibited by Farris, was as the result 

of his performing in the presence of the MSHA Inspector Marrara and 

the Safety Instructor Stockdale. Further, it might be implied ti1at 

the lack of Section 48.26(a) training contributed to the hazard of 

an injury occasioned by the end-loader, based upon proof that such 

1286 
training did decrease the risk of such a hazard. However, I find 

that the evidence has not established such an effect of the 

Section 48.26{a) training. Specifically, I find that the evidence has not established that the Section 48.26{a) training 

orovided to Farris by Stockdale inoarted to Farris any new infor-

~ation which minimized the hazard ;f an injury from the end-loader. 

In this connection, I note that Petitioner did not offer any 

evidence to impeach the credibility of Farris' testimony or to rebut 

his testimony, that the only new information contained in 

Stockdale's training to him that he was not familiar with, had to do 

with the location of an emergency telephone, and the fact that the 

mine was not involved in shooting dynamite. Further, although 

Stockdale indicated that the end-loader operator was new to the job, 

and was operating a new machine, Marrara indicated on 

cross-examination that the manner in which it was qperated, i.e., 

the operator backing it up and turning it around at the same time, 

was not unusual. Further, Farris' testimony has not been impeached 

or contradicted that he had performed similar work in the past, 

informed the end-loader operator what he intended to do on the day 

in question, asked the latter where he was supposed to stand, and 

felt that he was aware of the end-loader at all times. In addition, 

although Stockdale indicated that he informed Farris to be sure and 

catch the operator's eye, to stay back a safe distance from the 

end-loader, not to approach the end-loader until the latter waved 

him on, and he related the usage of various head signals, Stockdale 

did not indicate that Farris did not already have knowledge of these 

particulars. I thus conclude that it has not been established that 

the training provided to Farris by Stockdale, i.e., training under 

Section 48.26{a), contained any significant new information that 

Farris was not previously aware of. It thus has not been estab-

· 1ished that the Section 48.26{a) training significantly decreased 

the hazard of an injury. 

I also find that the record does not establish that there 

was a reasonable likelihood that the hazard of an injury in the 

pit araa would result in an injury producing event. Marrara 

opined that it was reasonably likely that Farris would have been 

injured or killed if he continued working in the pit area. He 

also noted the possibility of an injury to the end-loader 

operator. However, taking into account Farris' experience, and 

the fact that it has not been established that the Section 48.26{a) 

trai~ing imparted any significant information that Farris did not 

already know with regard to the hazards at the pit area, I conclude that it has not been established that an event causing 

injury was reasonably likely to occur. 

Thus, I conclude that the evidence has failed to establish 

that the failure of Respondent to have provided Farris with 

Section 48.26{a) training contributed to the hazard of an injury 

1287 
from the operation of the end-loader. Thus, I conclude that it 

has not been established that the violation herein was signif icant and substantial (See, Mathies, supra). 1/ 

IV. 

The Parties have stipulated that if it is established that 

the violation herein existed, then $56 is an appropriate civil 

penalty. Based upon the evidence of record and the statutory 

factors contained in Section llOCi> of the Act, I too, conclude 

that a penalty of $56 is appropriate. 

I/ ·I reject Petitioner's argument, as advanced in its brief, 

~hat, in essence, failure to provide training under 

Section 48.26(a} supra,~ se, constitutes a significant and 

substantial violation. In support of its position, Petitioner 

relies on Dolet Hills Mining Venture, 11 FMSHRC 1122 (1989) 

decided by Judge Koutras. Inasmuch as Dolet Hills, supra, 

involved a failure to provide annual refresher training pursuant 

to 30 C.F.R. § 48.28(a) which inter alia mandates a minimum of 

8 hours training in session not less than 30 weeks if given 

periodically, it is not relevant to the instant proceeding which 

involves a violation of § 48.26, supra, which does not contain 

such mand:ites. Similarly, Westwood Energy Properties, 11 FMSHRC 

105 (1989), rev'd on others grounds, 11 FMSHRC 2408 (1989), is 

not relevant to the instant case. In Westwood, supra, Judge 

Broderick, in concluding that the violations of Section 48.26 

therein were necessarily likely to result in a serious injury, 

found that the newly employed experienced miners therein had not 

previously worked in a culm bank, which in the opinion of the 

inspector presented unique hazards. In contrast, in the case at 

bar, Farris had significant experience at sites similar to 

Respondent's operation. Lastly, Frank Irey, Jr., Inc., 11 FMSHRC 

990 (1989), is not relevant to the instant case. In Frank Irev, 

supra, Judge Melick found that the significant and substantial 

nature of the violation of Section 48.28, supra, was indicated by 

th'9 exi:3tence of another violation at the same site where the 

untrained ~in8rs ~ere ~orking, for burning and welding in the 

presence of coal dust. Such evidence is lacking in the case at 

bar. 

1288 
ORDER 

It is ORDERED that Order No. 3114221 be AFFIRMED. It is 

further ORDERED that Citation No. 3114222 be AMENDED to reflect 

the fact that the violation described therein was not significant 

and substantial. It is further ORDERED that Respondent shall, 

within 30 days of this Decision, pay $56 as a penalty for the 

violation found herein. 

Distribution: 

Wanda M. Johnson, Esq., Office of the Solicitor, u. S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Mr. Robert A. Kaufman, Treasurer, Noone Associates, Inc., Box 9, 

Stanaford, WV 25927-0009 (Certified Mail) 

dcp 

1289 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JUN 14 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, CMSHA), 

Petitioner 

v. 

WALKER STONE COMPANY, INC., 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-129-M 

A.C. No. 14-01467-05504 

Portable No. 1 Mine 

ORDER OF DISMISSAL 

ORDER TO PAY 

~ This case came before me pursuant to a Commission Order 

dated February 16, 1990. On February 21, 1990, the Solicitor 

and operator were ordered to submit information and the 

operator was ordered to file an answer to the penalty 

petition. On March 13, 1990, the operator was granted an 

extension to file its answer, order for it to review a 

recently issued decision in another one of its cases. 

(Walker Stone Company, 12 FMSHRC 256 (February 1990)) In a 

letter dated May 14, 1990, the operator, advises that it has 

decided not to pursue this matter. 

In light of the foregoing it is ORDERED that this case 

be DISMISSED, and that the operator PAY $178 within 30 days 

of the date of this order. 

Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1585 Federal Building, 1961 Stout 

Street, Denver, CO 80294 (Certified Mail) 

Mr. David S. Walker, President, Walker Stone Company, Inc., 

Box 563, Chapman, KS 67431 (Certified Mail) 

nt 

1290 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

June 15, 1990 

KATHLEEN I. TAR.MANN, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

INTERNATIONAL SALT COMPANY, 

Respondent 

Docket No. LAKE 89-56-DM 

MD 89-10 

Cleveland Mine 

DECISION 

Appearances: Daniel Kalk, Esq., Valore, Moss & Kalk, Cleveland, 

Ohio for Complainant; 

Josephs. Ruggie, Jr., Esq., Thompson, Hine and 

Flory, Cleveland, Ohio for Respondent. 

Before: Judge Melick 

This case is before me following remand by the Commission on 

January 8, 1990, (and by subsequent reassignment to the 

undersigned on April 26, 1990) for a determination of whether in 

fact a binding settlement agreement had been reached between the 

parties. In its Remand Order the Commission observed, quoting 

from Peabody Coal Company, 8 FMSHRC 1265 at page 1266 (1986) that 

"the record must reflect and the Commission must be assured that 

a motion for settlement [approval], in fact represents a genuine 

agreement between the parties, a true meaning of the minds as to 

its provisions." More particularly, at issue in this case is 

whether a binding settlement agreement was consummated during an 

October 26, 1989, teleconference between then counsel for the 

Complainant, Richard Valore, and then counsel for the Respondent 

Keith Ashmus. 

The validity of a settlement or release agreement is in the 

first instance governed by the applicable contract law and that 

law is ordinarily the law of the place where it is made--in this 

case the State of Ohio. Williston on Contracts, Third Edition § 

1792. U.S. v. ITT Continental Baking Company 420 U.S. 223, 238 

(1975); Glazer v. J.C. Bradford and Co., 616 F.2d 167, 169 

(5th Cir. 1980); Village of Kaktovika v. Watt 689 F.2d 222, 230 

(D.C. Cir. 1982). In certain cases involving litigants under a 

nationwide federal program however, federal law may control. 

U.S. v. Kimbell Foods, Inc., 440 U.S. 715, 727 (1979); Mid South 

TOWTng v. Harwin, Inc., 733 F.2d 386, 389 (5th Cir. 1984), 

1291 
Fulgance v. J. Ray McDermett & Co., 662 F.2d 1207, 1209 (5th Cir. 

1981). Since there is no conflict in the basic principles of 

contract law here at issue there is no need to decide in this 

preliminary analysis which law is applicable. 

In this case, upon reviewing the evidence introduced at 

hearings on the issue, I find that the Respondent has failed to 

sustain its burden of proving that a sufficiently definite and 

certain offer was made that could in any event result in a 

binding settlement agreement. In this regard when given the 

opportunity at hearing to set the background and to specifically 

describe the terms of the settlement "offer", the Respondent's 

principal witness, Mr. Ashmus, responded in the following 

colloquy: 

[By Mr. Rugge] Q. Did you subsequently receive 

authority from International Salt Company to settle for 

$3,000? 

[Mr. Ashmus] A. Under certain circumstances, yes. 

Q. And what were those circumstances? 

A. Well, they did not want to pay anything directly to 

the Complainant, Miss Tarmann; they said that the money 

would have to go to Mr. Valore for attorney's fees and 

then he could do whatever he wanted with the money; 

they said they wanted to make sure that she would not 

welch on the agreement because of past experiences with 

her, and they said we had to make sure it would settle 

all of the claims. 

Q. Did you then call Mr. Valore to discuss this matter 

and communicate that to him? 

A. Yeah. I called him on the next day, which would 

have been the 2 --

Q. 26? 

A. 26. And told him that, and I said I specifically --

THE COURT: Told him what? 

A. Told him that I -- that the client had indicated a 

willingness to go along with the figure but that .the 

of fer hasn't come from their side, it had to have . 

authority from his client, it had to be payment tq,him 

and it had to cover everything. 

1292 
Q. After you reviewed each of those points of agreement 

that your client had authorized to you, did Mr. Valore 

have a response? 

A. Yeah, he said he'd get back to me. 

Q. Did he, in fact, get back to you? 

A. Yes, he did. 

Q. And what was his response when he did get back to 

you? 

THE COURT: Was that on the same day? 

A. Same day, a little later in the morning. He said 

that he had talked to his client and that she was 

accepting of it, and we went over all four points 

again, and I said, "Fine. Then I'm authorized to 

accept the of fer." And we talked a little bit about 

the fact that it was $3,000 and he was going to have to 

get something to his client, and so I was going to 

prepare the release documents so that he wouldn't have 

to put in any time doing that. And he said to get the 

money to him as quickly as possible so that we could 

get everything signed up, and I said that I would get 

the check to him as soon as I could and that at the 

latest I would get it to him would be on Monday. 

Q. And did you, in fact, get the check to him as well 

as the release document even before Monday? 

A. Yes, that was delivered to his office on Friday. 

(Tr. 24-26). 

Within this framework of evidence I cannot find that a 

sufficiently definite or certain offer had been made, whether by 

Mr. Ashmus or, as Respondent claims, by Mr. Valore, during the 

telephone conversations on October 26, 1989. See General Motors 

Corp. v. Keener Motors, Inc., 194 F.2d 669 C6th Cir. 1952); Lyles 

v. commercial Lovelace Motor Freight Inc, 684 F.2d 501, 504 (7th 

Cir. 1982); U.S. v. Orr Construction Co., 560 F.2d 765, 769 (7th 

Cir. 1977). Accordingly no contract could have been consummated 

during these telephone conversations. 

It is apparent fro.en the record, moreover, that the parties 

contemplated that there would be no binding agreement until 

committed to writing and signed by the Complainant herself. This 

was the understanding of Mr. Valore according to his testimony at 

hearing and also the clear inference to be drawn from Mr. Ashmus' 

1293 
version of the October 26, 1989, telephone conversations. 

The fact that a precisely drawn written offer, providing details 

not discussed during the teleconferences was thereafter prepared 

by Mr. Ashmus and delivered to Valore corroborates this. 

Significantly that document states that this case "has been or 

will be settled" thereby further indicating an existing lack of 

finality. (Appendix A) 

There is in any event an overriding public interest under 

the Federal Mine Safety and Health Act of 1977 and in particular 

under the provisions of Section 105(c) of that Act, warranting 

Commission overview and approval of all settlement agreements. 

It would indeed. be difficult to find in any case that this public 

interest would be served by compelling enforcement of any 

settlement when the individual miner/complainant has not accepted 

the proposed agreement. See Peabody Coal Co., 8 FMSHRC 1265, 

1266 (1986); Secretary on behalf of John Koerner v. Arch Mineral 

Coal Co., Docket No. DENV 78-564 (March 1979). (Appendix B). 

Williston on Contracts, supra, Section 1792. It is clear from 

the credible testimony of the Complainant herein that she neither 

offered nor accepted any settlement agreement. 

ORDER 

Respondent International Salt Company has failed to 

sustain its burden of proving that a binding settlement agreement 

existed in the captioned proceeding and accordingly this case 

will proceed with trial on the merits as pJteviously s</heduled 

commencing August 28, 1990, at 9:00 a.m. itj\Cleveland~~Ohio. 

~ ~ -~ 

\t~.' ' ~". y,.. l ',,}jv·., v ~ '"--

y Melick \\ 

Administrative 'tlaw Judge \ 

Distribution: \ ·t~ \~ v 

Daniel Kalk, Esq., Valore, Moss & Kalk, 75 Public Square, 

Suite 300, Cleveland, OH 44113 (Certified Mail) 

Joseph A. Ruggie, Esq., Thompson, Hine and Flory, 1100 National 

City Bank Building, 629 Euclid Avenue, Cleveland, OH 44114-0370 

(Certified Mail) 

nt 

1294 
APPENDIX A 

VIA MESSENGER 

A. Richard Valore, Esq. 

Valore, Moss & Kalk 

75 Public Square, Suite 300 

Cleveland, Ohio 44113 

October 27, 1989 

(216) 566-5723 

Re: Kathleen I. Tarmann v. International Salt Comnanv 

Dear Dick: 

Enclosed are three duplicate originals of the Release in the abovecaptioned matter, plus a check dra~-n to your order in the amount of $3,000.00. 

Please hold the check in escrow pending the execution of the Release by Ms. 

Tannann (including its witnessing, approval by you and notarization), and the 

return of two executed originals to me. At that time, you may then negotiate 

the check. 

Please call me if you have any questions. 

Very truly yours, 

Keith A. Ashlllus 

KAA/cah 

Enclosures 

1295 
RELEASE 

00 NO'!' SIGN WTTBOlIT RF.A.DING A.ND UNDERSTANDING 

I, KATHLEEN I. TAR.l.fANN, on behalf of myself and my heirs, successors 

·and assigns, in consideration of the payment of attorneys' fees to my attorney, 

A. Richard Valore, Esq., in the amount of THREE THOUSA.~1) AND N0/100 001..LARS 

($3r000.00), the receipt of and sufficiency of which are hereby acknowledged, 

hereby release and forever discharge AKZO Corporation, International Salt 

Company, and their officers, directors, shareholders, agents, assigns, 

subsidiaries and affiliates (collectively referred to hereafter as "AKZO") from 

all claims, costs, damages, demands, liabilities and causes of action, including 

claims for attorneys' fees, which I now have or ever had from the beginning of 

the world to the date of this Release, including, without limitation on the 

general nature of this Release, any and all claims, costs, damages, demands, 

liabilities or causes of action arising out of or connected in any way with: 

1. Any subject matter that was or could have been raised in my 

compliant in the case of Kathleen I. Tarnann v. International Salt Comnanv, 

Docket No. LAKE 89-56-DM, MD-10, U.S. Mine Safety & Health Review Commission, 

which case has been or will be settled and dismissed with prejudice and which 

I agree never to refile in any form or forum; 

2. Any subject matter that was or could have been raised in my 

compliant in the case of Kathleen I. Tarmann v. International Salt Cornoanv, 

Charge No. 220891426, U.S. Equal Employment Opportunity CoI:III1ission, which case 

has been or will be settled and dismissed with prejudice and which I agree never 

to refile in any form or forum; 

3. Any subject matter that was or could have been raised in my 

compliant in the case of Kathleen I. Tarmann v. International Salt Companv, Case 

No. 8-CA-21410, National Labor Relations Board, which case has been or will be 

settled and dismissed with prejudice and which I agree never to refile in any 

form or forum; 

4. Hy employment with AKZO; 

5. The termination of my e.oployment \•ith AKZO and my reinstate.!:lent 

to employr.ient; 

6. Hy membership and activity in Teamsters Union Local No. 436; 

and 

7. Any other claim that AKZO violated any statutory, contractual 

or coI:l!:lon law obligation owed to me, including, without limitation, any civil 

rights, labor relations or employment contract law. 

Initials Page 1 of 3 Pages 

1296 
I ~arrant the follo~ing: 

1. That no promise er induce~ent has been offered to ce except 

as herein set forth; 

2. That this Release is executed without reliance upon ·any 

statei:ient by the parties released or their representatives except as herein set 

forth; 

3. That I am legally competent to execute this Release and accept 

full responsibility for doing so; 

4. That this Release evidences the cocpromise of claims disputed 

both as to liability and amount; 

5. That AKZO does not ad.mi t to any liability or wrongdoing 

whatsoever; and 

6. That I have not assigned or attempted to assign any claim or 

part thereof that I have or claim to have against AKZO. 

I acknowledge that the terms of the settlement of my claics are 

confidential and agree not to reveal the existence of the settlei:ient or the terms 

to any person. 

