SEPTEMBER 1984 

Commission Decisions 

9-24-84 

9-24-84 

Pyro Mining Company 

Thompson Brothers Coal Co. 

KENT 84-151 

PENN 81-171 

Administrative Law Judge Decisions 

9-04-84 

9-06-84 

9-07-84 

9-12-84 

9-12-84 

9-19-84 

9-20-84 

9-20-84 

9-21-84 

9-24-84 

9-24-84 

9-24-84 

9-24-84 

9-24-84 

9-24-84 

9-24-84 

9-26-84 

9-27-84 

9-28-84 

9-28-84 

Harrison Western Corporation CENT Bl-249-RM 

Robin Mullen v. Jim Walter Resources SE 82-57-D 

Turner Brothers, Inc. CENT 84-5 

Pittsburg & Midway Coal Mining Co. CENT 82-1 

Pyro Mining Company KENT 84-151 

Ferndale Ready Mix & Gravel, Inc. WEST 82-58-M 

Reading Anthracite Company PENN 84-142 

Monolith Portland Cement Co. WEST 84-31-M 

United States Steel Corporation LAKE 83-95-M 

Crockett Coal Company, Inc. VA 84-23 

Industrial Constructors Corp. WEST 83-70-M 

Donald Wiggins v. Colowyo Coal Co. WEST 83-117-D 

Industrial Constructors Corp. WEST 84-15-M 

Local 1889/UMWA v Westmoreland Coal WEVA 81-256-C 

Sec. Labor on behalf of Robt. Ribel, WEVA 84-4-D 

John Kanosky & Danny Wells v. WEVA 84-33-D 

Eastern Associated Coal Corp. WEVA 84-66-D 

W-P Coal Company WEVA 84-245 

Herman Whaling v. Eastern Assoc.Coal WEVA 83-238-D 

Jeffrey Fankhauser v. GEX Hardy, Inc.LAKE 84-87-D 

Sterling Energy, Inc. KENT 82-109 

Layne Hamilton v. Stone Mountain VA 83-46-D 

Trucking Company, Inco 

Pg. 2089 

Pg. 2094 

Pg. 2100 

Pg. 2119 

Pg. 2125 

Pg. 2141 

Pg. 2150 

Pg. 2154 

Pg. 216 7 

Pg. 2170 

Pg. 2174 

Pg. 2178 

Pg. 2181 

Pg. 2185 

Pg. 2187 

Pg. 2192 

Pg. 2203 

Pg. 2289 

Pg. 2293 

Pg. 2296 

Pg. 2298 

Pg. 2300 

SEPTEMBER 1984 

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

z. B. Houser v. Northwestern Resources Company, Docket No. WEST 83-101-D. 

(Judge Vail, July 26, 1984) 

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket No. SE 84-23. 

(Judge Merlin, July 30, 1984) 

Secretary of Labor, MSHA v. Carbon County Coal Company, Docket No. WEST 82-106. 

(Judge Moore, Interlocutory Review of July 2, 1984 Order) 

Secretary of Labor, MSHA v. Kennecott Minerals Company, Docket Nos. 

WEST 82-155-M, WEST 83-60-M. (Judge Morris, August 21, 1984) 

Gary Goff v. Youghiogheny & Ohio Coal Company, Docket No. LAKE 84-86-D. 

(Judge Melick, August 24, 1984) 

Review was denied in the following case during the month of September: 

Secretary of Labor on behalf of John Cooley v. Ottawa Silica Company, Docket 

No. LAKE 81-163-DM. (Judge Koutras, August 15, 1984) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PYRO MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 24, 1984 

Docket No. KENT 84-151 

DECISION 

This civil penalty case arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~· (1982). On August 24, 1984, 

we directed review of this case, sua sponte, to consider "the question 

of whether the judge erred in determining an appropriate civil penalty 

for [order] # 2338185 based on criteria not included in section llO(i) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(i)." 

We conclude that the judge erred in lowering the penalty amount because 

of his belief that this Commission's action in lowering certain penalty 

amounts the same judge had assessed in an unrelated case reflected a 

general dissatisfaction with his penalty assessments. We conclude 

further that in the present case a higher penalty is warranted for the 

violation cited in order No. 2338185, and we assess a penalty totalling 

$1,500 for that violation. 1./ 

The main features of the factual background and procedural history 

in this proceeding may be summarized briefly. On-January 24~ 1984, an 

inspector of the Department of Labor's Mine Safety and Health Administration ("MSHA"), inspecting Pyro Mining Company's No. 9 Slope underground coal mine, issued two withdrawal orders to Pyro pursuant to 

section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l). The orders 

alleged that Pyro had failed to comply with its roof control plan in 

violation of 30 C.F.R. § 75.200, a mandatory safety standard requiring 

operators, inter alia, to follow their approved roof control plans, and 

that the violations were significant and substantial and caused by the 

operator's unwarrantable failure to comply with the cited standard. The 

withdrawal order that is the subject of the matter before us (order 

No. 2338185) stated: 

1./ In our direction for review of this case, we stayed the briefing 

schedule. As discussed in the text, the focus of our concern with the 

judge's decision is narrow and involves considerations of our ovn 

judicial administration. Under these circumstances, we do not deem it 

necessary to order the submission of briefs by the parties. Accordingly, 

we have proceeded to decide this case on an expedited basis. 

20.89 
The approved roof control plan .•. was not being 

followed on the No. 5 Unit, ID No. 005, in that the 

last open crosscut between Nos. 5 and 4 entries 

(100 feet inby spad No. 1380, #5 entry) was unsupported for an area of approximately 15 ft. long 

by 20 ft. wide and the area had not been dangered 

off, so as to warn persons that the area was 

unsupported. 

Pyro filed notices of contest concerning both orders, and an 

expedited hearing on these contests was held before a Commission administrative law judge on February 28, 1984. At the time of the hearing, 

the Secretary of Labor had not filed a proposal for the assessment of 

penalties with respect to the two violations, but the judge consolidated 

penalty issues with the contests. At the hearing, Pyro stipulated that 

the two orders properly alleged violations of section 75.200 and that 

the violations were significant and substantial. The operator limited 

its contest to a challenge of the inspector's special findings that the 

violations were caused by an unwarrantable failure to comply with the 

standard. Following a bench decision rendered at the conclusion of the 

hearing, the judge issued a written decision on May 15, 1984. 6 FMSHRC 

1319 (May 1984)(ALJ). 

In his decision, the judge sustained the unwarrantable failure 

finding in order No. 2338185. However, he vacated the unwarrantable 

finding in the other order and modified that order to a citation under 

section 104(a) of the Mine Act, 30 U.S.C. § 814(a), with associated 

significant and substantial findings. Although the judge had taken 

evidence at the hearing relevant to penalties, he severed all penalty 

issues involving the two violations because of his determination that 

the operator had not had the opportunity to participate in the Secretary's 

procedures for review of citations and orders set forth at 30 C.F.R. 

§ 100.6. 6 FMSHRC at 1328-32. Neither party sought review of the 

judge's decision with this Commission. 

After the hearing, the Secretary filed his proposal for assessment 

of penalties and the severed civil penalty case was assigned to the same 

judge on June 27, 1984. The Secretary proposed the assessment of a 

$1,000 penalty for each of the two violations. In a decision issued on 

July 26, 1984, the judge assessed a penalty of $1,000 for the violation 

cited in order No. 2338185, and a penalty of $25 for the other violation. 

6 FMSHRC 1789 (July 1984)(ALJ). ]:_/ We subsequently directed review, sua 

sponte, limited to the subject of the penalty assessed for the violation 

cited in order No. 2338185. 

]:_/ The Secretary's proposal for assessment of penalties also included 

a penalty proposal for a third violation not tried in the original 

hearing involving the contest of the two orders issued on January 24, 

1984. The judge severed that matter (6 FMSHRC at 1789-90), and in a 

separate decision issued September 12, 1984, approved the parties' 

agreed penalty and settlement of that aspect of this proceeding. 

2090 
In assessing a $1,000 penalty for order No. 2338185, the judge 

reviewed the evidence developed at the hearing relevant to penalty 

issues and the six penalty criteria contained in section llO(i) of the 

Mine Act. 30 U.S.C. § 820(i). Concerning the criterion of gravity of 

the violation, the judge concluded: 

The testimony of the inspector and two of Pyre's 

witnesses shows that the roof was very hazardous in 

the crosscut where Pyre's section foreman had failed 

to have the warning devices installed. In view of 

the evidence showing that the violation was very 

serious, I believe that a penalty of $1,000 

should be assessed under the criterion of 

gravity. Since, however, the Commission 

majority in [United States Steel Corporation, 

6 FMSHRC 1423 (June 1984)] ... ,have indicated 

that they think my assessment of civil penalties 

is excessive, I shall reduce that amount to $500. 

Inasmuch as a large operator is involved, a 

total penalty of $1,000 does not appear to be 

excessive, bearing in mind that an amount of $500 

is being assigned under the criterion of negligence 

and an additional amount of $500 is being assigned 

under the criterion of gravity. 

6 FMSHRC at 1794 (emphasis added). We are not troubled by the judge's 

findings and conclusions with regard to the other five statutory criteria, 

but we find his discussion of the penalty assessed for the gravity of 

the violation troublesome and plainly erroneous. 

Under the Mine Act, this Commission and its administrative law 

judges exercise a primary and de nova role at each stage of an adjudicative proceeding involving the assessment of civil penalties. We have 

described that role recently in Sellersburg Stone Co., 5 FMSHRC 287, 

290-94 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). When a 

judge's penalty assessment is put in issue on review, we must determine 

whether it is supported by substantial evidence and whether it is 

consistent with the statutory penalty criteria. As we held recently, 

"While a judge's assessment of a penalty is an exercise of discretion, 

assessments lacking record support, infected by plain error, or otherwise constituting an abuse of discretion are not immune from reversal by 

this Commission." United States Steel Corp., 6 FMSHRC 1423, 1432 (June 

1984). 

In discussing the gravity of the violation in this case, the judge 

indicated that he believed an assessment of $1,000 under that crit~rion 

was appropriate. The only basis offered by the judge for not assessing 

that amount, and for assessing $500 instead, was his observation that, 

"[T]he Commission majority in the U.S. Steel case [supra], have indicated 

that they think my assessment of civil penalties is excessive .... " 

6 FMSHRC at 1794. There is no statutory basis for this proffered reason. 

2091 
It must be emphasized that our judges and we are obliged to decide 

each case on its own merits. In the U.S. Steel case, we affirmed this 

judge's conclusions on all substantive issues pertaining to liability 

and on most penalty issues. We reduced two penalties because of our 

determination that the evidence and statutory penalty criteria did not 

support the judge's findings with regard to two of the penalty criteria. 

6 FMSHRC at 1431-32, 1434. We did not state, nor did we imply, that the 

judge's assessment of civil penalties was, in general, "excessive." 

Our decision in U.S. Steel was based on the facts of that case, 

just as the judge's decision in this proceeding should be based on the 

facts of this case. A judge's dissatisfaction or disagreement with this 

Commission's decision of a case on review is not a statutory criterion 

for declining to assess an appropriate penalty in another case. 

We have reviewed the record and the judge's findings here. The 

roof control violation cited in order No. 2338185 involved a failure to 

danger off an area of unsupported roof containing abnormal formations 

which posed a danger of falling. We find that this violation was of a 

serious nature and could have exposed miners to serious injury. We 

conclude that, as the judge himself tentatively opined, $1,000 is an 

appropriate amount to be assessed under the criterion of gravity for 

this violation. We have also reviewed the judge's other findings with 

respect to the penalty criteria and find them supported by the record 

and consistent with those criteria. ~ccordingly, we increase the penalty 

amount assessed under gravity from $500 to $1,000, and assess a penalty 

totalling $1,500 for this violation. As modified herein, the judge's 

decision is affirmed. 1./ 

. Collyer, C 

~~,,L~~~- Richa.l;d V. Backley, ~ommissioner Y 

~(l~ 1Ls-LL<L,'-' 

L. Clair Nelson, Commissioner 

1./ The terms of office of our former colleagues, Commissioners 

Frank F. Jestrab and A. E. Lawson, expired at the end of day on August 30, 

1984. Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), 

we have designated ourselves as a panel of three members to exercise 

"all of the powers of the Commission," including the issuance of orders 

and decisions in proceedings before this Commission. 

2092 
Distribution 

William M. Craft 

Asst. Director of Safety 

Pyro Mining Company 

P.O. Box 267 

Sturgis, Kentucky 42459 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Darryl A. Stewart, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

280 U.S. Courthouse 

801 Broadway 

Nashville, Tennessee 37203 

Administrative Law Judge Richard Steffey 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2093 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 24, 1984 

Docket No. PENN 81-171 

THOMPSON BROTHERS COAL COMPANY, 

INC. 

DECISION 

This civil penalty case arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), involves the interpretation and application of 30 C.F.R:""f7"7.400(a), a mandatory safety 

standard dealing with the guarding of machine parts. 1/ A Commission 

administrative law judge concluded that Thompson Brothers Coal Company, 

Inc. ("Thompson"), violated section 77 .400(a) by failing to guard the 

cooling fan blades and air compressor belts and pulleys on two dump trucks. 

4 FMSHRC 1763 (September 1982)(ALJ). On the bases explained below, we 

affirm the judge's decision. 

Thompson operates a surface coal mine located in Clearfield County, 

Pennsylvania. On January 12, 1981, an inspector of the Department of 

Labor's Mine Safety and Health Administration· ("MSHA") issued citations 

to Thompson stating that guards were not provided for the cooling fan blades 

and air compressor belts and pulleys in the engine compartments of two 

Euclid R-50 dump trucks. 2/ These large trucks are used to haul earth 

and rock ("spoil") at the-mine. Each truck is 14 feet wide, 30 feet long, 

and 13 feet high. Each is capable of hauling up to 50 tons of spoil. The 

tires on the trucks are 6 feet in diameter, and the engine compartment areas 

are approximately 5 feet wide. 

1/ 30 C.F.R. § 77.400(a) provides: 

Gears; sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, 

and which may cause injury to persons shall be guarded. 

]) The citations originally stated that the alternator belts and pulleys 

were not guarded. The citations were modified subsequently to refer to the 

air compressor belts and pulleys. 

20-94 
The cooling fan and the air compressor belts and pulleys at issue are 

part of each truck's engine assembly, and are located in the center of the 

engine compartment in front of the engine. The engine compartment is 

accessible from either side of the truck. To gain access to the engine, a 

miner walks through a 2~-foot space between a front tire and the front end 

of the tFuck. To contact the fan blades or the air compressor belts and 

pulleys, a miner must reach over the truck frame, which is approximately 

2~ feet high, and extend his arm a distance of approximately 2~ to 3 feet. 

The fan and the air compressor belts and pulleys turn only when the engine 

is running. It is undisputed that there were no guards on the fan blades 

or air compressor belts and pulleys at the time of the citations. At the 

hearing before the Commission's administrative law judge, the inspector 

who issued the citations testified that a miner checking or repairing 

the engine, while the truck was stationary and the engine was idling, 

could contact these unguarded moving parts and sustain an injury. 

In his decision, the judge found that the cited fan blades and air compressor belts and pulleys were exposed moving machine parts similar to those 

listed in section 77.400(a). He further found that the fan blades and belts 

and pulleys were accessible and unguarded. With regard to the possibility of 

contact, the judge credited the testimony of the inspector over the contrary 

testimony of Thompson's witnesses. The judge found: 

[Thompson] attempted to show that it was virtually 

impossible for a person not suicidally inclined to 

contact the parts in question while moving. On this 

issue, I accept the testimony of the inspector, and 

conclude that a person working around the engine or 

inspecting it while the engine was running, could 

inadvertently come in contact with one of the moving 

parts. 

4 FMSHRC at 1764. Finally, the judge found that such· contact with one of 

these unguarded moving parts could cause an injury. The judge accordingly 

concluded that Thompson violated the standard, and assessed a civil penalty 

of $35 for each violation. We granted Thompson's petition for discretionary review. ]_/ 

On review Thompson's major contentions center around the question of 

whether the cited machine parts "may be contacted by persons" and "may cause 

injury." Thompson argues that the proper test for determining the possibility 

of contact and injury is whether an unguarded machine part subject to the 

]_/ Before the judge, the Secretary of Labor contended that the violations 

were significant and substantial within the meaning of the section 104(d) 

of the Mine Act. 30 U.S.C. § 814(d). The judge found that the violations 

were not significant and substantial and the Secretary has not sought review 

of this aspect of the judge's decision. 

2095 
standard is "reasonably likely to cause harm to the average man." Pet;ition 

for Discretionary Review l. Attacking the judge's evidentiary findings 

in light of this test, Thompson contends that contact with the cited fan 

blades, pulleys, and belts was extremely unlikely. In its petition for 

discretionary. review Thompson also asserts that the machine parts in 

question were not the kind to which the standard applies, but Thompson 

does not further develop this issue in its supporting brief. We conclude 

that section 77.400(a) contemplates guarding of machine parts subject to 

the standard where there is a reasonable possibility of contact and injury. 

We also conclude, however, that the judge's findings are not inconsistent 

with this test and are supported by substantial evidence. We therefore affirm. 

In order to establish a prima facie case of a violation under this 

standard, the Secretary of Labor must prove: (1) that the cited machine 

part is one specifically listed in the standard or is "similar" to those 

listed; (2) that the part was not guarded; and (3) that the unguarded part 

"may be contacted by persons" and "may cause injury to persons." 30 C.F.R. 

§ 77.400(a). As explained below, we construe this latter requirement to 

contemplate a showing of a reasonable possibility of contact and injury. 

There is no question that the cooling fan blades and air compressor 

belts and pulleys were not guarded when the citations were issued. We 

also find that these machine parts were the types of machine parts to which 

the standard applies. 

In Mathies Coal Co., 5 FMSHRC 300 (March 1983), aff'd sub nom. 

United Mine Workers of America v. FMSHRC, 725 F.2d 126 (D.C. Cir. 1984) 

(table), we held that 30 C.F.R. § 75.1722(a), the identical standard 

applicable to underground coal mines, "applies to the specific machine 

parts listed plus other exposed moving machine parts similar to 

those listed." 5 FMSHRC at 302. Although cooling fan blades and air 

compressor belts and pulleys are not specifically listed in section 

77.400(a), they are sufficiently "similar" to the parts that are listed 

to come within the scope of the standard. As in Mathies (see 5 FMSHRC 

at 302), we apply the ordinary dictionary definition of "similar": 

l: having characteristics in common: very much 

alike ••• 2: alike in substance or essentials 

••• 3a: having the same shape: differing only 

in size and position •••• 

Webster's Third New International Dictionary (Unabridged) 2120 (1971) 

("Webster's"). "Fan inlets'i are mentioned in the standard and refer to 

the openings across the front of fans. ("Inlet" is broadly defined as 

"a place of entrance." Webster's 1165.) The citations in this case 

were directed to the outlet side of the cooling fans. However, the fan 

outlet is in this case similar to the fan inlet in that it provides an 

accessible "place of entrance" to the fan blades. The compressor pulleys 

and belts are also similar in shape and function to certain specified 

equipment parts. "Drive, head, or takeup pulleys" are cylinders or 

2096 
wheels which "change the direction ••• of belt travel." U.S. Department of 

the Interior, Bureau of Mines, A Dictionary of Mining, Mineral, and Related 

Terms 875 (1968). The air compressor pulleys, on which the compressor 

belts move, perform the same function. Thus, we affirm the judge's 

conclusion that section 77.400(a) applies to the cited machine parts. The 

pivotal inquiry is the possibility of contact with these parts and resultant 

injury. 

The standard requires the guarding of machine parts only when they "may 

be contacted" and "may cause injury." Use of the word "may" in these key 

phrases introduces considerations of the likelihood of the contact and injury, 

and requires us to give meaning to the nature of the possibility intended. 

We find that the most logical construction of the standard is that 

it imports the concepts of reasonable possibility of contact and injury, 

including contact stemming from inadvertent stumbling or falling, momentary 

inattention, or ordinary human carelessness. In related contexts, we have 

emphasized that the constructions of mandatory safety standards involving 

miners' behavior cannot ignore the vagaries of human conduct. See,~., 

Great Western Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries, 

Inc., 3 FMSHRC 2526, 2531 (November 1981). Applying this test requires 

taking into consideration all relevant exposure and injury variables,~., 

accessibility of the machine parts, work areas, ingress and egress, work 

duties, and as noted, the vagaries of human conduct. Under this approach, 

citations for inadequate guarding will be resolved on a case-by-basis. 

In analyzing the evidence, the judge did not expressly apply a 

"reasonable posssibility" test, but his findings are not inconsistent with 

that test. There is no dispute that the engines on these trucks were 

physically accessible and that on occasion mechanics could be called on 

to examine or work on the engines while the engines were idling. The judge 

specifically credited the testimony of the inspector that a miner checking 

or working on the engine while the engine was running could come into contact 

with any of the cited machine parts. Thompson's witnesses all agreed that 

contact was possible even though they regarded it as unlikely. At a minimum, 

contact could result from such causes as a sudden movement, stumbling, or 

momentary distraction or inattention. We find no basis for overturning the 

judge's resolution of conflicting testimony regarding the possibility 

of contact. The judge also found that the possibility of such contact was 

"minimal." 4 FMSHRC at 1765. On the facts of this case, we construe 

a "minimal". possibility of contact to be within the realm of reasonable 

possibility. Given the physical accessibility of the engine compartment, 

the fact that mechanics could check and work on running engines, and that 

contact with the cited machine parts could occur, we conclude that a 

reasonable possibility of contact existed. 

The judge also credited the inspector's testimony that contact with 

the fan blades or the air compressor belts and pulleys could result in 

injury, although such an injury would probably not be serious. We see no 

reason to overturn this finding. 

2097 
For the foregoing reasons, and on the foregoing bases, we affirm the 

judge's decision. !!_/ 

4/ The terms of office of our former colleagues, Commissioners Frank F. 

Jestrab and A. E. Lawson, expired at the end of day on August 30, 1984. 

Pursuant to section ll3(c) of the Mine Act, 30 U.S.C. § 823(c), we have 

designated ourselves as a panel of three members to exercise "all of 

the powers of the Commission," including the issuance of orders and 

decisions in proceedings before this Commission. 

2098 
Distribution 

Allan E. MacLeod, Esq. 

for Thompson Brothers Coal Co. 

220 Grant Street 

Pittsburgh, PA 15219 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2099 
/ 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 SEP 4 1984 

HARRISON WESTERN CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. . 

APPLICATION FOR REVIEW 

Docket No. CENT 81-249-RM 

Withdrawal Order No. 151337 

Dated June 15, 1981 

Mt. Taylor Mine 

SUMMARY DECISION 

Before: Judge Carlson 

This case comes on for decision upon cross motions for 

summary decision filed by both parties under Commission Rule 

2700.64. l; All facts are submitted by joint stipulation. 

The case arose out of a withdrawal order issued by the 

Department of Labor's Mine Safety and Health Adminiatration 

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

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

after commencement of a proceeding and before the scheduling of a 

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

Judge to render summary decision disposing of all or part of the 

proceeding. 

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

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

answers to interrogatories, admissions, and affidavits shows: 

Cl) That there is no genuine issue as to any material fact; and 

(2) that the moving party is entitled to summary decision as a 

matter of law. 

2).00 
(MSHA) on October 3, 1979.2/ The order was issued under 

provisions of section 107(a) of the Federal Mine Safety and 

Health Act of 1977 (the "Act"). 3/ The case reaches me upon the 

petition for review filed by the-Harrison Western Company 

(Harrison Western). Both parties submitted extensive briefs in 

support of their respective motions for summary decision. 

I conclude t.ha.t no material facts are in dispute and t)1e 

case is ripe for summary decision. 

ISSUE 

The crucial issue to be decided is whether the#!' 1uance of 

the 107(a) withdrawal order challenged by Harrison W tern may be 

sustained in light of the prior issuance of 103(k) 4f withdrawal 

order covering the same area of the mine. 

~/ A second order dated June 15, 1981 appears ~n the file for 

reasons fully explained in the stipulation. The second is but a 

substitution for the first. For the purposes of this decision 

the two are properly treated as one. 

ll As pertinent here, that section provides: 

"Sec. 107(a) If, upon any inspection or investigation of a coal 

or other mine which is subject to this Act, an authorized 

representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of the 

area of such mine throughout which the danger exists, and issue 

an order requiring the operator of such mine to cause all 

persons, except th6se referred to in section 104(c), to be 

withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines 

that such imminent danger and the conditions or practices which 

caused such imminen~-danger no longer exist. The issuance of an 

order under this subsection shall not preclude the issuance of a 

citation under section 104 or the proposing of a penalty under 

section 110. 

ii Section 103(k) of the Act provides: 

In the event of any accident occurring in a coal or other mine, 

an authorized representative of the Secretary, when present, may 

issue sudh orders as ,he d~erns appropriate to insure the safety of 

any person in the coal or other mine, and the operator of such 

mine shalr obtain the approval of such representative, in consultation ~ith appropriate State representatives, when feasible, 

of any plan to recover any person in such mine or to recover the 

coal or other mine or return affected areas of such mine to 

normal. 

2101 
The stipulation of facts filed by the parties clearly sets 

forth all material happenings surrounding the issuance of the 

challenged order. I therefore approve it and adopt it as a part 

of this decision. All exhibits mentioned in the stipulation are 

appended to this decision. The stipulation, omitting caption and 

signatures, is as follows: 

I. Statement of the Case 

This proceeding was commenced by Harrison Western 

Corporation ~"Harrison"), pursuant to Section 107 of the 

Federal Mine Safety and Health Act of 1977 (the "Act"), 

for review of Section 107(a) Withdrawal Order No. 151337 

dated June 15, 1981 (Exhibit "A" attached hereto), 

issued to it with regard to the Mt. Taylor Project 

("Project") by the Secretary's authorized representative, Glenn C. Johnston. Harrison's Application for 

Review was timely filed on or about July 15, 1981 and 

the Secretary's Answer was timely filed on or about July 

31, 1981. 

Withdrawal Order No. 151337 replaced Section 107(a) 

Withdrawal Order No. 151295 (Exhibit "B") issued at 2:00 

p.m. on October 3, 1979, also by Inspector Johnston. 

The original Order named "Gulf Mineral Resources 

(Harrison Western, Inc.)" as operator and was sought to 

be enforced by the Secretary against Gulf Mineral 

Resources Company ("Gulf") alone in Docket No. CENT 

80-309-M. While that case was pending, the Secretary 

revised his policy and regulations under the Act to 

provide for issuance of citations and orders to 

production-operators and/or independent contractors. 30 

CFR, Part 45; 45 F.R. 44494, July 1, 1980. As a result 

of this policy change and an agreement between the 

Secretary and Harrison, Withdrawal Order No. 151337 was 

issued to Harrison on June 15, 1981, on the basis that 

Harrison would have access to all applicable formal and 

informal review procedures. Thereafter, motions to 

vacate' Withdrawal Order No. 151295 and to dismiss Docket 

No. CENT 80-309-M were granted by the Administrative Law 

Judge assigned to that proceeding. 

Since Order No. 151337 replaced Order No. 151295, they 

are virtually identical in all material respects, except 

only that Harrison is named alone as the operator in 

Order No. 151337. The facts which underly and determine 

the validity of Order No. 151295 are likewise the facts 

which underly and determine the validity of Order No. 

151337 at issue in this case. 

2102 

j 

I 
II. Description of the Project 

A. General. 

On the day material to this proceeding, October 3, 1979, 

the Project was a uranium mine in the construction stage. 

Gulf was the owner of the Project. Harrison was the 

primary contractor for the shaft sinking portion of the 

construction. The Project was located approximately one 

mile north of San Mateo, Valencia County, New Mexico, 

and was subject to the Act. 

The shaft sinking operation consisted of excavating two 

parallel, vertical shafts, one twenty-four feet in 

diameter and the other fourteen feet in diameter. The 

two shafts were horizontally separated by a distance of 

about 400 feet and were connected by horizontal tunnels 

located at depths of approximately 700 feet, 1,600 feet,. 

2,600 feet, 3,100 feet and 3,200 feet. The planned, 

total depth of both shafts was 3,300 feet. The primary 

elements of the shaft sinking operation included 

excavation, pouring a concrete liner around the 

circumference of each shaft, installation of air, water 

and power lines, installation of hoist and other 

transportation systems, and construction of operating 

stations in the horizontal connecting tunnels with 

installation of associated equipment to be used in the 

mining process. 