I have read and understand the terms of this Release. 

IN WI11i"ESS WHEREOF, I have set my hand this day of 

~~~~~~~~ 

, 1989, at ~~~~~~~~~~' Ohio. 

Witness Kathleen I. Tarmann 

Witness 

APPROVED TO AS FORM: 

Valore, Moss & Kalk 

A. Richard Valore, Esq. 

Counsel for Kathleen I. Tannann 

Initials Page 2 of 3 Pages 

1297 
STATE OF OHIO ) 

) SS: 

COUNTY OF CUYAHOGA) 

BEFORE ME, a Notary Public in and for said County, personally 

appeared KATHLEEN I. TARMANN, who swore to the accuracy of the statel:lents 

contained in the foregoing instrument, acknowledged that she read, understood 

and personally signed the foregoing instrument and affirmed that the same was 

and is her free act and deed. 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal 

this day of , 1989, at , Ohio. 

Notary Public 

(SEAL) 

Initials Page 3 of 3 Pages 

1298 
SEc::..::T.\.RY OF t..AEoR. 

~·!EE SAFETY ,\~ HEALTH 

ADHI~GSTRATION (}1SHA) , 

APPENDIX B 

~i30 K Si'RE::'.T :NI. 5TH ~LCOR 

WASHINGTCN, D.C. 20006 March 9, 1979 

On behalf of John Koerner, 

Applicant 

~o. DE~!V 73-564 

v. 

ARCH :MINERAL COAL COMPANY, 

Respondent 

DIRECTION FOR REVIEW Ai.'lD ORDER 

The decision of the Administrative Law Judge, dated February 7, 

1979, is directed for review. We find that the Judge's decision may be 

contrary to law or Commission policy, or that a novel question of policy 

is presented. 

On September 12, 1978, the Secretary filed with the Commission his 

findings that John Koerner had brought a complaint of unl:iwful discrimination 

by Arch Mineral Coal Company, and that the complaint was not frivolously 

brought. He moved that Mr. Koerner be reinstated to· his former position, 

or equivalent position,until a final Corr.mission order on the complaint 

is issued. The motion was granted. On January 31, 1979, the Secretary 

filed a motion to vacate the order of reinstatement. The only stated 

basis for the motion was that "the parties have successfully negotiated 

a settlement of all matters formally in issue." Judge Halcolm P. Littlefield 

noted the ground for the motion, stated that "[a]s a result [of the 

settlement], continuation of the reinstatement order serves no p~rpose", 

and granted the motion to vacate. The terms of the settlement were not 

entered into the record; the record also does not disclose whether 

Mr. Koerner agreed to or acquiesced in the motion to vacate the reinstatement order. 

The issue is: Were there sufficient grounds to grant the motion? 

The Commission concludes that the record should be supplemented 

bef~re we resolve this issue. Accordingly, we remand this case to 

Judtie Littlefield for the li~ited purpose of supplementing the record 

1299 
with answers to the following questions: What are the terms of the 

settlement agreement? Did Mr. Koerner agree to or acquiesce in the 

motion to vacate the order of reinstatement? The Commission otherwise 

retains jurisdiction of this case. The parties need not file briefs 

unless the Commission requests them t~··•b· 

\. , L Unc.u, : ~~-+-~~~~~~~~~~~~~~ 

Jerome R. Waldie, Chairman 

er 

1300 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGiNIA 22041 

JUN 19 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-261 

A. C. No. 15-11065-03577 

No. 10 Mine 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U. S. Department of Labor, Nashville, Tennessee, 

for the Secretary; 

Neville Smith, Esq., Smith & Smith, Manchester, 

Kentucky, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

On October 19, 1989, the Secretary (Petitioner) filed a 

Proposal for Assessment of Civil Penalty alleging the Operator 

(Respondent) violated various provisions of Volume 30 of the Code 

of Federal Regulations. Respondent filed an Answer on November 15, 

1989. Pursuant to notice, the case was scheduled for a hearing on 

February 14, 1990, in Bristol, Virginia. On February 5, 1990, 

Respondent filed a Motion to have the hearing scheduled at some 

place other than Bristol, Virginia, on the ground that the driving 

time between Respondent's home office and Bristol, Virginia, is 

approximately 3 hours. Respondent indicated that Petitioner did 

not have any objections to the Motion. The hearing was subsequently rescheduled for Richmond, Kentucky, and the matter was 

heard on February 14, 1990. At the hearing, John Walter Peck 

testified for Petitioner, and Elmer Richard Couch and Gordon Couch 

testified for Respondent. Petitioner filed Proposed Findings of 

Fact and a Memorandum of Law on May 14, 1990. Respondent did not 

file any brief or Proposed Findings of Fact. 

Stipulations 

1. The history of previous violations of this Operator is 

shown in Government's Exhibit 1. 

1301 
2. The penalties proposed by the Secretary for the violations upheld are appropriate to the size of the business of the 

Operator, and will not affect the Operator's ability to continue 

in business. 

3. The Operator demonstrated good faith in attempting to 

achieve rapid compliance after notification of the violations, 

where appropriate. 

4. The size of this operation is shown in the pleadings: 

for 1988, this Operator produced 22,631,844 tons; and at the 

No. 10 Mine, where these citations arose, the Operator produced 

1,438,937 tons in 1988. 

Citation Nos. 9983904 and 3205192 

At the commencement of the hearing, Counsel indicated that a 

settlement had been reached with regard to Citation Nos. 9983904 

and 3205192. The Operator had agreed to pay in full the assessed 

penalties of $79 and $112 respectively. I have considered the 

representations made by Counsel, at the hearing as well as the 

documentation in this ffiatter, and the criteria set forth in 

section llOCi) of the Federal Mine Safety and Health Act of 1977 

(the Act), and conciude that the proffered settlement and the 

agreed upon penalties are appropriate. 

Citation Nos. 3202975 and 3205191 

On May 23, 1990, Petitioner filed a Joint Motion to Approve 

Settlement. A reduction in penalty from $290 to $150 is proposed. 

I have considered the representations and documentation submitted 

in this matter, and I conclude that the proffered settlement, and 

the agreed upon penalty, are appropriate under the criteria set 

forth in Section llO(i) of the Act. 

Citation No. 3205136 

I. 

On July 10, 1989, John Walter Peck, an MSHA Inspector, 

inspected the surface area of R~spondent's No. 10 Mine. He 

issued a Section l04(a) citation alleging a violation of 30 C.F.R. 

§ 77.205(b) in that "travelways," to areas where persons are 

raqui~ed to travel or work, were not kept clean of stumbling or 

slipping nazards. Specifically the citation alleges that 

seven foot wooden posts, sections of round pipe, coiled cable, 

concrete ~locks, and "assorted equipment parts," and communication 

wire we:ce "in the travelway used to reach number 1 head drive and 

the area where work persons load./unload man trips" (sic). 

1302 
30 C.F.R. § 77.205(b), provides as follows: "Travelways and 

platforms or other means of access to areas where persons are 

required to travel or work, shall be kept clear of all extraneous 

material and·other st1.1mbling or slipping hazards." 

According to Peck, the number 1 belt conveyor head-drive, at 

the surface area, is enclosed by a fence. Entry to the belt, for 

examination each shift, and for maintenance work, is by way of a 

gate in the fence. According to Peck the "travelway" or "walkway" 

to the gate was "obstructed" with mater"ial, (Tr. 33), and it was 

not possible to walk to the gate from the yard without stepping on 

the items designated in Government Exhibit 11. He indicated that 

one would have to climb over the crib blocks and miscellaneous 

items to reach the gate. On direct examination, he testified that 

"i;nmediately in front" of the gate, he observed crib blocks of the 

dimensions of 6 inches by 6 inches by 30 inches. (Tr. 21). On 

cross-examination, he indicated that there were 2 or 3 such crib 

blocks located 4 to 6 feet from the gate. I accord more weight to 

this latter testimony as to the specific distance of the crib 

blocks to the gate, rather than Peck's general testimony on direct 

examination. Hence, taking into account the fact that the crib 

blocks were approximately 4 to 6 feet from the gate, and considering that there is no testimony with regard to the configuration 

of the blocks or the manner in which they were arranged, I cannot 

find that they constituted a stumbling or slipping hazard. 

According to Peck, two metal battery stands and a battery 

charger were located 2 to 3 feet from the crib blocks. Inasmuch 

as there was no evidence presented as to the shape and dimensions 

of these items, I cannot conclude that they constituted stumbling 

or slipping hazards. Similarly, although Peck indicated that 

th~re was some wire within the fenced area, however, there was no 

evidence presented as to its size, shape, and specific location 

vis-a-vis a path that could be taken from the gate to the belt or 

to some other area within the fence requiring maintenance work. 

Thus, I cannot conclude that the wire constituted a stumbling or 

slipping hazard. 

Peck indicated that a trailing cable containing 200 feet in 

a coil was in the area, and one going to the gate could stumble 

over it or become entangled in it. Inasmuch as there is no 

evidence of the dimension of the surface area in question, nor is 

there any evidence in the record as to the spatial relationship 

between the trailing cabla and the gate, I cannot conclude that 

the cable was in any path that would be traveled by miners 

seeking accass t~ the gate. Nor is there evidence that miners 

perform any work duties in the surface area in question, aside· 

from the fenced in area. 

1303 
According to Peck, a 20 inch section of a plastic water 

pipe, with a 2 inch diameter, was within the fenced area. Elmer 

Richard Couch, Respondent's superintendent in charge of the 

No. 10 Mine, indicated that a pipe was not within the tenced area 

when he checked it out. There is no evidence that he checked it 

out at the time of Peck's inspection. Thus, I find Couch's 

testimony to be insufficient to contradict the testimony of Peck, 

that he observed the pipe in question when he made his inspection. 

I thus find that there was a water pipe of the dimension testified to by Peck within the fenced area, which, considering its 

length, and cylindrical shape, could constitute a stumbling or 

slipping hazard. 

Peck testified that he observed miners exiting from a rail 

runner. In essence, he indicated that he saw miners climbing and 

crawling over timber which had been placed on either side of the 

track within 2 feet of the rail runner. According to the 

uncontradicted testimony of Peck, there were 16 timbers of 

approximately 6 inches in diameter and 67 feet in length. The 

timbers were located unevenly on either side of the rail runner. 

They had been sta~~ed one on top of another to a pile of approximately 4 feet high. Some of the timbers were on the ground. I 

find that the pile of timoers, in the path taken by the men 

exiting the rail runner as observed by Peck, constituted a 

slipping or stumbling hazard. 

Inasmu~h as the area in question contained timbers and a 

pipe in araas where men work and travel, and these items are 

stumbling and slipping hazards, I find that Respondent herein did 

violat~ section 77.205(b), suura. 

II. 

According to PecK, a person tripping or stumbling could 

easily fall on the battery charger, which had sharp edges, 

causing lacerations or broken bones. He indicated, on cross-

.examination, that there was a very good likelihood that someone 

stumbling over the hazardous equipment could have injured himself. 

He indicated that a person climbing over the timbers in exiting 

the rail runner could have fallen backwards and struck the rail 

runner. He opined that, in such an event, it was very possible 

there would be a serious injury, such as a laceration or broken 

bones. I find, with regard to the pipe and timbers, that,· upon 

tri~ping or stumbling, one could have fallen against a battery 

charger or other objects. It nas not been established that there 

was a reasonable likelihood that a person would stumble or slip 

over this material, rather than walk over it or around it. 

Further, due to the lack of evidence of the dimensions of the 

battery charger and stands, and their distance from the pipes, 

and other materials, I cannot conclude that thera was a reasonable likelihood of one stumbling and sustaining sarious injury. 

1304 
Further, I find, based on the uncontradicted testimony of Couch, 

that normally it was the procedure for the rail runner to stop 

between a battery charger and the truck haul-way, and not alongside the timbers. Further, I note, as testified to by Couch, 

that the rail runner has a length of approximately 25 feet. 

There is no evidence that the 7 foot timbers were stacked in such 

a fashion as to have stretched over a 25 foot distance parallel 

to the tracks. Accordingly, the men exiting the rail runner, 

from its edges at either side, would not necessarily have been in 

the path of the stacked timbers. For these reasons, I conclude 

that Petitioner has not established that the violation herein was 

significant and substantial (See, Mathies Coal Corporation, 

6 FMSHRC 1, 3-4, (1984)). 

III. 

There is no evidence before me with regard to the length of 

time that the material in question had been in place prior to 

its' being observed by Peck. I consider too hypothetical Peck's 

statement that, given the amount of material in question, it 

" ••• would had to have accumulated over a two or three shift 

period" (Tr. 27). Further, as noted, Couch's testimony was not 

contradicted that usually the rail runner did not park alongside 

the stacked timbers. I thus find that Respondent herein acted 

with only a moderate degree of negligence. Taking into account 

the remaining factors in llOCi> of the Act, I conclude that a 

penalty of $80 is appropriate. 

Citation No. 3205139 

Peck testified that on July 10, 1989, he examined the Daily 

Report of the presnitt examiner, and noted that the reports of 

the preshift examinations from June 30, 1989 to July 10, 1989, 

were signed by tne preshift examiner, but were not countersigned 

by either the foreman or superintendent. Couch indicated that he 

was the superintendent and line foreman on July 10, 1989. He 

indicated that among his ju~ies were to check the preshift 

reports to see if any hazards or dangerous conditions were noted 

by the preshift examiner. He indicated that, unless there were 

dangerous conditions, which required immediate attention, it was 

his normal practice to countersign the preshift examination 

report between 5:50 a.m. and 6:20 a.m. He said that on July 10, 

he did countersign the report ~etween 5:50 a.m. and 6:30 a.m. He 

indicated that prior to Peck's inspection on July 10, previous 

MSHA Inspectors had considered it acceptable for him to countersign. I observed the demeanor of the witnesses and find Couch's 

testimony to be credible with regard to his countersigning the· 

reports on July 10. 

Peck issued Citation No. 3205140 alleging a violation of 

30 C.F.R. § 57.323, on the ground that the reports in question 

wer~ not countersigned by the foreman. 

1305 
Section 57.323, supra, in its first sentence requires the 

mine for-eman to countersign the Daily Report. In the last sentence, it requires the mine superintendent or assistant 

superintendent to also countersign the reports. Although Couch 

indicated that he was the mine foreman, he nontheless testified 

that in the period in question, Jerry Farmer was the section 

foreman, and he (Peck) was the superintendent in charge of all 

three shifts. I find that a plain reading of Section 75.323 

requires that both tne mine superintendent and foreman countersign the reports. Inasmuch as Farmer was the foreman, he was 

obligated to countersign the reports. Inasmuch as the latter did 

not countarsign the reports from June 30 to July 10, I find 

Reaponctent her~in violated section 75.323 as alleged. Considering 

the statutory factors set forth in section llOCi) of the Act, I 

conclude that a penalty of $20 is appropriate. 

Citation No. 3205140 

Peck testified that in the two or three times he had visited 

the mine in the year prior to July 10, 1989, he had observed 

timbers standing on the left side of the haulage track. He indicated that on July 10, in a 500 foot area, some of these timber 

posts were on the ground and some were missing. He said that he 

observed men walking along the left side of the haulage track. 

He also observed draw-rock, ranging from 6 inches by 1 inch to 

18 inches by 3 inches by 3 feet, in various areas of the roof. 

He raquired the Operator to scale down the draw-rock,as he opined 

that this loose material could cause a fatality. He indicated 

that the roof, consisting of shale material, had deteriorated, 

and thus timbers were necessary for support. In this connection, 

he indicated that timbers functioned in the same way as bolts in 

supporting the roof. 

Peck issued Citation No. 3205140 alleging a violation of 

30 C.F.R. S 75.202(a) in that at least 56 posts "installed as 

additional roof support" were observed lying on the mine floor. 

30 C.F.R. § 75.202Ca) provides, in assence, that the roof or 

areas where persons work or travel " ••• shall be supported or 

otherwise controlled to protect parsons from hazards related to 

falls of the roof, face or ribs and coal or rock bursts." 

Gordon Couch, Respondent's safety director, acknowledged 

that there was deterioration of the roof caused by differing 

moisture conditions in the winter and summer. He indicated, 

however, that in addition to the proper setting of roof bolts as 

required by the roof control plan, additional bolts were provided 

as well as strapping. According to Couch, the timbers, which 

were not treated, were accordingly subject to rot, and were not 

to be used permanently. He indicated that when the section in 

1306 
question was "rehabilitated" (Tr. 123) in 1983 or 1984, timber 

jacks were used when the area was bolted, as the bolter did not 

have an automatic temporary roof support. He indicated that the 

deterioration of the roof is controlled by scaling down the 

draw-rock, and that timbers prevent deterioration only for the 

diameter of the timber. 

It appears from the testimony of both witnesses, that when 

observed by Peck, the roof in question did suffer from deterioration, and contained draw-rock which presents a hazard of falling. 

In light of this condition, I conclude that the support present 

on July 10, had not been adequate to prevent deterioration and 

draw-rock. Accordingly, the roof was not being adequately 

suppo~ted. Thus, I find that on July 10, as observed by Peck, 

Respondent was in violation of section 75.202Ca) as alleged. 

Considering the presence of significant amounts of drawrock, I conclude that the violation herein was of a moderate 

level of gravity. Considering the remaining statutory factors of 

section llO(i) of the Act, I conclude that a penalty herein of 

$112, as assessed, is appropriate. 

ORDER 

It is ORDERED that, within 30 days of this Decision, 

Respondent pay the sum of $553, as civil penalty for the violations found herein. 

Distribution: 

Avram 

Administrative 

(!J:2__ Weisberger ~ 

Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jonas Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Neville Smith, Esq., Smith & Smi~h, Shamr~ck Coal Company, Inc., 

110 Lawy~r Street, Manchestec, KY 40962 (Certified Mail) 

dcp 

1307 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JU M 19 tOOQ i l I,)...;\ 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 89-176 

A.C. No. 46-06596-03513 

v. 

Pretzel Excavating Mine No. 1 

PRETZEL EXCAVATING, 

Respondent 

Appearances: 

Before: 

DECISION 

Mark R. Malecki, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

the Petitioner: 

Edward Andrew Moss, Safety Consultant, Pretzel 

Excavating, Morgantown, West Virginia, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

seeking civil penalty assessments for four alleged violations of 

certain mandatory safety standards found in Parts 77 and 50, 

Title 30, Code of Federal Regulations. The respondent filed a 

timely answer contesting the alleged violations and a hearing was 