B. 24-Foot Shaft. 

On October 3, 1979, the 24-foot shaft had been sunk to a 

depth of approximately 3,240 feet. A 220-foot high 

headframe was located above the shaft on the surface and 

contained the-hoist equipment and control room. A main 

collar was installed at the surf ace which completely 

covered the shaft when its retractable, horizontal doors 

were shut. The doors were opened only to allow passage 

of men and materials by way of the hoisting mechanisms. 

Two subcollars of a similar nature were located in the 

shaft a short distance below the main collar. 

The lower deck of a three-deck Galloway was located at 

the 3,200-foot level near the bottom of the shaft on 

October 3, 1979. The Galloway was the working platform 

from which excavation, muck removal and concrete liner 

pouring was performed. It was suspended by four 1-3/8 

wire ropes from the hoisting mechanism located in the 

headframe on the surface. 

2103 
Two 75-cubic foot capacity buckeLS were used in the 

shaft for hoisting and lowering men, material, muck and 

concrete. Each was suspended by a 1-7/8-inch nonrotating wire rope from the hois~ mechanism in the 

headframe. Each was guided by a crosshead which 

travelled vertically along one pair of the wire ropes 

suspending the Galloway. In this manner, one bucket 

travelled along the east side of the shaft (No. 1) and 

the other travelled along the west side (No. 2). The 

wire rope suspending each bucket was attached to the 

bucket by a shackle assembly which was detachable. 

A two-deck "chippy cage" travelled along wooden guides 

attached to the concrete perimeter liner on the northeast side of the shaft. This cage was similar to a 

small, rectangular elevator enclosed by a combination of 

welded steel plates and heavy wire mesh. It was 

suspended from the headframe on the surface by a 1-3/8 

inch nonrotating wire rope, and was used for transporting men and performing repairs along the shaft 

perimeter. 

A "basket" had been fabricated at the site for use in 

hoisting and lowering material and performing repair 

work in the shaft. It was made of 1/2-inch steel plate 

and was 4-feet square with sides 42 inches high. At the 

surface, it could be attached to the shackle assembly of 

either bucket hoisting cable by four 1-inch wire ropes, 

each 10 feet long. The other end of these four ropes 

would be attached to the top corners of the basket by 

shackles. When the basket was attached in this manner 

in place of one of the buckets, and with the crosshead 

chaired in the headframe, the basket could be swung the 

short distance to the perimeter of the shaft for repair 

work. When the basket was attached in this manner and 

suspended freely without being swung to the perimeter, 

the horizontal distance between it and the "chippy cage" 

was 17 feet. 

An 8-inch diameter "slickline" pipe was installed vertically in the sha~t at the perimeter adjacent to the 

"chippy cage." Directly opposite from the "slickline," 

a 12-inch compressed air line was installed vertically 

at the perimeter of the shaft. Both of these lines 

extended from the surf ace to virtually the bottom of the 

shaft. 

2104 
III. Events of October 3, 1979, Up To and Including 

the Accident 

The crew assigned to work in the 24-foot shaft on 

October 3, 1979 was under the general supervision of 

Wayne Thomas, whose title was "walker." This position 

was equivalent to that of general foreman for the underground shaft sinking operation. Stanley Henry was the 

"shaft leader" of the crew, which is a position equivalent to foreman. The crew working at Henry's direction 

in the shaft on that day consisted of Bob Hales, Orlando 

Castillo, Jack Mathieu, David Stovall and Michael Borody, 

These five men held the designation of either shaft 

miner or operator, which were roughly equivalent 

positions with small wage differentials. All were 

Harrison employees. 

This group met in the construction trailer on the 

surface to receive directions for the day's work at the 

start of the shift (approximately 7:30 a.m.) on October 

3, 1979. Thomas directed Henry to have four men work on 

aligning the "slickline" starting at about the 2400-foot 

level of the shaft, using the "chippy cage" as a work 

platform. Henry directed Castillo, Mathieu, Stovall and 

Borody to perform this work in pairs. Because of the 

strenuous nature of the work and the limited area on the 

"chippy cage" platform, each pair was to work in 

alternating two-hour shifts, with the off pair resting 

at the 2600-level station. Thomas' initial assignment 

for Henry and Hales was to remove muck from the bottom 

of the shaft. 

Henry and his shaft crew commenced the work as assigned 

shortly after 8:00 a.m. Later that morning, Thomas came 

to the bottom of the shaft where Henry and Hales were 

working to change their assignment. He directed them to 

install several valves at various points along the 

length of the 12-inch air line. After shutting off the 

air supply to the line and opening a valve to bleed the 

pressure from it, Thomas, Henry and Hales came to the 

surface in the No. 2 bucket. While Thomas attended to 

other matters, Henry and Hales gathered together the 

tools and materials needed to install the valves. With 

the assistance of the toplanders (Harrison employees 

assigned to work on the surface), the No. 2 bucket was 

removed, its crosshead was chaired in the headframe, and 

the basket was attached to the No. 2 wire rope in place 

of the bucket. Henry and Hales loaded their tools and 

materials into the basket, climbed in, and began 

descending toward the bottom of the shaft through the 

2105 
collar doors, which were closed behind them. At about 

the 2400-foot level, they passed Castillo and Mathieu 

who.were working on the top deck of the "chippy cage" 

aligning the "slickline." As they passed, the two 

groups waived [sic] their lights and shouted to each 

other. 

Henry and Hales had their backs to each other as the 

basket descended through about the 2900-foot level at 

approximately 11:25 a.m. At that point, Hales heard a 

dull thump and turned to see Henry ·falling into the 

corner of the basket. Hales signalled to the hoistman 

on the surface to stop their descent. He then checked 

Henry for life signs and found none. He then signalled 

to the hoistman to bring them to the surface. When they 

reached the surface, Henry was examined by one of the 

toplanders who was a paramedic .. No vital signs were 

detected. Henry was taken by ambulance to a nearby 

hospital in Grants, New Mexico, and pronounced dead on 

arrival at 12:04 p.m. 

IV. Accident Investigation and Order at Issue in this 

Proceeding 

The federal and state mine safety agencies were notified 

of the accident immediately after the basket reached the 

surf ace and Hales was able to inform surf ace personnel 

of what had happened. Notification to MSHA was received 

by the Albuquerque field office at 11:40 a.m. At 11:45 

a.m., Inspector Johnston issued Withdrawal Order No. 

151293 under Section 103Ck) of the Act (Exhibit "C") "to 

prevent the destruction of any evidence that may be of 

assistance in investigating the accident and to assure 

safety:of all persons in or near the accident area until 

the in~estigation is complete, .••• " The area to which 

that Order applied was described as: 

24 ft. diam. shaft, approximately on 2950 foot 

level in #2 bucket position ••• 

This Order was not modified in any manner until 8:35 

p.m. that evening. 

Upon learning of the accident and the Section 103Ck) 

Order, Harrison's safety engineer, David Wolfe, directed 

all concerned not to disturb any evidence related to the 

accident and to remove the remaining men from the 

24-foot shaft. Accordingly, Castillo, Mathieu, Stovall 

and Borody, came to the surface by means of the "chippy 

cage." 

2106 
MSHA and New Mexico mine safety officials arrived at the 

Project thereafter from their off ices in Albuquerque to 

commence an investigation of the accident. After 

examining the collar, basket and "chippy cage" on the 

surface, they descended into the 24-foot. shaft by means 

of the "chippy cage." They found a 4 1/2-pound steel 

wedge on the top deck of the Galloway, which was about 

36 feet above the bottom deck. They also found Henry's 

hard hat wittt a hole in it at the bottom of the shaft 

below the Galloway. It was determined that Castillo and 

Mathieu had been using the wedge at the 2400-foot level 

to hold the "slickline" away from the concrete liner of 

the shaft. The safety rope which was tied by a double 

knot through a 3/4-inch nut welded to the wedge had been 

broken. Castillo and Mathieu had discovered the wedge 

missing at about the time of the accident when they 

pulled on the safety rope and found only the frayed 

ends. 

It was, therefore, concluded from the investigation that 

Henry had been struck by the wedge at approximately the 

2950-f oot level when it became detached in an unknown 

manner and fell from the 2400-foot level. It was 

further determined that neither the "chippy cage" nor 

the basket was provided with a bonnet or other overhead 

protection at the time of the accident. 

In the early stages of the on-site accident investigation, Inspector Johnston issued Section 107(a) Withdrawal Order No. 151295 at 2:00 p.m. on October 3, 1979 

(Exhibit "B") on the basis of his determination that an 

imminent danger under the Act existed. Inspector 

Johnston described the area to which the Order was 

applicable as "24 ft. shaft, #2 bucket position approx. 

2950 feet below collar of shaft." The "condition or 

practice" recited in the Order was as follows: 

At approximately 1125 hours on 10-3-79, a 

fatal accident occurred in the 24-foot 

diameter shaft. The victim and his partner 

were being lowered in a conveyance that did 

not have a protective bonnet installed. An 

object from above struck the victim on the 

head at a point 2950 ft. (approx.) below the 

collar of shaft. A two-man crew was working 

approximately 500 ft. (about the 2400-foot 

level) above the unprotected conveyance of 

the victim and his partner, mentioned above. 

Safe shaft work practices shall be implemented, 

published to employees, and followed. 

2107 
DISCUSSION 

Harrison Western insists that the Secretary's 107(a) 

withdrawal order is invalid because the essential element of an 

••imminent danger" was absent at the time the order was issued. 

This was so, according to the applicant, because all miners who 

possibly would have been harmed had already been removed from the 

hazardous area. Also, the basket and the "chippy cage," which 

were inherent parts of the hazard, had been moved to the surface. 

Consequently, the argument proceeds, no imminent danger "existed" 

within the meaning of section 107(a). Moreover, the miners were 

already afforded protection by virtue of a previously issued 

103(k) order. 

Before going further we must examine the concept of an 

"imminent danger." Section 3(j) of the Act defines the term as 

... the existence of any condition or practice in a 

coal or other mine which could reasonably be expected 

to cause death or serious physical harm before such 

condition or practice can be abated. 

Cases dealing directly with the notion of "imminence" are in 

general agreement that the danger must be one which can cause 

serious physical harm at any time, but not necessarily 

immediately.~/ 

In its opening brief Harrison Western urges that since its 

men, the basket and the cage were all on the surface when the 

inspector arrived, we are presented with " ••. a typical case in 

which the inspector issued a withdrawal order based on prior 

circumstances which he claimed had constituted an imminent 

danger, but which no longer existed." 6/ It is true that 

imminent danger withdrawals may not be-issued for past dangers. 

Neither the Commission nor its predecessor, the Interior Board of 

Mine Operations Appeals, however, has ever suggested that an 

imminent danger vanishes simply because miners are moved 

elsewhere or mobile equipment is moved. The danger remains a 

proper subject of an order until the underlying condition giving 

rise to the danger is corrected. In Eastern Associated Coal 

Corp. v. Interior Board of Mine Operations Appeals, 491 F. 2d 277 

(4th Cir. 1974), where miners were voluntarily withdrawn from a 

dangerous area before a withdrawal order was issued under section 

5/ See, e.g. Old Ben Coal Corporation v. Interior Board of Mine 

Operation's Appeals, 523 F. 2d 25 (7th Cir. 1975). 

~/ Applicant's opening brief at 9. 

2108 
104 (a) of the 1969 Coal Act, 7; the Cou.rt held that an imminent 

danger nevertheless exists where a condition. could reasonably, be 

expected to cause death or serious physical harm to a miner "if 

normal mining operations were permitted to proceed in the area 

before the dangerous pondition. is eliminaied." The reasoning 

behind such a principle is clear. Where miners are voluntarily. 

withdrawn by an operator they may just. as easily be 6rdered back 

before abatement is complete. An order by- an authorized representative of the Secretary of Labor, on the other hand, has a 

legal force which forbids return of a workforce before the 

underlying hazard is eliminated. 

Harri son Western, in its_ excellent briefs, speaks repeatedly 

to the fact that the fatality in the present case took place at 

about 11:25 a.m. but the inspector did not issue his imminent 

danger withdrawal order until 2:00 p.m., a time after the miners 

were out of the shaft and the cage and basket were at the surface. 

To the extent that applicant thus appears to suggest that this 

alone vitiated the 107(a) order because the imminent danger no 

longer "existed," the suggestion is wholly without merit. If 

"normal mining" (in this case shaft construction) were to resume 

it must be inferred that miners would continue to work atop the 

hoist conveyances which were not equipped with protective bonnets 

overhead. ~/ 

In sum, Harrison Western has simply taken too parochial a 

view of the concept of a hazard or "danger" as embodied in 107(a). 

The applicant stresses the inspector's highly literal description 

of the circumstances leading to the accident and then suggests 

that since none of those circumstances existed at 2:00 p.m., the 

hazard had been "eliminated." On the contrary, the danger lay in 

the very nature of the work to be done and the fact that miners 

were doing that work without protection from falling objects. 

Such a danger does not cease within the contemplation of section 

107(a) merely because miners come to the surface or go home for 

the night. 

7/ Section 104(a) of the 1969 Act is in all significant respects 

identical to section 107(a) of the 1977 Act. 

~/ The record shows that a protective bonnet was installed on 

on the day following the accident. (See stipulated exhibits). 

2109 
By far the most effective argument advanced by Harrison 

Western concerns the effect of the previous 103(k) order. Wherean inspector has withdrawn miners for an accident investigation 

under 103Ck); may he legitimately superimpose a 107(a) immin~nt 

danger withdrawal order? Put another way, can there be ari - "imminent danger" where miners already have been ordered out, not .c: 

voluntarily by a mine operator, but by a representative of the 

Secretary of Labor acting under the authority of the Act? 

In such a case it cannot be said, as with a wholly voluntary 

withdrawal, that exposure of the miners could reoccur at the whim 

of the employing operator or contractor. Thus, one can construct 

an argument that a subsequent 107Ca) order issued while a 103Ck) 

order remains in effect is invalid because the prior 103Ck) order 

nullifies any realistic possibility of injury to miners and thus, 

any "imminent danger." 

This argument, too, must be rejected. To understand why, 

one merely need look to how 103Ck> and 107(a) fit into the 

statutory enforcement scheme. Their purposes differ. Section 

103Ck> confers broad emergency powers upon the Secretary to take 

charge of an accident scene and, in the words of the statute, to 

" ..• issue such orders as he deems appropriate to insure the 

safety of any person •••• " See Roscoe Page v. Valley Camp Coal 

Co., 6 IBMA 1 (1976). 

A 107(a) order, on the other hand, is more limited and more 

closely focused. It may issue only upon a specific determination 

of an "imminent danger" and, once issued, remains in effect to 

protect. miners until the conditions constituting the danger are 

corrected. When a 103Ck) order is issued the cause of the 

accident is often unknown until the Secretary's investigation 

discovers it. Moreover, investigation may not disclose an 

imminent danger at every accident scene. It is wholly proper, 

however, for inspectors to proceed to issue a 107(a) order when 

an. imminently dangerous condition is found, even though a 103 ( k) 

order may already be in effect. Itmann Coal Company, 1 FMSHRC 

1573 (1979). This is so, if for no other reason, because the 

accident investigation may be completed and all rescue and other 

accident exigencies dealt with long before the conditions 

constituting an imminent danger are corrected. In that event, a 

103(k) order would likely be ripe for termination while a 107(a) 

order should remain effectiye to accomplish its narrower and more 

specific aims. Thus, once the Secretary properly determines that 
the elements of an imminent danger persist after an accident, a 

107Ca) order is appropriate and valid. That is so whether a 

103(k) order is in effect or not. 

In the present case I conclude that the facts disclose the 

existence of an imminent danger. The issuance of the 107(a) 

withdrawal order was therefore proper. Consequently, the 

respondent Secretary's motion for summary decision will be 

granted, and Harrison Western's motion for the same relief will 

be denied. 

ORDER 

In accordance with the foregoing, the applicant's motion for 

summary decision is DENIED, respondent's motion for summary 

decision is GRANTED and the withdrawal order issued by the 

respondent under section 107(a) of the Act is ORDERED AFFIRMED. 

~~~ ohn A. Carlson 

Administrative Law Judge 

Distribution: 

Eloise V. Vellucci, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square, Suite 501, Dallas, 

Texas 75202 (Certified Mail) 

Richard L. Fanyo, Esq., Welborn, Dufford & Brown, 1700 Broadway 

Denver, Colorado 80290-1199 (Certified Mail) 

/blc 

2111 
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2112 
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2113 

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2114 

D VACATED DATE--1--1-- MO DA YR 

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SIGNATURE~ J:77 C.. 71~ 

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2115 
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2116 
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TYPE oF 1111SPecT10N ..a .:1. a O s1GN1F1cA111T ANo suBsTANTIAL 1sEr: REVERSE> 

TERMINATION DUE DATE __ / __ I __ 

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DATEDJ.1!..1~3-1.) 9 - MO CA Y~ 

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2117 
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UNITED STATES DEPARTMENT OP: LABOR MllllE SAFETY AND HEALTH ADMINISTRATION 

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DATEMo'oA'YR 

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TIME ____ OvACATED DATE __ , __ , __ 

(24 HR CL.OCK.) MO DA 'r'R 

TIME ___ _ 

(2• Ml'! CL.OCK.) 

~TERMINATED DMOOIFIEO 0 SEE SUBSEQUENT ACTION SHEET 

TYPE OF INSPECTION Q_ 3_ Q_ SIGNATURE~ »7 (/ ?/'r 

2118 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 61984 

ROBIN D. MULLEN, 

Complainant 

DISCRIMINATION PROCEEDING 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

Docket No. SE 82-57-D 

CD 82-30 

Appearances: Larry Moorer, ~sq., Birmingham, Alabama, 

for the Complainant. 

Fournier J. Gale, III, Esq., Birmingham, 

Alabama, for the Respondent. 

Before: Judge Fauver 

On June 11, 1982, Robin D. Mullen, Complainant, filed 

a discrimination c9mplaint with the Mine Safety and Health 

Administration (MSHA), United States Department of Labor, 

against Jim Walter Resources, Inc., Respondent, under section 

105(c} of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et seq. Complainant alleged that she was 

the subject of certain discriminatory actions on August 15, 

1980, February 11, 1982, and April 23, 1982. Complainant 

alleged that she had been discriminated against "by pay, 

job placement, I've been harassed by being accused of reporting 

to work in an unfit manner . . • by foremans [sic] coming 

to my work area with their lights out and sexual harrassed 

[sic]." MSHA investigated her complaint and found there 

was no violation of section 105(c) of the Act. Thereafter, 

Complainant filed the Complaint in this proceeding. After 

the Complaint was filed, Complainant alleged that another 

discriminatory act occurred on December 7, 1982. 

A hearing on her Complaint was held in Birmingham, 

Alabama, on November 14 and 15, 1983. Both parties were 

represented by counsel. Complainant called eight witnesses 

and introduced six exhibits, all of which were received in 

evidence. Respondent called three witnesses and introduced 

eight exhibits, all of which were received in evidence. In 

addition, at the direction of the Judge, a posthearing expert 

opinion was obtained from a pathologist, in answer to certain 

hypothetical questions about Complainant's likely condition 

as to blood alcohol content on February 11, 1982. 

2119 
Based on the testimony, the exhibits, and the record 

as a whole, I find that a preponderance of the reliable, 

probative, .and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. Complainant, at the time of hearing, November 14-15, 

1983, had been elUployed by Respondent at Number Four Mine 

for about 4-1/2 years. Number Four Mine, at all times relevant, 

produced coal for sale or use in or affecting interstate 

commerce. 

2. In late 1981 and early 1982, on at least three 

occasions, Complainant observed or experienced conditions 

in the mine which she considered to be unsafe and reported 

those conditions to her supervisor. In each instance 

Complainant was relieved from exposure to the condition which 

she considered unsafe. I do not find discrimination in 

the way Respondent handled any of these safety complaints. 

3. On February 11, 1982, Complainant reported to work 

at about 3:00 p.m. in a condition indicating by speech, 

appearance, and mannerisms, that she was under the influence 

of alcohol or some other drug. Her supervisors advised her, 

for her own safety and the safety of others, that she did 

not appear fit for duty and would not be allowed to work 

that day unless she submitted to an examination at the 

Brookwood Medical Clinic (a nearby facility where Respondent 

regularly had medical services performed) and the doctors 

there found her to be fit for duty. She was also told 

that if she was found fit for duty she would be paid for 

her entire shift that day. Complainant refused to go to 

the Brookwood Clinic for examination, but much later that 

day went to her private physician for a blood test for alcohol 

which was conducted about 6:30 to 7:00 p.m. That test showed 

Complainant's blood alcohol level to be .03 percent. Because 

of Complainant's apparent unfit condition and her refusal to 

submit to an examination at Brookwood Clinic, Respondent 

suspended Complainant for two days without pay. 

4. At the direction of the Judge, a pathologist's 

opinion was obtained after the hearing, with opportunity 

for both parties to comment on the opinion. The pathologist, 

Thomas J. Alford, M.D., answered a hypothetical question 

based on the testimony in this case, finding it probable 

that Complainant's blood alcohol concentration at 3:00 p.m., 

on February 11, 1982, was 0.11 (110 mgm. percent) and that she 

would therefore be legally considered under the influence of 

alcohol at that time. 

2120 
5. Based on all the evidence, including Complainant's 

testimony and that of her witnesses and witnesses of Respondent, 

and the pathologist's opinion, I find that on February 11, 

1982, about 3:00 p.m., Complainant reported for work while 

appearing to be, and in fact being, under the influence of 

alcohol. In her condition, it was reasonable for Respondent 

to require her to submit to a blood alcohol test at Brookwood Clinic at Respondene .s expense and, because of her 

failure to do so, to suspend her two days for reporting 

for work in an unfit condition and failing to submit to such 

a test. By delaying a blood alcohol test until 6:30 or 7:00 

p.m., Respondent caused a lower showing of blood alcohol 

content than would have been shown had she been tested 

around 3:00 p.m. I find nothing discriminatory in Respondent's 

treatment of Complainant on February 11, 1982. 

6. Complainant filed a grievance under Article XXIII, 

Section (b) (2) of the. National Bituminous Coal Wage Agreement 

of 1981, concerning Respondent's discipline of her for the 

February 11, 1982, incident. The grievance went to arbitration. 

After an arbitration hearing the arbitrator found the facts 

against Complainant. 

7. In April 1982, Complainant bid on a vacancy for a 

motorman position. The job was awarded under the procedures 

of the collective bargaining agreement to a miner who was 

senior to Complainant and who had better experience and 

qualifications for the motorman job than Complainant. 

Complainant filed a grievance over this matter, but withdrew 

her grievance at the third step in the grievance procedure. 

I find no discriminatory intent or action in Respondent's 

decision in filling the motorman vacancy. 

8. On December 7, 1982, Complainant was disqualified 

from the position of motorman. I find that she was disqualified 

from that position because the company in good faith determined 

that she could not perform all of the required duties of the 

motorman job, and that this decision by the company was 

nondiscriminatory and supported by ample facts. Complainant 

filed a grievance over this disqualification, and the grievance 

went to arbitration. After an arbitration hearing, the 

arbitrator found the facts against Complainant. 

DISCUSSION WITH FURTHER FINDINGS 

Complainant alleges in her Complaint that she was 

discriminated against on August 16, 1980. However, there 

was no evidence of this alleged act of discrimination. This 

charge will be dism~ssed for lack of proof. Also, this 

allegation is time-barred by section lOS(c) (2) of the Act, 

which will be discussed later. 

2121 
Complainant also alleges that she was discriminated 

against on February 11, 1982, by being suspended for 2 days. 

I have found that Respondent acted in good faith and in a 

nondiscriminatory manner concerning the February 11, 1982, 

incident. 

I also find that Complainant's allegations as to this 

incident and the August 16, 1980, incident, are barred by 

the 60-day requirement of section 105(c) (2). 

Section 105(c) (2) of the Act states: 

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 v±olation of this subsection may, 

within 60 days after such violation occurs, 

file a complaint with the Secretary alleging 

such discrimination. 

In the June 11, 1982 complaint filed with MSHA Complainant 

alleged that she was discriminated against on August 16, 

1980, February 11, 1982 and April 23, 1982. 

The claims for.4lleged acts of discrimination occurring 

on August 16, 1980, and February 11, 1982, are barred by 

section 105 (c) (2) u·nless Complainant can show that the 

filing was delayed under justifiable circumstances. ~oseph W. 

·Herman v. IMCO Services, 4 FMSHRC 2135 (1982), and David Hollis 

v. Consolidation Coal Company, 6 FMSHRC 21 (1984). Complainant 

admitted being aware of her MSHA rights in February or March 

of 1982, but failed to file her complaint for at least three 

months after having this actual knowledge. I find that 

Complainant has not shown justifiable circumstances for 

untimely filing, and on that independent ground her allegations 

of discrimination on August 16, 1980, and February 11, 1982, 

should be dismissed. · 

Thus, I find against Complainant as to the merits and 

independently under the limitations period as to her allegations 

of discrimination on August 16, 1980, and February 11, 1982. 

As stated in the Findings, I find no showing of discrimination 

as to Respondent's award of the motorman vacancy on April 23, 1982. 

I .have:;noted also that Cqmplainant withdrew her grievance 

at the third step as to this matter. 

2122 
Similarly, the disqualification of Complainant for the 

motorman job on December 7, 1982, has not been shown to be 

discriminatory. As shown by the thorough arbitration decision 

in that matter, there was ample evidence for Respondent's 

decision to disqualify Complainant from the motorman job. 

Although the arbitration decisions are not binding in 

this proceeding, I find that the arbitration decisions 

denying Complainant's claims as to the February 11 1 1982, 

incident and the December 7, 1982, incident are thorough, 

well-reasoned, and are entitled to substantial weight in 

this proceeding. 

Complainant has shown no connection between her safety 

complaints or other protected activity· and Respondent's 

actions on February 11, 1982, April 23, 1982, and December 7, 

1982. The evidence overwhelmingly shows that she was 

disciplined on February 11, 1982, because she violated the 

collective bargaining agreement by reporting to work in an 

unfit condition and that the actions by Respondent on April 23, 

1982, and December 7, 1982, were taken pursuant to the 

provisions of the collective bargaining agreement and were 

in no part motivated by protected activity by Complainant. 

CONCLUSIONS. OF LAW 

1. The Judge has jurisdiction over this proceeding. 

2. Complainant has failed to meet her burden of proving 

a violation of section lOS(c) of the Act with resp~ct-to any 

matter raised in her complaint or at the hearing. 

3. On an independent ground, Complainant's allegations 

of discrimination on August 16, 1980, and February 11, 1982, 

are barred by the 60-day limitation of section lOS(c) (2) of 

the Act. 

All proposed findings and conclusions inconsistent with 

the above are rejected. 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSED. 

2123 

tJJ.l~ 1-" ~I/ €11.-

William Fauver 

Administrative Law Judge 
Ms. Robin Mullen, 212 22nd Avenue West, Birmingham, AL 35204 

(Certified Mail) 

Fournier J. Gale, III, Esq., Cabanis, Johnston, Gardner, 

Dumas & O'Neal, 1900 First Nat'l Southern Natural Bldg., 

Birmingham, AL 35203 (Certified Mail) 

Stan Morrow, Esq., P.O. Box C79, 2121 Building, 2121 Eighth 

Avenue, North, Birmingham, AL 35203 (Certified Mail) 

George Palmer, Esq., U.S. Department of Labor, Office of 

the Solicitor, 1929 South Ninth Ave., Birmingham, AL 35205 

(Certified Mail) 

Larry Moorer, Esq., Newton & Tucker, Suite 1722, 2121 Bldg., 

2121 8th Avenue, North, Birmingham, AL 35203 (Certified Mail) 

/slk 

2124 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 7 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. CENT 84-5 

A.C. No. 34-01357-03504 

v. 

TURNER BROTHERS, INC., 

Respondent 

Docket No. CENT 84-16 

A.C. No. 34-01357-03505 

Appearances: 

Before: 

Welch Mine No. 1 

Docket No. CENT 84-27 

: A.C. No. 34-01317-03509 

Docket No. CENT 84-44 

A.C. No. 34-01317-03511 

· · Heavener No. 1 Mine 

DECISIONS 

Richard_L. Collier, Esq., Office of the 

Solicitor, "U.S. Department of Labor, Dallas, 

Texas, for the Petitioner; 

Robert J. Petrick, Esq., Muskogee, Oklahoma, 

for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. 820(a), seeking civil penalty assessments for four 

alleged violations of certain mandatory safety and health 

standards found in Parts 71 and 77, Title 30, Code of Federal 

Regulations. 

Respondent filed answers contesting the proposed 

penalties, and hearings were held in Muskogee, Oklahoma, 

on July 10, 1984. The parties waived the filing of posthearing proposed findings and conclusions. However, all 

oral arguments made by counsel on the record during the course 

of the hearings have been considered by me in the adjudication 

of these cases. 

2125 
Applicable Statutory and Regulatory Provisions 

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

95-164, 30 u~s.c. § 801, et seq. 

2. Section llO(i) of .the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission' Rules, 29 C.F.R. § 2700.1 et seq. 

ISSUES 

The principal issues presented in these proceedings are 

(1) whether respondent has violated the provisions of the Act 

and implementing regulations as alleged in the proposal for 

assessment of civil penalties, and, if so, (2) the appropriate 

civil penalty that should be assessed against the respondent 

for the alleged violations based upon the criteria set forth 

in section llO(i) of the Act. Additional issues raised by 

the parties are identified and disposed of where appropriate 

in the course of these decisions. 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the following 

criteria: (1) the operator's history of previous violations, 

(2) the appropriateness of such penalty to the size of the 

business of the operator, (3) whether the operator was negligent, 

(4) the gravity of the violation, and (6) the demonstrated good 

faith of the operator in attempting to achieve rapid compliance 

after notification of the violation. 

Stipulations 

The parties stipulated that the respondent's surface 

stripping coal operations affect interstate commerce, and that the 

mining operations are subject to the Act. The parties also 

stipulated that the respondent is a small-to-medium sized mine 

operator and that the assessment of reasonable civil penalty 

assessments will not adversely affect its ability to continue 

in business. 

Discussion 

During the course of the hearings in these cases, the 

parties advised me that they proposed to settle the following 

dockets: 

CENT 84-5 

Citation No. Date 30 CFR Section Assessment Settlement 

2076417 8/23/84 77.1605(b) $46 $30 

2126 
CENT 84-16 

Citation No. Date 30 CFR Section Assessment Settlement 

2076418 8/23/83 71. 400 $20 $20 

CENT 84-27 

Citation No. Date 30 CFR Section Assessment Settlement 

2077340 11/22/83 77.1710(d) $147 $147 

The parties presented arguments on the record in support of 

their proposed settlements. Citation No. 2076417, was issued 

after the inspector found that a scraper being used to spread 

topsoil for reclamation purposes had brakes which were not 

adequate enough to hold the machine on a five percent grade. 

Petitioner's counsel stated that after further consultation 

with the inspector who was present in the hearing room, petitioner cannot support the ''S&S" finding, and that the inspector 

has modified the citation to delete this finding. In support 

of this action, counsel asserted that the cited scraper was 

operating in an area where no miners were on foot exposed to 

any hazard, and that the brake condition was corrected within 

an hour after it was discovered. 

Citation No. 2076418, was issued when the inspector found 

that a waiver which the respondent had obtained concerning the 

providing of bathing facilities, clothing change rooms, and 

flush toilets at its surface worksite, had expired. Petitioner's 

counsel stated that upon further consultation with the inspector, 

it has now been confirmed that upon application by the respondent 

pursuant to the applicable procedures found in section 71.403, 

the waiver concerning the application of cited section 71.400, 

has been further extended until September 27, 1984, and the 

citation has been terminated. Counsel confirmed that MSHA has 

in fact issued the waiver. Counsel also pointed out that the 

surface mining facility in question is located approximately 

10 miles out· of town and is isolated from ready sources of water. 

Respondent's counsel confirmed that the respondent has 

provided "Porta-John'' toilet facilities for the miners at the 

site in question, and that the miners working at the facility 

are in agreement with, and do not oppose, the waiver which has 

been granted for the facility. Counsel also stated that upon 

the expiration of the current waiver, the respondent wiil file 

for another extension. 

212'7 
Findings and Conclusions 

After careful consideration of all of the arguments 

presented by the parties in support of the proposed settlement of Citation Nos. 2076417 and 2076418, I concluded and 

found that the proposed settlements were reasonable and in 

the public interest. Accordingly, pursuant to Commission 

Rule 29 CFR 2700.30, the settlements were approved from the 

bench. My decision in this regard is hereby re-affirmed. 

Citation No. 2077340, was issued after the inspector 

observed that two mechanics who were performing maintenance 

repair work on an end loader parked at the base of a highwall 

were not wearing hard hats or caps. Petitioner's counsel 

asserted that the parties proposed to settle this v{olation 

by the respondent agreeing to pay a reduced civil penalty in 

the amount of $74. Counsel stated that it was his understanding that the two mechanics had removed their hard hats 

in order to crawl under the loader to perform some repairs. 

Counsel also asserted that while MSHA's district manager is 

in agreement with the proposed settlement reduction, the 

inspector who issued the citation would not agree to modify 

and delete his "S&S'' finding, and that he disagreed with the 

factual basis for the proposed settlement. Under the circumstances, the inspector was called as the Court's witness 

to testify as to circumstances which prompted him to issue 

the contested citation. 

MSHA Inspector Lester Coleman confirmed that he issued 

the citation in question after observing that the two 

mechanics, who he identified by name, were not wearing hard 

,hats or caps while performing maintenance on an end loader 

which had been parked at the base of the highwall in the 

active pit area. Mr. Coleman stated that the two mechanics 

had been dispatched to the area to perform some repair work 

needed to correct a condition which had been previously cited 

on the loader, and that their work was the work required to 

abate that particular violation. 

Inspector Coleman testified that he observed no hard 

hats or caps in the area or on the loader, and that the two 

mechanics had in fact admitted to him that they had no hard 

hats or caps with them. Inspector Coleman confirmed that in 

order to abate the citation, one hard hat had to be obtained 

from the mine office, and that the respondent had to either 

go to town to purchard a second hard hat, or obtained one 

from one of its other mining operations in the area. 

Inspector Coleman stated that while he observed no 

rocks falling off the highwall, since the mechanics were 

close to the base of the wall, had a rock fallen, it would 

have struck them. He confirmed that he was aware of incidents at other mines where rocks had fallen from highwalls 

2128 
and struck miners on the head, and in the instant case it 

was his view that the two mechanics were exposed to a hazard 

from falling rocks. For this reason, he believes the violation is a "significant and substantial" one. 

Although respondent's counsel cross-examined Inspector 

Coleman, the respondent presented no testimony or evidence 

in defense of the citation or of the inspector's findings. 

Further, the respondent did not rebut Inspector Coleman's 

testimony regarding the absence of hard hats, and its defense 

is that the mechanics "were in a hurry" to complete their 

abatement work or another violation. 

After full consideration of the testimony and arguments 

concerning this violation, the proposed civil penalty reduction 

and settlement was rejected from the bench. Respondent then 

proposed to pay the full amount of the initial civil penalty 

of $147, and that was approved. I hereby re-affirm these 

bench findings, and the citation IS AFFIRMED as issued, 

including the inspector's "S&S" finding. 

CENT 84-44 

This case concerns a section 104(d) (1) unwarrantable 

failure order issued by MSHA Inspector Lester Coleman, on 

January 24, 1984, with. __ ~pecial "S&S" findings, charging the 

respondent with a violation of mandatory safety standard 

section 30 CPR 77.1605(b). The order, No. 2077410, describes 

the "condition or practice" cited by Inspector Coleman as 

follows: 

The 992 C caterpillar end loader operating in 

the 001 pit was not provided an adequate parking 

brake in that the one provided was inoperative 

and would not hold the machine against movement 

(rolling) on a small percentage gr_ade (approx. 5%). 

There was (2) workmen on foot cleaning 9oal down 

grade in front of where the loader was working. 

Procedural Rulings. 

I take note of the fact that respondent's answer to the 

petition for assessment of civil penalty asserts that the Act 

does not require the mandatory assessment of civil penalties. 

In support of this contention, respondent asserted that while 

the citation concerned a "technical" violation of the Act, the 

law does not require that every violation, technical or otherwise, be assessed a civil penalty. 

Respondent's contention IS FEJECTED .. It seems clear to 

me, that upon a finding of a violation of any mandatory safety 

standard, a civil penalty must be imposed by the presiding judge, 

but only after all full consideration of all of the statutory 

civil penalty criteria found in section llO(i) of the Act. 

2129 
During the course of the hearing, counsel for both parties 

expressed the view that the validity of the unwarrantable 

failure order, including the question as to whether there has 

been an "unwarrantable failure" to comply with the law, is in 

issue in a civil penalty proceeding. This notion IS REJECTED. 

It seems clear to me that any such challenge must be made within 

thirty (30) days of the service of any order on an operator, 

and that since the petitioner here did not preserve his appeal 

rights by filing an independent notice of contest on this issue, 

it is precluded from raising it in this proceeding (Tr. 33-36). 

Respondent's counsel stated that his intent was to challenge 

the special "S&S" findings made by the inspector in this case, as 

well as the "special assessment" levied by MSHA's Office of 

Assessments for the alleged violation of section 77.i605(b) (Tr. 

38). The parties were informed that the matter of "S&S" may be 

pursued in this case, but that the "unwarrantable failure" 

finding and the validity of the order per se is not an issue, and 

counsel for the parties agreed with my ruling in this regard (Tr. 

36, 40). The parties were also informed that I am not bound by 

any "special assessment" made by HSHA, and that the Secretary's 

Part 100 regulations concerning initial civil penalty assessments 

are not binding on the presiding judge (Tr. 40-41). 

MSHA's Testimony and Evidence. 

MSHA Inspector Lester Coleman testified as to his background 

and experience, including ten years service as an MSHA inspector 

and prior work in the mining industry as a mine foreman. 

Mr. Coleman described the mine in question as a surface ceal 

mining stripping operation employing approximately 40 to 50 

miners working 12-hour shifts, four days a week. 

Mr. Coleman confirmed that he issued the order in question 

on January 24, 1984, during the course of his inspection of the 

mine. He stated that he observed the loader in question digging 

coal, and that two men on foot were working "downgrade from the 

machin~" cleaning coal pits with shovels. He also observed 

another end loader which was "working in conjunction" with the 

cited machine, and that the second loader would be at different 

locations in the course of doing its work (Tr. 47). The 

respondent stipulated that the cited loader in question weighed 

approximately 188,000 pounds (Tr. 49). 

Mr. Coleman stated that while he personally did not test 

the parking brake in question, the machine operator informed 

him that it did not work. When Mr. Coleman asked the operator 

to demonstrate the brake, the operator set the brakes and raised 

the machine bucket, and the machine rolled (Tr. 47). When asked 

why he believed the failure to have an adequate parking brake 

on the machine posed a hazard, Mr. Colema~ replied as follows 

(Tr. 4 9) : 

2130 
A. They can park the machine on the grade down 

there, get out and leave it unattended or something 

or other, and it could roll off, probably roll into 

the other piece of equipment or possibly roll over 

one .of the work hands or just roll out in front of 

the other machine and not contact it but cause the 

guy to run around it and run over one of the other 

guys or something. 

On cross-examination, Mr. Coleman confirmed that the 

regular brakes used to control and stop the end loader in 

question when it was operating in forward and in reverse 

were operable, and that as long as the operator was in the 

machine he saw no problem and did not believe that there was 

any hazard or likelihood of an accident. His only concern was 

over the fact that if the machine were left unattended, the inadequate parking brake would present a hazard. 

Mr. Coleman stated that while he never observed the particular cited machine left unattended he has observed other equipment 

unattended when the operator parks it in the pit area and then 

goes for a drink of water or to the bathroom (Tr. 55). However, 

he conceded that when an operator leaves his machine in these 

circumstances, he will stop it, set the brakes, and then drop 

the bucket to the ground. The bucket is dropped in order to 

comply with mandatory safety standard section 77.16D7(p), which 

requires that all machine movable parts be secured or lowered to 

the ground when the m~chine is not in use (Tr. 55). If the 

machine were parked with the bucket facing downhill, the machine 

would stop. However, he believed that the area where the end 

loader was stripping coal had a rock bottom, and that the 

stripped grade was from one to three percent and it was possible 

for the machine to slide across the hard surface (Tr. 56). 

Mr. Coleman stated that when he first arrived at the pit 

area the loader in question was located somewhere else. The 

foreman sent someone to bring the loader to the pit area without 

informing him of the parking brake condition, and when it was 

brought to the pit, the brake was checked (Tr. 57). Mr. Coleman 

conceded that the area where the machine was operating was less 

than a 5% grade, and that while it was "flat, 11 he conceded that 

"it wasn't very much of a grade" (Tr. 58). He also conceded 

that the machine operators were "usually pretty good" about 

lowering the bucket to the ground when their machines are 

parked (Tr. 58). He stated that he has never observed a 

situation where a machine operator has alighted from his machine 

without lowering his bucket or ripper down (Tr. 62). 

Mr. Coleman indicated that during any working day there 

are three or four times when a machine operator normally has 

occasion to use his parking brake. One is in the morning when 

2131 
the machine is parked and before it is started up, a second 

time is at noon during lunch, a third time is when the machine 

is parked at night, and a fourth time is when the operator 

alights to get· a drink or water or go to the bathroom (Tr. 60) 

However, since the mine has different grades, and since a 

foreman may stop a machine operator on a grade to speak with 

him, he was concerned about the inadequate brake (Tr. 61). 

Mr. Coleman confirmed that he has inspected the mine on 

four or five previous occasions, and that he has never issued 

any citations for violations of section 77.1607(p) (Tr. 63). 

He also confirmed that he never observed the two coal cleaners 

around or near the machine while it was being parked, and he 

conceded that his belief that a fatality would occur stemmed 

from his assumption that the machine operator might _decide to 

get off the machine while it is parked on a grade with the 

bucket up (Tr. 64). 

Mr. Coleman stated that the foreman told him that he 

knew about the parking brake condition on January 23, and 

that to his knowledge the foreman had not ordered the parts 

to make the repairs. Mr. Coleman confirmed that the brake 

was repaired the next day (Tr. 66). 

Mr. Coleman stated that the area where the loader was 

cleaning coal was approximately 150 feet square, and that it 

was operating in a seam-approximately 16 to 18 inches thick. 

The two men in question were working away from the seam, and 

he conceded that if the machine happened to roll with its 

bucket up in the air, it should catch on the 18 inch seam_ 

before reaching the area where the men were working. However, 

since there was a ramp along the edge of the coal seam, he 

believed that the machine could go up the ramp. Even so, he 

conceded that it would roll back and away from the two men (Tr. 68). 

In response to questions from the bench, Mr. Coleman 

indicated that the loader in question was parked in another 

area of the mine. However, the foreman wanted to use it to 

break up the coal in the pit and he sent a workman to bring 

the machine to the pit (Tr. 70). Once it was driven to the 

pit area, Mr. Coleman decided to inspect it because an employee 

had informed him that the parking brake did not work and that 

is why the machine was parked. Upon checking the machine and 

finding the parking brake inadequate, Mr. Coleman cited it 

and had it taken out of service immediately (Tr. 71). He 

further explained as follows (Tr. 71-72): 

Q. So it actually was not doing any loading at 

the time you observed it? 

A. No, he was going to use it to break out. 

2132 
Q. But it was not being used to break out coal? 

A. No. 

Q. You took it out of service to assure that it 

wouldn't be put in service, is that the idea? 

A. Yes. 

Q. So you didn't just happen to walk in this 

pit area and see this loader out there breaking 

coal and the two guys over there shoveling and 

then have it tested and then take it out of 

service? 

A. No, I didn't. 

Q. So you acted based on what somebody else 

told you, and when the loader was brought over 

there you tested it and found the parking brakes 

were inoperative and you wanted it taken out of 

service? 

A. Yes. 

Q. So it actually never began breaking and 

doing all the things that Mr. Petrick suggested 

it was doing while you were there; is that right? 

A. That's correct. 

Mr. Coleman stated that when the loader parking brake was 

tested the bucket was in a raised position, and that the brake 

was never tested with the bucket lowered. Had he tested it 

with the bucket down, and found that the machine would not 

roll, he would still have issued the violation because "the 

law that I cited him under requires that he has a parking 

brake" (Tr. 73). When asked whether he would also have made 

an "S&S" ~inding had the machine not rolled with the bucket 

down, he replied "yes," and he explained as follows (Tr. 

73-74): 

A. Because of the importance of the thing. And 

the machine is there parked on several different 

grades. And, granted, usually it's more level than, 

you know, it's two, three, five percent or something 

like that. And the law requires that they have it 

and that the -- to me the significant reason, a lot 

of times they get out and they will park the machine 

with it still running. A machine that big vibrates 

and it would start to roll. 

2133 
Q. So your concern when you made an S and S finding 

in this case is that during the normal operation 

with this inoperative parking brake sometime during 

the shift or whatever something could conceivably 

happen that would cause the loader to get away and 

if it did it could likely strike somebody and if it 

did that it would likely kill them; is that it in a 

nutshell? 

A. Or another machine, haulage trucks. They have 

haulage trucks that haul in the area, too. 

Q. So you were trying to cover all bets, more 

or less? 

A. Yes. 

Q. Is that your understanding on how you go about 

making an S and S, significant and substantial 

finding? 

A. Well, if it was significant or substantially 

contribute to or cause an accident or something, 

that's kind of the way I looked at it. 

Find-i-ngs and Conclusions 

Fact of Violation 

Respondent is charged with a violation of section 77.1605(b), 

for having an inadequate parking brake on a rubber-tired 

end loader. Respondent presented no witnesses in defense 

of the citation, and simply relied on the cross-examination 

of Inspector Coleman to establish that the violation was not 

significant and substantial. 

Mandatory safety standard section 77.1605(b), requires 

that mobile equipment be equipped with adequate brakes, and 

that all front-end loaders also be equipped with parking 

brakes. Although the standard does not specifically require 

that such parking brakes be adequate, I read this into the 

language of the standard as a logical requirement. Here, once 

the parking brakes was tested, it was found to be inadequate 

since it did not prevent the end loader from rolling. The 

respondent has not rebutted MSHA's prima facie case of a 

violation of section 77.1605(b), and the violation IS AFFIRMED. 

2134 
Significant and Substantial 

After listening to the inspector's direct testimony, I 

had the in1tial impression that when he arrived at the pit 

area, he observed the end loader in question digging coal 

and operating in the proximity of two men who were working 

"downgrade'' cleaning coal. Given the inspector's asserted 

concern that if left unattended, with the engine running, 

the machine could have rolled and struck the two men, my 

first inclination was to find that the violation was significant 

and substantial. However, for the reasons which follow, 

I cannot conclude that this is the case. 

On cross-examination, and in response to further bench 

questions, the inspector admitted that when he first arrived 

at the pit area, the end loader was in fact parked in another 

area, and was not in operation or breaking or loading coal. 

He indicated that someone had informed him that the machine 

had an inadequate parking brake, and when it was brought 

to the pit, the inspector had the brake tested, and after 

finding that it would not hold the machine, he ordered the 

machine taken out of service until the parking brake could 

be repaired the next day. In short, the machine was never 

used, and the petitioner has not established otherwise. 

The testimony and evidence in this case establishes 

that the pit area where the end loader in question would 

normally be operating was flat, and with very little grade. 

Further, the inspector conceded that during prior inspections 

of the mine site he never observed the machine left unattended, 

and in fact he conceded that in his experience, when an 

operator has to leave the machine to go to the bathroom 

or take lunch, the machine is always stopped, the front bucket 

is lowered to the ground, and the operational brakes are set. 

He also conceded that he has never cited the respondent for 

a violation of mandatory standard 77.1607(p), which requires 

that machine buckets be lowered to the ground when not in 

use, and petitioner advanced no evidence to show that the 

respondent has ever been cited for such infractions. 

The inspector confirmed that the regular brakes used 

to stop the end loader when it operated forward and in reverse 

were adequate and operational, and no hazard was presented 

while the machine was in ·operation. Although the inspector 

stated on the face of the violation notice which he issued 

that the inadequate parking brake would not hold the machine 

against movement on a grade of ''approximately 5%," he conceded 

during his testimony that it was less than 5%. 

2135 
The facts here also show that the pit area where the 

machine in question would normally have operated was excavated 

to a seam depth of some 16 to 18 inches, and the inspector 

conceded that the 'two men he claimed he observed working 

"downgrade" were in fact out of the pit area. The inspector 

also conceded that in the event the machine had rolled, it 

would have come to rest at the edge of the pit, and absent 

any credible showing that a 188,000 machine can jump up and 

out of the pit, I cannot conclude that this was reasonably 

likely to happen. Although the inspector indicated that there 

was a ramp constructed in the pit to facilitate the machine 

moving in and out, his "theory" that the machine could have 

rolled up the ramp, out of the pit, and then rolled down 

and struck the two men is rejected. There is absolutely 

no credible f a~ts to establish that this was reasonably 

likely to occur. 

The inspector conceded that when he tested the parking 

brake, he did so with the bucket up, and not down as it is 

normally left when the operator leaves the machine. Further, 

there is no evidence that the inspector ever observed the 

machine parked in the pit, and he confirmed that he never observed 

anyone around the machine while parked. Since the parties 

failed to call the two men in question to testify, I have 

no basis for determining where they were positioned in 

relation to the machine, or where they would normally be 

positioned once the loader was in operation. These are critical 

facts to any determination as to the likelihood of an accident. 

Based on all of the evidence and testimony here pre-sented 

it seems clear to me that the inspector made his "S&S" finding 

on an assumption that when and if the machine were placed 

in service, the operator would park the machine with the 

bucket up, in violation of section 77.1607(p), and that he 

would not follow the normal operational procedures for securing 

the machine when it is left unattended. Given the fact 

that the inspector conceded that to his knowledge, end-loader 

operators always follow those procedures, and given the fact 

that the inspector offered no credible evidence to the contrary, 

his assumptions are simply unsupportable. I am convinced 

that the inspector made his "S&S" finding in order to cover 

every conceivable set or circumstances which may have triggered 

an accident once the machine was placed in service. Such 

a theory of "S&S" would require an inspector to find any 

violation to be "S&S." 

In my view, the only fact presented by the petitioner 

to conceivably support an "S&S" finding in this case is 

his testimony that the pit foreman admitted that he knew the 

2136 
parking brake was inadequate, and that the foreman had the 

machine driven to the pit area and intended to put the 

machine in service without telling the operator about the 

brake condition. However, the inspector also confirmed that 

the same employee who advised him of the inadequate brake 

also advised him that this reason why the machine had been 

parked 'in an area away from the pit where it would normally 

be operating. 

The respondent failed to call the pit foreman to rebut 

the inspector's testimony, and also failed to rebut the inspector's 

testimony during cross-examination. By the same token, 

the petitioner failed to subpoena the pit foreman, and since 

the inspector marked the "negligence" portion of his citation 

to indicate a "reckless disregard" of the requirements 

of the cited standard, I can only speculate that he -did so 

on the basis of the pit foreman's purported admission. Even 

so, based on all of the circumstances discussed above, 

including the fact that the inspector immediately took the 

loader out of service before it was operated in the pit, 

the.totality of the circumstances presented do not establish 

that an accident was reasonably likely to occur. Even if 

the machine were placed in service with an inadequate parking 

brake, I am of the view that the possibility of an accident 

was remote and not reasonably likely to occur. Accordingly, 

the inspector's "S&S" finding IS VACATED. 

Size of Business and Effect of Civil Penalty on the Respondent's 

Ability to Continue .itn Business 

The parties stipulated that the respondent is a small-tomedium sized mine operator and that .the asse~sment of a 

reasonable penalty will not adversely affect its ability to 

continue in business. I adopt these stipulations as my findings 

and conclusions on these issues. 

History of Prior Violations 

Exhibit G-1 is a copy of a computer print-out summarizing 

the number of violations assessed and paid by the respondent 

for the period November 1, 1981, to October 31, 1983, for 

the Heavner No. 1 Mine. That information reflects a total 

of eleven paid violations, three of which are for prior 

violations of section 77.1605{b). However, since the petitioner 

did not submit copies of these prior section 104(a) citations, 

I have no way of knowing whether or not they were issued for 

end loaders. However, I do note that two of the citations 

were issued in November 1982, and are "single penalty" 

assessments for $20 each, and the other one was issued in 

June 1983, and was assessed at $50. 

2137 
Good Faith Abatement 

The inspector confirmed that the violation was issued 

at 12:00 noon on January 24, 1984, and that the conditions 

were corrected and the violation abated the next day (Tr. 66). 

Accordingly, I find that the violation was promptly abated in 

good faith by the respondent. 

Negligence 

The inspector's unrebutted testimony in this case 

strongly suggests that the foreman or pit superintendent, 

had prior knowledge of the inadequate parking brake, but 

nonetheless had the machine brought to the pit area in that 

condition, fully intending to use it. The inspector's testimony 

is as follows: · 

A. No, sir, the machine was in another area 

when I arrived, and the foreman, Superintendent 

Jim Payne sent another workman to get the loader. 

And he didn't inform this guy about the condition, 

so the guy went to another area and brought the 

loader into this pit area. And when he was bringing 

it down we checked it (Tr. 57). 

And, at Tr. 76-77: 

Q. Okay. Was Mr. Payne there when the machine 

was brought to the area? 

A. Yes. 

Q. He's the fellow that asked them to bring it? 

A. Yes. 

Q. Now, why would Mr. Payne do something like 

that if he knew that the parking brake was 

inoperative? Does that make sense, particularly 

with a federal inspector there. I don't know 

Mr. Payne, I assume he has got better sense than 

that, but maybe not, I don't know. Mr. Payne, if 

you're here, I apologize for that, sir, but I 

couldn't resist. 

A. I can't answer that. 

Q. I can't see the pit foreman 

a foreman of some kind? 

2138 

is Mr. Payne 
A. Superintendent, I think is the way they 

have him listed. 

Q. And there you are, a federal inspector there, 

and you're telling me that Mr. Payne knew this 

piece of equipment had defective parking brakes 

and he tells the fellow to bring it over there and 

put it in operation. 

A. Mr. Payne told me that he knew himself. 

On the basis of the foregoing, I conclude and find that 

the violation here resulted from the respondent's failure 

to exercise the slightest degree of care to insure that the 

inadequate brake condition was attended to before bringing 

the cited machine to the pit area, fully intending to put 

it into operation. Although I have considered the possibility 

that the respondent had the machine parked because it intended 

to repair the inadequate parking brake, absent any mitigating 

testimony hy the respondent, I can only conclude that had 

the inspector not removed the machine from service, Mr. Payne 

would have allowed it to be put in service with the inadequate 

brake condition. Under the circumstances, I conclude and 

find that the violation resulted from gross negligence on 

the part of the respondent, and this is reflected in the civil 

penalty assessed by me for the violation. 

Gravity 

Although I have concluded that the violation here is 

not significant and substantial, I cannot conclude that it 

was nonserious. While it is true that there was no reasonable 

likelihood that an accident would occur, it seems to me that 

given the fact that Mr. Payne apparently knew about the condition, 

and was willing to take a chance and put the machine with 

an inadequate parking brake, there was a possibility, albeit 

unlikely, that an accident could occur. Accordingly, I 

conclude and find that the violation was serious. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section 110(.i) 

of the Act, I conclude and find that a civil panalty in the 

amount of $300 is appropriate for the cited violation. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in 

the amount of $300 for a violation of mandatory standard 

2139 
section 77.1605(b), as stated in violation number 2077410, 

issued by MSHA Inspector Lester Coleman on January 24, 1984, 

and payment is to be made to MSHA within thirty (30) days 

of the date ·of this decision and order. Upon receipt of payment, 

this proceeding is dismissed. 

Distribution: 

I 

~~~~Koutras 

/j~ cf,~ Administrative Law Judge 

Richard L. Collier, Esq., U.S. Department of Labor, Office of 

the Solicitor, 555 Griffin Square; Suite 501, Dallas, TX 75202 

(Certified Mail) 

Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box 447, 

Muskogee, OK 74401 (Certified Mail) 

/slk 

2140 
FEDERAL MINE SAFETY AND HEALTH REVIEV1 COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 :SEP 12 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 82-1 

A.C. No. 29-00096-03011 

Docket No. CENT 82-2 

A.C. No. 29-00096-03012 

McKinley Strip Mine 

Appearances: Jordana W. Wilson, Esq., Office of the Solicitor, 

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

Before: 

for Petitioner; 

John A. Bachmann, Esq., The Gulf Companies, 

Denver, Colorado, 

for Respondent. 

Judge Morris 

These cases, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (the 

"Act"), arose as a result of an inspection of respondent's coal 

mine. The Secretary of Labor seeks to impose civil penalties 

because respondent allegedly violated safety regulations 

promulgated under the Act. 

Respondent denies any liability under the Act. 

After notice to the parties, a hearing on the merits was 

held in Gallup, New Mexico on October 19, 1983. 