held in Morgantown, West Virginia. The parties waived the filing 

of posthearing briefs. However, I have considered the oral 

argument made by the parties during the course of the hearing in 

my adjudication of this matter. 

Issues 

The issues presented in this case are (1) whether the 

conditions or practices cited by the inspector constitute violations of the cited mandatory safety standard, (2) whether two of 

the alleged violations were "significant and substantial" (S&S), 

(3) whether one violation was the result of the respondent's 

1308 
unwarrantable failure to comply with the cited standard, and 

(4) the appropriate civil penalties to be assessed for the violations, taking into account the statutory civil _penalty assessment 

criteria found in section llO(i) of the Act. Additional issues 

raised by the parties are disposed of 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 seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Discussion 

The parties settled two of the alleged violations in this 

case, namely, section 104(a) non-S&S Citation No. 3100981, 

January 17, 1989, 30 C.F.R. § 50.20, and section 104(a) non-S&S 

Citation No. 3100743, March 7, 1989, 30 C.F.R. § 77.1110. The 

respondent agreed to pay the full amount of the proposed civil 

penalty assessments for the violations in question. Pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, the settlement was 

approved from the bench, and my bench decision in this regard is 

herein affirmed (Tr. 5). The remaining contested citations which 

are the subject of this case are as follows: 

Section 104(d) (1) "S&S" Citation No. 3119190, October 31, 

1988, 30 C.F.R. § 77.1605(k): 

A berm or guard is not provided on the right outer 

bank of the elevated roadway beginning at the top of 

the hill near the sedimentation pond and extending 

toward the main road a distance of approximately 1/10 

of a mile. The berm is also inadequate at the outer 

selected areas where the berm had weathered down. All 

of the cited areas were shown to an agent of the operator. These conditions were observed at pit 010-0 

(Rowesville job). 

Section 104(b) Order No. 3113195, November 2, 1988, 

30 C.F.R. § 77.1605(k). 

No effort had been made to provide berms or guards 

on the right outer bank of the elevated roadway 

beginning at the top of the hill near the sedimentation 

pond and extending toward the main road a distance of 

approximately 1/10 of a mile. No effort had been made 

to provide additional berms at three selected areas 

where the berms had weathered down. These conditions 

1309 
existed at pit 010-0 (Rowesville job). Vehicles used 

to transport persons had been used over this haul road. 

The abatement for such violation (Number 3113190, dated 

10-31-88) had expired. 

Section 104(a) "S&S" Citation No. 3113191, October 31, 1988, 

30 C.F.R. § 77.410. 

The D9H dozer (Serial Number 90V5231) was not 

equipped with an automatic warning device which gave an 

audible alarm when the equipment was put in reverse 

(back-up alarm). The back-up alarm was present and 

would sourid an alarm when a switch was engaged but 

would not alarm automatically when the equipment was 

put in reverse. This condition existed at pit 020-0 

(campground job). 

Section 104(b) Order No. 3113194, November 2, 1988, 

30 C.F.R. § 77.410. 

An inadequate effort had been made to provide the 

D9H dozer (Serial Number 90V5231) with an operational 

automatic warning device which gave an audible alarm 

when the equipment is put in reverse (back-up alarm). 

The abatement time for such violation (Number 3113191), 

dated 10-31-88, had expired. The dozer was working in 

pit 020-0 (campground job). 

Petitioner's Testimony and Evidence 

MSHA Surface Mine Inspector Ronald V. Marrara, confirmed 

that he has inspected the respondent's mine since January, 1982, 

and his last regular inspection was in December, 1989. He confirmed that he issued the berm citation after finding "clear and 

obvious" major deterioration on the elevated haulage road in and 

out of the pit work area. There were three road areas where the 

berm "had weathered to almost nothing," and as he approached the 

final grade up the hill "there was no berm at all on the elevated 

roadway" (Tr. 18). Mr. Marrara identified exhibit 1-B as a 

diagram of the haulage road and pit area in question, and he 

stated that there were no berms at all on the left side of the 

roadway going to the pit for a distance of approximately 

500 feet. The three additional areas where the berm had deteriorated covered distances of approximately 8 to 12 feet, and the 

entire berm along the roadway was "weathered and could have used 

an upgrading" (Tr. 19). 

Mr. Marrara stated that the slopes at the three areas which 

were cited were "around a grade of a hundred percent, about a 

forty-five degree angle," and at the road elevation where there 

was no berm "it varied from probably forty to fifty percent 

grade, which would have been about twenty-two degrees to about 

1310 
twenty-six or twenty-seven degrees." He believed that the cited 

conditions presented a reasonable likelihood of injury, because 

of the severe slopes, rocks and trees, and he believed that if a 

truck went off the roadway, there was a danger that it would roll 

over. He was aware of a number of accidents at other mine locations where injuries have occurred when trucks ran off the road 

(Tr. 21-2 2 ) • 

Mr. Marrara stated that he made a finding of "high negligence" because he had conducted a prior inspection of the same 

haulage road in May, 1988. Although the berms at the three cited 

locations were adequate at that time, work was in progress at the 

other 500 foot cited area, and he discussed the berm requirements 

with Mr. Pretzel. He also had cited Mr. Pretzel for berm violations in the past (Tr. 23). Mr. Marrara stated that the three 

cited locations had weathered down during the intervening period 

between May and October, 1988, and he saw no evidence that any 

berm had ever been provided at the cited 500 foot area. He 

stated that he spoke with Willard Wolf, the certified dozer man 

in charge of the site, and that Mr. Wolf "was hesitant to give me 

information that would indicate a berm had ever been placed 

there" (Tr. 24) • 

Mr. Marrara confirmed that he fixed the abatement time for 

the violation for Wednesday, November 2, 1988, 2 days after the 

citation was issued, and that he discussed it with Mr. Wolf. 

Mr. Marrara believed that abatement could have been achieved 

within 4 to 6 hours, but since he knew that any work would need 

the approval of Mr. Pretzel, he allowed additional time. He 

explained that abatement could have been achieved by providing 

guardrails or mounds of materials capable of restraining a 

vehicle. Mr. Wolf advised him that an operational dozer was 

available, and Mr. Marrara determined that an operational grader 

was available, and that earth and dirt materials were available 

at different sections on the roadway (Tr. 26). 

Mr. Marrara stated that when he returned to the site on 

November 2, 1988, he observed that no effort had been made to 

abate the violation. Mr. Wolf was working in the pit area operating a dozer, and a contract driller had two men drilling in the 

pit preparing for a shot. These men had to traverse the roadway 

to reach the pit area. Mr. Wolf told him that he had been 

instructed by Mr. Pretzel to continue with the operation of the 

pit (Tr. 27). 

Mr. Marrara stated that he spoke with Mr. Pretzel after the 

violation was abated, and informed him that his failure to take 

any action to abate the violation was very serious. Mr. Pretzel 

informed him that the endloader bucket was in disrepair and that 

he wanted to use it to repair the berm. Mr. Pretzel also 

informed him that he was only one capable of operating the grader 

1311 
which was at the site, but that he was hesitant to do the work 

because he had a job at another site "making money" (Tr. 28). 

Mr. Marrara confirmed that Mrs. Pretzel called his office on 

November 1, 1988, and left a message for him to call her. He had 

already left his off ice and was unaware of the message until the 

end of the day on November 2. He confirmed that he provided his 

home phone number to Mr. Pretzel, and that Mr. Pretzel has called 

him at home in the past (Tr. 29). He assumed that Mrs. Pretzel 

worked for the respondent and that she wanted to discuss the 

situation. He did discuss the matter with her at the work site 

after he had issued the order (Tr. 31). 

Mr. Marrara confirmed that even if Mrs. Pretzel had spoken 

with him, he would not have granted an extension for the abatement because he did not believe it would have been warranted. If 

the site were not in operation, or if he observed work taking 

place to abate the violation, he would have extended the abatement time. He would also have considered extending the time if 

there had been some misunderstanding, or Mr. Wolf had shutdown 

and called Mr. Pretzel. However, in this case, the respondent 

simply continued to work and there appeared to be no effort made 

to abate the cited conditions (Tr. 32). 

~ . Mr. Marrara stated that he spoke with Mrs. Pretzel after the 

order was issued, and she informed him that she had called him to 

inform him that the berm violation was not abated because of some 

problems with reclamation, but she did not elaborate further. 

With regard to the unavailability of the endloader, Mr. Marrara 

did not believe it was necessary because the dozer and grader 

were more than adequate to build a berm, and he was told the 

endloader would be out of service for a week or longer (Tr. 34). 

Mr. Marrara stated that Mr. Wolf was in charge of the site in the 

absence of Mr. Pretzel, and that when he discussed the abatement 

time with him, Mr. Wolf would make no commitment as to when he 

believed the violations would be abated because he needed 

Mr. Pretzel's approval (Tr. 35-36). 

Mr. Marrara stated that the entire haulage road is approximately three-quarters 'Of a mile from the county road to the pit, 

and less than half of it is elevated. Little effort is needed to 

determine where to construct berms because they were provided 

previously and he specifically showed Mr. Wolf the road areas 

that required berms. Mr. Marrara confirmed that the violation 

was abated within a day, and that it took several hours. 

Mr. Marrara confirmed that he based his "unwarrantable failure" 

finding on the fact that he had discussed the necessity of berms 

with Mr. Pretzel during his prior May inspection, and that both 

Mr. Pretzel and Mr. Wolf knew that berms were required (Tr. 39). 

It was obvious that the three cited locations were in need of 

berms, and he specifically discussed the need for berms at the 

"top of the hill" with Mr. Pretzel in the past (Tr. 40). 

1312 
On cross-examination, Mr. Marrara stated.that an "adequate 

berm" pursuant to the standard is a "mound of material capable of 

restraining a vehicle" (Tr. 43). He confirmed that because of 

the weather conditions the road will develop ruts and become 

marginally eroded and will create the appearance of berms, but he 

denied that these were the conditions of the roadway at the time 

the violation was issued (Tr. 45). He explained the methods used 

to create berms and he conceded that the use of an endloader is 

the fastest method for constructing a berm (Tr. 48). He believed 

that there were adequate and available materials and equipment to 

construct the berms, particularly at the 500 foot location at the 

top of the hill. The roadway was approximately 20 to 30 feet 

wide, but the width varied (Tr. 49-50). 

Mr. Marrara confirmed that a blasting crew and trucks used 

the roadway the day, after the inspection and that eventually, 

coal trucks would have been using it. The roadway was posted 

·with speed limit signs and it had established truck passing 

locations (Tr. 53). He confirmed that he did not measure the 

berms which had "weathered," and he estimated that they were 

"less than six inches high." He confirmed that the berms in 

these areas were adequate in May, and that they simply" weathered 

down to the point where they were inadequate" at the time of the 

inspection, and that it was a matter of maintenance. He also 

confirmed that he still uses the "axle height" standard for 

berms, and that a coal truck wheel height is about 32 inches, and 

an axle height berm would be one 16 inches or more in height (Tr. 

55). It was clear to him that this standard was not met in this 

case (Tr. 56). 

With regard to the back-up alarm violation, the inspector 

confirmed that while inspecting the cited dozer he asked the 

operator to operate it in reverse. Although the alarm sounded, 

the inspector felt that "the procedure he used was not quite 

smooth" (Tr. 57). The inspector then got into the operator's cab 

·with the driver and when the machine was placed in reverse, the 

backup alarm did not sound. The inspector discovered that the 

operator had to manually engage a toggle switch to sound the 

alarm. The dozer operator and the person in charge of the work 

.site admitted to the inspector that Mr. Pretzel instructed them 

to install the toggle switch on the dozer. They further 

explained that the toggle switch cost $2, and that a proper 

switch cost $27 to $28. The inspector confirmed that the toggle 

switch was not standard equipment for the dozer (Tr. 58-59). 

The inspector explained the basis for his ''significant and 

substantial" violation finding, and he stated that the dozer was 

operating in the pit area in and around equipment ~nd men, and 

that the equipment operators would have occasion to leave their 

vehicles and would be exposed to a hazard. Although the dozer 

was not operating near the auger crews, there would be occasions 

1313 
when it would be operated near them. In addition, coal truck 

drivers would be exposed to a hazard while they were in the pit 

where the dozer was working, and they would often be out of their 

vehicles on foot. He believed that lost time injuries such as 

broken bones or lacerations would likely occur, and that fatalities have occurred in his district when a backup alarm was not 

used. He confirmed that the dozer operator does not have a clear 

view to the rear of the machine, and that one person would be 

exposed to a hazard (Tr. 60-64). 

The inspector confirmed that he made a negligence finding of 

"moderate" because he was unable to speak directly with 

Mr. Pretzel about ·the violation. He stated that he should have 

made a finding of "high" negligence because Mr. Pretzel deliberately altered the equipment by installing the toggle switch. The 

inspector believed that Mr. Pretzel should have known that the 

switch was not lawful because he had discussed it with him on 

numerous occasions and told him that the backup alarm must be 

automatic. The inspector could not recall specifically discussing a toggle switch, and he indicated that he had cited the 

respondent for previous backup alarm violations, but had never 

cited him for using a t6ggle switch (Tr. 65-66). 

The inspector believed that abatement could have been 

achieved in 30 minutes or an hour by simply replacing the switch 

with a pair of pliers, a screwdriver, and wrenches, and that 

these tools are available at all strip jobs. When he returned 

after issuing the citat·ion, abatement had not been achieved and 

the dozer was working in the pit area in and around the endloader 

and coal trucks which were being loaded, and the backup alarm was 

not sounding while the dozer was·backi~g up. However, when the · 

operator saw him, he began using it. The person in charge· and 

the dozer operator informed him that they had the new switch with 

them but were given no tools to install it, and that Mr. Pretzel 

had instructed them to continue working. Since the abatement 

time passed, ahd the condition had not been corrected, the 

inspector issued the order (Tr. 69). 

On cross-examination, the inspector confirmed that when he 

issued the citation,· the dozer and endloader were working in 

close proximity of each other, and at different times were within 

a matter of feet apart while working together to prepare for coal 

loading the next day (Tr. 70). The auger crew was some distance 

away and were not exposed to any hazard.· However, he has known 

people to stop and talk while on the ground in the proximity of a 

working dozer, but not at this operation (Tr. 73). 

The inspector explained the operation of the toggle switch, 

and he confirmed that when it was switched to the "on" position, 

the backup alarm would sound at all times, regardless of whether 

the dozer was operating backward or forward. The inspector 

believed that the dozer·operator was being deceitful by turning 

1314 
the switch on when he reversed the machirte, and that he did this 

to make him believe that the alarm was automatic, when in fact it 

was not (Tr. 77-79). The inspector confirmed that in order to 

comply with the standard, the switch must be automatic so that 

the backup alarm sounds when the machine is put in reverse without the operator engaging the toggle switch (Tr. 80-83). 

The inspector confirmed that the existence of the toggle 

switch per se was not a violation, and that he issued the violation because the backup alarm was not automatic and the switch 

was installed in lieu of the automatic alarm. However, the 

toggle switch was the only control mechanism for the alarm, and 

since it was not operating automatically, it was improper (Tr. 

85-89). 

Respondent's Testimony and Evidence 

David A. Pretzel, respondent's owner and operator, confirmed 

that he strips coal and does excavating work. He stated that he 

was not at the site when the berm citation was issued and did not 

discuss it with Inspector Marrara. He confirmed that he has 

constructed many berms and that a safe berm "is a judgment call" 

when it is constructed. In his opinion, the cited berms were 

"good or better than they were on the previous inspection." He 

stated that he graded the roadway and that there have always been 

berms on the roadway. The cited hill location was graded and 

backfilled, and after putting topsoil on it, it raised the outside edge of the roadway 18 inches and "it can still be seen just 

the way it was then" (Tr. 89-91). 

With regard to the backup alarm citation, Mr. Pretzel conceded that the toggle switch was installed on the cited dozer. 

He explained that it was installed because he also uses the dozer 

off mine property doing work for the general public and they do 

not want to hear the horn sounding. He stated that the toggle 

switch was installed on the machine in 1982, but he could not 

recall whether that particular dozer had been cited during prior 

MSHA inspections (Tr. 92). 

On cross-examination, Mr. Pretzel stated that he could not 

recall speaking with the inspector about the berm conditions. He 

believed that the roadway had been graded "within a month or 

less" prior to the inspection, and that the berms on the roadway 

have never been less than 2 feet. He confirmed that the citations were given to his wife, that he did not go to the site to 

view the cited conditions, and that the roadway was partially 

fixed when he saw it. He did not discuss the cited berm conditions with Mr. Wolf and could not determine where the berms were 

constructed because the entire roadway had been regraded (Tr. 

94-95) . 

1315 
Mr. Pretzel stated that he asked his wife to call MSHA, and 

he expected to obtain an extension to abate the cited conditions. 

He confirmeq that he had spoken with the inspector in the past 

but did not attempt to reach him at home because his wife called 

his office and left a message for him (Tr~ 96-97). 

Mr. Pretzel stated that the toggle switch shuts off a "working" automatic alarm which he installed on the dozer. He 

believed that it was working on the day the citation issued. He 

confirmed that his wife took a new automatic alarm to the job 

site, but he could not recall whether it was installed (Tr. 98). 

He did not speak with Mr. Dean, the person in charge of the work 

site, because ":i:ny wife gave him orders what to do" (Tr. 99). 

In response to further questions, Mr. Pretzel stated that he 

did not know whether the new automatic alarm was ever installed 

on the cited dozer. With regard to the berm conditions, he 