The parties waived the right to file post trial briefs. 

Issues 

The issues are whether respondent violated the regulations; 

if so, what penalties are appropriate. 

2141 
CENT 82-1 

Citation 826733 

This citation alleges a violation of Title 30, Code of 

Federal Regulations, Section 77.1302 J, which provides as 

follows: 

§ 77.1302 Vehicles used to transport explosives. 

(j) When vehicles containing explosives or detonators 

are parked, the brakes shall be set, the motive power 

shut off, and the vehicles shall be blocked securely 

against rolling. 

MSHA's evidence shows that on July 7, 1981 Federal Inspector 

Lawrence Rivera issued this citation when he observed a parked 

truck; it lacked chocks to prevent it from rolling. The truck, 

which carried explosives, was located in the pit area (Transcript 

at pages 12, 13; Exhibit P3). The truck would have to be moved 

that day (Tr. 14-15). 

Two miners were affected by this hazard which could cause a 

fatality. The possibility of an accident was remote as the truck 

was parked in a small dip in a coal seam (Tr. 13, 14, 52-53). 

Chocks were brought in and placed to secure the vehicle (Tr. 15). 

Discussion 

The facts establish a violation of the regulation. 

Respondent's witness Gary D. Cope agreed that the vehicle did not 

have chocks (Tr. 136, 137). 

The evidence shows the truck was parked in a dip. Accordingly, it was not likely to move in any event. The foregoing 

evidence relates to issues of gravity and negligence. These are 

factors to be considered in assessing a civil penalty. 

Citation 826734 

This citation alleges respondent violated 30 C.F.R. 

§ 77.1110, a performance standard. It provides: 

§ 77.1110 Examination and maintenance of 

firefighting equipment. 

Firefighting equipment shall be continuously maintained in a usable and operative condition. Fire 

extinguishers shall be examined at least once every 

6 months and the date of such examination shall be 

recorded on a permanent tag attached to the extinguisher. 

2142 
Inspector Rivera issued this citation when he observed that 

the hose and nozzle were missing on a fire extinguisher (Tr. 16, 

17; P4). One worker was exposed to the hazard caused by this 

condition on the company's pickup truck (Tr. 18). 

The condition was abated by installing usable equipment (Tr. 

19). 

Respondent's witness Cope produced photographs of the SBC 

Chemical type fire extinguishers installed on the company's 

pickup trucks (Tr. 104, lOS; Exhibit D4). Respondent's photographs also show the performance of the extinguisher. It is 

suitable for the use intended (Tr. 110-116; D4 thru D7). 

The manufacturer's specifications do not provide a hose for 

this particular extinguisher. The hand operated unit directs the 

flow of its contents through a short one inch nozzle at the 

discharge point. 

Discussion 

The cited regulation requires that firefighting equipment 

shall be maintained in a usable and operative condition. Many 

extinguishers are equipped with a hose together with an attached 

nozzle. However, even though these extinguishers were not so 

equipped, they are, nevertheless, in a usable and operative mode. 

Hence, respondent did not violate the regulation. 

For these reasons this citation should be vacated. 

Citation 826737 

This citation alleges a violation of 30 C.F.R. § 77.1110, 

cited in the previous citation. 

The inspector issued this citation because the hose and 

nozzle were missing on the extinguisher. The equipment was on 

truck number 121. The cited vehicle was different from the one 

previously cited. Respondent abated the citation by installing 

usable equipment (Tr. 20, 21; PS). 

Respondent's evidence indicates that the same type of 

equipment existed as discussed in connection with the prior 

citation (Tr. 104-lOS, 109, 113-114). 

2143 
Discussiou 

This citation should be vacated for the same reasons 

discussed in connection with Citation 826734. 

Citation 826741 

This citation alleges a violation of 30 C.F.R. 

§ 77.1109(c)(l) which provides: 

(c)(l) Mobiie equipment, including trucks, front-end 

loaders, bulldozers, portable welding units, and augers, 

shall be equipped with at least one portable fire extinguisher. 

Inspector Rivera issued this citation when he observed a 

forklift without a fire extinguisher (Tr. 22, 23; P6). The 

forklift was observed when it was approaching the shop. At that 

point it was about 600 feet away from the shop (Tr. 23-24; PlO). 

One or two miners were affected by the hazard arising from 

the lack of a fire extinguisher (Tr. 25-26). An extinguisher was 

installed to abate this condition (Tr. 26-27). 

Respondent's evidence indicates its forklift remains in the 

area of a single structure which consists of the shop, warehouse 

and office building (Tr. 139). The forklift normally will go 75 

feet to the open air storage. Then it will travel about 50 feet 

to the fuel dock. In addition, it will encompass 100 feet to the 

other end of the oil dock (Tr. 139). These areas all have 

firefighting equipment (Tr. 139, 140). 

Discussion 

Respondent considers the forklifts are used in connection 

with warehouse and open air storage. Therefore, they constitute 

"auxiliary equipment" (Tr. 103, 104). Section 77.1109(c)(3) 

refers to auxiliary equipment in the following terms: 

(3) Auxiliary equipment such as portable drills, 

sweepers, and scrapers, when operated more than 

600 feet from equipment required to have portable 

fire extinguishers, shall be equipped with at least 

one fire extinguisher. 

A single credibility issue arises in connection with this 

citation. Inspector Rivera indicated that he observed the 

forklift when it was about 600 feet from the shop (Tr. 23-24). 

On the other hand, respondent's witness Cope testified as to the 

general are~. He indicated it would not have been possible for 

2144 
the forklift to have been 600 feet from the shop and still remair 

·on a paved area (Tr. 101-102). 

I credit respondent's evidence. Witness Cope would be more 

familiar with the area where the forklift operates. In addition, 

it is apparent from his testimony that Inspector Rivera was 

unsure of the location of the forklift in relation to the shop 

area when he observed it (Tr. 23, 24). 

The principal issue then evolves into whether a forklift is 

"mobile" or "auxiliary" equipment. If the latter no fire extinguisher is required. 

I conclude that a forklift constitutes mobile equipment. 

This conclusion rests on several facts. First of all, a forklift 

is "capable of moving" and it thus meets the definition of being 

"mobile", Webster's New Collegiate Dictionary, 732, (1979). In 

addition, Section 77.1109(c)Cl) describes certain types of mobile 

equipment whereas Section 77.1109Cc)(3) describes certain types 

of auxiliary equipment. I find that a forklift is more akin to 

the equipment the standard describes as "mobile" than to the 

equipment described as "auxiliary". 

The citation should be affirmed. 

Citation 826744 

This citation alleges a violation of 30 C.F.R. § 77.604 

which provides: 

§ 77.604 Protection of trailing cables. 

Trailing cables shall be adequately protected to 

prevent damage by mobile equipment. 

Inspector Rivera wrote this citation when he recognized 

eight tire marks (crossing and returning), on a 23,900 volt cable 

(Tr. 28; P7). The cable, in an obvious location alongside the 

roadway, supplied power to a dragline (Tr. 28, 29). 

A rupture of the cable could shock a person. In addition, 

an explosion could occur. Severe burns, electrical shock and 

possibly a fatality could result from this condition (Tr. 28-30). 

The condition was abated when the miners were instructed to avoid 

the cable (Tr. 31). 

Respondent's witness agreed there were eight tire marks on 

the cable (Tr. 122). The top soil had not been removed; the soil 

was sandy and soft (Tr. 123). 

2140 
The cables themselves are protected with GFI ground fault 

interrupters. This safeguard causes the power to trip out if a 

cable failure occurs (Tr. 126). 

The company did not know who had run over these cables. In 

the past, the company has disciplined two or three employees for 

driving over its cables (Tr. 134-135). 

Discussion 

This regulation requires that trailing cables shall be adequately protected to prevent damage. In the instant case it is 

unrefuted that the cable was lying on the ground and it had been 

run over by mobile equipment (Tr. 75). Adequate protection would 

include barricading the area, burying the cables or suspending 

the cables overhead (Tr. 87). 

In his closing argument respondent's counsel relies on 

C.F.&.I. Steel Corporation, 3 FMSHRC 2168, Cl981). In the cited 

case Judge John A. Carlson vacated a citation involving an 

alleged violation of the same standard. Judge Carlson ruled in 

his case that he was more persuaded by respondent's inferences 

than those urged by the government, 3 FMSHRC at 2169. 

The case relied on by respondent is not controlling. On the 

contrary, in this case, I am persuaded by Inspector Rivera's 

testimony. An explosion could be caused by the sharp material 

under the surface of the cable. It had obviously been run over 

by a vehicle (Tr. 28-29). In addition, Inspector Rivera has a 

considerable background as an MSHA coal mine inspector. This 

experience causes me to accept his opinion of the hazard involved 

(Tr. 7, 8; P2). 

The citation should be affirmed. 

Citation 826745 

This citation alleges a violation of 30 C.F.R. § 77.204 

which provides: 

§ 77.204 Openings in surface installations; safeguards. 

Openings in surf ace installations through which men 

or material may fall shall be protected by railings, 

barriers, or covers or other protective devices. 

Inspector Rivera issued Citation 826745 because the operator 

failed to provide a railing at the opening of a loading dock. 

2148 
The dock, adjacent to the warehouse, is 2~ feet long and 4 feet 

deep (Tr. 33, 34; P&, Pll). A worker or equipment could fall to 

the concrete below (Tr. 34). 

One worker was affected by this hazard (Tr. 37). 

The condition was abated when a broken hook was replaced by 

welding it at one side (Tr. 38). The operator of the forklift 

requested some type of protection here for this condition (Tr. 

67). 

In Inspector Rivera's opinion the opening here is in a 

vertical surface. It is similar to a door opening (Tr. 69-70). 

Discussion 

In support of its motion to dismiss respondent relies on 

State ex. rel. City Iron Works v. Ind. Com., 368 N.E. 2d 291, 

(1977). 

In the cited case a worker fell from the edge of a roof. 

The Appellate Court decision construes three sections of the Ohio 

Code of Specific Safety. The requirements of the Ohio Code are 

considerably narrower than the scope of 30 C.F.R. Section 77. 

Accordingly, City Iron Works is not controlling. 

In this case the Secretary's regulation, 30 C.F.R. § 77.200, 

defines the scope of surface installations. It requires an 

operator to maintain all mine structures, enclosures or other 

facilities in good repair to prevent accidents and injuries. The 

general description of a surface installation in Section 77.200 

is sufficiently broad to include respondent's loading dock. On 

the facts here it is established that miners could fall from the 

dock if a protective chain was not used to provide a warning or 

prevent a fall. In addition, a chain had been furnished across 

this opening before this citation was issued. Inspector Rivera 

observed that a hook on one side had broken off. The condition 

was abated by rewelding the hook (Tr. 35, 38). 

The citation should be affirmed. 

CENT 82-2 

Citation 826746 

This citation alleges a violation of 30 C.F.R. § 77.604, relating to protecting trailing cables, cited, supra. 

Inspector Rivera wrote this citation when he saw tire marks 

from where a pickup had run over a cable. The pickup, adjacent 

to the cable, had identical tire treads (Tr. 40). This was at a 

different location than the previous citation (Tr. 39, 40). 

2147 
The cable, carrying 23,900 volts, involves an electrical 

shock hazard (Tr. 41). Men in the pickup as well as men moving 

the cable would be affected by such a hazard (Tr. 41). 

The condition was obvious because it was adjacent to the 

road. The hazard was abated by installing a berm between the 

road and the cable (Tr. 43). According to the inspector, the 

mine superintendent knew the condition existed (Tr. 44-45). 

Discussion . 

The uncontroverted facts establish a violation of the 

regulation. The citation should be affirmed. 

CIVIL PENALTIES 

The six criteria for assessing a civil penalty are set forth 

in 30 u.s.c. § 820Ci>. 

In considering the statutory criteria I find that the 

operator has a minimal adverse history. Five violations were 

assessed between August 8, 1979 and January 10, 1980 (Exhibit Pl). 

The penalties, as proposed, are appropriate in relation to the 

large size of the operator (Tr. 9). In those citations where I 

find a violation I also find that the operator was negligent 

because the violative conditions were open and obvious. As 

previously discussed the gravity and negligence concerning 

Citation 826733 are overstated and the penalty should be reduced. 

The gravity of the remaining citations is apparent on the facts. 

In favor of the operator is its good faith in rapidly abating the 

defective conditions. 

On balance, I deem the following penalties to be appropriate: 

Citation 

826733 

826734 

826737 

826741 

826744 

826745 

CENT 82-1 

Proposed 

Assessment 

$170 

66 

72 

84 

180 

122 

2148 

Disposition 

$ 85 

Vacate 

Vacate 

84 

180 

122 
Citation 

'826746 

CENT 82-2 

Proposed 

Assessment 

$78 

Disposition 

$78 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

In CENT 82-1 

1. The following citations are affirmed and a civil penalty 

is assessed as indicated: 

Citation 

826733 

826741 

826744 

826745 

In CENT 82-2 

826746 

Penalty 

$ 85.00 

84.00 

180.00 

122.00 

$ 78.00 

2. The following citations and all penalties therefor are 

vacated. 

Distribution: 

In CENT 82-1 

Citation 826734 

Citation 826737 

Jordana W. Wilson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square, Suite 501, Dallas, Texas 75202 

(Certified Mail) 

John A. Bachmann, Esq., The Gulf Companies, 1720 South Bellaire 

Street, Denver, Colorado 80222 (Certified Mail) 

/blc 

2149 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA· 22041 SEP 12 1984 

SECRETARY OF L.AB,OR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 84-151 

A. C. No. 15-13881-03520 

Pyro No. 9 Slope 

William Station 

DECISION APPROVING SETTLEMENT 

Before: Judge Steffey 

Counsel for the Secretary of Labor filed on August 30, 

1984, a motion for approval of settlement in the above-entitled 

proceeding. Under the parties' settlement agreement, respondent would pay a reduced penalty of $450 for a single alleged 

violation of 30 C.F.R. § 75.200 in lieu of the penalty of $800 

proposed by MSHA. 

The alleged violation here at issue is one which could 

not be disposed of in my decision issued July 26, 1984, in 

this proceeding because it was not a part of the record resulting from the hearing held in Docket Nos. KENT 84-87-R and KENT 

84-88-R which was the basis for the decision issued on July 26, 

1984. Although the Cormnission issued a "Direction for Review" 

of that decision on August 24, 1984, the issues to be considered by the Cormnission do not pertain to the remaining issues 

in this proceeding which have been settled by the parties. 

Section llO(i) of the Federal Mine Safety and Health Act 

of 1977 lists six criteria which are required to be used in 

determining civil penalties. The motion for approval of settlement discusses those criteria. The mine here involved produces about 1,600,000 tons of coal annually and respondent's 

production on a company-wide basis is approximately 3 million 

tons per year. Those figures support a finding that respondent is a large operator and that penalties in an upper range 

of magnitude should be assessed to the extent that they are 

determined under the criterion of the size of the operator's 

business. 

The motion for approval of settlement states that respondent paid penalties for 40 previous violations during the 

period from December 1982 to December 1983, whereas the proposed assessment sheet in the official file indicates that 

2150 
respondent paid penalties for 25 alleged violations during.125 

inspection days for the 24-month period from January 1982 to 

January 1984. MSHA's proposed penalty of $800 is based on the 

history of previous violations given in the proposed assessment 

sheet. When 25 violations occurring during 125 inspection days 

are evaluated under the provisions of MSHA's assessment formula 

in 30 C.F.R. § 100.3(c), the violations per inspection day are 

so few that no part of the penalty proposed by MSHA could have 

been assigned under the criterion of history of previous violations. Since I am dealing with a motion to approve settlement 

of MSHA's proposed penalty, it is appropriate for me to consider 

the information given in the proposed assessment sheet, rather 

than the somewhat inconsistent figure of 40 previous violations 

given in the motion for approval of settlement. 

Additionally, it should be noted that a single number of 

previous violations is hardly suitable for evaluating a respondent's history of previous violations because it cannot be applied under section 100.3(c) of the assessment formula unless 

the number is also associated with the number of inspection days 

which occurred during the time that the violations were accumulated. In most cases which go to hearing, the Secretary's counsel provides a computer printout which lists previous violations 

along with the dates on which they were cited. That kind of information enables a judge to determine whether the violations 

occurred many months prior to the violation under consideration 

or immediately prior to the violation under consideration. Violations of the same standard occurring immediately prior to the 

violation under consideration show that respondent's history is 

not favorable, whereas violations which have occurred a year or 

more prior to the violation under consideration show a trend 

toward an improvement in safety. Unless a judge has the kind of 

information described above, it is difficult to evaluate the 

criterion of history of previous violations. As indicated above, 

however, I am relying upon the information given in the proposed 

assessment sheet in this proceeding and that shows that no part 

of MSHA's proposed penalty was assigned under the criterion of 

history of previous violations. 

The motion for approval of settlement states that respondent abated the violation within the time provided and MSHA's 

narrative findings indicate that the violation was abated "within a reasonable period of time", but neither the motion for approval of settlement nor MSHA's narrative findings indicate 

whether any portion of the penalty was assigned under the criterion of the operator's good-faith effort to achieve rapid compliance. My practice has always been to increase a penalty only 

if there is information available to show that respondent did 

not make a good-faith effort to comply, and to decrease the penalty only if there is evidence to show that the operator made an 

outstanding effort to comply. If the operator achieves compliance within the time given by the inspector, I consider that to 

21a1 
be a normal good-faith effort which requires neither an increase 

nor decrease in the penalty. That appears to be the treatment 

given to the criterion of good-faith abatement by MSHA and I 

find that it was appropriate for no portion of the penalty to be 

assigned under the criterion of good-faith abatement. 

The motion for approval of settlement states that payment 

of the penalty will not have an adverse effect on the ability of 

respondent to continue in business. Therefore, MSHA appropriately did not reduce the penalty under the criterion that payment of large penalties would cause respondent to discontinue in 

business. 

Consideration of the remaining two criteria of negligence 

and gravity requires a brief discussion of the nature of the 

alleged violation. The inspector alleged that a violation of 

section 75.200 had occurred because respondent had failed to 

install 6 timbers at each crosscut along the supply entry to 

within 240 feet of the tailpiece of the conveyor belt, as required by the roof-control plan. Out of 11 crosscuts, four had 

the timbers set, four of them had timbers set on one side, and 

three did not have timbers set at all. The motion for approval 

of settlement agrees that the inspector properly considered the 

violation to have been associated with a high degree of negligence so that no reduction in the penalty should be made under 

the criterion of negligence. 

Since the parties have not based a reduction of MSHA's 

proposed penalty on any of the five criteria discussed above, 

it is obvious that all of the reduction has to be made under 

the criterion of gravity. The motion for approval of settlement bases the reduced penalty primarily on the fact that the 

inspector had evaluated the criterion of gravity by checking 

item 21C on his citation to show that nine persons could have 

been expected to be exposed to injury if a roof fall had occurred. The motion states that all of the crosscuts at issue 

were a long distance from the face area and that it would be 

highly unlikely that a roof fall in the supply entry would affect all nine persons working on the section which was served 

by the supply entry. 

The fact that less than nine persons would be affected by 

a roof fall, if one had occurred, is a reason to reduce the penalty, but some additional discussion may be helpful in showing 

why the parties' settlement agreement should be granted. It 

should be noted that MSHA's proposed penalty of $800 is based 

on narrative findings which state that the inspector's evaluation of the alleged violation has been considered. The narrative findings do not indicate, however, how much of the penalty 

was assigned under the criterion of gravity as opposed to the 

criterion of negligence. Therefore, it is not possible to know 

2152 
how much should be deducted from the proposed penalty just because the inspector may have assumed incorrectly that nine persons would have been affected by any roof fall that might have 

occurred in the supply entry. 

On the other hand, the narrative findings do state that the 

six timbers were required to be set at crosscuts to within 240 

feet of the face, whereas the inspector's citation stated that 

they had to be set within 240 feet of the tailpiece of the conveyor belt. Therefore, the person who prepared the narrative 

findings may have considered the violation to be more serious 

than it really was because he or she may have been evaluating the 

lack of timbers as a matter which was a rather constant threat 

during actual production operations, rather than a danger which 

would only have affected a person traveling in the supply entry 

at a considerable distance from the working section. 

Any time that penalties are determined on the basis of subjective judgments, as occurred in this instance, it is difficult 

to say that a penalty should be precisely $800 as proposed by 

MSHA or $450 as agreed upon by the parties for purpose of settlement. I believe that the discussion above shows that a penalty 

of $450 is reasonable in this instance and I find that the parties' settlement agreement should be approved. 

WHEREFORE, it is ordered: 

(A) The motion for approval of settlement is granted and 

the parties' settlement agreement is approved. 

(B) Pursuant to the parties' settlement agreement, Pyro 

Mining Company, within 30 days from the date of this decision, 

shall pay a civil penalty of $450 for the violation of section 

75.200 alleged in Citation No. 2074793 dated January 14, 1984. 

Richard ~a.~~ C. Steffey ~ Administrative Law Judge 

Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, u. S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway,· Nashville, TN 

37203 (Certified Mail) 

William M. Craft, Assistant Director .of Safety, Pyro Mining Company, P. O. Box 267, Sturgis, KY 42459 (Certified Mail) 

yh 2153 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 19 1984 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

. 

. Docket No. "WEST 82-58-M 

A.C. No. 45-02582-05002 

Pole Road Pit No. 1 Mine 

FERNDALE READY MIX & GRAVEL, 

INC. I 

Respondent . . 

DECISION 

Appearances: Ernest Scott, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, Seattle, Washington, 

for Petitioner; 

Mr. William A. vanWerven, President, Ferndale Ready 

Mix & Gravel, Inc., Ferndale, Washington, 

appearing Pro Se. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (the 

"Act"), arose from an inspection of respondent's surface sand and 

gravel operation. The Secretary of Labor seeks to impose civil 

penalties because respondent allegedly violated various safety 

regulations promulgated under the Act. 

After notice to the parties, a hearing on the merits was 

held in Bellingham, Washington on January 9, 1984. 

The parties did not file post trial briefs. 

Issues 

The threshold issue is whether a Congressional funding 

resolution prevents MSHA from proceeding with this case. 

The secondary issues are whether respondent violated the 

various regulations; if so, what penalties are appropriate. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: 

2154 
1. Respondent, Ferndale Ready Mix & Gravel, Inc., a 

corporation, is the owner and operator of the Pole Road Pit No. 1 

Mine, a sand and gravel operation located at Everson, Whatcom 

County, Washington. 

2. Respondent was the owner and operator of Pole Road Pit 

No. 1 Mine, at all times material to this case. 

3. Respondent's business affects commerce, and the Mine 

Safety and Health Review Commission has jurisdiction to hear this 

case. 

4. Respondent admits paragraph III, of the petition filed 

in WEST 82-58-:M. 

5. As a result of an inspection of the Pole Road Pit No. 1 

Mine, Everson, Washington, by Federal Mine Safety and Health 

Inspector James Broome on July 28, 1981, Citations Nos. 588681, 

588682, 588683, 588715, 588716, 588717, 588718, 588719, and 

58872°0, were issued to Respondent. 

6. Copies of the aforesaid citations are contained in 

Exhibit "A" to the Petition for Assessment of Penalty filed in 

this case by petitioner, and may be admitted into evidence for 

the sole purpose of showing they were issued. 

7. Orders of Withdrawal Nos. 587071, 587058, 587059, 

587060, 587141, 587142, 587143, 587144, and 587145, copies of 

which are contained in Exhibit "A" to the petition for assessment 

of penalty filed in this case, were issued to respondent on 

September 2, 1981, by Federal Mine Safety and. Health Inspector 

David Estrada. 

8. Copies of the aforesaid Orders of Withdrawal may be 

admitted into evidence for the sole purpose of showing they were 

issued. 

9. As of the date (September 2, 1981) Inspector David 

Estrada issued the aforesaid Orders of Withdrawal, respondent had 

not yet corrected the conditions identified in the citations 

referred to in numbered paragraph No. 5 above. 

10. Respondent corrected the conditions referred to in 

numbered paragraph No. 5, herein above and came into compliance 

with the Federal Mine Safety and Health Act of 1977, and 

applicable regulations on or about September 10, 1981. 

11. During the two year period ending July 28, 1981, 

respondent did not have any history of violations under the Act. 

12. Payment of the proposed penalties ($613) will not affect 

respondent's ability to continue in business. 

2155 
13. ThE ?8le Road Pit No. 1 mine produced 15-20 thousand 

tons of wash materials during 1980. 

14. The .Pole Road Pit No. 2 mine produced 9-10 thousand tons 

of wash materials during 1981. 

15. Respondent's annual dollar volume of business done or 

sales made during 1980, 1981, and 1982 are set forth below: 

1980 - $60,000 

1981 - $40,000 

1982 - $50,000 

16. Respondent had approximately the following number of 

production employees during the following years: 

1980 - One part time 

1981 - One part time 

1982 - One part time 

17. At the commencement of the hearing it was further 

stipulated that Mr. VanWerven and his son do not contest the 

factual allegations contained in the nine citations issued by 

James Broome (Transcript at pages 5 and 6). 

MSHA's fiscal authority 

A threshold issue concerns MSHA's authority to expend funds 

in this case. The evidence on this issue is uncontroverted. 

MSHA inspected this sand and gravel operation and issued 

citations on July 28, 1981. Orders of withdrawal were issued on 

September 2, 1981. On December 18, 1981 respondent filed its 

notice of contest. 

On December 15, 1981 President Reagan signed H.R.J. Res. 

370, Pub. L. No. 91-92, § 131, 95 Stat. 1183, 1199 (1981). The 

foregoing Congressional funding resolution prohibits MSHA from 

enforcing the Mine Safety Act provisions with respect to various 

operations including sand or gravel activities (Exhibit J-1). 

On January 4, 1982 MSHA wrote to respondent and indicated 

that the foregoing funding resolution restricted the agency from 

enforcing the Act. MSHA's letter further indicated that 

2156 
respondent's case would "not be referred to the Federal Mine 

Safety and Health Review Commission and no further action will be 

taken at this time" (Exhibit R-1}. 

The above prohibition which arose from the funding resolution 

did not continue in effect. Jurisdictiori over sand and gravel 

was returned to MSHA when President Reagan signed the fiscal 1982 

supplemental appropriations bill on July 18, 1982 (Exhibit J-1}. 

On this record it does not appear that MSHA expended any 

funds on this case during the time the funding prohibition was in 

effect. Once jurisdiction was returned to MSHA, in July 1982, 

the agency could legally proceed with the prosecution of this 

action. The case was not presented until January 1984, long 

after the funding prohibition had been dissolved. 

On a related case deciding jurisdiction in relation to the 

same Congressional funding resolution see the Commission decision 

of Secretary on behalf of Cooley v. Ottawa Silica Company, 6 

FMSHRC 516, 525 (1984}. 

MSHA is not in violation of the funding resolution, 

accordingly, the agency complied with the law in presenting its 

evidence in this case. 

Citation 588681 

This citation proposes a civil penalty of $34. Respondent 

does not contest the factual allegations in the citation. These 

allegations are, in part, as follows: 

The elevated walkway around the wash screen was not 

kept clear of rocks and dirt on the drive side of the 

screen. The buildup presented a tripping hazard to 

person walking on the walkway. 

(Exhibit E-1}. 

The citation allegedly violated is contained in Title 30, 

Code of Federal Regulations, Section 56.11-2, which provides as 

follows: 

56.11-2 Mandatory. Crossovers, elevated walkways, 

elevated ramps, and stairways shall be of substantial 

construction provided with handrails, and maintained 

in good condition. Where necessary, toeboards shall 

be provided. 

MSHA Inspector James B. Broome indicated that he inspected 

respondent's mine on July 28, 1981. (Tr. 7, 9). 

2157 
The walkway cited by the inspector was eight to nine feet 

above ground (Tr. 11). The wash screen was in operation and one 

person was exposed to the loose rocks on the walkway. Injuries 

that could be sustained would range from a minimal injury to a 

fatality (Tr. 11, 12; Exhibit ElO). The inspector concluded that 

management was not aware of this condition (Tr. 10-11). 

Respondent presented no evidence concerning this citation. 

Discussion 

The Commission previously affirmed a violation of this 

regulation in a factual setting where there were tools, hooks, 

wire rope and rocks lying near the edge of the elevated walkway. 

In addition, there was no toeboards around the edge of the 

platform to prevent the loose material from falling over the edge 

and striking employees below. El Paso Rock Quarries, Inc., 3 

FMSHRC 35, 39. The writer is bound by the above Commission 

precedent. 

For these reasons Citation 588681 should be affirmed. 