confirmed that he was not present when the citation was issued, 

but that a week earlier the berms were in place on the roadway 

and it did not storm or rain before the inspection (Tr. 101-104). 

He did not know if the alarm would stay on all the time when the 

toggle switch was engaged, and while it was possible that there 

was a short in the wire, he was not present when the inspector 

issued the violation (Tr. 105). 

Charlene D. Pretzel, confirmed that she keeps the books for 

her husband's company and helps run the business. She stated 

that the citations were given to her by the men in charge of the 

work sites. She stated that she made three telephone calls to 

the inspector's office in order to obtain an extension for abating the berm citation because the respondent wanted to use the 

highlift to construct the berm. She confirmed that her husband 

would have returned to the job site within a week or two and that 

the repairs to the highlift bucket would have taken at least a 

week (Tr. 109-111). 

With regard to the backup alarm violation, Mrs. Pretzel 

stated that the morning after receiving the citation, a new 

switch was purchased, and she took it to the job site and told 

the dozer operator to install it. She believed that the dozer 

operator should have been able to install the new switch and she 

told him "if you can't put it on, park it'' (Tr. 113). 

On cross-examination, Mrs. Pretzel stated that if the dozer 

operator were unable to repair the switch, he would have gone 

home and would not have been paid unless he remained at the site 

and worked (Tr. 114). She confirmed that the dozer operator told 

her that the "wrong kind of switch" was on the dozer, and her 

husband told her what kind of new switch to purchase (Tr. 118). 

1316 
Mrs. Pretzel had no knowledge of the inspector speaking with 

her husband in the past with regard to the berms, and she confirmed that she has never discussed the matter with the inspector 

because she ·is usually "in and out of the job" (Tr. 118). 

Willard Wolf, testified that he was employed by the respondent when the berm violation was issued. He stated that he has 

26 years of surface mining experience, and in his opinion the 

berms on the haulage road in question "were good berms, good 

enough at least" on the day of the inspection (Tr. 121). 

On cross-examination, Mr. Wolf stated that he has worked for 

the respondent for 3 years and that the mine is a non-union 

operation. In response to further questions, Mr. Wolf stated 

that the inspector came back to the site the day after issuing 

the violation and told him that if he did not fix the berms he 

would shut the site down. Mr. Wolf confirmed that the inspector 

"did close us down from working" but that he was permitted to 

work on the road and constructed the berms that same day. When 

asked why he not installed them earlier, he responded "I wasn't 

told to. I mean, there was berms there." He denied that he told 

the inspector that he made no effort to repair the berms (Tr. 

123) . 

The inspector was recalled by the Court, and he confirmed 

that while he had no reason to doubt that Mrs. Pretzel made the 

telephone calls to his office, even if she had connected with 

him, it would have made no difference since he believed the 

respondent had an obligation to take care of the berms. He would 

not have extended the abatement time unless the respondent had 

stopped work, but once the orders were issued, it made no difference whether the work was shutdown. He confirmed that he 

informed Mrs. Pretzel that pursuant to the Act there was a 

"possible potential" for a fine of $1,000 a day for each of the 

violations (Tr. 127). 

The inspector confirmed that his inspection notes reflect 

that he issued the prior berm citations to the respondent in 

August, 1987 and August, 1985, and that he has discussed the 

berms with Mr. Pretzel on numerous occasions. He further confirmed that he has conducted 15 regular inspections at the 

respondent's site and that "not one regular inspection goes by 

that I don't mention berms one way or another to almost all 

operators that I inspect" (Tr. 128). He specifically recalled 

speaking to Mr. Pretzel in May, 1988 about berms at the cited 

locations (Tr. 128). 

Petitioner's Arguments 

In response to my request, the petitioner submitted a posthearing argument in support of its position that a section 104(b) 

withdrawal order may be issued for failure by the respondent to 

1317 
timely abate a violation cited in a section 104(d) (1) citation. 

After review of the arguments presented, I agree with the petitioner's position and I conclude and find that the order was 

procedurally·correct. 

With regard to the merits of the contested section 104(d) (1) 

citation regarding the cited berm conditions, the petitioner 

argued that the evidence presented supports a finding that the 

berms cited by the inspector at the three locations noted in the 

citation were "weathered down" and were inadequate. With regard 

to the cited 500 feet area of the roadway, the petitioner asserts 

that the evidence establishes that the area was not bermed and 

that no berms were ever constructed in that area. The petitioner 

stated that the respondent's testimony that the roadway had been 

graded and berms were constructed a week prior to the inspection 

is self-serving. The petitioner points out that Mr. Pretzel's 

testimony that he wanted to use an endloader to construct the 

berms and that the endloader was unavailable to timely construct 

the berms to abate the violation is contradictory because he 

testified that he used the scraper to construct the berms a week 

prior to the inspection (Tr. 137-138). 

With regard to Mr. Wolf's testimony that he believed the 

berms adequate, the petitioner argued that Mr. Wolf's recollection was unclear and that he advanced no support for his conclusion that the berms were adequate. Petitioner concludes that 

the inspector's credible testimony concerning his observations of 

the condition of the weathered down berms at the three cited 

roadway locations, and the lack of any berm along 500 feet of the 

roadway, should be credited over the testimony of Mr. Wolf and 

that it clearly establishes a violation. 

With regard to the inspector's "S&S" finding, the petitioner 

asserted that the existence of the slopes along the unprotected 

roadway establishes that there was a reasonable likelihood of an 

injury and that the respondent has not seriously challenged the 

inspector's reasonable belief that if a truck were out of control 

and left the roadway it could roll over and cause at least moderately severe injuries, and under certain circumstances, could 

reasonably result in serious or fatal injuries to the driver (Tr. 

138) . 

With regard to the respondent's negligence for the violation, and the inspector's unwarrantable failure finding, the 

petitioner argued that the evidence supports a finding of high 

negligence and aggravated conduct because the inspector had 

previously discussed the need for berms along the cited roadway 

with Mr. Pretzel and advised him as to the need for maintaining 

and repairing the berms. The petitioner asserted that it was not 

unreasonable for the inspector to believe that the respondent 

would heed his advice and take care of the berms in a timely 

manner (Tr. 139). 

1318 
The petitioner concedes ·that the respondent· made an attempt 

to contact the inspector after the citation was issued by calling 

his office and.leaving a message. However, the petitioner takes 

the position that notwithstanding these telephone calls, the 

respondent had an obligation to timely correct and abate the 

cited conditions and could have contacted the inspector at his 

home, as it had done on prior occasions, if it had problems in 

timely abating the conditions. The petitioner concluded that the 

telephone messages left at the inspector's office while he was 

absent on other inspectors were "belated and halfhearted" and do 

not meet the standard of making reasonable efforts to abate the 

cited berm conditions. The petitioner believed that the required 

abatement was a "fairly simply matter" and that the respondent 

has not established that it had insufficient time to comply and 

timely abate the conditions (Tr .. 140). 

With regard to the backup alarm violation, the p.etitioner 

asserts that the evidence and testimony establishes that the 

cited equipment did not have a working automatic backup alarm and 

was simply equipped with an alarm operated by a tog.gle switch 

which was manually activated to sound the alarm, and that the 

backup ·alarm would only sound if. the toggle switch were manually 

turned on. The petitioner pointed out that the cited machine was 

not in fact equipped with an automatic alarm which would automatically sound when the machine operated in reverse and that the 

cited standard required the installation and use of an automatic 

alarm. The petitioner.concludeq that assuming an automatic alarm 

was installed on the machine, the evidence clearly establishes 

that it was not working and was not activated automatically when 

the machine was operated in reverse (~r. 140-141). The petitioner pointed out that the toggle switch was being used in 

substitution for the automatic alarm switch and that this was 

contrary to the requirements of the cited standard (Tr. 142). 

With regard to the respondent's negligence, the petitioner 

argued that the violation was the result of at least moderate 

negligence by the respondent (Tr. 143). With regard to the 

abatement, the petitioner argued that Mrs. Pretzel did not give 

anyone any clear order to repair the alarm, and that the operator 

continued to work without the device (Tr. 150). 

Respondent's Arguments 

The respondent's representative ~equested that I take into 

consideration the fact that the respondent is a small coal mine 

operator with an annual mine production of 30,000 tons. Although 

he agreed that the payment of the full amount of the proposed 

civil penalty assessments will not put the respondent out of 

business, he nonetheless argued that the magnitude of the proposed assessments will have a direct economic cost impact on the 

respondent's mining operation (Tr. 153-154). 

1319 
The respondent's representative took the p9sition that the 

cited berm conditions present an honest difference of opinion and 

disagreement between the inspector and the respondent with 

respect to the adequacy of the berms. He further asserted that 

the use of the dozer by Mr. Wolf to construct the berms resulted 

in "chopping up" the road and the further deterioration of the 

berms, but that the violation was abated •. He pointed out that 

the respondent telephoned the inspector in an attempt to explain 

that he wished to use the endloader rather than the scrapper to 

abate the violation and construct the berms and to request an 

extension of the abatement time (Tr. 150-152). 

With regard to the backup alarm violat~on, the respondent 

asserted that Mrs. Pretzel, gave the equipment operator a new 

swi.tch and instructed him to.fix it, and that if he could not do 

so, she instructed him to shut the machine down (Tr. 153). 

Findings and Conclusions 

Fact of Violation - Citation No. 3113190, 30 C.F.R. § 77.1605Ck) 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1605(k), which states that "berms 

or guards shall be provided on the outer bank of elevated roadways." The term "berm" is defined in 30 ~.F.R. § 77.2(d) as "a 

pile or mound of material capable of restraining a vehicle." 

In Secretary of Labor v. United States Steel Corporation, 

5 FMSHRC 3, 6, January 27, 1983, the Commission noted as follows: 

"Restraining a vehicle" does not mean, as U.S. 

Steel suggests, absolute prevention of overtravel. by 

all vehicles under all circumstances. Given the heavy 

weights and large sizes of many mine vehicles, that 

would probably be an unattainable regulatory goal. 

Rather, the standard requires reasonable control and 

guidance of vehicular motion. 

And, at 5 FMSHRC 5: 

we hold th.at the adequacy of a berm or guard under 

section 77.1605{k) is to be measured against the standard of whether the berm or guard is one a reasonably 

prudent person familiar with all the facts, including 

those peculiar to the mining industry, would have 

constructed to provide the protection intended by the 

standard. 

* * * * * * * 

1320 
Under our interpretation of the standard, the 

adequacy of an operator's berms or guards should thus 

be evaluated in each case by reference to an objective 

standard of a reasonably prudent person familiar with 

the mining industry and in the context of the preventive purpose of the statute. When alleging a violation 

of the standard, the Secretary is required to present 

evidence showing that the operator's berms or guards do 

not measure up to the kind that a reasonably prudent 

person would provide under the circumstances. This 

evidence could include accepted safety standards in the 

field of road construction, considerations unique to 

the mining industry, and the circumstances at the 

operator's mine. Various construction factors could 

bear upon what a reasonable person would do, such as 

the condition of the roadway in issue, the roadway's 

elevation and angle of incline, and the amount, type, 

and size of traffic using the roadway. 

Respondent's owner, David Pretzel, asserted that the cited 

roadway locations have always had berms, and that he constructed 

them by grading the roadway and using topsoil to raise the outside edges to 18 inches. He also contended that the berms have 

never been less than 2 feet high, and that the roadway had been 

graded within a month or so prior to the inspection. However, 

the record reflects that Mr. Pretzel was not present when the 

inspector viewed and cited the conditions, and Mr. Pretzel conceded that he did not visit the site to view the conditions when 

they were cited by the inspector, and that he did not discuss the 

conditions with the inspector. 

Mr. Pretzel further testified that the citation was served 

on his wife. Although she testified in this case, she said 

nothing about the conditions of the roadway, nor did she dispute 

the findings of the inspector with respect to the berms. 

Mrs. Pretzel testified that her husband was working at another 

site, and that she instructed an employee "to take the dozer and 

go out and try to get a bigger berm on the road" (Tr. 110). 

Coupled with her attempts to contact the inspector for an extension to enable the respondent to use another piece of equipment 

to construct the berms, I believe that it is reasonable to conclude that Mrs. Pretzel, who went to the mine shortly after the 

inspector arrived, did not disagree with the inspector's observations of the berm conditions which he cited. As for the testimony of Mr. Wolf, he simply believed that "there was berms 

there," and I find nothing in his testimony to rebut the testimony of the inspector. 

I conclude and find that the testimony of the inspector who 

personally observed the cited conditions during the course of his 

inspection of the respondent's mining operation is credible and 

probative, and it clearly supports his finding that no berm or 

1321 
guard was provided on the right outer bank of the elevated roadway at the location cited by the inspector. I also conclude and 

find that the inspector's testimony also establishes that the 

berms at the other locations which he observed and were inadequate. The lack of berms at the one cited location, and the 

inadequate berms at the other cited locations, constitute violations of section 77.1605(k). Under all of these circumstances, 

the citation issued by the inspector IS AFFIRMED. 

Fact of Violation - Citation No. 3113191, 30 C.F.R. § 77.410 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.410, for failing to equip a bulldozer with an automatic warning device (backup alarm) which gives 

an audible alarm when the equipment is operated in reverse. The 

cited standard provides as follows: 

Mobile equipment, such as trucks, forklifts, 

front-end loaders, tractors and graders, shall be 

equipped with an adequate automatic warning device 

which shall give an audible alarm when such equipment 

is put in reverse. (Emphasis added). 

The inspector confirmed that the cited bulldozer was not 

equipped with an automatic backup alarm which would automatically 

sound when the machine was operated in reverse. After inspecting 

the machine, he found that a toggle switch had been installed, 

and that the machine operator was required to manually activate 

the alarm by using the toggle switch. Mr. Pretzel did not dispute the existence of the toggle switch, and in fact admitted 

that it was installed in 1982, so that the backup alarm could be 

turned off when the machine was used on other jobs off mine 

property. 

The inspector testified that the toggle switch was "simply 

an off and on switch for the backup alarm," and that the automatic alarm device which was apparently installed on the machine 

was "wired out" and that the toggle switch was "wired direct so 

all you had was an off and on switch" (Tr. 147). The inspector 

confirmed that when the toggle switch was turned on the alarm 

sounded, and when the switch was turned off, the alarm would not 

sound. He stated that when the machine operator initially 

sounded the alarm while backing up the machine he did so by 

turning the toggle switch on. When the inspector inspected the 

machine and switch, he found that the operator sounded the alarm 

by activating the toggle switch manually and that this switch was 

not an automatic device since the automatic device itself had 

been "completely wired out of the system" (Tr. 148). 

I conclude and find that the credible and probative testimony of the inspector clearly establishes that the cited machine 

was not equipped with a functional automatic backup alarm or 

1322 
device that sounded automatically when the machine was operated 

in reverse. I further conclude and find that a violation of 

section 77.410, has been established, and the citation issued by 

the inspector IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

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

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d) (1), it is the 

contribution of a violation to the cause and effect of 

a hazard that must be significant and substantial. 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1866, 1868 

(August 1984); U.S. Steel Mining Company, Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

1323 
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

Citation No. 3113190, 30 C.F.R. § 77.1605(k) 

The inspector found that the berms at the three haulage road 

locations which he described "had weathered down to nothing," and 

that the location where the grade of the road went up a hill had 

no berm at all. The inspector's unrebutted testimony establishes 

that there was a reasonable likelihood of an injury because of 

the severe unprotected road slopes, and the presence of trees and 

rocks. He believed that if a truck went off the roadway, particularly at the location of the unprotected hill, there was a 

danger that the truck would roll over once the truck left the 

unprotected roadway, and he was aware of a number of accidents at 

other mines under these same conditions. Under the circumstances, I conclude and find that the violation was significant 

and substantial. I agree with the inspector's finding, and IT IS 

AFFIRMED. 

Citation No. 3113191, 30 C.F.R. § 77.410 

The respondent has not rebutted the inspector's credible 

testimony that the bulldozer which was not equipped with an 

automatic audible backup alarm was operating in a pit area in and 

around other equipment where other employees or a contractor 

auger crew would have occasion to be present on foot. The 

inspector also believed that the dozer operator did not have a 

clear view to the rear of the machine, and that in the event he 

were to operate the machine in reverse without the benefit of an 

automatic backup alarm, an employee would likely be exposed to 

lost time injuries such as lacerations or broken bones if he were 

struck by the machine. While it is true that the machine sounded 

an alarm when the inspector requested the operator to operate it 

in reverse, the inspector found that the operator had manually 

activated the alarm by using a toggle switch. In my view, 

reliance on such a device, which required the operator to 

manually activate the backup alarm, would not insure that the 

alarm would sound when the machine was operating in reverse and 

the operator could not see someone on foot to the rear of the 

machine. If he does not have the toggle switch turned on when he 

backs up, he could very well run over someone, and that individual would have no assurance that the alarm will automatically 

sound. Under the circumstances, I agree with the inspector's 

significant and substantial finding, and IT IS AFFIRMED. 

The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

1324 
under the 1969 Act, and it held in pertinent part as follows at 

295.:...96: 

.In· light of the foregoing, we hold that an inspec-· 

tor should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines tha~ the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several subsequent decisions concerning the interpretation and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of 

the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 

1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007· (December 

1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 

249 (March 1988). Referring to its prior holding in the Emery 

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

We stated that.whereas negligence ,is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is ·defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

1325. 
Violation of 30 C.F.R. § 77.1605(k) 

. The petitioner takes the position that the violation 

resulted froin a high degree of negligence amounting to aggravated 

conduct on the part of the respondent. In· support of this conclusion, the petitioner relies on the inspector'~ testimony that 

he based his high negligence finding on the fact that he· had 

previously inspected the haulage road in May, 1988, anq discussed 

the berm requirements with Mr. Pretzel, and that he previously 

cited the respondent for violations of the berm standard. 

The inspector's notes (exhibit P-3), reflect that he cited 

the respondent for previous berm violations on August 17, 1987, 

and August 12, 1985. However, copies of the citations were not 

produced or offered for the record in this case, and the inspector presented no further details with respect to these previously 

cited conditions. Although these prtor citations may support a 

conclusion that the respondent had knowledge.of the berm requirements found in section 77.1605(k), in the absence of any further. 

information or evidence that the prior citations concerned the 

same berm locations cited in the instant case, I am not persuaded 

that they support a finding of aggravated conduct and have given 

them little.weight. I take note of the fact that in this case, 

the inspector confirmed that the haulage road in question was 

posted with speed limit signs and that the respondent provided 

designated truck passing locations along the. roadway. This 

indicates to me that the respondent made an effort to insure safe 

travel along the haulage road, notwithstanding the absence of 

berms at one location, and the deteriorated berms at the other 

cited locations. 

With regard to the inspector's prior discussions with 

Mr.· Pr~tzel concerning the maintenance of the berms, and notwithstanding Mr. Pretzel's lapse of memory that he ever discussed 

the berm conditions with the inspector; I find the inspector's 

testimony and corroborating notes, which reflect that he did 

discuss the matter with Mr. Pretzel, to be credible. Although it 

may be true that Mr. Pretzel may not have spoken to the inspector 

immediately following the issuance of the contested citation in 

this case, I am not convinced that he has never spoken to the 

inspector in the past about the berms on the haulage road in 

question, and I believe the inspector'~ testimony that he spoke 

to Mr. Pretzel during his prior inspection in May, 1988. 

The inspector confirmed that he based his unwarrantable 

failure finding on the fact that he had discussed the necessity 

for berms with Mr. Pretzel during his prior May, 1988, inspection, and that he specifically discussed the need for berms at 

the cited locations. The inspector conceded that the question of 

what constitutes an "adequate" berm is subject to interpretation, 

and given the subjective definition of the term "berm" as found 

.1326 
in section 77.2(d), I am of the view that individual judgments 

may differ from day-to-day as to the "adequacy" of a berm, particularly when they may be subjected to adverse weather 

conditions. 

I take particular note of the fact that in this case the 

inspector confirmed that the berms at the three locations which 

he cited during his inspection in this case were adequate when he 

last observed them during his prior May, 1988, inspection, when 

he discussed them with Mr. Pretzel, and that "work was being done 

at the location where the one-tenth of a mile berm was" (Tr. 23). 

The inspector confirmed that the berm had "weathered down" during 

the intervening months between inspections, and I believe that 

his principal concern was that the respondent was not maintaining 

the berms after they were initially constructed. Although the 

inspector was of the opinion that no berm had ever been constructed along the one-tenth of a mile elevated area which he 

also cited during his October 31, 1988, inspection, his prior 

testimony that work was taking place during his May inspection 

"where the one-tenth of a mile berm was," suggests that a berm 

may have at one time been constructed at that location. Further, 

the apparent failure by the inspector to issue a citation for the 

lack of a berm at that location raises an inference that a berm 

was either in place or was being worked on at the time of his May 

inspection. In these circumstances, I cannot conclude that the 

prior discussions by the inspector with Mr. Pretzel establishes 

any basis to support a conclusion of aggravated conduct with 

respect to the violation in question in this case. To the contrary, I conclude and find that the violation resulted from the 

respondent's failure to exercise reasonable care amounting to 

"thoughtlessness" and "inattention" for not insuring that the 

berms were constructed and maintained to the heights required by 

the cited standard, rather than on "inexcusable" or aggravated 

conduct. Under the circumstances, the inspector's unwarrantable 

failure finding IS VACATED, and the section 104(d) (1) citation IS 

MODIFIED to a section 104(a) citation, with significant and 

substantial (S&S) findings. 

Size of Business and Effect of Civil Penalty on the Respondent's 

Ability to Continue in Business 

The available evidence reflects that the respondent is a 

small strip mine operator who also engaged in excavation work. 

An MSHA Proposed Assessment Data Sheet, exhibit P-13, reflects 

that the respondent's total 1988 annual mine production was 

approximately 31,313 man-hours/tonnage. I conclude and find that 

the respondent is a small mine operator, and in the absence of 

any evidence to the contrary, I further conclude and find that 

the payment of the civil penalty assessments for the violations 

which have been affirmed in this case will not adversely affect 

the respondent's ability to continue in business. 

1327 
History of Prior Violations 

The petitioner did not submit a computer print-out listing 

the respondent's prior compliance record. However, the aforementioned exhibit P-13, reflects that the respondent was assessed 

civil penalties for a total of nine (9) prior violations issued 

during the years 1986 through 1988. I conclude and find that the 

respondent has a good overall compliance record and I have taken 

this into consideration in this case. 

Gravity 

In view of my significant and substantial (S&S) findings, I 

conclude and find that Citation Nos. 3119190 and 3119191, were 

serious violations. 

Negligence 

I conclude and find that Citation No. 3119190, concerning 

the violation of the berm standard, 30 C.F.R. § 77.1605(k), was 

the result of the respondent's failure to exercise reasonable 

care, and that this amounts to ordinary negligence. 

With regard to Citation No. 3113191, for the failure by the 

respondent to provide an automatic backup alarm on the cited 

bulldozer, the inspector made a finding of "moderate" negligence 

because he was unable to speak directly with Mr. Pretzel about 

the violation. I take note of the fact that the inspector testified that "on reflection," he should have made a finding of "high 

negligence" because Mr. Pretzel deliberately altered the alarm 

which was provided on the equipment by installing a toggle switch 

on the alarm. Although the inspector believed that Mr. Pretzel 

should have known that the toggle switch was not lawful because 

he had discussed the need for automatic backup alarms with him 

"on numerous occasions" and had previously cited the respondent 

for prior backup alarm violations, the inspector could not recall 

specifically discussing toggle switches with Mr. Pretzel, and he 

conceded that the prior citations did not involve the use of such 

a device. Copies of these prior citations were not produced or 

introduced as part of the record in this case. Under the circumstances, I find no probative evidence to support any finding of 

"high" negligence. I conclude and find that the violation 

resulted from the failure by the respondent to exercise reasonable care, and that this amounts to ordinary negligence. 

Good Faith Compliance 

The record reflects that the inspector issued two section 

104(b) orders after finding that the respondent made no effort to 

timely abate the violations, and there is no evidence that the 

respondent filed any timely contests challenging the inspector's 

issuance of the orders. 

1328 
Although the respondent made an effort to contact the 

inspector with respect to the order issued for the berm violation, the fact remains that the respondent continued working 

after the order was issued, and the inspector found no evidence 

of any attempts by the respondent to repair the berms when he 

next visited the mine. In my view, and notwithstanding the 

respondent's efforts to contact the inspector at his office, the 

respondent had a duty to at least begin work on the berms in 

order to abate the cited conditions. Mr. Pretzel offered no 

reasonable explanation as to why he did not attempt to contact 

the inspector at his home as he had apparently done in the past. 

Under the circumstances, I cannot conclude that the respondent 

exhibited good faith in timely abating the berm conditions, and 

its belated attempts to contact the inspector, rather than proceeding with the abatement work, is no excuse or defense to its 

failure to take timely abatement action. 

With regard to the backup alarm violation, Mrs. Pretzel 

purchased a new automatic backup alarm, but she simply gave it to 

the machine operator with instructions to install it or to park 

the machine. Mrs. Pretzel believed that the operator was capable 

of installing the new switch, and there is no credible evidence 

that tools were not readily available to do the job. However, 

the new switch was not installed, and when the inspector next 

returned to the mine, he found the machine operating in the pit 

area with the old switch which was cited still on it. 

Mr. Pretzel could not recall whether the newly purchased 

switch was ever installed on the cited dozer, and he did not 

speak with the employee who was in charge of the work where the 

machine was being used. As the mine operators, both Mr. and 

Mrs. Pretzel had a duty to insure that the newly purchased automatic alarm was timely installed on the machine. I find no 

credible excuse for their failure to do so. I conclude and find 

that the respondent failed to exercise good faith in timely 

abating the cited condition. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section llO(i) of the Act, I conclude and find that the 

following civil penalties are reasonable and appropriate for the 

two contested violations which have been affirmed, and for the 

two violations which have been settled: 

1329 
Citation No. Date 30 C.F.R. Section Assessment 

3113190 10/31/88 77.1605(k) $500 

3113191 10/31/88 77.410 $400 

3100981 01/17/89 50.20 $ 20 

3100743 03/07/89 77.1110 $ 20 

h.L~ Administrative Law Judge 

Distribution: 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Edward A. Moss, Route 12, Box 429, Morgantown, WV 26505 

(Certified Mail) 

David A. Pretzel, Owner, Pretzel Excavating, Route 4, Box 11-B, 

Bruceton Mills, WV 26525 (Certified Mail) 

/fb 

1330 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, 

INCORPORATED, 

Respondent 

DENVER, CO 80204 

JUN 211990 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-276 

A.C. No. 05-00301-03652 

Dutch Creek No. 1 Mine 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Delaney & Balcomb, P.C., 

Glenwood Springs,· Colorado, 

for Respond.ent. 

Before.: Judge Cetti 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor (Secretary) pursuant to Section 

'i05(d) of the Federal Mine Safety and Health Act of.1977, 

30 u.s.c. § 801 et seq., the "Act," charging Mid-Continent Resources, Inc. (Mid-Continent) with eight violations of mandatory standards and proposing civil penalties totaling $10,700 

for the violations. · 

Mid-Continent filed a timely answer to the Secretary's 

proposal for penalty denying the violations. After notice to 

the parties an evidentiary hearing on the merits was held in 

Glenwood Springs, Colorado, on September 20 and 21, 19~9. 

Both parties filed helpful post-hearing briefs and submitted the 

matter for decision. 

I 

At the September 1989 hearing· the parties reached a settlement of Citation No. 03223646 which alleges a Section 104(a) violation of 30 C.F.R. § 75.301. The parties agreed that Mid-Continent would pay as a civil penalty for this violation $1,020. In 

addition, prior to the hearing, the parties agreed to settle.six 

of the eight citations/orders originally charged in this docket 

by payment of 60 percent of the initial proposed penalty as 

follows: 

\ 

1331 
Citation/Order No. 

03223176 

03223542 

03223598 

03223641 

03223644 

03223647 

Proposed Penalty 

$ 800.00 

$1,300.00 

$1,700.00 

$1,300.00 

$1,100.00 

$1,300.00 

Amended Proposed Penalty 

$ 480.00 

$ 780.00 

$1,020.00 

$ 780.00 

$ 660.00 

$ 780.00 

The parties agreed that each citation/order accurately 

reflects a violation of the standard as alleged therein, and that. 

each penalty as amended is appropriate for the corresponding violation under section llOCi) of its Act. 

At the hearing, the parties advised that all eight citations/orders have been abated. I have considered the representations and dodimentation submitted and I conclude that the proffered settlement disposition of the seven citations/orders referenced above is consistent with the ~riteria in§ llOCi) of the 

Act. I therefore assess the approved amended proposed penalties 

specified above. 

II 

Section 104Cd)C2) Order No. 3223214 

The remaining issues all involve Order No. 322314 which 

charges a 104Cd)(2) violation of 30 C.F.R. § 75.1105. 

Issues 

The issues presented in these proceedings include the 

following: 

1. Whether the conditions cited constitute a violation of 

the safety standard as alleged in the order and notice of civil 

penalty. 

2. If a violation is found, whether it is of a "significant 

and substantial" nature. 

3. If a violation is found, whether the contested 104(d)(2) 

order resulted from an unwarrantable failure by Mid-Continent to · comply with the cited standard. 

4. The appropriate civil penalty that should be assessed, 

taking into consideration the statutory civil penalty criteria 

found in section llOCi) of the Act. 

1332 
Stipulation 

At the hearing the parties entered the following stipulations into the record: 

1. Mid-Continent is subject to the jurisdiction of the Act 

and the Commission; 

2. The Dutch Creek No. 1 Mine is located near Redstone, 

Colorado, and had for the year 1987 - 277,194 tons of coal 

production. 

3. At the time 104(d}(2} Order No. 3223214 was issued 

Mid-Continent was validly within a so-called "d" series provided 

for by section 104(d} of the Act. 

4. The condition underlying the subject orders have been 

timely abated. 

Factual Background 

Federal Coal Mine Safety and Health Inspector Phillip R. 

Gibson conducted an inspection of Mid-Continent's Dutch Creek 

No. 1 Mine. At that time, the Dutch Creek No. 1 Mine was one of 

two underground coal mines actively operated by Mid-Continent--

the other was the Dutch Creek No. 2 Mine. The Dutch Creek No. 1 

Mine operated solely in the so-called Coal Basin "B" coal seam. 

The Dutch Creek No. 2 Mine operated in the Coal Basin "M" seam, 

the upper of the two coal seams mined by Mid-Continent. 

, These two mines were subsequently conslidated by the interception, at depth, of the two mines by the so-called Rock Tunnels 

Project/Coal Basin Adit. 

During the inspection of the Dutch Creek No. 1 Mine, 

Inspector Gibson issued 104Cd}(2} Order No. 3223214 alleging a 

violation of mandatory safety standard 30 C.F.R. § 75.1105. 

The narrative allegations of this order reads as follows: 

The underground permanent pump for the airlock doors between No. 6 and No. 7 slopes in 

in crosscut No. 64 was not housed in a fireproof structure or area. The intake air was 

coursed over the permanent pump installation 

and not coursed directly into the return 

(No. 7 slope}. 

1333 
On the order form [MSHA Form 7000-3, Mar-85 (Rev.)], 

the inspector checked the Gravity (Form Item 10) as follows: 

Injury or illness as "Reasonably Likely," Injury or illness 

[which] could reasonably be expected as "Permanently Disabling," 

and the number of Persons Affected as "10." The inspector 

checked that the Negligence (Form Item, 11) was "High." 

30 C.F.R. § 75.1105, a verbatim restatement of section 

311Cc) of the Act, 30 u.s.c. § 871, provides: 

§ 75.1105. Housing of underground transformer stations, battery-charging stations, 

substations, compressor stations, shops, and 

permanent pumps. 

[STATUTORY PROVISIONS] 

Underground transformer stations, batterycharging stations, substations, compressor 

stations, shops, and permanent pumps shall be 

housed in fireproof structures or areas. Air 

currents used to ventilate structures or areas 

enclosing electrical installations shall be 

coursed directly into the return. Other underground structures installed in a coal mine as 

the Secretary may prescribe shall be of fireproof construction. [Emphasis added.] 

The Situs of the Alleged Violation 

In the Dutch Creek No. 1 Mine there are seven slope entries 

which constitute the slopes section. These entries are driven 

down-dip into the coal seam from its surface outcrop. The 

entries are numbered, from left to right (as one faces the coal 

face) Nos. 1 through 7. Slope Entries Nos. 1 and 7, the two 

outside entries, are return aircourses through which ventilating 

air is "sucked" by separate exhausting fans. Entries Nos. 2 

through 6 are intake aircourses. No. 4 Entry contained the 

conveyor belts which had historically hauled mined-coal upward, 

out of the mine via the portals at the surface outcrop of the 

coal seam. 

The airlock doors referred to in the order consist of two 

heavy metal doors, each of which standing alone effectively 

controls the passage of air through the entry in which they are 

located between Nos. 6 and 7 slopes. These airlock doors are 

1334 
situated just outby the 103 longwall tailgate return entries at 

the 64th-crosscut of the slope section. ~/ 

By raising and lowering the airlock doors mobile equipment 

can travel through the airlock from the intake side to the return 

side, or vice-versa, without short-circuiting the mine ventilation between intake and the return air courses. Thus, the doors 

separate and prevent the interception of the airflow between 

the number 6 intake air course and the number 7 return air 

course. 

The "permanent pump" identified in the subject order and 

which definition frames the issue to be decided in this proceeding provides the hydraulic power which raises and lowers the 

airlock doors. 2/ 