Citation 588682 

This citation proposes a penalty of $72 and it reads, in 

part: 

The V-belt drive for the lead pulley of the wash screen 

feed conveyor was not guarded. It was about 5 1/2 

feet above the level of its wash screen walkway and 

readily accessible to a person on the walkway. 

(Exhibit E-2). 

The citation allegedly violated, 30 C.F.R. 56.14-1, 

provides: 

Guards 

56.14-1 Mandatory. Gears; sprockets; chains; drive, 

head, tail, and takeup pulleys; flywheels; couplings; 

shafts; sawblades; fan inlets; and similar exposed 

moving machine parts which may be contacted by persons, 

and which may cause injury to persons, shall be guarded. 

2158 
Inspector Broome, supplementi~g the factual allegations in 

the citation, testified that this violative condition was in 

plain sight. It should have been known to respondent. In 

addition, the inspector had previously advised the company that 

it was not in compliance concerning the V-belt. No citation had 

been previously issued for this condition because the plant was 

not then operating (Tr. 12-14). 

The same wash screen appears in this citation as in the 

previous citation (Tr. 13-14). The V-belt drive is 5 1/2 feet 

from the walkway; the pulley itself is directly in the center of 

the walkway (Tr. 15; Exhibit E-11). 

This condition could cause injuries ranging from bruised 

fingers to the loss of a hand (Tr. 14-15). 

Respondent's witness Larry William VanWerven testified that 

inspectors on previous occasions had not required guards for the 

conditions cited here (Tr. 35-38). 

Discussion 

The facts establish a violation of Section 56.14-1. On the 

facts of the case see the Commission decision of Missouri Gravel 

Company, 3 FMSHRC 2470 (1981). 

Respondent's defense is generally asserted as to all the 

guarding citations. It is in the nature of a collateral estoppel 

against MSHA because the inspectors did not previously issue 

citations for these same violative conditions. 

The fact that citations were not previously issued for 

violations of the guarding standard does not invoke the doctrine 

of collateral estoppel. The inspectors have different areas of 

expertise and it may well be that for some particular reason a 

violative condition is (or is not) brought to an inspector's 

attention. The doctrine cannot be invoked here to deny miners 

the protection of the Mine Safety Act. I have previously refused 

to apply the doctrine in similar circumstances. Servtex 

Materials Company, 5 FMSHRC 1359 (1983); Kennecott Minerals 

Company, WEST 82-155-M (August 1984); see also the Commission 

decision in King Knob Coal Company, Inc., 3 FMSHRC 1417 (1981). 

Respondent generally raised this issue and this ruling 

applies to Citation 588716, 588717, 588718, infra. 

The citation should be affirmed. 

2158 
part: 

Citation 588683 

This citation proposes a penalty of $36 and it reads, in 

The plant operator did not have a method of communication to summon help in case of an emergency. 

(Exhibit E-3). 

The citation alleges respondent violated 30 C.F.R. 56.18-13 

which provides: 

56.18-13 Mandatory. A suitable communication 

system shall be provided at the mine to obtain assistance in the event of an emergency. 

In addition to the factual allegations in the citation, 

Inspector Broome testified there was no means to summon help if a 

worker was injured. But no employee was exposed to this hazard 

since this was a one man operation (Tr. 16-17). 

Larry VanWerven testified that there was a private business 

located about 750 feet from the walkway. The business was open 

six days a week from 9 a.m. to 5 p.m. (Tr. 34, 35). 

Discussion 

The facts establish a violation of the regulation. The 

availability of a business telephone 750 feet from the walkway is 

not a "suitable" communication system. It is both too remote and 

under the control of another. 

part: 

Citation 588715 

This citation proposes a penalty of $195 and it reads, in 

The 966 Cat front end loader, which was feeding the 

plant and loading customer trucks did not have the 

automatic backup warning alarm in working order. 

The large muffler prevented the operator from having 

a clear view to the rear. 

(Exhibit E-4) 

The citation alleges respondent violated 30 C.F.R. 56.9-2. 

The correct standard would be 30 C.F.R. 56.9-87. Inasmuch as 

respondent does not dispute the factual allegations in the 

citation, pursuant to the Federal Rules of Civil Procedure, the 

2160 
citation is amended to read 30 C.F.R. 56.9-87. Fed. R. Civ. P, 

Rule 15(b), Usery v. Marquette Cement Manufacturing Company, 568 

F. 2d 902 1977 (2nd Cir). 

30 C.f.R. 56.9-87 provides as follows: 

56.9-87 Mandatory. Heavy duty mobile equipment shall 

be provided with audible warning devices. When the 

operator of such equipment has an obstructed view to 

the rear, the equipment shall have either an automatic 

reverse signal alarm which is audible above the surrounding noise level or an observer to signal when it 

is safe to back up. 

Witness Broome observed that at the time of his inspection 

only one worker was present. Hence, there was no exposure to 

employees. But customers who were loading at the· time were 

exposed to this hazard (Tr. 16-18). 

Mr. VanWerven told the inspector that he didn't know the 

truck lacked a backup alarm (Tr. 18). 

Respondent offered no evidence in connection with this 

violation. 

The facts establish a violation. The citation should be 

affirmed since the lack of knowledge of this defect does not 

constitute a defense. 

Citation 588716 

This citation proposes a penalty of $60 and it reads, in 

part: 

The tail pulley of the pea gravel conveyor did not have 

a guard to prevent someone from getting caught in the 

moving machinery. 

(Exhibit E-5) 

The standard allegedly violated regarding guards, 30 C.F.R. 

56.14-1, is set forth, supra. 

The MSHA inspector testified that he had informally advised 

Mr. VanWerven 2 to 6 months before the inspection that the 

conveyor, which was in plain sight, needed a guard (Tr. 19). 

The operator of the conveyor was the only worker exposed 

(Tr. 19). 

2161 
Discussion 

The facts establish a violation of the regulation. The 

defense of collater~l estoppel has been previously discussed and 

it is without merit. 

part: 

Citation 588717 

This citation proposes a penalty of $60 and it reads, in 

The tail pulley of the 7/8" rock conveyor did not have a 

guard over the pinch points to prevent a person from 

getting caught in the moving machinery. 

(Exhibit E-6) 

The standard allegedly violated, 30 C.F.R. 56.14-1, is set 

forth, supra. 

-Inspector Broome indicated he had notified Mr. VanWerven 

about this condition. One worker was exposed to the violative 

condition which could cause injuries ranging from fractured hands 

to a fatality (Tr. 19-21). 

This tail pulley, about knee high, was near a footing at the 

exit end of the screen (Tr. 21). 

Respondent's evidence generally indicated that other 

inspectors failed to require guards (Tr. 35-36). 

Discussion 

The testimony and the photographs (Exhibit E-13) establish 

a violation of the standard. Respondent's defense has been 

previously discussed and found to be wanting. 

The citation should be affirmed. 

Citation 588718 

This citation proposes a penalty of $60 and it reads, in 

part: 

The tail pulley of the 1 1/2" rock conveyor did not 

have a guard to prevent someone from getting caught 

in the pinch points of the moving machinery. 

(Exhibit E-7) 

The standard allegedly violated, relating to guards, 30 

C.F.R. § 56.14-1, is set forth, supra. 

2162 
Inspector Broome testified that one worker was exposed to 

this hazard. The frequency of his exposure would depend on the 

number of times it would be necessary to shovel out the debris at 

the tail pulley. 

The same type of an accident could occur as with other 

unguarded tail pulleys. An accident could range from a bruised 

hand to the loss of an arm to a fatality (Tr. 23). 

The tail pulley was in plain sight. In addition, the 

inspector had informally advised the company about this condition 

(Tr. 22-23). 

Discussion 

The facts establish a violation of the standard. The same 

ruling applies to the defense of collateral estoppel. 

Citation 588719 

This citation proposes a penalty of $44 and it reads, in 

part: 

The walkway around the wash screen had an opening 

on the sand screw end through which a man could fall 

or step into the worm of the sand screw. 

(Exhibit E-8) 

The standard allegedly violated, 30 C.F.R. 56.11-12, 

provides: 

56.11-12 Mandatory. Openings above, below, or near 

travelways through which men or materials may fall 

shall be protected by railings, barriers, or covers. 

Where it is impractical to install such protective 

devices, adequate warning signals shall be installed. 

The inspector saw one employee exposed to this condition. 

Each time the employee walked around the walkway he had to step 

over the hole in the screen. The hole, about two feet by two 

feet was in plain sight CTr. 24). A person could fall 2 1/2 to 3 

feet if he fell through the hole (Tr. 25). 

Discussion 

The facts and the photograph CE-14) clearly establish a 

violation of the regulation. Respondent's defense has been previously discussed. It is again denied. 

Citation 588720 

This citation proposes a penalty of $52 and it reads, in 

part: 

2163 
The handrail on the drive side of the wash screen was 

incomplete. A section of walkway about 8-10 foot long 

did not have a handrail and a chain that would have 

blocked off the walkway was down the w~lkway was elevated 

about 2' off the ground. 

(Exhibit E-'.) 

The standard allegedly violated, 30 C.F.R. 56.11-2, was 

cited in connection with the first citation in this decision. 

The inspector testified that a 42 inch handrail encompassed 

the walkway; except there was no handrail for 8 to 10 feet along 

the walkway. In addition, a chain was not hoo~ed to block off 

access at the end of the walkway (Tr. 26, 27). 

One worker was exposed to this condition. If he fell 

backwards off of the eight foot high walkway his injuries could 

range from minimal to fatal (Tr. 26-27). 

The inspector had previously notified the operator of this 

condition <Tr. 25). 

Discussion 

The facts establish a violation of the regulation. The 

handrail on the elevated walkway was not of a "substantial 

construction" since a portion of the guard rail was missing. 

Respondent's defense has been previously discussed and 

denied. 

The citation should be affirmed. 

CIVIL PENALTIES 

Section llO(i) of the Act, now 30 U.S.C. 820Ci), sets forth 

the criteria to be considered in assessing civil penalties. 

Respondent has no adverse prior history relating to the 

issuance of any citations. The business, as noted in the 

stipulation, is quite small. The respondent was highly negligent 

in that these conditions were open and obvious. In addition, 

before these citations were issued, respondent had been 

informally advised by Inspector Broome of the conditions existing 

in Citations 588716, 588717, 588718 and 588720. The parties 

stipulated that the imposition of the proposed penalties will not 

2164 
affect respondent's ability to continue in business. The gravity 

of each violation is severe and such gravity is apparent on the 

record. 

A keystone of the Act is good faith compliance. In this 

case respondent did not demonstate any statutory good faith 

because the violative conditions cited by Inspector Broome were 

not abated until withdrawal orders were issued by MSHA Inspector 

David Estrada on September 2, 1981 (Stipulation, paragraph 9). 

Considering the statutory criteria, and based on the entire 

record, I am unwilling to disturb the penalties proposed for 

these citations. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

The following citations and the proposed penalties therefor 

are affirmed: 

Citation 

588681 

588682 

588683 

588715 

588716 

588717 

588718 

588719 

588720 

Penalty 

$ 34 

72 

36 

195 

60 

60 

60 

44 

52 

Respondent is ordered to pay to the Mine Safety and Health 

Administration the total sum of $613 within 40 days of the date 

of this decision. 

CiL~.~ hn J. M r1s 

dminist tive Law Judge 

2165 
Distribution: 

Ernest Scott, Jr., Esq., Office of the Solicitor, U.S. Department 

of Labor, 8003 Federal Building, Seattle, Washington 98174 

(Certified Mail) 

Mr. William A. VanWerven, President, Ferndale Ready Mix & Gravel, 

Inc., 5271 Creighton Road, Ferndale, Washington 98248 (Certified 

Mail) 

/blc 

2166 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 20 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

READING ANTHRACITE COMPANY, 

Respondent 

Docket No. PENN 84-142 

A.C. No. 36-01965-03502 

Buck Run P045A Strip Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a civil penalty proposal filed 

by the petitioner against the respondent pursuant to section llO(a) 

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

§ 820(a), seeking a civil penalty assessment in the amount of 

$10,000, for a violation of mandatory safety stand.ard 30 C.F.R. 

§ 77.704-l(b). The section 104(a) citation no. 2100028, 

was issued by an MSHA inspector on September 22, 1983, during 

the course of an investigation of a fatal electrical accident 

in which a miner was electrocuted when he inadvertently came 

into contact with an energized component at the mine power 

substation. The victim was part of an electrical crew 

performing work at the substation at the time of the accident. 

Respondent filed a timely answer contesting the citation, 

and the case was scheduled for a hearing. However, the parties 

have filed a joint motion pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, seeking my approval of a proposed 

settlement whereby the respondent agrees to pay a civil penalty 

in the amount of $5,000, in settlement of the violation. 

Discussion 

The initial civil penalty assessment recommendation of 

$10,000, for the violation in question, was made through 

MSHA's "special assessment" procedures pursuant to 30 C.F.R. 

§ 100.5, and it was based on information then available to 

the Office of Assessments. Petitioner now submits that facts 

have been disclosed which warrant reassessment of the civil 

penalty amount to $5,000. 

2167 
In support of the proposed settlement disposition of 

this case, petitioner's counsel has submitted a full discussion 

of the six statutory criteria contained in section llO(i) of 

the Act. Counsel has also submitted a detailed discussion 

and full disclosure as to the facts and circumstances surrounding 

the accident, as well as a complete explanation and justification 

for the proposed reduction in the initial proposed civil 

penalty assessment. Included as part of the arguments in support 

of the motion, -ar.e copies bf ( 1) MSHA' s official accident 

report of investigation; (2) a report prepared by the 

Westinghouse Electric Corporation concerning certain testing 

conducted in an attempt to assist in determining the location 

of the electrical discharge involved in the accident; (3) 

a sketch of the substation prepared during the course of the 

investigation; (4) a transcript of interviews and statements 

made by two of the electrical crew members who were working 

at the substation at the time of the accident; and, (5) an accident 

report prepared by a State of Pennsylvania Mine Electrical 

Inspector. 

Petitioner asserts that the electrical crew performing 

the work at the substation in question were part of a qualified 

crew consisting of a chief electrician, the accident victim, 

and two qualified electricians. The accident victim was a 

qualified electrician with six years experience in surface 

and underground electrical low, medium, and high voltage. 

The victim had suffered electrical burns to both his hands 

and in the center of his spine, but no one observed him contact 

live electrical parts, nor could anyone determine what electrical 

parts he had contacted. Although the spare electrical circuit 

at which the victim and another crew member performed their 

work was deenergized, the main power substation structure also 

supported incoming power lines of 66,000 volts and a stepped 

down power line of 4160 volts which remained energized 

while the pair worked on the substation roof. The power lines 

and components were located at heights of approximately 

4 1/2 to 15 feet and 30 feet above the roof level. The 

componentS-closest to-Where the victim and his fellow crew 

member were working carried 4160 volts and were located 4 1/2 

feet above the substation roof. 

Petitioner points out that immediately prior to starting 

the work, the victim and his fellow crew member discussed 

the presence of the hot lines and that the victim stated 

"as long as we are careful, we're all right . . well, we're 

not going to get near that" (Transcript, 9/27/83, interview 

with crew member, p. 14). Petitioner concludes that it was 

the judgment of the experienced electrical crew (and of the 

victim in particular) that the job tasks they were performing 

2188 
could be safely performed. Petitioner concludes further that 

the negligence here was moderate, considering the fact that 

an experienced crew of electrical workers set up a job which 

involved their own personal safety, and that the evidence 

suggests that these qualified electricians considered themselves to be safe as long as they worked carefully. 

The information provided by the petitioner reflects 

that the respondent is a medium sized operator producing 336,116 

production tons of coal annually as of April 1984, and 31, 942 

tons annually at its Buck Run P-45A strip mine at the same time. 

During the.two year period from 9/22/81 to 9/21/83, 

respondent received only one violation from MSHA, a§ 104(a) 

citation citing 30 C.F.R. § 48.28(a) and a civil penalty 

in the sum of $32. 

The information provided by the petitioner also establishes 

that good faith was demonstrated promptly by the respondent 

holding a meeting with electricians at which time proper 

switching and grounding procedures in accordance with the 

regulations were established. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

it is reasonable and in the public interest. Accordingly, 

pursuant to 29 C.F.R. § 2700.30, the motion IS GRANTED, and 

the settlement IS APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the 

amount of $5,000, in settlement of the citation in question, 

and payment is to be made to the petitioner within thirty (30) 

days of the date of this decision and order. Upon receipt of 

payment, this proceeding is dismissed. 

~L~ Administrative Law Judge 

Distribution: 

Howard Agran, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market St., Phil., PA 19104 (Certified Mail) 

Edward E. Kopko, Esq., Reading Anthracite Co., 200 Mahantongo St., 

P.O. Drawer F, Pittsville, PA 17901 (Certified Mail) 

/slk 

2169 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

September 20, 1984 

CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEST 84-31-M 

A.C. No. 04-00196-05502 

v. 

: 

MONOLITH PORTLAND CEMENT CO., 

Respondent 

Docket No. WEST 84-35-M 

A.C. No. 04-00196-05504 

Appearances: 

Before: 

DECISION 

Docket No. WEST 84-56-M 

A.C. No. 04-00196-05505 

Monolith Cement Plant 

Herbert Jay Klein, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Los Angeles, California, for Petitioner; 

Jim Day, Safety and Training Supervisor, 

Monolith Portland Cement Company, Monolith, 

California, for Respondent. 

Judge Merlin 

These cases are petitions for the assessment of civil 

penalties filed under section llO(a) of the Act by the 

Secretary of Labor against Monolith Portland Cement Company 

for alleged violations of the mandatory safety standards. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations (Tr. 4): 

1. The operator is the owner and operator of 

the subject mine. 

2. The operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and 

Health Act of 1977. 

3. The administrative law judge has jurisdiction 

of these cases. 

4. The inspectors who issued the subject citations 

were duly authorized representatives of the 

Secretary. 

2170 
5. True and correct copies of the subject 

citations were properly served upon the 

operator. 

6. Imposition of any penalty will not affect the 

operator's ability to continue in business. 

7. The alleged violations were abated in good 

faith. 

8. The operator has a small history of prior 

violations. 

9. The operator is moderately large in size. 

WEST 84-31-M 

Citation No. 2365907 sets forth the violative 

conditions or practices as follows: 

The area where employees eat lunch was 

not kept clean and orderly in the Lab building. 

Several employees eating there were exposed 

to a fire hazard as well as a health hazard 

as the floor appeared unkempt. 

30 C.F.R. § 56.20-3(a) provides as follows: 

At all mining operations: (a) Workplaces, 

passageways, storerooms, and service rooms 

shall be kept clean and orderly. 

The parties stipulated to the facts set forth in the 

citation (Tr. 6). An over-filled trash bin presented a 

definite fire hazard. However the Solicitor advised that it 

was now the Secretary's position that the operator was 

guilty of moderate negligence rather than recklessness (Tr. 

6-7) . The operator agreed that the occurrence of a fire was 

reasonably likely because employees smoked in the area 

(Tr. 7). The violation was serious and the operator w~s 

negligent. A penalty of $150 is assessed. 

WEST 84-35-M 

Citation No. 2086560 provides as follows: 

The passageway and working area of the 

2 pier at the kiln had poor housekeeping and 

was not kept clean of tools and other materials. 

Employees assigned tasks in this area could trip, 

slip, or fall. These areas (piers~ are traveled 

often. 

2171 
30 C.F.R. § 56.20-3(a) is the same mandatory standard 

as involved in the prior docket number. 

I~ this instance also the parties stipulated with 

respect to the facts set forth in the petition (Tr. 10-lll. 

The area in question was between two walkways where there is 

occasional traffic at the end of each shift. The presence 

of some tools presented a tripping hazard (Tr. 10). The 

type of accident which would occur would probably result in 

a lost work day (Tr. 11). The violation was serious and the 

operator was negligent. A penalty of $200 is assessed. 

WEST 84-56-M 

The Solicitor moved to vacate the one citation involved 

in this matter (Tr. 14). The Solicitor adequately explained 

the basis for vacating this citation and as I have held 

previously in other cases, vacation of a citation and 

withdrawal of penalty petition with respect to it is within 

the Solicitor's discretion. 

ORDER 

It is Ordered that the operator pay $375 within 30 days 

of the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Richard L. Newman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3247 Federal Building, 300 North 

Los Angeles Street, Los Angeles, CA 90012 (Certified 

Mail) 

Mr. J. F. Day, Safety Director, Monolith Portland Cement 

Company, Monolith, CA 93548 (Certified Mail) 

/gl 

2.172, 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 21, 1984 

CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 84-31-M 

A.C. No. 04-00196-05502 

v. 

MONOLITH PORTLAND CEMENT CO., 

Respondent 

Docket No. WEST 84-35-M 

A.C. No. 04-00196-05504 

Docket No. WEST 84-56-M 

A.C. No. 04-00196-05505 

Monolith Cement Plant 

AMENDED ORDER 

The Order in the above-captioned case is amended to 

read "It is Ordered that the operator pay $350 within 

30 days of the date of this decision." 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Richard L. Newman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3247 Federal Building, 300 North Los 

Angeles Street, Los Angeles, CA 90012 (Certified Mail} 

Mr. J. F. Day, Safety Director, Monolith Portland Cement 

Company, Monolith, CA 93548 (Certified Mail} 

/gl 

2173 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 21. 1984 

SECRETARY OF.LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

UNITED STATES STEEL 

CORPORATION, 

Respondent 

Docket No. LAKE 83-95-M 

A.C. No. 21-00282-05508 

Minntac Mine 

Docket No. LAKE 83-100-M 

A.C. No. 21-00797-05501 

Minntac Warehouse 

Docket No. LAKE 84-5-M 

A.C. No. 21-00819-05502 

Docket No. LAKE 84-11-M 

A.C. No. 21-00819-05503 

Maintenance Department 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Petitioner; 

Louise Q. Symons, Esq., U.S. Steel 

Corporation, Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Melick 

These consolidated cases are before me upon the petitions for assessment of civil penalty filed by the Secretary 

of Labor pursuant to section 105Cd> of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the 

"Act", for violations of regulatory standards. The general 

issue before me is whether the United States Steel Corporation CU.S. Steel) has violated the regulations as alleged, 

and, if so, what is the appropriate penalty to be assessed 

in accordance with section llOCi) of the Act. 

2174 
The Secretary moved to vacate Citation Nos. 2089195, 

2089196, 2089198, 2089369, and 2089370 for the reason that 

all of the equipment cited for insufficient grounding or 

other protection was in fact "U.L." (Underwriters Laboratory) approved. This approval was deemed sufficient to meet 

the requirements of the cited standard and accordingly the 

citations were dismissed at hearing. That determination is 

now affirmed. 

The remaining citations in these cases (Nos. 2089362, 

2089367, 2089192, 2089223, and 2089227) allege violations of 

the regulatory standard at 30 C.F.R. § 55.12-30. That standard provides that when a potentially dangerous condition is 

found, it shall be corrected before equipment or wiring is 

energized. The facts surrounding the violations (with the 

exception of the violation charged inCitation No. 2089193) 

all relate to the improper wiring of electrical receptacles 

in that the "hot and neutral" wires had been interchanged. 

According to MSHA Inspector Thomas Wasley, the condition was dangerous because of the existent shock hazard. He 

indicated for example that if a polarized plug was used in 

any of the improperly wired sockets and the equipment used 

had a defect such as a broken wire, it could become "hot" 

and its user would be subject to burns or even electrocution 

from the 110 volt circuit. 

According to MSHA electrical engineer Terrence Din~el, 

the wiring described by Inspector Wasley was in violation of 

the National Electrical Code, the industry standard throughout the United States. Dinkel pointed out an additional 

hazard if, for example, a power drill with a three prong 

electrical cord had a wiring fault with the black wire 

faulted to the frame, then-the drill motor would automatically be in the "on" position exposing an unsuspecting user to 

abrasions, cuts, and punctures from the operating drill. 

Dinkel also opined that the reverse polarity of the improperly wired outlets was "one step out of two" for causing a 

fatality. 

U.S. Steer does not deny the existence of the violations but maintains that they were of low gravity. According to Frank Ergevec, general foreman for the central shops, 

there was no significant hazard because it is unlikely that 

an appliance would be defective. While he also obse~ved 

that U.S. Steel had a program for testing electrical recepta2175 
cles, those tests were admittedly limited to newly installed 

outlets and would not therefore have led to the discovery of 

the defectively wired outlets in the cases at bar. 

In determining the seriousness of the hazard, I give 

the greater weight to the highly qualified MSHA expert, electrical engineer Terrence Dinkel. Based on this testimony, 

corroborated by MSHA inspector Wasley, I find that serious 

hazards of electrical shock, burns, and electrocution could 

result from the cited conditions and that those hazards were 

not remote given the circumstances. I further find that a 

significant hazard existed from the possibility of the automatic startup of equipment such as drills and handsaws that 

might be plugged into one of the defectively wired outlets. 

Negligence is difficult to assess in these cases since 

the cited outlets had been wired many years ago by the outside contractor who built the premises. U.S. Steel had presumably relied upon that contractor to comply with the electrical standards. There is no dispute that the cited conditions were corrected in a timely manner. 

Citation No. 2089193 also alleges a violation of the 

standard at 30 C.F.R. § 55.12-30 but presented a different 

hazard. The citation alleges that the 220 volt heater located under the seat in the changing room did not have a 

guard over the heating fins. According to Inspector Wasley, 

this presented a burn hazard to persons corning into contact 

with the heater while sitting on the bench. Wasley conceded 

that it was unlikely that the heater would have been used 

for several months until colder weather set in. 

According to Ronald Rantella the Minntac mine safety 

engineer, the thermostat on the heater was in the "off" position at the time of the citation. In addition, Rantella 

opined that the heater located beneath the bench was not in 

a position to contact anybody. Rantella also observed that 

it was the policy each fall to "usually" check heaters. 

Within this framework of evidence, I conclude that a 

violation of the cited standard did in fact occur, but that 

the hazard described by Inspector Wasley was not as imminent 

as described. Negligence is also difficult to assess in 

this case, because the cited heater was clearly not being 

used at the time of the citation and had been turned off. 

The violation was promptly abated by the removal of the 

2176 
heater. 

Considering the size of the operator, its prior history 

of violations, and the criteria above discussed, I find the 

following civil penalties to be appropriate. Citation No. 

2089362 - $40; Citation No~ 2089367 - $40; Citation No. 

2089192 - $40; Citation No. 2089193 - $30; Citation No. 

2089223 - $40; Citation No. 2089227 - $40. 

ORDER 

Citation Nos. 2089369, 2089370, 2089195, 2089196 and 

2089198 are vacated and dismissed. The U.S. Steel Corporation is hereby ordered to pay the following civil penalties 

within 30 days of the date of this decision: Citation 

No. 2089362 - $40; Citation No. 2089367 - $40; Citation No. 

2089192 - $40; Citation No. 2089193 - $30; Citation No. 

2089223 - $40; Citation No. 208922 - $40. 

' . i I . c ' 

' ./\ .1 . ! ( ? 

/'()_A .. A .. ·~ t\(_ Ce- '\. 

Gary Melick ·. '-

Assist~nt Chie~ Administrative Law Judge 

Distribution: 

Miguel Carmona, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 (Certified Mail> 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant 

Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

/nw 

2177 
I 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 2 4 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CROCKETT COAL COMPANY, INC., 

Respondent 

Docket No. VA 84-23 

A. C. No. 44-05920-03520 

No. SA Mine 

DEFAULT DECISION 

Before: Judge Steffey 

A show-cause order was issued on August 20, 1984, in the 

above-entitled proceeding requesting that respondent explain 

in writing by September 7, 1984, why its request for a hearing 

should not be considered as having been waived for its failure 

to comply with the Commission's rules and with the requests 

made in the prehearing order issued June 21, 1984. The return 

receipt in the official file shows that respondent received the 

show-cause order on August 24, 1984, but I have received no 

reply to the show-cause order. 

Respondent's answer to the Secretary of Labor's petition 

for assessment of civil penalty was deficient because it failed 

to comply with section 2700.28, 29 C.F.R. § 2700.28, of the 

Commission's rules by giving any "reasons why each of the violations cited" were being contested. The answer, however, 

stated that "[i]f you need any further information, please 

notify our office by mail or phone". In the prehearing order 

issued June 21, 1984, I explained in great detail the nature of 

the violations for which penalties were proposed by MSHA and 

pointed out that respondent's answer was deficient in failing 

to explain the reasons it was requesting a hearing. The prehearing order, nevertheless, requested respondent only to advise me as to the number of witnesses it expected to present, 

to give an estimate of the amount of time which it thought its 

evidence would take to present, and to list all facts as to 

which respondent was willing to stipulate. 