This hydraulic power unit or pump (sometimes hereinafter 

referred to as the "unit") is located next to the airlock doors 

in the number 6 slope which is an intake air course. The air 

traveling in the number 6 air course passes over the unit and on 

into the face area, longwall 103, which is the only active area 

in the mine. The air is then returned to the exhaust fan, away 

from the working face through the return air course, slope No. 7. 

It is undisputed that the hydraulic power unit was ventilated 

into the intake air and not into the return air of the number 7 

slope. 

When asked how the airlock doors operate, Inspector Gibson 

testified: 

l/ This is not a heavy traffic area; the heavy traffic is in 

the headgate area. 

2/ Mid-Continent asked for and received early on a continuing 

objection to the reference by the Secretary's witnesses of the 

hydraulic power unit as a "permanent pump." Therefore, this 

repeated characterization does not per ~ carry any evidentiary 

weight. 

1335 
A. These doors operate by hydraulic pressure supplied 

from a hydraulic pump which was powered by an electric 

motor. The hydraulic pump supplied hydraulic fluid to 

a cylinder to which one end was attached a wire rope. 

The other end of the wire rope was attached to the door 

and a directional valve was engaged causing the cylinder 

to raise or lower the door. 

The hydraulic unit was located approximately 1000 to 1500 

feet from the 103 longwall area, the only active working area of 

the mine. Any air coursing over the unit would normally continue 

down the six slope entry toward the working face. 

The unit was fastened to a metal platform or skid that was 

resting on the coal floor. The unit had a 10 horse power electric motor, a hydraulic pump with a hydraulic reservoir. The 

entire unit was 30 inches wide and 36 inches long and appoximately 18 to 20 inches high. The unit was stationary, not of the 

type that is moved around the mine. It contained a control box 

with circuit breakers and various electrical components. It is 

undisputed that it was not a permissible pump. At the time of 

inspection it was not housed nor enclosed in any structure. 

The hydraulic unit in question is sold as a stock item by 

the equipment manufacturer and is described in the manuf acturer' s sales brochure entitled "Belt Conveyor Systems for Mining 

and Construction Industry" (Ex. R-4) as follows: 

HYDRAULIC POWER UNITS 

The Continental hydraulic take-up power unit provides 

an accurate, reliable system for proper tensioning of 

your belt system. Improper tensions, whether high or 

low, are severely damaging to the belt, as well as 

other components such as pulleys, shafts and bearings. 

A system of pressure sensing switches provides constant 

monitoring of the hydraulic circuit. The low pressure 

switch starts the hydraulic E!!!!!:e when a minimum safe 

operating level is reached. The high pressure switch 

stops ~ action when the maximum level is attained. 

This system provides an intermittent operating motor 

and pump as opposed to a continuous system. This results in greatly reducing maintenance problems. All 

units are factory set and tested based on the individual customer's tension requirements. 

1336 
All hydraulic unit components including the accumulator are integrally mounted on a common welded steel 

skid type base. The unit is designed to be compatible 

with either water-in-oil type fire resistant fluids or 

standard hydraulic fluids. Units are available in either 

440 volt, 550 volt A.C., or 250 volt D.C. 

(Emphasis added). 

Discussion 

The prime issue before me is whether the power unit that 

raises and lowers the airlock doors is a "permanent pump" within 

the meaning of 30 C.F.R. § 75.1105. If the inspector's characterization of the power unit as a permanent pump is accurate and 

proper, 30 C.F.R. § 75.1105 is applicable, and the basic allegations of the subject order must be deemed valid. The facts are 

uncontroverted that the enclosure and ventilation requirements of 

this regulation were not met. If, however, this unit is not a 

"permanent pump" with the meaning of 30 C.F.R. § 75.1105, the 

section is, of course, inapplicable and the subject order must 

fail. 3/ 

Mid-Continent, on the other hand, asserted throughout the 

hearing and in its briefs that this installation is not a "permanent pump" within the proper meaning of 30 C.F.R. § 75.1105, 

but rather a "hydraulic power unit" which is not subject to 

the enclosure and ventilation requirements of this regulation. 

In support of its position, Mid-Continent presented expert testimony by a registered, professional engineer, a graduate of the 

Colorado School of Mines, concerning the differences between the 

operation of the airlock doors' power unit and what is normally 

associated with a pump. Mid-Continent also introduced an equipment manufacturer's descriptive literature which described this 

type of unit as a "hydraulic power unit." 

Mid-Continent also presented evidence of what it asserts to 

be the inconsistency between Inspector Gibson's interpretation 

under 30 C.F.R. § 75.1105 and MSHA's demonstrated enforcement 

policies over the past 10 years. It was Mid-Continent's position 

that such inconsistency further demonstrated the inapplicability 

of 30 C.F.R. § 75.1105 to this airlock door's power unit. 

3/ Mid-Continent challeges both the "significant and substantial" and "unwarrantable" characterizations of the alleged 

violation. These issues are reached, however, only if a 

violation of 30 C.F.R. § 75.1105 is first established. 

1337 
The Secretary presented the testimony of MSHA Inspectors 

Gibson and Elswick with regard to the characterization of this 

installation as a permanent pump. Inspector Gibson testified as 

follows: 

Q. Now, your order refers to this being a pump. 

Tell us why you called it a pump. 

A. It's several components together. It's looked 

at as a pump. Since the hydraulic pump that 

pumps the hydraulic fluid out of the hydraulic ' 

reservoir is powered by the electric motor, the 

entire composition is referred to as a pump. 

[Emphasis added.] 

The testimony of the electrical specialist, Inspector 

Elswick, on this important issue was limited to the following: 

Q. The pump that you observed and the one Mr. Gibson 

described, will you tell us please what--describe 

that pump. What's its makeup? What does it include? 

A. Includes electrical control box, a 10 horsepower 

electrical motor, hydraulic pump, and a hydraulic 

tank reservoir mounted on a main frame. 

Q. Okay. Now, Mr. Gibson referred to this particular 

item we're talking about as a pump. Is this something you would ref er to as a pump? 

A. Common miner's language it's a belt take-up unit. 

Q. Okay. Is it a pump, though? 

A. Yes, it is a pump. 

Q. Okay. And, is it a permanent pump? 

A. Yes. 

Q. Mr. Elswick, as a mine inspector, do you recognize 

a permanent pump when you see one? 

A. Yes, I do. 

Q. Okay. Is there any doubt in your mind that this 

was a permanent pump? 

A. No. 

1338 
Mid-Continent asserts that no foundation was laid nor evidence presented which would establish that either Gibson or 

Elswick possessed any expertise in the area of hydraulics. Their 

opinions were basically ultimate conclusions. It is Mid-Continent' s position that their unsupported opinion regarding the designation or characterization of the airlock doors' power unit is 

not entitled any special or the controlling weight as urged by 

the Secretary. Mid-Continent argues that the inspector's testimony merely begs the question absent any clear basis for their 

opinion that this installation is subject to the requirements of 

30 C.F.R. § 75.1105. 

The designation of the airlock doors' power unit as a 

"permanent pump" by Inspectors Gibson and Elswick is contradicted by the opinion of Mid-Continent witness David A. Powell, 

an employee of Mid-Continent, who is a Registered, Professional 

Engineer in the State of Colorado and a graduate of the Colorado 

School of Mines. Mid-Continent asserts that contrary to Gibson 

and Elswick, his education and training, as well as his background in heavy equipment maintenance, establish that Powell 

possesses expertise in the field of hydraulic equipment and 

hydraulic systems similar to the air lock doors' power unit in 

issue. 

While describing the functions of the various components of 

this unit, Powell stated that the airlock door's power unit is, 

in engineering parlance, normally described as a hydraulic motor. 

In the literature provided by a manufacturer, this unit is 

described as a "Hydraulic Power Unit" (Mid-Continent Exhibit 

R-4). 

Mid-Continent contends that, as evidenced by past enforcement, MSHA had not, prior to Gibson's issuance of the subject 

order, viewed hydraulic power units on either the airlock doors 

or the belt take-up units as permanent pumps for enclosure and 

return air ventilation purposes under 30 C.F.R. § 75.1105: 

The evidence is uncontroverted that hydraulic power units 

identical to the one in issue have been used to power airlock 

doors in the Dutch Creek No. 1 Mine since 1978, and that such 

units are presently being used throughout the Dutch Creek No. 1 

Mine in conveyor belt entries as belt-tensioner or belt take-up 

units. These belt take-up units are not housed in fireproof 

enclosures nor is the intake ventilating air specially coursed 

back into a return air course. This has been the practice since 

1983 when Powell came to Mid-Continent Inspector Gibson recalls 

this practice as far back as approximately 1977. 

1339 
Prior to the interception of Dutch Creek No. 1 Mine by the 

Rock Tunnels Project, seven (7) of these hydraulic power units 

were located in the 4-slope beltline entry; presently, three (3) 

such units are operated in the Dutch Creek No. 1 Mine. None of 

these beltline hydraulic power units have been, nor are they 

currently required by MSHA to comply with the enclosure and 

ventilation requirements for "permanent pumps" of 30 C.F.R. 

§ 75.1105. 

Finally, Mid-Continent contends that Inspector Gibson's 

interpretation that this hydraulic power unit is a "permanent 

pump" under 30 C.F.R. § 75.1105 is contrary to MSHA policy set 

forth in MSHA Program Policy Letter No. P89-V-10, dated April 13, 

1989, "Application of 30 C.F.R. § 75.1105." (Mid-Continent 

Exhibit R-3). In clarifying the regulation section in question, 

this Program Policy Letter states: 

Permissible Pumps 

Permissible pumps installed in a permanent manner, 

with their associated permissible switchgear, are 

designed, constructed, and tested to assure that such 

equipment, when properly maintained, will not cause a 

mine fire or explosion. Therefore, permissible pumps 

and associated permissible switchgear are of "fireproof construction" and require no further fireproofing. 

Permissible pumps and associated permissible switchgear 

will be required to be ventilated directly into a return 

aircourse. 

Mid-Continent asserts that from this policy letter, it 

becomes apparent that MSHA intended that the requirements of 30 

C.F.R. § 75.1105 affecting permanent pumps applies only to "permissible pumps installed in a permanent manner." 

As previously stated, the undisputed evidence clearly shows 

that the power unit in question is not a permissible pump. 

The Secretary's response to Mid-Continent argument that MSHA 

has not enforced the requirements of the cited standard on other 

hydraulic power units like the one in question is that this is an 

argument without substance. The Secretary points out Cl) these 

other pumps may be in violation but are not subject to a current 

citation, and (2) the other pumps are located in the belt entry, 

an area that is subject to a, separate section of the law, and as 

is the case here, subject to a petition for modification. 

1340 
With respect to Mid-Continent's argument, that the unit 

described in Mr. Gibson's citation is not a pump, the Secretary 

points to the Bureau of Mines Dictionary of Mining, Mineral, and 

Related Terms, U.S. Dept. of Interior, which defines pump as "a 

machine used to impart flowing motion or to accelerate a fluid 

stream (gas, water, pulp, slurry)." David Powell, a mining 

engineer for Mid-Continent agreed with this definition and on 

questioning by Ms. Miller testified in part as follows: 

Q. (by Ms. Miller) ••. In general engineering terms, will 

you tell us what a pump is. 

A. A pump would be a device that would impart acceleration 

to a fluid stream. 

Q ••.• is there any part of this take-up unit that 

Mr. Gibson cited that does--have that function? 

A. I would say yes, yeah. (Tr. 173). 

Conclusion and Finding 

Although the hydraulic unit in question has several components, there is no question that at least one significant and 

essential component of the cited unit is a pump. I find that the 

unit is a permanent pump and subject to the requirement of the 

cited regulation. This finding is supported by the testimony of 

Inspectors Gibson and Elswich, as well as by Mr. Powell, and is 

consistent with the definition of a pump as defined in the Bureau 

of Mines Dictionary of Mining, Mineral, and Related Terms, U.S. 

Dept. of Interior, 1968. 

Significant and Substantial 

It is the Secretary's position tha Mid-Continent's failure 

to enclose and vent the airlock doors' power unit in issue in 

conformance with 30 C.F.R. § 75.1105 constituted a significant 

and substantial violation of the regulation. The Secretary 

asserts that the conditions underlying the subject order were 

such that the electrical components of this airlock doors' power 

unit could generate a fire which could spread to the working face 

thereby causing injury to the 10 or more miners working in that 

area. 

Mid-Continent controverts these assertions. It alleges that 

various mitigating factors, which were not taken into consideration by Inspector Gibson during this overall gravity determination, surround the subject order and reduce the risk of a fire/ 

1341 
smoke hazard being generated by this installation to a de minimus 

level. ~/ Mid-Continent asserts that the low probability of this 

hazard was admitted on cross-examination by Inspector Gibson. 

Mid-Continent argues that the speculative nature of the hazards 

the inspector relied upon is inconsistent with a significant and 

substantial hazard as defined in Secretary of Labor, MSHA v. 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

1981) • 

Both the Secretary and Mid-Continent correctly cite 

Cement Division, National Gypsum, Co~, 3 FMSHRC, supra, as 

controlling law regarding the elements of a significant and 

substantial violation. There the Commission described the nature 

of such a violation as follows: 

[F]or the reasons that follow, we hold that a violation 

is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety 

or health hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. 

The position advanced by the Secretary--that a violation 

is of significant and substantial nature, so long as it 

poses more than a remote or speculative change that an 

injury or illness will result, no matter how slight that 

injury or illness--would result in almost all violations 

being categorized as signifcant and substantial. Such an 

interpretation would be inconsistent with the statutory 

language and with the role we believe the significant and 

substantial provisions are intended to play in the enforcement scheme. [Emphasis added.]. 

4/ One important factor is that, should both airlock doors be 

raised simultaneously, intake air entering the mine via 4-, 5-, 

and 6-slope entries would short-circuit into 7-slope entry Ca 

return aircourse) and be pulled out of the mine by the exhausting 

ventilation fan. It would bypass completely the single active 

mining section in this mine, the 103 Longwall, and never reach 

the section or the miners working in the section. This location 

and ability to divert contaminated air (if, for example, containing smoke) directly into the 7-slope return aircourse without 

exposing the mining section and the miners to the danger or any 

smoke significantly reduces any potential danger and likelihood 

of serious injury. 

1342 
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: Cl) the 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of danger 

to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihoo1 that the 

injury in question will be of a reasonable serious nature. 

Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 

( 5 th Cir • 19 8 8 ) • 

The third element of the Mathies formula requires "that the 

Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury," 

and that the likelihood of injury must be evaluated in terms of 

continued normal mining operations. U.S. Steel Mining Co., 

6 FMSHRC 1573, 1574 (July 1984). See also Monterey Coal Co., 

7 FMSHRC 996, 1001-02 (July 1985). The operative time frame for 

determining if a reasonable likelihood of injury exists includes 

both the time that a violative condition existed prior to the 

citation and the time that it would have existed if normal mining 

operations had contiued. Halfway, Inc., 8 FMSHRC 8, 12 (January 

1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). 

The question of whether any particular violation is significant 

and subtantial must be based on the particular facts surrounding 

the violation, including the nature of the mine involved. Texasgulf, Inc., 10 FMRSHRC 498, 500-01 (April 1988); Youghiogheny & 

Ohio Coal Company, 9 FMSHRC 1007, 2011-12 (December 1987). 

Finally, the Commission has emphasized that it is the contribution of a violation to the cause and effect of a hazard that must 

be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 

1834, 1836 (August 1984). 

The Secretary states in her brief, "The inspectors noted 

that the hazard--contamination of the escapeway in an emergency 

situation--was reasonable [sic] likely to occur and that subsequent injuries could be anywhere from smoke inhalation to death. 

(Secretary Brief, 7-8>. 

Both Inspectors Elswick and Gibson testified that they are 

aware of mine fires that have started from electrical equipment/ 

motors "similar" to that in place at the airlock doors' power 

1343 

' , 
unit. If a fire were to start at this power unit, such fire 

could ignite the surrounding coal ribs. Because the airlock 

doors' pow~r unit is located on intake air, a fire at this 

location could contaminate the 103 longwall mining section. 

As pointed out in Mid-Continent's brief, the Secretary's 

analysis overlooks a number of relevant considerations. For 

example, in her analysis, the Secretary fails to acknowledge that 

the electrical components of the airlock doors' power unit were 

equipped with safety features designed to protect against the 

very malfunctions urged by the Secretary. Under the requirements 

of Subpart I of 30 C.F.R., the electric motor on the airlock 

doors' hydraulic power unit possessed ground fault, short-circuit, and motor overload protections~ it was subject to regular 

weekly inspection. There was no evidence that these protection 

systems were not operating properly. 

Also overlooked is the fact that, because of the purpose it 

served - that of providing access for mobile equipment to the 

return of the 103 longwall, the airlock doors' power unit operated only intermittently, for short periods of time. It ordinarily operates only in the presence of a mobile equipment operator, 

which equipment, in accordance with the regulations, was required 

to have at least one portable fire extinguisher on it. 

Given these important factors, the possibility of a fire 

occurring at this airlock doors' power unit appears to be just 

that--a mere possibility. Neither inspector in 16 and 18 years 

of underground coal mining experience had ever seen one of these 

hydraulic units catch on fire. 

When considered with other evidence presented by Mid-Continent, particularly the ability to short-circuit intake air directly into the 7-slope return at these airlock doors, see fn. 4, 

ante, the possibility that such ignition could adversely affect 

any miners appears even more remote. As established in part 

through the testimony of Inspector Elswick, all of the component 

parts of the airlock doors' power unit were of incombustible ---.. 

steel construction and the hydraulic fluid contained within it 

was fire-resistant. 