Respondent's answer to the prehearing order, however, only 

repeated that it would attend a hearing in the Wise County 

Courthouse or the City of Norton's courtroom and asked to be 

advised of the location for the hearing. 

It has been my experience in prior cases that when respondents represent themselves at hearings, they raise many 

issues which the Secretary's counsel cannot anticipate, such 

as arguments concerning the area which was being mined at a 

2178 
given time. That type of dispute can be settled in most instances only by having the mine map produced which shows the 

dates on which mining had advanced to specific locations. I 

have had to recess hearings so that the Secretary's dounsel 

could call additional witnesses or obtain maps or other information which the Secretary's counsel would not normally be expected to bring to a hearing room if the operator is only contesting the amount of the proposed penalties or some technicality in the wording of the inspectors' citations or orders. 

The show-cause order issued in this proceeding on August 20, 

1984, explained in detail why it is necessary for a respondent 

to explain its ~easons for requesting a hearing, provide the 

judge and the Secretary's counsel with some indication of the 

amount of time which is likely to be required for the hearing, 

and indicate whether respondent is willing to stipulate or 

agree to any facts. Respondent's answer to the petition for 

assessment of civil penalty had stated that if "further information" was needed, it would be supplied. The show-cause order, 

in actuality, only requested respondent to supply the "further 

information" which it had offered to provide. 

Respondent's refusal to reply in any way to the show-cause 

order leaves me with no choice but to conclude that respondent 

would prefer to waive its request for a hearing and pay the proposed penalties than to provide the small amount of information 

requested in the show-cause order. Consequently, I find respondent in default for failure to comply with the Commission's 

rules and my orders of June 21, 1984, and August 20, 1984. Section 2700.63(b) of the Commission's rules provides that "[w]hen 

the Judge finds the respondent in default in a civil penalty 

proceeding, the Judge shall also enter a summary order assessing 

the proposed penalties as final, and directing that such penalties be paid." 

WHEREFORE, it is ordered: 

Respondent, having been found in default, is ordered, within 30 days from the date of this decision, to pay civil penalties totaling $846.00 which are allocated to the respective 

alleged violations as follows: 

Citation No. 2149676 8/2/83 § 75.1710 . ....... $ 160.00 

Citation No. 2149677 8/2/83 § 75.1710 . ....... 160.00 

Citation No. 2149678 8/2/83 § 75.1710 ........ 160.00 

Citation No. 2149679 8/2/83 § 75.1710 . . . . . . . . 160.00 

Citation No. 9971203 2/14/84 § 70.lOO(a) ..... 206.00 

Total Penalties Proposed in the Petition for 

Assessment of Civil Penalty Filed in Docket 

No. VA 84-23 ...........•.........••........ $ 846. 00 

Richard 

~e.J74~ C. Stefief /r-~· 

Administrative Law Judge 

2,179 
Distribution: 

Leo J. McGin_n, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 1237A, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Dennis M. Turner, President, Crockett ~oal Co., Inc., P. o. Box 

2280, Wise, VA 24293 (Certified Mail) 

yh 2180 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 SEP 2 4 l984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

INDUSTRIAL CONSTRUCTORS CORP., 

Respondent 

Before: Judge Morris 

DECISION 

Docket No. WEST 83-70-M 

A.C. No. 04-04492-05501 NYO 

Grey Eagle Mine 

In this case Petitioner filed a proposal for assessment of 

a civil penalty under the provisions of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq., (the "Act"). 

The Secretary of Labor seeks to impose a-Civil penalty which 

arose from an inspection of the Grey Eagle Mine on November 18, 

1982. It is alleged respondent violated a safety regulation 

promulgated under the Act. 

After notice to the parties, a hearing on the merits was 

scheduled in Missoula, Montana for April 17, 1984. Friar to 

the hearing the parties submitted the case on stipulated facts. 

The parties filed briefs in support of their positions. 

Issues 

The initial issue is whether the Secretary forfeited his right 

to collect a civil penalty by reason of his delay in proposing 

a penalty. 

A secondary issue is whether the proposed penalty is proper. 

Stipulation 

The parties stipulated as follows: 

(1) That respondent does not defend the issued· 

citation 2086224 alleging a violation of standard 

30 C.F.R. § 55.9-40(c) !/, on the merits; 

!/ The standard provides: 

55.9-40 Mandatory. 

Men shall not be transported: 

(c) Outside the cabs and beds of mobile equipment, except 

trains. 

2181 
(2) That respondent's defense is based on its contention 

that petitioner forfeited its right to collect a penalty by 

unduly delaying notification of respondent of the assessment 

of penalty herein; · 

(3) That the inspection herein was conducted on November 18, 

1982; 

(4) That the notice of proposed assessment was sent by 

petitioner to respondent on March 30, 1983; 

(5) That the inspector's statement, attached as Exhibit 1, 

is admissible for the purpose of establishing the basis of the 

proposed assessment. 

Discussion 

The Act, in Section 105(a), provides that if the Secretary issues 

a citation under Section 104 he shall "within a reasonable time after 

the termination of such inspection notify the operator ... of the 

civil penalty proposed to be assessed .... " 

The stipulated facts indicate the inspection took place on 

November 18, 1982, but the notice of proposed assessment was not sent 

to respondent until March 30, 1983. 

The issue, then, is whether the time span of 132 days constitutes 

a "reasonable time" for the Secretary to notify the operator of the 

proposed penalty. 

While a citation under Section 104(a) must be issued "with 

reasonable promptness," a civil penalty notification appears less 

demanding. Under Section 105(a) the notice of penalty must be issued 

"within a reasonable time." 

The Act itself does not articulate the meaning of a "reasonable 

time." In construing the legislative intent in these circumstances 

it is proper to look to the legislative history. In reviewing the 

enforcement procedures of the Act, the Senate Committee on Human 

Resources in its report stated on this subject as follows: 

The Committee notes, however, that there may be 

circumstances, although rare, when prompt proposal of 

a penalty may not be possible, and the Committee does 

not expect that the failure to propose a penalty with 

promptness shall vitiate any proposed penalty proceeding. 

Senate Report No. 95-181, 95th Cong. 1st Session (1977) 

reprinted in Legislative History of the Federal Mine 

Safety and Health Act of 1977, 95th Congress, 2nd Session 

at 618, July 1978. 

In this rase respondent does not claim it was prejudiced by the 

delay and it admits the violation of the standard. 

2182 
In support of its position respondent cites Northern Aggregates, 

Inc., 2 FMSHRC 1062 (1980), and J.P. Burroughs and Son, Inc., 

3"F"MSHRC 854 (1981). In the initial case Commission Judge Gary Melick 

dismissed a notice of contest filed 2-1/2 months after the required 

30 days. In the second case the Commission considered whether an 

operator's notice of contest had to be received by the Secretary, 

or mailed by the operator, within 30 days after the operator received 

the notice. 

The cited cases are not controlling. The Act requires an 

operator to file its notice of contest within 30 days. On the other 

hand, the Secretary is not limited to a specific number of days. 

As indicated, he is only required to notify the operator of a proposed 

penalty "within a reasonable time." 

Respondent's brief refers to a period of 45 days within which the 

Secretary must notify respondent of a penalty. I believe respondent 

has mistakenly relied on Commission Rule 27, 29 C.F.R. § 2700.27. The 

foregoing rule requires the Secretary to file a proposal for penalty 

with the Commission within 45 days after he receives a notice of contest 

from a respondent. The most pertinent rule is Commission Rule 25, 

29 C.F.R. § 2700.25. It mandates the action the Secretary is required 

to take in connection with notifying an operator of a penalty. But 

that rule does not impose any time restraints on the Secretary. 

The Act is remedial in nature and it seeks to assure, to the extent 

possible, the safety and health of the nation's miners. In view of 

these factors and in view of the expressed legislative intent, I am 

unwilling to impose the ultimate sanction of dismissal because the 

Secretary did not notify the operator of the proposed penalty until 

132 days after the inspection. 

For the above reasons respondent's contentions are denied and 

the citation is affirmed. 

Civil Penalty 

The statutory criteria for assessment of a civil penalty is 

set forth in 30 U.S.C. § 820(i). 

The parties stipulated the inspector's statement is admissible 

to establish the proposed assessment. The exhibit addresses the 

issues of negligence, gravity ~nd abatement. Based on the stipulation of the parties and the statutory criteria, I consider the 

proposed penalty of $68 to be proper. 

Based on the foregoing stipulation and the conclusions of law 

herein, I enter the following: 

2183 
Order 

Citation 2086224 and the proposed penalty of $68 are affirmed. 

Distribution: 

Alan M. Raznick, Esq., Office of the Solicitor, U.S. Department of 

Labor, 11071 Federal Building, 450 Golden Gate Avenue, San Francisco, 

California 94102 (Certified Mail) 

Mr. James A. Brouelette, EEO/Safety Officer, Industrial Constructors 

Corp., P.O. Box 7489, Missoula, Montana 59807 (Certified Mail) 

/ot 

2184 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

DONALD F. WIGGINS, 

Complainant 

v. 

COLOWYO COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDINGS 

Docket No. WEST 83-117-D 

MSHA Case No. DENV CD 83-20 

Docket No. WEST 84-133-D 

MSHA Case No. DENV CD 84-6 

DECISION APPROVING SETTLEMENT 

Before: Judge Carlson 

The parties have submitted a settlement agreement in this 

consolidated discrimination case. In view of the settlement of 

all issues, the complainant, joined by the respondent, moves for 

dismissal of the proceeding, with prejudice. 

Under the terms of the agreement, respondent agrees to pay 

to the complainant the sum of $15,000 to cover the costs.of 

moving his family and further agrees to pay all wages and accrued 

but unused vacation pay thrQugh September 17, 1984. Respondent 

admits no violation of the Mine Safety and Health Act of 1977 or 

any regulation promulgated thereunder. 

Complainant, on the other hand, resigns his employment with 

respondent effective September 17, 1984, waives and releases all 

claims arising out of his employment with respondent, and agrees 

to other conditions which need not be recited here. 

Having reviewed the file and considered the circumstances, I 

conclude that the settlement should be approved in its entirety. 

Accordingly, respondent's motion is granted, the settlement is 

approved, and Dockets WEST 83-117-D and WEST 84-133-D are 

dismissed with prejudice. 

SO ORDERED. 

· ohn A. Carlson 

Administrative Law Judge 

2185 
Distribution: 

Harry A. Tucker, Jr., Esq., 526 Barclay, P.O. Box 604, Craig, 

Colorado 81625 {Certified Mail) 

Robert L. Morris, Esq., Steve Shults, Esq., Davis, Graham & 

Stubbs, P.O. Box 185, Denver, Colorado 80201 {Certified Mail) 

/blc 

2186 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEST 84-15-M 

A.C. No. 42-01755-05501 NYO 

v. 

Mercur Mine 

INDUSTRIAL CONSTRUCTORS 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

Margaret A. Miller, Esq., and James H. Barkley, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

James A. Brouelette, EEO/Safety Officer, Industrial 

Constructors Corporation, Missoula, Montana, pro se. 

Judge Morris 

This case, heard under the provisions of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq., (the "Act"), arose 

from an inspection of the Mercur Mine att:Iercur, Utah on August 10, 

1983. The Secretary of Labor seeks to impose a civil penalty because 

respondent allegedly violated a regulation promulgated under the Act. 

Respondent denies any liability for the violation. 

After notice to the parties, hearing on the merits was held in 

Missoula, Montana on April 17, 1984. 

Issues 

The issues are whether respondent violated Title 30, Code of 

Federal Regulations, Section 55.9-40(c). 1/ If respondent violated 

the regulation then the appropriateness of a penalty must be considered. 

lf 55.9-40 Mandatory. Men shall not be transported: 

(c) Outside the cabs and beds of mobile 

equipment, except trains. 
Stipulation 

During the hearing the parties stipulated that respondent can 

pay the proposed penalty herein. Further, the actions by the worker 

discussed here constituted a violation of the regulation. In 

addition, Arlen Hanson, the project manager, had authority to abate 

the citation (Tr. 37, 38). 

Summary of the Evidence 

MSHA Inspector Richard White inspected the Mercur Mine in 

Mercur, Utah on August 10, 1983 (Tr. 7). 

The operator, Getty· Mining Company, employed 209 workers at this 

open pit gold ore mine. Industrial Constructors Corporation, (ICC), 

had 20 workers on the site (Tr. 8). 

During the inspection Zeke Mccurdy, a Getty representative, 

accompanied Mr. White. The inspector indicated he wanted to check 

the work site of the contractor who was building the iailings pond 

(Tr. 8, 9). 

After an inquiry, an ICC secretary referred the inspector to 

Arlen Hanson, project engineer as well as an ICC employee (Tr. 9, 28). 

Hanson declined to accompany the inspection party but he stated that 

any citations should be issued to him (Tr. 10). 

At approximately 3:15 p.m., the inspector observed a dump truck?_/ 

eastbound on the haul road. The truck was moving up the arm of the 

dam at about 20 miles per hour. A person was riding on the outside 

of the truck (Tr. 12). Zeke said the person on the truck was not 

a Getty employee (Tr. 12). 

There was a place for a rider inside the truck cab but he was 

standing on the driver's side, more or less on a step indented into 

the gas tank. He was hanging onto the truck's mirror or door (Tr. 13). 

The 20 foot wide haul road was rough with rocks scattered on it. 

It would give an empty truck a bumpy ride (Tr. 13, 14; Exhibit P 1). 

The road had a 20 inch berm (Tr. 14). 

The inspector followed the truck and ascertained that Paul Farley 

was the offending person. Farley stated he "knew better". In view 

of that statement the inspector concluded it was a situation of 

employee misconduct (Tr. 20, 21). 

?_! A GMC 8-ton dual tandem vehicle, License No. Utah NV 2080 (Tr. 13). 

2188 
Farley told the inspector that Hanson, his immediate supervisor, 

was in charge (Tr. 30). Hanson abated the violation by instructing 

the employee, in the presence of the inspector, regarding his 

activity. Hanson expressed no disagreement about receiving the 

citation (Tr. 29, 30, 32). 

The hazard here is that the person on the side of the truck 

could fall off and be crushed under the rear tandem tires (Tr. 15). 

There were two legal IDs on the property. The main ID was issued 

to Getty Mining Company. The additional ID was issued to ICC (Tr. 18). 

The side on the tru~k Farley was riding had a sign reading 

"Western Excavating" (Tr. 20). The inspector had been told this 

company was a subcontractor for ICC (Tr. 20). But at the prehearing 

conferences no one claimed there were any other contractors on the 

site except Getty and ICC (Tr. 27). 

ICC's work practices were generally good and ICC ·had a safety 

program (Tr. 19, 20, 33). ICC has no adverse history (Tr. 29). 

Respondent presented no evidence. 

Discussion 

Respondent contends that the inspector failed to ascertain the 

identity of the employer of Paul Farley. Further, respondent cites 

Phillips Uranium Company, 4 FMSHRC 549 (April 1982), in support of 

its view that the citation should have been issued against the subcontractor, Western Excavating, and not ICC. 

It is true that the inspector did not learn the name of Farley's 

employer. But the evidence abounds with circumstantial evidence that 

ICC was Farley's employer. There is no persuasive credible evidence 

to the contrary. 

Respondent relies on Phillips, supra, to support its position 

that the citation should be against Western Excavating. I disagree. 

Even if we assume Farley was not an employee of ICC, the Commission 

decision in Phillips predated the Secretary's guidelines relating to 

independent contractors. These guidelines now provide: 

Enforcement action against production-operators 

for violations involving independent contractors is 

ordinarily appropriate in those situations where the 

production-operator has contributed to the existence 

of a violation, or the production-operator's miners 

are exposed to the hazard, or the production-operator 

has control over the exister.ce of the hazard. 

Accordingly, as a general rule, a production-operator 

may be properly cited for a violation involving an 

2189 
independent contractor: (1) when the productionoperator has contributed by either an act or 

omission to the occurrence of a violation in the 

course of an independent contractor's work, or 

(2) when the production-operator has contributed 

by either an act or omission to the continued 

existence of a violation committed by an independent 

contractor, or (3) when the production-operator's 

miners are exposed to the hazard, or (4) when the 

production-operator has control over the condition 

that needs aoatement. 44 Fed Reg. 44497 (July 1980). 

The Commission has recently approved these guidelines. Cathedral 

Bluffs Shale Oil Company, WEST 81-186-M (August 29, 1984). 

In sum, respondent here would be liable under t~e Secretary's 

guidelines even if Farley was not ICC's employee. on·this record 

ICC's employee, Arlen Hanson, was the project manager. He claimed 

to be in charge and, in fact, he abated the violation. The elements 

necessary in paragraph 4 of the guidelines are established. 

The citation should be affirmed. 

Civil Penalty 

The statutory criteria for assessing a civil penalty are set 

forth in 30 U.S.C. § 820(a). 

Considering these guidelines, I find that respondent has no 

adverse history (Tr. 29). The size of the penalty does not appear 

excessive in relation to the size of respondent. The operator was 

minimally negligent since Farley ''knew better." It was further 

indicated that this activity was against company rules (Tr. 29, 31). 

For this reason, I conclude that the proposed penalty is excessive 

as it r~lates to the operator's negligence. 

The parties have stipulated that the penalty will not affect 

the operator's ability to continue in business. The gravity of 

Paul Farley's actions was exceedingly high. To respondent's credit 

is its good faith in rapidly abating this condition. 

On balance, I deem that a civil penalty of $150 is appropriate 

for this violation. 

Based on the foregoing findings of f~ct and conclusions of law, 

I enter the following: 

2190 
Order 

1. Citation 2083731 is affirmed. 

2. A civil penalty of $150 is assessed. 

3. Respondent is ordered to pay the sum of $150 to the 

Secretary within 40 days of the date of this decision. 

Law Judge 

Distribution: 

Margaret A. Miller, Esq. and James H. Barkley, Esq., Office of 

the Solicitor, U.S. Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

James A. Brouelette, EEO/Safety Officer, Industrial Constructors 

Corporation, P.O. Box 898~, 500 Taylor, Missoula, Montana 59807 

(Certified Mail) 

/ot 

2191 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 4 l984 

LOCAL UNION 1889, DISTRICT 

17, UNITED MINE WORKERS 

OF AMERICA (UMWA) , 

Compl'ainant 

COMPENSATION PROCEEDING 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

Docket No. WEVA 81-256-C 

Ferrell No. 17 Mine 

SECOND SUMMARY DECISION 

Before: Judge Steffey 

Counsel for United Mine Workers of America (UMWA) filed 

on August 10, 1984, ·a "Second Motion for Partial Summary Decision" in the above-entitled proceeding. Counsel for Westmoreland Coal Company filed on August 23, 1984, a pleading entitled 

"Westmoreland Opposition to UMWA Second Motion for Partial Summary Decision and Cross-Motion for Summary Decision." This 

decision grants Westmoreland's cross-motion for summary decision because the rulings herein deny the relief requested by 

UMWA. 

Procedural History 

The original complaint in this proceeding was filed on 

February 5, 1981, under section 111 !/ of the Federal Mine 

1/ The first three sentences of section 111 provide as follows: 

If a coal or other mine or area of such mine is closed by an 

order issued under section 103, section 104, or section 107, all 

miners working during the shift when such order was issued who 

are idled by such order shall be entitled, regardless of the result of any review of such order, to full compensation by the 

operator at their regular rates of pay for the period they are 

idled, but for not more than the balance of such shift. If 

such order is not terminated prior to the next working shift, 

all miners on that shift who are idled by such order shall be 

entitled to full compensation by the operator at their regular 

rates of pay for the period they are idled, but for not more 

than four hours of such shift. If a coal or other mine or area 

of such mine is closed by an order issued under section 104 or 

section 107 of this title for a failure of the operator to comply with any mandatory health or safety standards, all miners 

who are idled due to such order shall be fully compensated 

after all interested parties are given an opportunity for a 

public hearing, which shall be expedited in such cases, and 

after such order is final, by the operator for lost time at 

their regular rates of pay for such time as the miners are 

idled by such closing, or for one week, whichever is the lesser. 

2182 
Safety and Health Act of 1977. An amended complaint was filed 

on November 9, 1981. The amended complaint first requested 

that the miners at respondent's Ferrell No. 17 Mine be paid for 

1 week of compensation under section 111 of the Act because of 

the issuance on November 7, 1980, of Order No. 668338 under section 107(a) 2/ of the Act, even though that order did not allege 

a violation of any mandatory. health or safety standard. Alternatively, the amended complaint requested that the miners scheduled to work on both the day shift and the afternoon shift of 

November 7, 1980, be paid compensation because of the issuance 

on November 7, 1980, of Order Nos. 668337 and 668338 under sections 103(j) ~and 107(a), respectively. 

I issued a summary decision on April 28, 1982, 4 FMSHRC 773, 

in which I held that the miners were entitled to compensation for 

the remainder of the shift on which the section 103(j) order was 

issued and for 4 hours of the next working shift irrespective of 

whether Westmoreland was obligated to pay the miners 4 hours of 

compensation under the provisions of the Wage Agreement. My decision denied UMWA's request for 1 week's compensation based on the 

section 107(a) order because the order did not allege a violation 

of a mandatory health or safety standard. I also denied UMWA's 

request that I retain jurisdiction of the case until MSHA had 

completed its investigation of the explosion which had occurred 

on November 7, 1980. 4 FMSHRC at 789-790. 

2/ Section 107(a) provides as follows: 

If, upon any inspection or investigation of a coal or other mine 

which is subject to this Act, an authorized representative of 

the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except those referred to in section 104(c), to be withdrawn from, and to be pro-

·hibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and 

the conditions or practices which caused such imminent danger no 

longer exist. The issuance of an order under this subsection 

shall not preclude the issuance of a citation under section 104 

or the proposing of a penalty under section 110. 

3/ Section 103(j) provides as follows: 

In the event of any accident occurring in any coal or other mine, 

the operator shall notify the Secretary thereof and shall take 

appropriate measures to prevent the destruction of any evidence 

which would assist in investigating the cause or causes ~hereof. 

In the event of any accident occurring in a coal or other mine, 

where rescue and recovery work is necessary, the Secretary or 

an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine. 

2193 
The Commission thereafter granted UMWA's petition for discretionary review and issued a decision on August 12, 1983, 

which held as follows: 

For the reasons discussed above, [we] vacate his order 

dismissing without prejudice the Union's claim for a 

week's compensation. The case is remanded to the judge 

with instructions to hold the record open as to the 

Union's claim for a week's compensation. The parties 

are free to submit any appropriate motions or showings. 

If the Union fails to make appropriate showings upon 

the completion of MSHA's investigation, Westmoreland 

may file an application for a show cause order to determine if the claim should be dismissed. The judge's 

resolutions of the Union's other claims are final, 

since no review was taken as to those aspects of his 

decision. 

5 FMSHRC at 1413. 

Summary of Pertinent Facts 

My first summary decision contained 18 stipulations of fact 

agreed upon by the parties. 4 FMSHRC at 774-775. Some of those 

stipulations are not particularly pertinent to the issues raised 

in the current motions for summary decision, but, since both 

UMWA's and Westmoreland's motions refer to some of the original 

stipulations, it is desirable that I repeat all of the stipulations for the convenience of the parties. 

1. The Ferrell No. 17 Mine is owned and operated by the 

Westmoreland Coal Company. 

2. The Ferrell No. 17 Mine is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over 

these proceedings. 

4. At all times relevant herein, Westmoreland Coal Company, 

at its Ferrell No. 17 Mine, and Local Union 1889, UMWA, were 

bound by the terms of the National Bituminous Coal Wage Agreement of 1978. A copy of the Contract is submitted with these 

stipulations as Exhibit A. 

5. In the early morning hours of November 7, 1980, an explosion occurred inside the Ferrell No. 17 Mine. 

6. At 7:30 a.m. on November 7, 1980, MSHA Inspector Eddie 

White issued Withdrawal Order No. 668337 pursuant to section 

103(j) of the Act. The order applied to all areas of the mine. 
7. Order No. 668337 provided in full as follows: 

An ignition has occurred in 2 South off 1 East. This 

was established by a power failure at 3:30 a.m. and 

while searching for the cause of the power failure, 

smoke was encountered in the 2-South section. Five 

employees in the mine could not be accounted for. 

[The area or equipment involved is] the entire mine. 

The following persons are permitted to enter the mine: 

Federal coal mine inspectors, West Virginia Department 

of Mines coal mine inspectors, responsible company 

officials, and United Mine Workers of America miner's 

representatives. 

8. At 8:00 a.m. on November 7, 1980, MSHA Inspector Eddie 

White issued Order No. 668338 to the Westmoreland Coal Company 

pursuant to section 107(a) of the Act. The order applied to all 

areas of the mine. 

S. Order No. 668338 did not allege a violation of any mandatory health or safety standards. It stated that the following 

condition existed: 

All evidence indicates that an ignition of unknown 

sources has occurred and five employees cannot be 

accounted for. 

10. Subsequent to the issuance of the above withdrawal orders, 

the 2 South area of the mine was sealed off. 

11. Miners who were working on the 12:01 to 8:00 a.m. shift 

on November 7, 1980, were withdrawn from the mine when Westmoreland management became aware that an explosion had occurred. 

12. The miners who were withdrawn from the mine during the 

12:01 to 8:00 a.m. shift on November 7, 1980, were paid for their 

entire shift. 

13. Exhibit B is a list of the miners who were scheduled to 

work the day shift (8:00 a.m. to 4:00 p.m.) on November 7, 1980. 

Exhibit B also identifies each such miner's daily wage rate and 

the amount of compensation received by such miner for the day 

shift on November 7, 1980. Each such miner received at least 

four hours of pay. 

14. Westmoreland management did not contact any of the miners 

scheduled to work on the 8:00 a.m. to 4:00 p.m. shift (day shift) 

of November 7, 1980, in order to notify them not to report to 

work. 

15. On December 10, 1980, Order No. 668337 and Order No. 

668338 were modified to show the affected area of the mine was 

limited to the seals and the area inby such seals. 

2195 
16. Order Nos. 668337 and 668338, as modified, have not 

been terminated and_remain in effect. [As hereinafter indicated, Order No. 668338 was terminated on November 15, 1983.] 

17. Westmoreland has not contested the issuance of Order 

No. 668337 by initiating a proceeding und~r section 105(d) of 

the Act. 

18. Westmoreland has not filed an Application for Review 

of Order No. 668338 under section 107(e) of the Act. 

UMWA's motion relies upon certain events which have occurred since the parties agreed upon the 18 stipulations which 

are given above. I shall update the facts given in the parties' 

stipulations by adding some uncontested facts based on events 

which occurred after I issued my first summary decision in this 

proceeding on April 28, 1982. 

19. As indicated in stipulation No. 10 above, the 2 South 

Section of the mine was sealed off. Production was allowed to 

continue in other areas of the mine, but the 2 South Section 

has not been reopened and it is doubtful if it ever will be 

reopened. 

20. Since MSHA could not complete its investigation of 

the cause of the explosion by actual examination of conditions 

in the 2 South area of the mine, an MSHA inspector in Arlington, 

Virginia, examined the statements given in December 1980 to 

MSHA's investigators shortly after the explosion occurred. On 

the basis of that examination, the inspector issued 13 withdrawal orders (Nos. 2002585 through 2002597) on July 15, 1982, pursuant to section 104(d) (2) of the Act. Westmoreland filed 13 

notices of contest challenging the validity of the orders and 

those cases were assigned Docket Nos. WEVA 82-340-R through 

WEVA 82-352-R. 

21. Subsequently, counsel for the Secretary of Labor 

filed two petitions for assessment of civil penalty in Docket 

Nos. WEVA 83-73 and WEVA 83-143 proposing a total of $55,040 

in civil penalties. The issues raised in the two civil penalty 

cases were consolidated with the issues raised in the 13 notices 

of contest. 

22. In an order issued on May 4, 1983, in Docket Nos. 

WEVA 82-340-R, et al., I granted in part Westmoreland's motion 

for summary decISion and vacated all 13 of the withdrawal orders 

as having been issued in error under section 104(d) of the Act. 

My order noted that the violations alleged in the 13 orders 

survived vacation of the orders so that the violations would 

have to be considered on their merits in the civil penalty 

cases. Island Creek Coal Co., 2 FMSHRC 279 (1980), and Van 

Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980). 

2196 
23. Thereafter the parties filed a motion for approval 

of settlement which I approved in a decision issued May 11, 

1984, 6 FMSHRC 1267. Under the settlement agreement, Westmoreland paid reduced penalties totaling $38,000 in lieu of the 

penalttes totaling $55,040 proposed by MSHA. 