Furthermore, although the coal ribs were exposed, the record 

establishes that Mid-Continent's coal, a medium volatile metallurgical coal, possesses properties which are not susceptible to 

spontaneous combustion and which, as a general matter, make it 

extremely difficult to ignite. 

1344 
Under these facts, the likelihood of a fire/smoke hazard 

being created by this airlock doors' power unit is nothing more 

than a possibility. Inspector Gibson testified as follows: 

Q. And you say that a fire at this installation was reasonably likely to occur? 

A. Yes, sir. 

Q. To me, reasonably likely means that it's probable that 

you're going to have a fire there. Is that what it 

means to you? 

A. I would probably include possible also. 

Q. Well, then, if it's possible, what does unlikely mean? 

A. That it's not possible. 

Q. Well, if unlikely means not possible, what does no likelihood mean? 

A. No--not possible. 

Q. Okay, then, when you say that the occurrence was 

reasonably likely, what you're saying is that that 

occurrence was possible? 

A. Yes. 

Q. You are not saying that the occurrence was probable? 

A. That's right. 

Under the Cement Division, National Gypsum Co. requirements, 

the conditions underlying a given violation must present more 

than a "mere possibility" of injury to miners. This requirement 

has not been met in this case. When applying the standard determined by the Commission, judges must assume that the words used 

must be equated to their normal, ordinary usage. United States 

v. Raynor, 302 U.S. 540, 58 S.Ct. 353, 82 L.Ed. 413 (1938)1 

United States v. Cooper Corp., 312 U.S. 600, 61 S.Ct. 742, 85 

L.Ed. 1071 (1941). 

The American Heritage Dictionary (Houghton Mifflin, 2d 

College Ed. 1976) defines "likely" as "possessing or displaying 

the qualities or characteristics that make something 

probable • • • • " [Emphasis supplied]. 

1345 

. <.:_ - --.--
Under the precedent cited above and based upon my independent review and evaluation of all the evidence, I find the evidence presented is insufficient to establish that Mid-Continent's 

violation of the cited standard was significant and substantial 

in nature. I find the evidence presented fails to show a reasonable likelihood that the hazard contributed to will result in 

an injury of a reasonable serious nature. 

Unwarrantable Failure 

In Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December 

1987), and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 

(December 1987), the Commission held that "unwarrantable failure 

means aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act." 

This conclusion was based on the ordinary meaning of the term 

"unwarrantable failure," the purpose of unwarrantable failure 

sanctions in the Mine Act, the Act's legislative history, and 

judicial precedent. The Commission stated that, while negligence 

is conduct that is "inadvertent," "thoughtless," or "inattentive," conduct constituting an unwarrantable failure is conduct 

that is "not justifiable" or "inexcusable." Emery, supra, 9 

FMSHRC at 2001. 

As recognized by the Commission in Emery, the chain of citations and withdrawal orders provided under section 104(d) of the 

1977-Mine Act to address an operator's unwarrantable failure to 

comply is one of the Secretary's most powerful instruments for 

enforcing mine safety. The heightened negligence standard by the 

Commission in Emery necessarily limits the application of section 

104(d) by the Secretary to situations where an operator's aggravated conduct toward an unsafe condition justifies imposition of 

severe sanctions. 

The Secretary justifies the imposition of this stringent 

enforcement measure on the basis that Mid-Continent was aware of 

the violative condition of the airlock doors' power unit prior to 

the issuance of the present order and did nothing to correct it. 

In fact, the Secretary asserts that Mid-Continent had, at that 

time, been "instructed" by MSHA to correct this violative condition. 

Responsively, Mind-Continent argues that they had no reason 

to believe that the airlock doors' power unit had been installed 

improperly. Mid-Continent further argues that had MSHA, indeed, 

given Mid-Continent any notice, that oral communication of such 

notice was wholly inadequate. 

1346 
In her case in chief, the Secretary asserts Mid-Continent 

had been informed by MSHA of its change in policy concerning the 

applicability of 30 C.F.R. § 75.1105 to the hydraulic power unit 

installations of the type in issue. Such notification was 

alleged to have been given orally to a former Mid-Continent employee by Inspector Elswick during a prior inspection of this 

airlock doors' power unit. 

According to his testimony, Inspector Elswick gave his oral 

notification to Mid-Continent after reading the decision allegedly altering the definition of "permanent pump" under 30 C.F.R. 

§ 75.1105 in Judge Fauver's decision in Southern Ohio Coal Co., 

Docket No. WEVA-86-R, slip op. at 6 (Decision, Aug. 14, 1986) 

(Mid-Continent Exhibit R-10) (Tr. 110). According to Inspector 

Elswick, he had received no other policy memoranda or communication which addressed this policy change. 

Inspector Elswick's testimony in this regard is questionable. 

According to Inspector Elswick, this notification was given MidContinent about six weeks prior to January 14, 1988. However, as 

evidenced by the date stamp on the face of Mid-Continent Exhibit 

R-10, the decision in Southern Ohio Coal Co., was not received by 

the Denver MSHA District Office until February 14, 1988,--a date 

post-dating the subject order by 27 days. Further, this decision 

was not disseminated down to the MSHA field off ice level by the 

subdistrict manager until July 5, 1988. 

Thus contradicted by the document on which he ostensibly 

relied, Mid-Continent asserts that it is difficult to grant any 

credence to Inspector Elswick's testimony concerning the justification for or the oral communicaton of this ostensible notice 

which had the net effect of changing at least 10 years past practice and interpretation of 30 C.F.R. § 75.1105 with respect to 

its applicability to the cited hydraulic power units. 

Whether such notice was given by Inspector Elswick, however, 

is not dispositive of the issue. I agree with Mid-Continent's 

argument that such informal, conversational notice is wholly 

inadequate to justify sanctions under section 104(d) of the Act. 

As established at trial, hydraulic power units identical to the 

one in issue have been used to power airlock doors in the Dutch 

Creek No. 1 Mine since 1978. These units have also been and are 

currently being used in the beltline entries of this mine for 

belt take-up functions. As Mid-Continent points out, identical 

hydraulic power units on the 4-slope beltline, approximately 200 

feet away from the unit in question, are not housed in fireproof 

enclosures and vented to a return air course. Cf. Deibold, Inc., 

v. Marshall, 585 F.2d 1327, 1335-1338 C6th Cir. 1978). 

1347 
Considering the record as a whole, I find that Mid-Continent 

had a mistaken but good faith belief that the hydraulic power 

unit in question was not a pump that was subject to the enclosure 

and ventilation requirements of the cited regulation. In making 

this finding and conclusion, I have considered all the evidence 

including that evidence that fairly detracts from an unwarrantable failure finding. Mid-Continent was negligent but its conduct does not amount to aggravated conduct exceeding ordinary 

negligence. See Utah Power and Light Co. v. MSHA, Docket No. 

WEST 89-161-R (May 24, 1990); Florence Mining Co., 11 FMSHRC 747, 

752-54 (May 1980); Southern Ohio Coal Company, 10 FMSHRC 138, 

142-143 (February 1988). See also Westmoreland Coal Co., 7 

FMSHRC 1338, 13.43 (September 1985). 

Civil Penalty 

In accordance with the mandate of section llOCi) of the Act, 

I have considered the statutory criteria in section llO(i) of the 

Act. With respect to size, I have considered the parties' stipulation that the Dutch Creek No. 1 Mine produced 277,194 tons of 

coal during the year prior to the issuance of the citation and 

that overall, as stated in the joint document the parties filed 

on August 16, 1989, Mid-Continent produced a total of 666,582 

tons of coal during that year. The proposed penalty would not 

adversely affect Mid-Continent's ability to continue in business. 

The computer printout, Exhibit P-1, shows Mid-Continent's 

assessed violation within the two-year period prior to the 

inspection. 

The operator demonstrated good faith by the timely abatement of the violations cited in this docket. The gravity of the 

violation and the operator's negligence has been covered under 

the discussion regarding the issue of whether the violation was 

of a significant and substantial nature and whether the violation 

was a result of Mid-Continent's aggravated conduct constituting 

more than ordinary negligence. 

Everything considered, I find $100 to be the appropriate 

civil penalty for Mid-Continent's violation of 30 C.F.R. 

§ 75.1105. 

1348 
ORDER 

In view of the foregoing findings and conclusions, it is 

ORDERED that Section 104(d)(2) Order No. 3223214 be MODIFIED to 

delete the significant and substantial designation and the 

inspector's determination that this violation resulted from 

Mid-Continent's unwarrantable failure to comply with the mandatory safety standard 30 C.F.R. § 75.1105. 

Accordingly, this enforcement document (Order No. 3223214) 

is MODIFIED to change its nature from a Section 104Cd)(2) order 

to a Section 104Ca) citation. As modified to a 104Ca) citation, 

it is AFFIRMED. 

The remaining seven citations/orders are also AFFIRMED and 

Mid-Continent is ORDERED to pay the assessed civil penalty of 

$5,620 in satisfaction of the eight violations charged in this 

case. Payment is to be made to MSHA within thirty (30) days of 

the date of this decision and order, and upon receipt or payment, 

this matter is dismissed. 

Distribution: 

Au st F. Cetti 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, 818 Colorado 

Avenue, P.O. Drawer 790, Glenwood Springs, CO 81602 (Certified 

Mail) 

/ek 

1349 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 21 1990 

ARMANDO M. RIVAS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

PHELPS DODGE MORENCI, INC., 

Respondent 

. . 

Docket No. WEST 89-395-DM 

MD 89-36 

DECISION 

Appearances: Lisa K. York, Esq., Phoenix, Arizona, 

for Complainant, 

Before: 

Michael D. Moberly, Esq., RYLEY, CARLOCK & APPLEWHITE, 

Phoenix, Arizona, 

for Respondent. 

Judge Lasher 

This proceeding arose pursuant to the provisions of Section 

105Cc)(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801, et ~ A preliminary hearing to resolve jurisdictional issues 

was held in Phoenix, Arizona, on February 6, 1990. Thereafter, and 

prior to formal hearing on the merits, the parties reached an amicable 

resolution of this matter, based on a cash payment to Complainant. On 

June 9, 1990, the parties filed a duly executed stipulation authorizing dismissal of this proceeding with prejudice. 

Accordingly, the matter having been settled and the parties so 

authorizing, this proceeding is dismissed with prejudice, with both 

parties to bear their own costs and attorneys fees. 

Distribution: 

;i/:-~-'d.L ~/pf": . .£;..-~:·~()}~ Michael A. ~~her, Jr. 

Administrative Law Judge 

Lisa K. York, Esq., 2700 North Central Avenue, Suite 975, Phoenix, AZ 

85004 (Certified Mail) 

Armando M. Rivas, Route One, Box 436, Safford, AZ 88596 (Certified 

Mail) 

Michael D. Moberly, Esq., Nathan R. Niemuth, Esq., RYLEY, CARLOCK & 

APPLEWHITE, 101 North First Avenue, Suite 2600, Phoenix, AZ 85003 

C Certified Mail) 

/ek 

1350 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

WAYNE L. IVEY, JUN 2:11990oISCRIMINATION PROCEEDING 

Complainant 

v. 

Docket No. WEST 90-67-DM 

MD 89-117 

BLUE RIDGE MINING COMPANY, Elk Peak Mine 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On December 11, 1989, you filed with this Commission a 

complaint of discrimination under section 105(c) of the 

Federal Mine Safety and Health Act 1977. On March 16, 1990, 

a show cause order was issued directing you to provide information 

regarding your complaint or show good reason for your failure 

to do so. The show cause was mailed to you certified mail, 

return receipt requested, and the file contains the receipt 

card indicating you received the show cause order. You have 

however, not responded and complied with the show cause 

order. 

Accordingly, this case is DISMISSED. 

Distribution: 

--""'"'-'""\ .) t\ \~ 

Paul Merlin 

Chief Administrative Law Judge 

Mr. Wayne L. Ivey, P.O. Box 3902, Butte, MT 59702 (Certified Mail) 

Blue Ridge Mining Company, 56 East Mercury St., Butte, MT 59702 

(Certified Mail) 

/ss 

1351 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 5 1990 

BOBBY STROUTH AND 10 MINERS, 

Complainants . . COMPENSATION PROCEEDING 

v. 

CAVALIER MINING CORPORATION, 

Respondent 

Docket No. VA 90-13-C 

Mine No. 1 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainants have requested approval to withdraw their 

complaints in the captioned case. Under the cir umstances 

herein, permission to withdraw is granted. 29 F.R. § 

2700.11. This case is there ore dismissed. 

Distribution: 

Bobby G. Strouth, Route 2, Box 334, Pound, VA 24279 

(Certified Mail) 

Timothy Gresham, Esq., Penn Steuart, Eskridge & Jones, P.O. 

Box 2288, Abingdon, VA 24210 CCertif ied Mail) 

nt 

1352 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 7 1990 

CHARLES SCOTT HOWARD 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

HARLAN-CUMBERLAND COAL 

COMPANY, 

Respondent 

Docket No. KENT 90-98-D 

BARB CD 89-25 

C-2 Mine 

ORDER OF DISMISSAL 

The Parties' Agreed Motion to Dismiss filed June 20, 1990, 

is GRANTED. I find that the Settlement Agreement, General 

Release and Covenant Not To Sue, fairly resolves of the issues 

raised by the Complainant, and I approve the Settlement 

Agreement, General Release and Covenant Not to Sue. 

It is ORDERED that, pursuant to 29 C.F.R. § 270.11 and 

2700.54, this case be DISMISSED with prejudice. It is further 

ORDERED that the Parties shall abide by all the terms of the 

Settlement Agreement, General Release and Covenant Not to Sue. 

A··t--- Avram Weisberger 

Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucy, Inc., P. o. Box 360, Hazard, KY 41701 (Certified Mail) 

James D. Cockrum, Esq., Charles E. Allen, III, Esq., Brown, Todd 

& Heyburn, Harlan-Cumberland Coal Company, 1600 Citizens Plaza, 

Louisville, KY 40202 (Certified Mail> 

dcp 

1353 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 7 1990 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitoner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

CONTEST PROCEEDING 

Docket No. SE 89-16-R 

Citation No. 3012039; 10/25/88 

No. 3 Mine 

Mine I.D. # 01-00758 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-42 

A.C. No. 01-00758-03732 

No. 3 Mine 

DECISION 

Appearances: William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama 

for the Secretary of Labor; 

H. Thomas Wells, Jr., Esq., Maynard, Cooper, 

Frierson, and Gale, P.C., Birmingham, Alabama 

for Jim Walter Resources, Inc. 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seg., the "Act," to contest Citation No. 

3012039 issued by the Secretary of Labor pursuant to Section 

104(a) of the Act against Jim Walter Resources, Inc., (Jim 

Walter) and for review of civil penalties proposed by the 

Secretary for the violation alleged therein. More 

particularly the underlying issue is whether Jim Walter's 

proposed change in its Ventilation System, Methane and Dust 

Control Plan (Ventilation Plan), which was rejected by the 

Secretary would at all times guarantee no less than the same 

measure of protection afforded the miners at the subject mine 

by the existing provisions of the Ventilation Plan. 

The citation at bar alleges a violation of the standard 

at 30 c.F.R. § 75.316 and, as amended, charges as follows: 

1354 
The Jim Walter Resources No. 3 mine has implemented 

and adopted the proposed change in the supplement 

to the Ventilation System, Methane and Dust Control 

Plan identified as 9-lV-52, which requested a 

change in the air current of 25,000 cfm be 

permitted prior to be [sic] construed as a major 

air change. This request has been denied in 

writing by the District Manager. On 10/25/88 JWR 

Inc., was operating the No. 3 Mine without having 

adopted a Ventilation Plan which had been approved 

by the Secretary. 

By letter dated September 29, 1988, Jim Walter had 

requested a change in its existing approved Ventilation Plan. 

That letter, directed to Carl Boone, the Acting District 

Manager of Mine Safety and Health Administration District 

No. 7, reads as follows: 

Please substitute the attached page for page 9 

of the current approved ventilation plan signed 

September 15, 1988. The only difference between 

the two pages is that the attached page specifies 

25,000 cfm or greater air change on a section split 

be considered a major change. The supplement will 

be implemented upon approval. 

More particularly Jim Walter sought to add the following 

language to its Ventilation Plan: "[a] ventilation change of 

25,000 C.F.M. or greater of any section split will be 

considered a major air change and the change will be made 

according to 75.322. 11 

Acting District Manager Boone rejected this request in 

the following letter addressed to Mine Manager G.W. Coates: 

The proposed supplement to the Ventilation 

System and Methane and dust Control Plan dated 

September 29, 1988, which seeks to make a change of 

25,000 CFM be considered a major change, has been 

reviewed and cannot be approved. 

Currently any change less than 9,000 CFM can 

be made. A change greater than 9,000 CFM would not 

provide the same measure of protection to the 

miners. 

A subsequent request for the same change was again 

rejected by Mr. Boone in the following letter to Coates: 

Your request dated January 19, 1988, that the 

amount of air considered to be a major ventilation 

change at the above mine be increased to a maximum 

of 25,000 cfm has been reviewed by the District 

1355 
ventilation staff. The National Coal Mine Health 

and Safety Inspection Manual for Underground Coal 

Mines states, in part, that any ventilation change 

in which any split of air is increased or decreased 

by an amount equal to or in excess of 9,000 cfm is 

considered a major change. Historically, this 

9,000 cfm limit has been established for about 17 

years; therefore, this request is denied. 

This Commission discussed the underlying legal authority 

for the litigation of disputed ventilation plans in Secretary 

v. Carbon County Coal Co., 7 FMSHRC 1367 (1985). It stated 

in this regard as follows: 

The requirement that the Secretary approve an 

operator's mine ventilation plan does not mean that 

an operator has no option but acquiesce to the 

Secretary's desires regarding the contents of the 

plan. Legitimate disagreements as to the proper 

course of action are bound to occur. In attempting 

to resolve such differences, the Secretary and an 

operator must negotiate in good faith and for a 

reasonable period concerning a disputed provision. 

Where such good faith negotiation has taken place, 

and the operator and the Secretary remain at odds 

over a plan, review of the dispute may be obtained 

by the operator's refusal to adopt the disputed 

provision, thus triggering litigation before the 

Commission. Penn Allegh Coal Co., 3 FMSHRC 2767, 

2773 (December 1981). Carbon County proceeded 

accordingly in this case. The company negotiated 

in good faith and for a reasonable period 

concerning the volume of air to be supplied the 

auxiliary fans. Carbon County's refusal to 

acquiesce in the Secretary's demand that the plan 

contain a free discharge capacity provision led to 

this civil penalty proceeding. 

It is not disputed in this case that Jim Walter 

negotiated in good faith and for a reasonable period 

concerning the disputed provision. While in this case it was 

the refusal to approve Jim Walter's proposed change in the 

plan that led to this contest and civil penalty proceeding 

the underlying issue is analagous and review under the Carbon 

County rationale is warranted. The Commission did not 