24. On November 15, L983, MSHA issued a subsequent action 

sheet terminating Order No. 668338 issued under section 107(a) 

of the Act and described in stipulation No. 9 above. The termination sheet stated as follows: 

The area in 2 South has been sealed in the 1 East 

Mains at a location 1 pillar outby the 2 South 

junction. A 103[(j)] order cover[s] the area 

original[ly] covered in the 107(a) order. Therefore the 107(a) order is terminated. 

25. As indicated in stipulation No. 9 above, Order No. 

668338 did not allege a violation of any mandatory health or 

safety standard. None of the 13 withdrawal orders citing violations on the basis of sworn testimony obtained by MSHA can 

be characterized as having alleged a violation as a part of 

section 107(a) Order No. 668338 because all of them were issued 

under section 104(d) 4/ of the Act which requires a finding 

that "the conditions created by such violation[s] do not cause 

imminent danger". 

4/ The pertinent part of section 104(d) provides as follows: 

If, upon any inspection of a coal or other mine, an authorized 

representative of the Secretary finds that tpere has been a 

violation of any mandatory health or safety standard, and if he 

also finds that, while the conditions created by such violation 

do not cause imminent danger, such violation is of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard, and 

if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health 

or safety standards, he shall include such finding in any citation given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 90 

days after issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory 

health or safety standard and finds such violation to be also 

caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator 

to cause all persons in the area affected by such violation, 

except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that 

such violation has been abated. [Emphasis supplied.] 

2197 
Consideration of Parties' Contentions 

UMWA's Arguments that the Section 107(a) Order Should Be Interpreted To Allege a Failure by Westmoreland To Comply with a 

Mandatory Health or Safety Standard 

The relief which UMWA is requesting in its second motion 

for summary decisiQn is that the miners who were working on 

November 7, 1980, when the explosion occurred be given up to a 

week's compensation under the third sentence of section 111 of 

the Act which, as shown in footnote 1 above, provides in pertinent part as follows: 

If a coal or other mine or area of such mine is closed 

by an order issued under section 104 or section 107 of 

this title for a failure of the operator to comply 

with any mandatory health or safety standards, all 

miners who are idled due to such order shall be fully 

compensated . . • by the operator for lost time at 

their regular rates of pay for such time as the miners 

are idled by such closing, or for one week, whichever 

is the lesser. 

In order for the miners to be compensated for up to 1 week, they 

must be idled by an order issued under section 104 or section 

107 "for a failure of the operator to comply with any mandatory 

health or safety standards". As indicated in stipulation No. 9 

above, Order No. 668338, under which UMWA seeks to obtain 1 week 

of compensation, was issued under section 107(a) of the Act, but 

it did not cite a violation of "any mandatory health or safety 

standards". 

UMWA's motion recognizes that it cannot recover up to a 

week's compensation under the third sentence of section 111 unless it can be shown that Order No. 668338 withdrew miners for 

a failure of Westmoreland to comply with a mandatory health or 

safety standard. UMWA also recognizes that the inspector did 

not cite a violation as a part of Order No. 668338 when he 

issued it, but UMWA argues that the 13 withdrawal orders, 

issued on the basis of the sworn statements given to MSHA's 

investigators, may be used for the purpose of showing that the 

imminent danger order was issued for a violation of a mandatory 

health or safety standard (finding No. 20 above). While it is 

true that several of those orders cite Westmoreland for violations which may have contributed to the explosion, particularly, Nos. 2002586 and 2002593 which allege violations of 30 C.F.R. 

§§ 75.316 and 75.303, respectively, for failure to ventilate 

properly and inspect for methane accumulations, the fact remains that UMWA's right to compensation under section 111 is 

based entirely upon the enforcement actions of MSHA, and MSHA 

has never at any time modified section 107(a) Order No. 668338 

2198 
to allege a violation of any mandatory health or safety standard. Moreover, as indicated in finding No. 25 above, all citations of violations made by MSHA on the basis of its investigation of the explosion were issued in the form of 13 unwarrantable-failure section 104(d) orders which require an express 

finding that "the conditions created by such violation[s] do 

not cause imminent danger." The fact that MSHA terminated 

Order No. 668338 on November 15, 1983, without ever modifying 

the order in any way to indicate that the order had been issued 

for failure of Westmoreland to comply with any mandatory health 

or safety standard, as indicated in finding Nos. 24 and 25 . 

above, precludes me from accepting UMWA's argument that I should 

rely upon the fact that 13 withdrawal orders were issued to 

make a finding that the imminent-danger order was actually 

issued for failure of Westmoreland to comply with a mandatory 

health or safety standard. 

It is true, as UMWA argues, that MSHA probably did not know 

when the imminent-danger order was issued on November 7, 1980, 

that Westmoreland had violated various mandatory health and 

safety standards. It is also true that MSHA had the authority 

under section 107(a) to issue citations as a part of the order 

or in conjunction with the order. I have had several cases before me in which the inspector did cite a violation under section 104(a) as a part of his imminent-danger order. I also have 

had cases in which the inspector issued separate citations at 

the time he issued an imminent-danger order, but in such cases, 

the inspectors' citations stated that they were being issued as 

a part of an imminent-danger order, or in conjunction with an 

imminent-danger order. 

It is additionally true, as UMWA argues, that the Act is 

intended to be liberally construed so as to provide the miners 

with all the relief they are entitled to receive under the Act, 

but UMWA has not cited any legislative history which persuades 

me that Congress intended for one of the Commission's judges to 

modify an imminent-danger order so as to allege one or more violations which were not observed or cited by an MSHA inspector 

in conjunction with that order. 

Westmoreland's cross motion (pp. 10-11) for summary decision contains a paragraph which cogently argues that the Commission has ruled against agreement with the type of arguments 

made by UMWA in this proceeding: 

The Commission has made it abundantly clear 

that it will not usurp Congress's function by legislating new remedies into the Act. It has done so, 

moreover, in precisely the context which this case 

involves -- an attempt by the UMWA to question MSHA's 

enforcement discretion and substitute itself as a 

private prosecutor by urging the Commission to make 

2199 
findings or take actions which are reserved to MSHA. 

UMWA v. Secretary of Labor, MSHA, 5 FMSHRC 1519 

(1983) (Act does not permit UMWA to challenge MSHA's 

decision to vacate a withdrawal order); UMWA v. 

Secretary of Labor, MSHA, 5 FMSHRC 807 (1983), aff 'd, 

2 MSHA (BNA) 1137 (D.C. Cir. 1983) (Act does not permit 

UMWA to assert that a citation should have been an 

order of withdrawal); UMWA, Local 1197 v. Bethlehem 

Mines Corp., 5 FMSHRC 2093 (ALJ 1983) (Act does not 

permit UMWA to enforce mandatory dust control standards through discrimination complaint) . These cases 

are consistent with the long-established principle 

that only MSHA has the authority to make findings of 

violations. E.g., Freeman Coal Mining Corp., 2 IBMA 

197 (197-:q, aff1 d, 504 F.2d 741 (7th Cir. 1974). 

UMWA's motion (p. 7) refers to the fact that two of Westmoreland's supervisory personnel were indicted and convicted for 

several violations of the Act in connection with the explosion 

which occurred on November 7, 1980. I do not see how those convictions change any of the provisions of section 111. Miners 

cannot recover compensation under section 111 unless MSHA issues 

certain enumerated types of orders. UMWA concedes in its motion 

(p. 21, n. 15) that the Act gives the miners limited compensation. The third sentence of section 111 permits UMWA to recover 

up to a week of compensation only when a 104 or 107 order is 

issued for failure of an operator to comply with a mandatory 

health or safety standard. MSHA did not issue 107(a) Order No. 

668338 for a failure of Westmoreland to comply with a mandatory 

health or safety standard. MSHA had a period of over 3 years 

within which to modify the order to cite a violation of a mandatory health or safety standard before the order was terminated, 

but MSHA did not do so. 

As UMWA argues (motion, p. 17), it may be preferable, from 

the miners' viewpoint, to interpret section 111 so as to permit 

them to recover up to a week's compensation when there is extrinsic evidence showing that an imminent-danger order ought to 

have cited a violation of a mandatory health or safety standard, 

but Congress did not write the third sentence of section 111 to 

permit that interpretation to be given to that sentence. Therefore, I do not believe that section 111 can be interpreted to 

provide UMWA with the relief which it seeks in this proceeding. 

Westmoreland's Contention that No Miners Were Idled by Section 

107(a) Order No. 668338 

Westmoreland's cross motion for summary decision correctly 

argues that my first summary decision issued in this proceeding 

held that the miners were idled by the section 103(j) order 

issued at 7:30 a.m. on the midnight-to-8 a.m. shift. The miners 

2200 
working on the shift during which the 103(j) order was issued 

were paid for that entire shift and the miners on the next 

working shift were awarded 4 hours of pay for the time they 

were idled by the section 103(j) order which was still in 

effect. 4 FMSHRC at 783. 

The section 107(a) order on which UMWA bases its present 

claim for 1 week of compensation was not issued until 8 a.m. on 

November 7, 1980, and did not idle any miners because the miners 

had already been idled by the 103(j) order. That 103(j) order 

not only withdrew miners on the midnight shift on November 7, 

1980, but has kept the miners withdrawn from the 2 South area 

up to and including the present time. Stipulation Nos. 6 

through 9 and finding No. 23 above. Moreover, as indicated in 

finding No. 24 above, the outstanding effectiveness of the 103 

(j) order served as the basis for MSHA's termination of the 

107(a) order which has never been modified to allege a violation of any mandatory health or safety standard. 

Westmoreland correctly notes that my ruling, to the effect 

that the miners are entitled to compensation only under the section 103(j) order, was not contested by UMWA when its petition 

for discretionary review of my first summary decision was 

granted by the Commission. The Commission's decision remanding 

this case with directions for me to consider UMWA's claims under the third sentence of section 111 specifically stated that 

my decision was final as to all issues except UMWA's claim for 

1 week of compensation under the section 107(a) order. 5 FMSHRC 

at 1413. 

Westmoreland's cross motion for summary decision (p. 5) 

correctly concludes that since UMWA has not and cannot establish 

the first requirement of the third sentence of section 111, 

namely, that miners be withdrawn and idled by section 107(a) 

Order No. 668338, that UMWA's second motion for summary decision 

must be denied for that reason alone, regardless of the issues 

which have already been discussed and decided in favor of 

Westmoreland. 

Conclusions 

As pointed out above, UMWA's second motion for summary decision must be denied for its failure to show that any miners 

were withdrawn or idled by section 107(a) Order No. 668338. 

No miners were withdrawn under section 107(a) Order No. 668338 

because 103(j) Order No. 668337 was still in effect when the 

miners reported for work on the next working shift. The 107(a) 

order has been terminated, but the 103(j) order is still in 

effect and miners are still prohibited from entering the 2 

South area by the outstanding 103(j) order. Therefore, UMWA 

cannot satisfy the first prerequisite under the third sentence 

of section 111 which requires a showing that miners were withdrawn and idled by the 107(a) order. Eastern Associated Coal 

Corp., 3 FMSHRC 1175, 1176-1179 (1981). 

2201 
Assuming that UMWA could show that miners were withdrawn 

by the section 107(a) order, MSHA has terminated the 107(a) 

order without modifying it in any way to reflect that the imminent danger occurred because of Westmoreland's failure to comply with any mandatory health and safety standards. Although 

MSHA's investigation resulted in the issuance of 13 withdrawal 

orders pursuant to section l04(d) of the Act, citing alleged 

violations of the mandatory health and safety standards, those 

orders cannot be said to allege violations as part of an 

imminent-danger order because they could not have been issued 

in the first instance without a finding that the violations 

cited in the orders did not cause an imminent danger. 

For the reasons given above, I find that UMWA has failed 

to establish any basis for the grant of its second motion for 

summary decision. The same reasons ·support the grant of Westmoreland' s cross motion for summary decision. 

WHEREFORE, it is ordered: 

(A) UMWA's second motion for summary decision is denied 

and the claim for up to 1 week of compensation under section 

107(a) Order No. 668338 is denied. 

(B) Westmoreland's cross motion for summary decision is 

granted and this proceeding is terminated. 

Distribution: 

Richard 

~C.~~. C. Steff~yt/;~ 

Administrative Law Judge 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 - 15th 

Street, NW, Washington, DC 20005 (Certified Mail) 

Timothy M. Biddle, Esq., and John T. Scott III, Esq., Crowell 

Moring, 1100 Connecticut Avenue, NW, Washington, DC 20036 

(Certified Mail) 

yh 2202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 4 1984 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF, . . Docket No: WEVA 84-4-D 

ROBERT RIBEL, JOHN KANOSKY, 

JR., & DANNY WELLS, 

Complainants 

MSHA case No. MORG CD 83-16 

Docket No. WEVA 84-33-D 

v. MSHA Case No. MORG CD 83-18 

Docket No. WEVA 84-66-D 

EASTERN ASSOCIATED COAL MSHA Case No. MORG CD 83-19 

CORP., 

Appearances: 

Before: 

Respondent Federal No. 2 Mine 

DECISIONS 

Covette Rooney, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the 

Complainants; 

Barbara J. Fleischauer, Esq., Morgantown, 

west Virginia, for Complainant Robert 

Ribel. 

Ronald S. Cusano and Anthony J. Polito, 

Esqs., Corcoran, Hardesty, Ewart, Whyte, 

and Polito, Pittsburgh, Pennsylvania, 

for Respondent~ 

Sally Rock,-Associate General Counsel, 

Eastern Associated Coal Corp., Pittsburgh, 

Pennsylvania, for Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedin.gs concern discrimination complaints 

filed by the Secretary of Labor on behalf of the named 

complainants pursuant to section 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977, charging the 

respondent with certain alleged acts of discrimination 

against the complainants because of their asserted 

exercise of certain protected safety rights under the Act. 

Docket No. WEVA 84-4-D concerns a complaint filed by 

MSHA on behalf of complainants Ribel, Kanosky, and Wells, 

on or about October 17, 1983. That complaint is based on 

.2203 
a written complaint filed by these individuals with 

MSHA on May 31, 1983, in which they make the following 

allegations: 

On or about May 18, 1983, during the shift 

we were approached by Jack Hawkins in regards 

to double cutting on the longwall face. He 

gave us two options in regards to double cutting 

on the face, which were: 

(1) If we agreed to double cut we would 

receive benefits that included overtime 

opportunities and favorable job assignments. 

(2) Should we not agree to double cut, we 

wQuld not receive overtime opportunities 

and would be assigned work in a manner that 

would cause us to either bid from our present 

jobs or quit our employment with Eastern. 

Being our belief that the foreman's request 

that we perform work inby was unsafe and 

violative of the Act, we refused to accede 

to his request. 

As a result of exercising our rights under 

the Act, we have been discriminated against 

by our foreman and Eastern Associated Coal 

Corporation by being assigned job duties 

that have not been customarily a part of our 

regular job and, in addition, we have been 

denied overtime opportunities and other 

benefits afforded other employees on the crew. 

Docket No. WEVA 84-33-D, conc·erQ.s a 'complaint filed 

by MSHA on or about December 5, 1-983,· on behalf of 

Mr. Ribel, challenging Mr. Ribel's suspension on August 5, 

1983, with intent to discharge, for his allegedly having 

engaged in the destruction, or alleged "sabotage", of a 

company telephone on the 7-Right longwall section of 

respondent's Federal No. 2 Mine. Mr. Ribel filed a 

grievance on this dlscharge, and on August 22, 1983, an 

arbitrator denied his grievance and-upheld the discharge. 

As a result of MSHA's complaint on Mr. Ribel's 

behalf, Chief Judge Merlin ordered his temporary 

reinstatement on November 14, 1983, and after a hearing 

held by me on November 28, 1983, the parties agreed and 

stipulated that Mr. Ribel would be "economically 

reinstated". The respondent agreed to continue paying 

Mr. Ribel his regular rate of pay, as well as other 

benefits flowing from his employment with the respondent, 

without actually returning him to work at the mine. 

2204 
Docket No. WEVA 84-66-D, concerns a complaint filed 

by MSHA on behalf of Mr. Wells on or about December 15, 

1983, and this complaint is based on an August 8, 1983, 

complaint filed by Mr. Wells with MSHA claiming that his 

supervisor, Jack E. Hawkins, issued him a "safety slip" 

for an alleged safety violation, and that he did so out of 

retaliation for his prior safety complaint filed with MSHA 

and the Commission. 

Issues Presented 

Docket No. WEVA 84-4-D 

1. Whether the complainants, Ribel, 

Kanosky and Wells were engaged in protected 

activity on or about May 18, 1983, when 

they refused to double-cut on the 7-Right 

longwall section of the respondent's 

Federal No. 2 Mine. 

2. Whether the respondent, by and through its 

agent, section foreman Jack E. Hawkins, retaliated 

or discriminated against the complainants during 

the period May 18, 1983 until approximately June 1, 

1983, by withholding certain employee benefits. 

Docket No. WEVA 84-33-D 

Whether the respondent violated the Act on 

or about August 5, 1983, when it suspended with 

intent to discharge the complainant Robert Ribel 

for allegedly destroying or "sabotaging" a company 

telephone. 

Docket No. WEVA 84-66-D 

Whether the respondent, by and through its 

agent, section foreman Jack E. Hawkins, retaliated 

or discriminated against the complainant Danny Wells 

by issuing him a "safety slip" for an asserted 

safety violatiop. 

DOCKET NO. WEVA 84-4-D AND 84-33-D. 

MSHA's TESTIMONY AND EVIDENCE 

Complainant Robert A. Ribel testified that he has 

been unemployed since August 5, 1983, and that prior to 

this date he was employed by the respondent as a chock 

setter and had been in that position for approximately six 

years. He confirmed that he worked on· the midnight shift, 

and he confirmed that his duties included moving the 

2205 
longwall hydraulic roof supports as the shift cuts the 

coal, and pulling the shields as the longwall advances. 

He indicated that in addition to himself, two other chock 

setters would normally work with him during the shift, and 

on May 17, 1983, chock setters John Kanosky and Danny 

Wells were working with him. Mr. Ribel identified his 

supervisor as section foreman Jack Hawkins, and he 

indicated that Mr. Hawkins had been so employed for 

two or three months (Tr. 13-15). 

Mr. Ribel identified exhibit G-1, as a complaint 

which he and Mr. Kanosky and Mr. Wells signed and filed 

with MSHA on May 31, 1983, and he explained the 

circumstances which led to the complaint. He stated that 

approximately two or three weeks prior to May 18, 1983, 

he, Mr. Kanosky, and Mr. Wells informed Mr. Hawkins that 

they were not going to "double cut" coal any more. A 

meeting was held with the union safety committee and mine 

management, and Mr. Hawkins' supervisors advised the 

complainants that they did not have to double cut (Tr. 

17) • 

Mr. Ribel stated that the complainants did not double 

cut after the meeting was held, but that on or about 

May 15, 1983, Mr. Hawkins summoned them to the dinner hole 

and informed them as follows (Tr. 18): 

* * * * * * 

[W]hen Jack Hawkins called myself, Danny 

Wells, and John Kanosky into the dinner hole, 

sat us down, and told us that he was going to 

make it twice as hard on us, to single cut, as 

* 

it was to double cut,. and he read us our options, 

and he said among the options, if we refuse to 

double cut, we wouldn't be granted the opportunity 

to work through dinner, as we had in the past, we 

wouldn't be allowed to stay in between shifts, and 

there would only be two of us on the face, instead 

of three, one of us would be doing dead work all 

the time, we would alternate which one of us that 

was, and he saiQ, he would make it so tough on us, 

we would either bid off, or he-would find a way 

of getting rid of us. 

That was about the extent of the conversation. 

Danny asked him for a copy of the two options, he 

just laughed and put them in his pocket. 

Mr.,Ribel explain~d that in "double cutting", 

the coal cutting shearer would move from the tailpiece to 

the head along the longwall, face, and then would repeat 

2206 
the process, moving back from the head to the tailpiece, 

making a second cut of coal. He confirmed that while he 

had been involved in double cutting for a period of six 

years while.assigned to the longwall section, he did not 

like it because he believed that it was not safe because 

when he is inby the shearer the dust would impair 

his vision, and he would be exposed to the dusty 

conditions generated by the shearer. He was not sure 

whether double cutting was legal, and while it "seemed 

dangerous to me all along", until the time that he "got 

together" with Mr. Wells and Mr. Kanosky to refuse to 

continue double cutting, he did nothing about it because 

he could not find others who openly shared the same views 

(Tr. 19). 

Mr. Ribel stated that during double cutting he had to 

work behind the shearer, and the dust would get into his 

lungs and eyes, and this would impair his vision. 

Further, in the event of a shearer fire, the smoke could 

come in his direction because the air is flowing from the 

head, down the face, out the tail, and down the return. 

He would experience no such problems during single 

cutting. (Tr. 21-24). 

Mr. Ribel stated that the first time the complainants 

approached management about double cutting was when they 

had the meeting in early May. He confirmed that during 

his early training, he was instructed that it was illegal 

to work inby any piece of moving equipment, but that 

during his six years on the longwall he did not follow 

this procedure, and he, as well as others, worked inby the 

longwall shearer. He did so to "just Kind of go with the 

flow", and that "I just kept my mouth shut and did what 

-everyone else did" CTr. 25J 

Mr. Ribel explained that he believed that working 

"inby the shears" is the same as double cutting, and that 

the only reason a chock setter would be inby the 

shearer would be while he was double cutting (Tr. 28). He 

confirmed that during the May meeting, mine management 

told him that he did not have to work inby the shearer and 

he took it for grant~d that this meant that he did not 

have to double cut. {Tr. 29-31). 

Mr. Ribel stated that prior to May 18, he was allowed 

to work through his dinner period of a half-an-hour, and 

that he would be paid time and a half for this. After 

May 18, Mr. Hawkins would assign the crew a specific time 

to take dinner, and he did not work during this time. 

However, sometime after June 1, after the complaint was 

filed, Mr. Hawkins "seemed like he got·a little nicer", 

and asked him if he wanted to work through his dinner 

2207 
period. Further, subsequent to June 1, he assumed he was 

free to work through dinner if he wanted to (Tr. 36). 

Mr. Ribel stated that prior to May 18, he and the 

other chock setters always had the opportunity to stay and 

work between shifts, for once or twice a week, but that 

between May 18 and June 1, they were not asked. After 

June 1, he believed that he was again asked to stay and 

work between shifts (Tr. 37). He also indicated that 

after the complaint was filed, three chock setters were 

again permitted to work together, and this made it easier 

for them to do their jobs properly (Tr. 38). 

Mr. Ribel stated that prior to May 18, the chock 

setters did "dead work" at the beginning of the shift 

before production started. However, after this time, and 

until June 1, the chock setters "did almost all the dead 

work that was done", and the utility man who previously 

did it while the chock setters were running coal "stayed 

at the headgate" (Tr. 40). 

Mr. Ribel stated that after June 1, he was single 

cutting and was not doing as much "dead work" as he had 

done previously (Tr. 42). Ue also confirmed that between 

May 18 and June-, other members of his crew were allowed 

to work through dinner and were given the opportunity to 

work between shifts. (Tr. 43). 

Mr. Ribel testified that while he never filed a 

written safety complaint with the mine safety committee 

about the practice of double cutting, he "talked to" 

several committee members about it (Tr. 52). He indicated 

that he spoke to them before May 18, and that he discussed 

whether or not he had to work inby the shearers and they 

indicated that he did not (Tr. 54) 

Mr. Ribel confirmed that he never personally 

approached any Federal .or state inspector about double 

cutting because he had not taken the time to do so, and 

because he wanted to wait until he was working with two 

other people who felt the way that he did about it. (Tr. 

54). He also confirmed that he never brought up the 

subject at any safety meetings or discussions held with 

mine management (Tro 55), and that he had never previously 

filed any safety complaints with mine management over 

conditions which he believed wer~ hazardous (Tr. 57, 59). 

Mr. Ribel identified exhibit G-2, as the complaint he 

filed with MSHA after he was discharged by the respondent 

on August 5, 1983 (Tr. 60). He explained the circumstances concerning his discharge, and what transpired 

2208 
at the time Mr. Toth accused him of sabotaging the phone 

(Tr. 60-76). Mr. Ribel confirmed that this was the first 

disciplinary action ever taken against him by the 

respondent (Tr. 76). 

On cross-examination, Mr. Ribel confirmed that during 

the entire six-year period that he worked on the longwall 

section as a chock setter, he never complained to any 

Federal or state inspectors about double cutting, and he 

never formally complained to his safety committee. 

Although he did discuss the matter with certain members of 

the safety committee, they advised him that as long as 

the day shift and afternoon shift continued to double cut, 

nothing could be done about the midnight shifts' complaint 

(Tr. 80). 

Mr. Ribel testified that compared with other bosses 

he has worked with, Mr. Hawkins was "better than some, and 

worse than others", and that he "was harder than some, but 

he was easier than· others." He also confirmed that the 

mine had several lay-offs, one of which occurred in 

mid-March of 1983, when Mr. Hawkins was assigned as his 

boss (Tr. 81). He also confirmed that these lay-offs 

resulted in long-time members of his crew being laid off, 

less people available for work, and more work for him to 

do • CT r • 8 2 ) • 

Mr. Ribel conceded that at no time during the six 

years that he worked on the longwall did anyone, prior to 

the May incident with Mr. Hawkins, ever ask him to double 

cut, and no one' ever told him where he was to stand or 

work while he was double cutting (Tr. ·a4). He confirmed 

that during double cutting, he could either work inby the 

-shearer, or stand between ±he drums and. the shearer (Tr. 

84-85). 

Mr. Ribel explained the ventilation system across the 

longwall, and he confirmed that water sprays are used to 

control the dust, and that respirators are provided for 

those miners who choose to use them (Tr. 90-92). He 

explained where the drum operator would be positioned, and 

he confirmed that tne reasons he first complained in May 

was that he was working with two other chock setters who 

concurred in his concerns about double cutting (Tr. 97). 

Mr. Ribel confirmed that the respondent changed the 

cutting bits on the longwall over the years, and that this 

probably increased or created more water spray to help 

dilute the dust, and if they work properly, "they do put 

out quite a bit of water" (Tr. 99). He confirmed that at 

no time during the six years that he worked as a chock 

setter during double cutting was there ever a fire on the 

2209 
shearer (Tr. 101). He confirmed that air hats containing 

a dust filter system were made available to the crew, but 

that he found them to be bulky (Tr. 101). He also 

confirmed that the shearer operators were exposed to more 

dust than the chock setters, and that they wore the air 

hat CTr. 102). 

When asked to explain why his vision would be 

impaired more when he was double cutting, Mr. Ribel 

responded qS follows: (Tr. 104-105): 

A. Because when you are double cutting, you 

are setting up the shields, on the inby side, the 

down wind side of the shears, and you get a whole 

lot more dust down there, than you do, when you 

are on the upwind side of it, the upwind side of 

it, the only dust that you get is just the dust 

from the shield, that you are letting down, and 

moving. 

Q. What about --

A. And sometimes not even that. 

Q. What about if you work inby, in between the 

shear operators, that's between these two drums, 

that we have shown on the sketch, which you have 

indicated you have done in the past, would you 

get the same dust exposure, that the shear operators 

would? 

A. I would say probably about much, if you are 

working there right beside them, yes. 

Q. If anything less than.they? 

A. Yes. 

Q. And you have done that in the past? 

A. Yes. 

Q. would your vision be any more impaired or 

less impaired than the shear operators? 

A. I wouldn't think that there would be much 

difference, no. 

In response to certain questions concerning the 

meeting with mine management with respect to the question 

of double cutting, Mr. Ribel responded' as follows Tr. 

106-107}: 

2210 
Q. Now, let's talk about this meeting with 

Mr. Hawkins, you indicated that you told Mr. Hawkins 

that you had decided, I guess you, and 

Mr. Kanosky·, and Mr. Wells, had decided that you 

weren't going to doubie cut any more, after six 

years of doing it, is that pretty much what you 

told Mr. Hawkins? 

A. That's right. 

Q. And this was in May of 1983, early May? 

A. Early May. 

Q. When you told Mr. Hawkins that, did he threaten 

to fire you then? 

A. No. 

Q. In fact he suggested that you get a safety 

committeeman to come in, and discuss the situation? 

A. Yes. 

Q. And rather than doing that on shift, and causing 

a loss of production, it was agreed between the three 

of you and Mr. Hawkins, that you would have a meeting 

with whoever you wanted to meet with, the followfng 

morning after your shift was completed? 