designate in the Carbon County decision which party must bear 

the burden of proof nor did it set forth the standard of 

proof to be applied. The parties hereto have agreed however 

that Jim Walter, as the moving party attempting to include 

the disputed provision into its Ventilation Plan, has the 

burden of proof. See 5 u.s.c. § 556 (d). I have further 

determined by analogy that the standard of proof in this 

proceeding should be the same standard applicable in 

1356 
modification proceedings under Section 10l(c) of the Act.l/ 

Thus I find that Jim Walter bears the burden in this 

proceeding of proving by a preponderance of the evidence that 

its alternative method of achieving the result (purpose) of 

the standard at 30 C.F.R. § 316 and of its Ventilation Plan 

will at all times guarantee no less than the same measure of 

protection afforded the miners at its mine by such standard 

and its existing Plan.2/ By applying this standard to the 

case at bar it is clear that Jim Walter has failed to sustain 

its burden of proof. 

Under current application of the Jim Walter Ventilation 

Plan and within the framework of 30 C.F.R. § 75.322 any 

ventilation change in which any split of air is to be 

increased or decreased by an amount equal to or in excess of 

9,000 cfm must be made only when the mine is idle and that 

before mine power can be restored in all areas affected by 

the ventilation changes an examination must be performed in 

accordance with 30 C.F.R. § 75.303. It is acknowledged that 

during the course of mining operations occasions do arise in 

which additional air is needed to ventilate methane and dust 

from a working section. Under MSHA's current application of 

the standard at 30 C.F.R. § 75.322 Jim Walter is permitted to 

increase air by 9,000 cfm with miners underground and the 

mine operating with electrical power. In the event a greater 

quantity of air is needed, ~IBHA requires that such changes be 

made while the mine is idle with the miners outside. The 

I/ Section lOl(c) of the Act reads in relevant part as 

follows: 

Upon petition by the operator or the representative 

of miners the Secretary may modify the application 

of any mandatory safety standard to a coal or other 

mine if the Secretary determines that an 

alternative method of achieving the result of such 

standard exists which will at all times guarantee 

no less than the same measure of protection 

afforded the miners of such mine by such standard, 

or that the application of such standard to such 

mine will result in a diminution of safety to the 

miners in such mine.*** 

2/ The Secretary argues that whatever decision is made by the 

MsHA District Manager, whether to impose a new plan provision 

over the operator's objection or whe~her to refuse to include 

a provision the operator desires, is to be reviewed under an 

"arbitrary and capricious" standard. The "arbitrary and 

capricious" standard is however only applicable under the 

Administrative Procedure Act to judicial review of final 

administrative action following the administrative hearing. 

See 5 u.s.c. § 706(2)(A). 

1357 
essence of Jim Walter's requested change in its Ventilation 

Plan is that it be permitted to increase ventilation by as 

much as 2_5, 0 00 cfm with miners remaining underground and the 

mine operating. In other words Jim Walter is requesting to 

be allowed to make ventilation changes up to 25,000 cfm 

without having to remove the miners or perform an examination 

-of the affected areas in accordance with 30 C.F.R. § 75.303 

-before restoring mine power and resi.nning production. Jim 

Walter therefore has the burden of proving that making such 

ventilation changes is at least as safe with miners 

underground, without cutting power and without performing 

examinations in accordance with 30 C.F.R. § 75.303. 

In support of its position, Jim Walter cites computer 

simulations and in-mine tests it performed purportedly 

showing that altering the air flow by as much as 25,000 cfm 

did not result in what its experts deemed to be significant 

ventilation changes. It is not disputed however that these 

simulatious and tests cannot possibly address the multitude 

of potential variables that can and do occur in such a 

complex system as the Jim Walter No. 3 Mine. The results of 

a 25,000 cfm air change cannot therefore be reliably 

predicted. Based on the Secretary's credible evidence, the 

consequences could be serious including an inundation of 

excess methane in the working areas. Clearly the safer 

practice is to make the requested ventilation changes while 

the mine is idle and then to conduct an inspection before 

allowing the miners to retur.n underground. Indeed one of Jim 

Walter's own experts, senior mine engineer Richard Pate1 

essentially agreed in the following colloquy at hearing: 

I , 

Q. Mr. Pate, when a change, a ventilation change is 

made in the mine, let's just assume that a 25,000 

change was made during this study, how can you be 

assured of what the affects of that change are 

going to be in other areas of that mine without 

first going and checking and seeing on those 

conditions? 

A. There's no other way to know besides checking, 

doing a check of the parts of the mine. 

Q. So would it be safer from the miners' standpoint 

for workers down there that when a change such as 

25,000 is made to go and examine those areas to see 

what the conditions are before permitting them in 

the return? 

A. It is a normal practice when any air change is 

made for us to examine the areas to see what effect 

it has had on the mines. 
Q. That would be.the safest route to go? 

A. Yes. 

(Tr. 36-37). 

The opinion of the operator's expert is reinforced by 

the Secretary's evidence in this case. Under the 

circumstances Jim Walter has not sustained its burden of 

proving that the proposed alternative procedures set forth in 

its proposed modification to its Ventilation Plan would at 

all times guarantee no less than the same measure of 

protection afforded the miners at its mine by the application 

of the regulatory standards and the existing Ventilation Plan. 

The violation in the citation is according proven as charged. 

Considering the absence of any hazard under the limited 

circumstances of this case and that the purpose of the 

issuance of the citation in this case was to have the 

attempted modification to its Ventilation Plan reviewed by 

the Commission, the proposed civil penalty of $20 is clearly 

appropriate. 

ORDER 

Jim Walter Resources, Inc., is dire~ted to pay a civi~ 

penalty of ~20 within 30 day~~ c;>f the dat~\ of this decisiod} 

't J~ \\ ;\ 

· f L\ I ..__A.·, 1 / \ . :fVV-- \\ ."\,._.;V\w/ \ r 1 ·\\ : \,/' I Gar~ t:telick. \':_,..._I'· '· 

Adm1n1strat1ve ·~Law Judge -.........._ i: ".\ 

William Lawson, Esq., Office of the Solicitor1\u.s. 

Department of Labor, 2015 Second Avenue, Nortfi:;~ Birmingham, 

AL 3520 3 C Certified Mail) '-.\ " ~ \. 

H. Thomas Wells, Esq., Maynard, Coo~er, Frierson, & Gale, 

P.c., 12th Floor, Watts Building, Birmingham, AL 35203 

(Certified Mail) 

nt 

1359 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

GOLDEN OAK MINING, CO., L.P., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. KENT 90-185-R 

Citation No. 3370565; 

4/12/90 

Golden Oak No. 4 Mine 

Appearances: Teresa Taylor, Esq., Cook Law Office, Whitesburg, 

Kentucky, for Contestant (Golden Oak); 

w. F. Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Secretary of Labor (Secretary). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Golden Oak filed a Notice of Contest on May 17, 1990, 

challenging a section 104(a) citation issued by MSHA on April 12, 

1990, alleging a violation of 30 C.F.R. § 75.1712-1. The citation 

required abatement of the violation by May 14, 1990. Because 

Golden Oak had been informed that a withdrawal order would be 

issued for failure to abate, it sought an expedited hearing on 

its notice of contest. After the case was assigned to me, MSHA 

extended the abatement time for 30 days. Pursuant to notice 

issued May 18, 1990, I called the case for hearing on June 12, 

1990, in Hazard, Kentucky. Cecil Davis, Michael Keene, and John 

Hendley testified on behalf of the Secretary. Willard Back, 

Hiram Standifur, Jr., and Ross Keegan testified on behalf of 

Golden Oak. At the conclusion of the testimony, both parties 

argued their positions on the record. I considered the record 

and the contentions of the parties in issuing a bench decision in 

which I modified the citation and affirmed it as modified. I 

dismissed Golden Oak's contest. Pursuant to 29 C.F.R. § 2700.65, 

I herewith reduce that oral decision to writing. 

FINDINGS OF FACT 

1. Golden Oak Mining Co., L.P., is the owner and operator 

1360 
of an underground mine in Letcher County, Kentucky known as 

Golden Oak No. 4 Mine. 

2. Golden Oak began operating the subject mine in 

April 1986 under the corporate name Golden Oak Mining Co., Inc. 

The company's ownership and legal structure were changed in about 

July 1989 to Golden Oak Mining Co., L.P. 

3. The mine is about 3 to 3-1/2 miles deep and crosses a 

number of abandoned mines as well as a sandstone fault area. It 

has two mining sections and operates one maintenance and two 

production shifts. 

4. On October 20, 1986, the MSHA District Manager, under 30 

C.F.R. § 75.1712-4, granted Golden Oak, upon its written 

application, a waiver of the requirements contained in 30 C.F.R. 

§ 75.1712-1 for surface bathing facilities at the No. 4 Mine. 

Approximately 23 miners were employed at the mine. 

5. On May 31, 1988, the MSHA District Manager again issued 

a waiver under § 75.1712-4 ·to Golden Oak for the No. 4 Mine. 

Approximately 105 miners were employed at the mine. 

6. In about July 1989, after the ownership of Golden Oak 

and its company name and structure were changed, the mining 

permits were transferred to the new company. The MSHA mine I.D. 

number remained the same however. 

7. On December 5, 1989, Golden Oak filed a request for 

waiver of the requirements for surface bathing facilities and 

clothing change rooms with the MSHA District Manager pursuant to 

30 C.F.R. § 75.1712-5. It submitted a petition signed by all the 

employees of the mine, 85 in number, stating that they did not 

desire that bathing facilities be made available. The request, 

on an MSHA form, indicated that the life of the mine is greater 

than one year, that an adequate source of suitable water is not 

available on mine property, and that centrally located bathing 

facilities would not be practical. The reason given for this 

last conclusion is that "employees prefer to bath at home at 

present time." 

8. Federal inspector Cecil Davis made an evaluation of the 

request for waiver in January 1990. He determined that the mine 

had an adequate water supply, that it had a trailer used as a 

clothing change area, and that it had portable sanitary toilet 

facilities. He discussed mining projections with Golden Oak 

management officials and concluded that the mine had a remaining 

life of four years. Inspector Davis recommended that the waiver 

be denied. 

9. In January 1990, Michael Keene was the Acting District 

Manager in MSHA District 6. He reviewed Golden Oak's application 

1361 
and Inspector Davis' evaluation. On January 24, 1990, he denied 

Golden Oak's request for an extension of the waiver. The letter 

of denial ·stated that an investigation at the subject mine 

disclosed that it was practical to develop a private water 

supply, that an adequate supply of electricity existed, that 

there was an adequate area to construct or provide portable 

bathing facilities and that the life of the mine was 

approximately four years. 

10. On April 12, 1990, Inspector Davis, in the course of a 

regular safety and health inspection of the subject mine, issued 

a 104(a) citation for a violation of 30 C.F.R. § 75.1712-1 

because bathing facilities, clothing change rooms and sanitary 

facilities were not provided at the mine and a request for a 

waiver of these requiremen~s was denied on January 26, 1990. 

Abatement was required by May 14, 1990. 

11. On May 7, 1990, Acting District Manager Keene met with 

Willard Back, Golden Oak's Safety Director. Back informed Keene 

that the life of the mine was approximately 2 years. He stated 

that Golden Oak drilled a well on the mine property but only 

obtained 5 gallons of water per minute. The mine was using water 

from an abandoned mine. It was believed that the source of this 

water was an underground stream. Nothing was brought up to Mr. 

Keene which in his opinion was sufficient to cause him to change 

his prior decision denying the waiver. 

12. John Hendley, an industrial hygienist employed by MSHA, 

estimated that the subject mine used at least 36,000 gallons of 

water per day in its mining operation. Approximately 2700 

gallons additionally per day would be needed for bathing 

facilities for 85 miners. 

13. A water sample taken from the subject mine on 

May 31, 1990, showed that the water was not suitable for 

drinking, but was suitable for bathing. It could be made 

suitable for drinking with a slight chlorination treatment. 

14. On May 17, 1990, Golden Oak's Vice President wrote to 

MSHA, asking for reconsideration of the waiver request. The 

letter estimated the life of the mine at 2 years. 

15. At the hearing, Golden Oak's Manager of Engineering, 

Ross Keegan, estimated the mine life at a maximum of 16 months. 

He explained that as of May 29, 1990, the estimated life was 2 

years, but that recent adverse conditions had resulted in the 

reduction to 16 months. He stated that although a small quantity 

of water was taken from a well and an erratic source of water was 

being used from an abandoned mine, Golden Oak still had to truck 

in water on occasion to supply the mining equipment. Keene had 

not been made aware of the fact that water was trucked in; in 

1362 
fact, Golden Oak's Safety Director was not aware of it until the 

day before the hearing. 

16. Keegan testified ·that it would take approximately. 

9 months to get government approval for a bathing facility and 

approximately 3 additional months to construct one. The 

estimated nine month period included environmental studies, and 

the approval of a sewage treatment facility. These allegations 

were not made to Mr. Keene at the time the waiver was sought, nor 

at the time reconsideration of the denial was requested. 

17. On May 17, 1990, Inspector Davis extended the abatement 

time to June 18, 1990. The extension was granted because Golden 

Oak was looking into the feasibility of constructing bathing 

facilities and had water sampling tests performed. 

REGULATIONS 

30 C.F.R. §§ 75.1712, 75.1712-1, 75.1712-4 and 75.1712-5 

provide as follows: 

§ 75.1712 Bath houses and toilet facilities 

[Statutory Provisions] 

The Secretary may require any operator to 

provide adequate facilities for the miners to 

change from the clothes worn underground, to 

provide for the storing of such clothes from 

shift to shift, and to provide sanitary and 

bathing facilities. Sanitary toilet 

facilities shall be provided in the active 

workings of the mine when such surf ace 

facilities are not readily accessible to the 

active workings. 

§ 75.1712-1 Availability of surface bathing 

facilities; change rooms; and sanitary 

facilities. 

Except where a waiver has been granted 

pursuant to the provisions § 75.1712-4, each 

operator of an underground coal mine shall on 

and after December 30, 1970, provide bathing 

facilities, clothing change rooms, and 

sanitary facilities, as hereinafter 

prescribed, for the use of the miners at the 

mine. 

§ 75.1712-4 Waiver of surface facilities requirements. 

1363 
ISSUES 

The Coal Mine Safety District Manager for 

the district in which the mine is located 

may, upon written application by the 

operator, waive any or all of the 

requirements of § § 75 .1712-1 through 75 .1712- ·· 

3 if he determines that .the operator of the 

mine cannot or need not meet any part or all 

of such requirements, and, upon issuance of 

such waiver, he shall set forth the 

facilities which will not be required and the 

specific reason or reasons for such waiver. 

§ 75•1712-5 Application for waiver of surface facilities. 

Applications for waivers of the 

requirements of §§ 75.1712-1 through 75.1712-

3 shall be filed with the Coal Mine Safety 

District Manager and shall contain the 

following information: 

(a) The name and address of th.e mine 

operator; 

(b) The name and location of the mine; 

(c) A statement explaining why, in the 

opinion of the operator, the installation or 

maintenance of the facilities is impractical 

or unnecessary. 

1. Whether the Commission has ju.risdiction to determine 

whether a waiver of the requirements of 30 C.F.R. § 75.1712-1 was 

properly denied by MSHA. 

2. Whether a violation of 30 C.F.R. § 75.1712-1 was 

established: 

(a) Whether MSHA's denial of a waiver was arbitrary or 

capricious. 

3. Whether the abatement time for the violation charged in 

the contested citation is reasonable. 

CONCLUSIONS OF LAW 

I. JURISDICTION 

The Secretary challenges the jurisdiction of the Commission 

to determine whether MSHA's District Manager properly denied a 

waiver of the surface bathing requirements of 30 C.F.R. 

§ 75.1712-1. The Secretary argues that this issue can be 

1364 
considered only in a petition for modification of the standard 

under section lOl(c) of the Act, and that the jurisdiction to 

consider such a petition is entrusted to the Secretary and not 

the Commission. I disagree. Golden Oak does not seek to modify 

a mandatory standard; it asserts that the mandatory standard was 

not violated because a waiver provided for in the standard was 

arbitrarily refused. This .amounts to a contest of a citation. I 

conclude that the Commission has jurisdiction to consider such a 

challenge. 

II. VIOLATION 

A. 30 C.F.R. § 75.1712-1 requires surface bathing 

facilities at all underground mines. No such facility has been 

provided at the subject mine. 

B. Michael Keene testified that he was acting District 

Manager on January 24, 1990, when the waiver was denied. There 

is no contrary evidence of record. I conclude that his action in 

denying the waiver was the action of the MSHA District Manager. 

c. Mr. Keene based his denial of the requested waiver 

on his conclusion that an adequate water supply was available at 

the mine, since substantial water was being used in the mining 

process. He concluded that Golden Oak could and should be held 

to the requirements of the standard. The regulations give the 

District Manager discretion to grant or deny such a waiver. In 

exercising that discretion the District Manager may not act 

arbitrarily or capriciously. I conclude that the evidence 

establishes that he did not act arbitrarily or capriciously, 

but, on the contrary, based his denial on substantial evidence 

before him that Golden Oak was able to meet the standard's 

requirements. In determining whether he abused his discretion, I 

have to look to the facts and circumstances which were made known 

to him at the time. Subsequent developments or changes in the 

mine situation cannot be used to show an abuse of discretion. I 

conclude that a violation of the standard was shown. 

III. ABATEMENT TIME 

Golden Oak was notified on January 24, 1990, that the 

requested waiver was denied. It took no steps to protest or to 

comply until after the citation was issued on April 12, 1990. 

The time for abatement was originally set at May 14, 1990, and 

later extended to June 18, 1990. So far as the record shows, 

Golden Oak's efforts to abate the violation have been minimal. I 

have further extended the abatement time to July 12, 1990. I 

conclude that under the circumstances the time for abatement is 

reasonable. 

1365 
ORDER 

Based on the above findings of fact and conclusions of law, 

citation 3370565 issued April 12, 1990 is MODIFIED to extend the 

termination date to July 12, 1990. As modified the citation is 

AFFIRMED. The notice of contest is DISMISSED. 

~Ztas ~!:Ji~rzd:i-~~ (/ ~ames A. Broderick 

' Administrative Law Judge 

Distribution: 

Teresa Taylor, Esq., Cook Law Office, 118 Hays Street, P.O. 

Drawer 909, Whitesburg, KY 41858-0909 (Certified Mail) 

William Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

slk 

1366