A. That's right. 

Q. And you did' in fact have such a.·meeting? 

A. Yes, we did. 

* * * * * * * 

Q. And isn't it correct that what Mr. Dennison 

told you, was that you and the other chock setters, 

did not have to.work inby the shears? 

A. I don't recall if he said, we don't have to 

work inby or double cut, I think he said we don't 

have to work inby the shears, but I'm not sure. 

And, at (Tr. 109-114): 

Q. Mr. Ribel, isn't it true that you assumed ·from 

what Mr. Dennison told you, that you didn't have 

to double cut? 

2211 
A. Yes, that was what I assumed, yes. 

Q. Isn't it correct, Mr. Ribel that after this 

meeting with Mr. Dennison, and the others, that 

you were never ordered or required to double cut 

at Federal Number 2 Mine, up until the time that 

you were discharged? 

A. No, that's not true. I was never ordered 

to, but I was given a list of options, that led 

me to believe it would be bad for me, if I didn't. 

Q. But isn't it true that Mr. Hawkins, neither 

Mr. Hawkins, or anybody else, ·ever said, either 

specifically or directly ordered you to double 

cut, after the meeting with Mr. Dennison? 

A. That's true, I was never ordered to after 

that meeting. 

Q. In fact you never did double cut after that 

meeting with Mr. Dennison, is that true? 

A. That's true. 

* * * * * * * 

Q. Now, let's talk about these things, I think 

you mentioned that he said, that he was going to 

ask you to do other work. Isn't what Mr. Hawkins 

told you that, he was only going ·to use two shear 

operators, to move the shields, and use the third 

shear operator, to dQ the dead work? 

A. What do you mean, chock setters, not shield 

operators. 

Q. Chock setters, I'm sorry. 

A. I understood what you meant. 

Q. Yes, thank you. At this point in time, up 

until May, you had been using three chock setters, 

to move these shields? 

A. That's correct. 

Q. And isn't what Mr. Hawkins told you, that 

he was going to use two chock setters, to move 

the shields, and use the third chock setter to do 

general work? 

2212 
A. He said that there will be one of you at 

all time, doing dead work. 

Q. And didn't he indicate that he was going to 

rotate who that person was, I mean it wouldn't 

be the same--

A. Oh, he said that it would be a difference one 

of us every day, yes. 

* * * * * * * 

Q. What Mr. Hawkins was telling you in mid-May, 

when this conversation took place, I think you 

have indicated was either the 17th or 18th of May, 

is that he was only going to use two chock setters, 

to move the shields, and he was going to put the 

other one to work doing other things? 

A. Yes. 

Q. In fact that's what he did? 

A. That's what he did. 

Q. And the type of work, he was alternating the 

three of you, the third person out, would be the 

person doing this called dead work? 

A. That's right. 

Q. Isn't it true that you had done those other 

jobs before, whatever. Mr. Hawkins assigned you to 

do? 

A. Not during production; during production, the 

chock setters were always on the face, and the 

utility man did the dead work. 

Q. Now, when you say during production, you mean 

while the shear~was operating. 

A. That's right. 

Q. Okay, now, he's taken one of you out of the 

cycle? 

A. Um hmm. 

Q. Now, the jobs that you were performing out of 

cycle, are the same types of jobs that you were 

2213 
performing before, but you just hadn't done as much 

before, would that be true? 

A. There were jobs, when we were down, everybody 

did maintenance, or dead work, when we were down. 

When we ran coal, it was never -- the chock setters 

were always on the face when we were running coal, 

doing jobs pertaining to production, not dragging 

cables, or overhead netting, carrying cribs, or 

rock dust. 

Q. Would it be fair to state that Mr. Hawkins 

didn't ask you to do anything, during this two 

week period, that you hadn't done before? 

A. That's right. 

Q. Now, you were doing more of it? 

A. Yeah, doing the utility man's job. 

With regard to the question of working through his 

dinner hour, Mr. Ribel testified as follows: (Tr. 

118-122): 

Q. Mr. Ribel, you also mentioned that one of the 

three things that Mr. Hawkins talked to you about, 

one was the assignment on the work, and we discussed 

that already, and I think the other was about 

working through the dinner hour. Am I correct, that 

the practice a~ the mine is that the dinner hour, 

or dinner half an hour, we'll call it, is normally, 

has to be taken between the third the the fifth 

hour? 

A. Yes, if you take it between· the third and fifth 

hour, I don't know if they,have changed their rule 

or not, but that was the policy. 

Q. And if it was not taken, say if it is taken 

the sixth hour, the company has to pay you, whether 

you take it, or.don't take it? 

A. I believe so, yes. 

Q. And the pay you had received for working through 

dinner hour, would be overtime pay, time and a half, 

isn't that correct? 

A. Yes. 

2214 
Q. Are you aware of anything in the contract, the 

National Bituminous Coal Wage Agreement which gives 

any miner, or yourself the right to claim that overtime pay? 

A. No, just that it.was past practice. 

Q. Would you agree with, that's a management 

prerogative, right, mine.manager's prerogative, as 

to whether he is going to work you, on an overtime 

basis, between shifts, or during the lunch hour? 

A. That's correct. 

Q. You are saying that Mr. Hawkins discontinued 

that, discontinued giving you the opportunity to 

work, for some short period around May 18th to 

May 31, if I uriderstood you correctly? 

A. That's right. 

* * * * * * * 

Q. Let me go back, the company can, in accordance 

with the contract, stagger, the lunch period? 

A. Yes, sir, that's correct. 

Q. Okay, now, if you are going to be involved in 

single cutting, you take your lunch break, well, 

whether single or double, you take your lunch break 

between the third and fifth hour? 

A. That's correct. 

Q. He could stagger each one of the three of you, 

so that no more than one of you, would be missing 

at one time, taking your lunch break? 

A. Yeah, that's right. 

* * * * * * * 

Q. In fact, during the time, during that two week 

week period, while you were taking your lunch break, 

and not working through it, this did not in any way 

affect production, I mean it could be done, 

Mr. Hawkins didn't have to shut down the shear, or do 

anything to interrupt production, and still give you 

fellows your lunch break? 

2215 
A. That's right. 

Q. Without paying any overtime for that period? 

A. That's correct. 

Q. Did you file any grievance with the mine 

committee, or anyone protesting the fact that you 

were not offered the opportunity to work through 

your lunch hour? 

A. I didn't know anybody to go to, after we had 

already gone to his superiors, and worked things 

out, after that, when he gave us those options, I 

just figured there wasn't any sense in saying anything to anybody, until I couldn't stand it any more. 

Q. Was the answer to my question, no, that you 

did not file any grievance? 

A. No, I never filed any grievance with anyone, 

until the first one you have. 

Q. And that was the grievance with MSHA, and not 

the mine committee? 

A. That is correct. 

With regard to the question of working between 

shifts, Mr. Ribel confirmed that this is something that 

management gives him an opportunity to do as the need 

arises, and that he has "no right" to·work between shifts 

(Tr. 123). Mr. Ribel identified copies of certain work 

reports for the period Apr.il 18 through J-tine 17, 1983, 

indicating the amount of overtime pay he-received on his 

midnight shift (exhibits G-4A, 4B.-, 4C Tr. 123-124). He 

conceded that the records reflect that he never worked 

between shifts during these periods, and he stated that "I 

very seldom stayed in between shifts, but that since he 

always asked in the past, I felt that, whether I was 

going to or not, it was nice if he asked everybody else on 

the crew, he would ai:;k me." (Tr. 125). He again confirmed 

that "I very seldom stayed between shifts" (Tr. 126). 

In response to further questions concerning working 

through lunch, Mr. Ribel stated as follows (Tr. 130-132): 

Q. Mr. Ribel, would you agree with me, that after 

May 31, 1983, you had no more problems, no problems 

or confrontations, anything, with Mr. Hawkins? 

2216 
A. I didn't personally have any problems with 

him after that time, no. 

Q. You suggested here this morning, your testimony 

was because you filed this complaint with the 

Government, which is shown as the statement that you 

signed on May 31, and that it was because of that 

that Mr. Hawkins changed his attitude towards you, 

is that your testimony? 

A. Yeah, I believe that. 

Q. I ask you to look at Government exhibit 4B, 

ask you if you would confirm the fact that you 

started, well, you yourself were off on June 1, 

1983, is that correct, at least that's what this 

document shows? 

A. That's quite possible, yes. 

Q. You don't have any reason to disagree with 

that? 

A. No, I don't, no. 

Q. And it shows that you started receiving .SO 

hours, or lunch time, again, on June 2? 

A. That's correct. 

Q. Did you yourself, tell Mr. Hawkins on June 2, 

or between May 31 and June 2, that you had gone to 

MSHA, and signed this statement, which has been 

identified as Government exhibit 1. 

A. No, I've never told him-to this day. 

Q. Okay, did you have any reason to believe that 

Mr. Hawkins was, or could have been aware that you 

and Mr. Kanosky, and Mr. Wells, had gone to the 

MSHA off ice, and signed this statement? 

A. Yeah, I do have reason to-believe that. 

Q. And prior to June 2, 1983? 

A. No, starting June 2, wh~n he started allowing 

me to work through dinner, that was reason for me 

to believe that he heard something about it, in some 

way. 

2217 
Q. Well, do you know how he heard about it? 

A. No, sir, I have no idea. 

Q. You, yourself didn't tell him? 

A. No, I didn't. 

Q. Did either Mr. Wells or Mr. Kanosky tell him 

in your presence, that they had filed this? 

A. Not that I recall. 

With regard to his discharge~ Mr. Ribel confirmed 

that the longwall phones are required to be operative 

before mining can proceed, and he also confirmed that 

starting in mid or late July, 1983, there were more 

reports on inoperative phones on his section than in the 

past (Tr. 132-136). 

Mr. Ribel testified as to the events on the August 5, 

1983, midnight shift, and he described the movements of 

Mr. Toth, Mr. Toothman, and himself, and how they went 

about checking the longwall telephones (Tr. 137-146). He 

confirmed that Mr. Toth was the person who informed him 

that he was being suspended with intent to discharge (Tr. 

147). When asked whether Mr. Toth was in any way involved 

with the prior May incidents concerning double cutting, 

Mr. Ribel answered that he had heard comments from other 

foreman that Mr. Toth becomes upset with his foremen when 

they do not have good production (Tr. 148). However, he 

conceded that it was Mr. Toth's job td be concerned about 

production, and he admitted that prior to his discharge he 

had no problems or confron..tations with Mr •. Toth (Tr. 148). 

He also admitted that at no time did Mr. Toth say or 

indicate to him that he was trying to "set him up" (Tr. 

150). 

When asked to explain why Mr. Toth would want to "set 

him up", Mr. Ribel responded as follows (Tr. 151): 

THE WITNESS: 'Qne, I think that if he found a way of 

getting rid of myself or Danny Wells, that 

everybody else would have just done things the 

way he wanted them done, and would have been 

afraid to say anything ~bout it, even though 

they felt it was unsafe; and that's one reason, 

I believe. 

Mr. Ribel testified as to the meeting called by 

Mr. Toth on the midnight shift.of August 5, (Tr. 156-166). 

Mr. Ribel confirmed that he lost his arbitration discharge 

2218 
case (Tr. 167), and he explained the reasons why he 

carried a hawk-bill knife. (Tr. 169-170). 

Mr. Ribel stated that he had no reason to believe 

that Mr. Wells, Mr. Toth, or Mr. Hawkins would be involved 

in any "set ups" to discha~ge him (Tr. 174). He believed 

that Mr. Toth was the one individual "who engineered" his 

discharge by accusing him of cutting the telephone wire 

(Tr. 174). Mr. Ribel confirmed that he worked for 

Mr. Hawkins prior to his discharge, and that he did not 

know him prior to this time (Tr. 174). 

Danny Wells confirmed that he is one of the 

complainants in this case, and he confirmed that he filed 

his complaint on May 31, 1983, witn Mr. Ribel and 

Mr. Kanosky. He also confirmed that he has been employed 

by the respondent as a tipple boom operator since 

October 17, 1983, and that prior to this time he was 

employed as a longwall chock setter for approximately 

2-1/2 to 3 years. His total employment with the 

respondent consists of 8 years, and he has worked the 

midnight shift. He stated that he initially bid off the 

afternoon shift to the midnight shift, and then bid on his 

current job. (Tr. 176-178). 

Mr. Wells testified that he has worked with 

Mr. Kanosky and Mr. Ribel on the longwall in question, and 

he indicated that when he was first assigned to the 

longwall it was standard procedure for everyone to double 

cut coal(Tr. 179). He later refused to double cut because 

he felt it was too dangerous because of the dusty 

conditions which presented breathing a·nd vision problems. 

He indicated that he expressed those concerns to his 

.fellow miners, to the mine safety committee, and to 

respondent's safety department. He could not supply any 

specific dates or names of persons with whom he spoke, but 

he did state that he ~ade. contact with the respondent's 

safety department prior to May, 1983 (Tr. 181). 

Mr. Wells stated that approximately two or three 

weeks prior to the filing of the complaint he discussed 

the question of doub+e cutting with Mr. Ribel and 

Mr. Kanosky, and a meeting was held.with the safety 

department. After.they were told they did not have to 

double cut, Mr. Hawkins asked them to double cut, but when 

they refused Mr. Hawkins became hard to get along with 

(Tr. 185). 

Mr. Wells stated that on a prior occasion when 

he complained to Mr. Hawkins about some coal spillage on 

the walkway, Mr. Hawkins assigned him to other work after 

refusing to call in a safety committeeman (Tr. 187). 

2218 
Mr. Wells confirmed that the respondent had advised him of 

his right to remove himself from hazardous work, but he 

also indicated that he believed he was branded as a 

"trouble-maker" because of this CTr. 189). 

Mr. Wells stated that· after the meeting with mine 

management about double cutting, Mr. Hawkins met with him, 

Mr. Ribel, and Mr. Kanosky on May 18, 1983, in the dinner 

hole, and his testimony as to what transpired is as 

follows (Tr. 191): 

A. Mr. Hawkins, the foreman, approached us, and 

took.us to the dinner hole, the three chock setters 

and his self and went to the .dinner hole, and he told 

us that he had two options for us, one was for double 

cutting, and one was for single cutting. 

He said if you 'uns want to double cut, I will 

leave three chock setters on the face, you 'uns can 

work through dinner, you 'uns can have the option 

to stay in between the shifts, and one of you come 

in, a' not feeling good, I will let the other two 

cover for you, you know, and you just take it easy. 

But if we didn't, we couldn't work through 

dinner, we douln't stay in between shifts, he was 

going to take one of the chock setters off of the 

face, and he was going to make things so rough for 

us, that we would either bid off of our job, or quit 

our job completely. 

After advising Mr. Hawkins that he would not 

double cut, Mr. Wells claimed that Mr. Hawkins assigned 

"him to do work tasks that he would normally assign to 

other miners, or to at least more than one man (Tr. 

192-194). Mr. Wells also indicated that after the meeting 

of May 18, he was no longer permitted to work through his 

dinner hour, and that prior to this he worked through 

dinner with pay approximately every day while on 

production (Tr. 195). Mr. Wells also indicated that 

during the period M~y 18 to June 1, 1983, other members of 

the crew worked through dinner, and that Mr. Hawkins did 

not present his "options" to anyone·but the chock setters 

(Tr. 196). 

Mr. Wells testified that after June 1, 1983, he and 

the crew were single cutting, and.that Mr. Hawkins "had 

changed" and permitted him to work through dinner with pay 

and that Mr. Hawkins "let us do our job" (Tr. 197). 

Mr. Wells testified as to the meeting which occurred on 

the midnight shift of August 5, 1983, and he confirmed 

that Mr. Hawkins asked him to assist in conducting the 

2220 
fire boss examination. He also confirmed that Mr. Toth 

was present during the meeting, and Mr. Wells claims that 

Mr. Toth told him that he "was next" because of his prior 

discrimination complaint. Mr. Wells stated that he did 

not know what Mr. Toth meant by this remark since it was 

maae before Mr. Ribel was taken out of the section (Tr. 

199-200). 

Mr. Wells stated that he became a "boom man" on 

October 17, 1983, and that sometime between June and 

October of 1983, he sustained an injury while dragging 

some cable with Mr. Kanosky. Mr. Hawkins assigned them to 

that task, and as a result of his injury, Mr. Wells 

stated that he missed a month's work (Tr. 201). After 

returning to work, he was assigned to another foreman for 

two shifts. He then was re-assigned as a chock setter, 

and he stated that Mr. Hawkins told him that "it was 

Mr. Mick Toth's doing" (Tr. 203). Mr. Wells also 

indicated that Mr. Hawkins told him that "just between you 

and me, Mick is out to get you". Mr. Wells stated that he 

then bid off the longwall "in order to protect my job" 

(Tr. 203). He confirmed that this was a voluntary act on 

his part, and while the boom job is less strenuous, it 

pays less money. He also confirmed that his prior injury 

did not prevent him from doing the chock setter's work 

(Tr. 204). 

On cross-examination, Mr. Wells confirmed that he 

engaged in double cutting during the 2-1/2 to 3 years he 

was on the longwall. Although respirators and air helmets 

were provided and available for the chock setters, he 

could not wear a respirator because he had difficulty 

breathing with it. He concede~ that th~ respirator 

-exposed him to less dust (Tr. 216). 

Mr. Wells denied that during-the· time he was double 

cutting, he never had an occasion to work between the 

shearer drums while inatalling the shields. With regard 

to his safety complaints to respondent's safety department, Mr. Wells stated that while he spoke with a 

Mr. Cumberlich, a member of the safety department, about 

general safety matte~s, he did not specifically mention 

double cutting to him (Tr. 218). 

Mr. Wells confirmed that he spoke with his mine 

safety committee about double cutting, but that they could 

not do anything unless "they were·caugbt double cutting 

(Tr. 219). Mr. Wells conceded that no one from mine 

management ever threatened or advised him that action 

would be taken against him if he made safety complaints to 

Federal or state inspectors. The only.incident he is 

aware of is when Mr. Toth purportedly told him that he 

2221 
"was next" (Tr. 221). He further explained as follows 

(Tr. 221-222): 

·Q. So these indications that you have or these 

feelings that you have, that you were afraid to take 

a stand, because you would be singled out, it's an 

assumption, a belief you have, just a belief that you 

have, I mean is that fair to state? 

A. I don't understand what you are saying? 

Q. Well, is it -- it's not based upon any statement that anybody from mine management, at the 

Federal Number 2 Mine, or Eastern has ever said to 

you.? 

A. No, they don't have to. You can get the picture 

just by their actions towards you. 

Q. Well, their actions towards you, have they ever 

done anything to you, which leads you to believe that 

if you complained to a Federal or State inspector you 

would be disciplined in some way, or treated differently than the other employees? 

A. Well, like I said, in light of the incident of 

August the 5th, Mick Toth sat there and made the· 

statement, this little trivial bullshit, that you 

'uns have turned in to the safety department is going 

to make you end up losing your job, he's getting 

tired of it, and he wants it stopped. 

Q. Anything other than this incident on August 5, 

with Mr. Toth talking.? 

A. Other than the people at the coalmines, union 

brothers, in the same union, would tell me, I mean 

this is where a lot of this stuff from the longwall, 

you guys on the longwall is nuts, you are going to 

be old before your time, eating all that dirt. This 

one, this one, well, you know, it's a part of your 

job, but you don't make a stand by yourself. 

Mr. Wells stated that when mine management 

decided that he and other chock setters did not have to 

double cut, there was nothing wrong in management deciding 

to use one of the chock setters, on a rotating basis, to 

do other work such as carrying rock dust bags, shovelling 

coal, or dragging cables. Mr. Wells stated that he did 

not complain about this until Mr. Hawkins began using a 

utility man to do the work of one of the rotating chock 

setters (Tr. 225-226). 

2222 
Mr. Wells stated chat there have been occasions in 

the past that utility men would be called upon to replace 

chock setters. His complaint is that he (Wells) should be 

utilized as ·a chock setter, and the utility man should be 

left in that capacity to do his own work (Tr. 233). 

Mr. Wells confirmed that he believed that he was being 

worked out of classification, and that he has filed 

grievances over this issue, including one concerning Mr. 

Hawkins' doing the work of a chock setter (Tr. 234-236). 

Mr. Wells confirmed that he did not confront Mr. Toth 

concerning Mr. Hawkins' assertion that he was out to get 

him, nor did he file any complaint over this incident. He 

confirmed that he voluntarily bid to the boom man's job 

and that no one from management suggested that he do this 

(Tr. 242). 

John Kanosky testified that he is employed by the 

respondent as a chock setter and has been so employed for 

six years. He confirmed that he worked with Mr. Ribel and 

Mr. Wells on the longwall, and he confirmed that he 

joined with them in filing the discrimination complaint 

against the respondent. He also confirmed that he engaged 

in double cutting for as long as he worked on the longwall 

and that he was trained to do this. (Tr. 268-272). He 

also indicated that "in the back of his mind" he has 

always been concerned about the dust which is generated by 

double cutting, but has never filed any complaints about 

it until the instant discrimination complaint. He 

confirmed that about three weeks before the filing of the 

complaint, he spoke to mine management about double 

cutting, and when asked why he had not complained earlier, 

-he stated as follows (Tr. 273-275): 

Q. Why is it that you never talked to anyone in 

management about the dust?· 

A. Well, usually, by myself, you know, if I would 

go out there, they would cause me to be a trouble 

maker, you know, make me do dead work for, you know, 

building cribs~~or someplace else, not doing my job, 

you know, as chock setter. 

Q. Have you ever made any _other safety complaints, 

have you ever -- other than the double cutting, have 

you ever talked to anyone in management about·any 

other safety problems? 

A. No, not safety problems, no. 

2223 
Q. Have you ever been tagged as a trouble maker? 

A. No, as far as I know I wasn't, I don't know what 

they say. 

Q. What led you to talk to management in the beginning of May about this? 

A. Well, me and Rob and Danny got together and just 

talked about it, and we all felt the same way about 

it, so that's why that we filed this. 

Q. Do you recall that discussion, what was said 

during that discussion? 

A. Well, we just went over it, you know, discussed 

about different things and that, and they finally 

talked about double cutting, and different things. 

Q. Did you discuss the dust during that discussion? 

A. Yeah, that was part of it. 

Q. And do you recall what it was that was said 

about the dust? 

A. Probably was hazardous to your health, and all 

that, and you can't see for one thing, when you go 

behind that shear, and that. 

Q. Did you feel that way, or were you agreeing with 

what they were saying? 

A. I felt that way,. yeah, and they-felt, they give 

me the impression that they felt the same way. 

Mr. Kanosky testified that after a May, 1983, meeting 

with mine management, he, Mr. Ribel and Mr. Wells were 

informed that they no longer had to double cut. Later, on 

May 18, Mr. Hawkins met with them, and Mr. Kanosky 

testified as follows with respect to that meeting (Tr. 

278-279): 

A. Well, he told us that, give us two options, you 

know, single cut, and then double cut, one was for 

the double cutting, you don't. get no overtime 

benefits -- no, that's for single cutting, I'm sorry, 

you don't get no overtime benefits, you don't get 

paid through dinner, none of that, you don't get, and 

double cutting will do ~hat, so that's what happened. 

2224 
Q. And what did you decide at that time? 

A. Well, we all decided to single cut, we always 

did decide single cut, before that, we did that 

before. 

Q. Were you allowed, or did you work through dinner 

before May 18, 1983? 

A. Yes, I did. 

Q. Did you work every day through dinner? 

A. Well, maybe some days w~ was broke down or something, we didn't work through dinner, but when we 

was running coal, we would get paid through dinner. 

Q. And what happened after May 18th? 

A. That dinner and overtime stopped. 

Q. Were you told that you could not work the overtime, or what happened to make you realize you were 

not working through dinner any more? 

A. Well he told us, we weren't going to work 

through dinner, and we would get no more _overtime 

benefits, if we don't double cut. 

Q. Were there any other benefits denied you? 

A. Overtime, double cutting, I ~an't recall right 

now. 

Q. Okay, what happened after June 1st, 1983, with 

reference to the overtime? 

A. Well, they started to paying us through dinner 

again, you know, three chock setters on the face, and 

while we come up towards the head, we had to dead 

work and that, pull cables, and carry cribs, and 

build cribs, wh~tever, until they cut out the head, 

and then we would go back and set shields again. 

With regard to the August 5, 1983, meeting at the 

mine with Mr. Toth, Mr. Kanosky stated that double cutting 

was not mentioned. During the meeting the question of his 

(Kanosky) installing some curtains was brought up by 

Mr. Toth, and that Mr. Wells began gi~gling. Mr. Toth 

stated that "he (Wells) would be next on the list, for all 

this stuff that's going on right now" (Tre 286). When 

asked to explain, Mr. Kanosky stated "he said you would be 

2225 
either fired or something like, that's what he meant" (Tr. 

286).Mr. Kanosky stated that Mr. Toth was referring to a 

complaint that he (Kanosky) had filed with the safety 

committee about installing the curtain in bad roof, and 

Mr. Toth brought this up during the August 5 meeting CTr. 

289). 

On cross-examination, Mr. Kanosky confirmed that at 

the time he complained to the safety committee about the 

ventilation curtain, a Federal inspector was present in 

the safety off ice, but he could not recall his name. 

Mr. Kanosky stated that the inspector simply told him and 

Mr. Ribel "not to do it anymore" (Tr. 299). 

In response to further questions, Mr. Kanosky stated 

that during the August 5, 1983, meeting with Mr. Toth, 

Mr. Toth stated that "if you do all this stuff right here, 

that one of us is going to get fired" (Tr. 304). 

Joseph Norwich MSHA Morgantown District office, 

testified that he is an inspector, and that for the past 

seven years has been a ventilation specialist. He · 

testified as to his experience and background in the 

mining industry, and he confirmed that his present duties 

include the review of mine ventilation and dust plans, and 

the making of recommendations for approval or disapproval 

of those plans. 

Mr. Norwich confirmed that he .was involved in the 

review and approval of the respondent's longwall dust plan 

at the Federal No. 2 Mine, and he identified exhibit 

G-3 as a page from that plan which was in effect in May, 

1983 (Tr. 304-311). 

Referring to Item #2, on the dust plan labeled "dust 

parameters", and in particular the sentence which reads 

"No employee permitted inby shearer machine, during 

mining", Mr. Norwich explained that no one should be inby 

the machine when it is mining coal, and the term "inby" 

was explained as the area from the "tailgate" to the edge 

of the machine (Tr. 312). He explained that no one should 

be there because th~·chocks are moved up "to catch the bad 

roof," and he indicated that "I don~t know of any other 

reasonN (Tr. 312). When asked whether he would issue a 

citation if he found a miner inby the shearer, Mr. Norwich 

replied as follows (Tr. 313-314). 

Q. Let's say you were on a section, as an inspector 

conducting an inspection, if you saw an employee or 

a miner, working from the tailgate, up to the tail 

drum of the shear, as you pointed out, would that be 

a violation of the plan, while the machine was mining 

coal? 

2226 
A. If his need back there was only because of the 

productive oriented situation, I would say that it 

would be a violation. 

Q. And what would be a productive oriented 

situation? 

A. Well, I mean if he was back there only to increase productivity, in that sense, I would find 

that --

JUDGE KOUTRAS: Let's get a little more specific now. 

Let's take this machine, that's on its way to the 

headgate. 

THE WITNESS: To the headgate. 

JUDGE KOUTRAS: And it is mining, the question is, is 

the tail, right? 

MS. ROONEY: Right. 

JUDGE KOUTRAS: And he said only in certain exceptions 

if it were needed for maintenance, ·or to do the roof? 

MS. ROONEY. Right. 

JUDGE KOUTRAS: Okay. 

BY MS. ROONEY: 

Q. And if you observed someone other than in those 

two circumstances, would that be a violation of the 

plan? 

A. Yes, we would ask him to come out of there, and 

I guess, the people that I've cautioned, they had a 

need back in there, for some reason,you know, it 

would always be presented, there was a reason, why 

he was back in ~here, and then I would accept that. 

When asked to explain the term "double cutting", 

Mr. Norwich stated as follows: (Tr. 314-317): 

Q. Are you familiar with the term double cutting? 

A. I've heard that. 

BY MS. ROONEY: 
Q. Now, what is that term -- how are you familiar 

with that term? 

A. It is taking a full cut, when it would be 

started at the headgate, make a complete cut, off 

to the back, and then on the back, pick up a full 

face, on the way back, so actually, you are cutting 

with both passes, from the headgate, or from the intake to the return, or the headgate to the tailgate, and then from the tailgate, back to the headgate. 

Q. Is there anything illegal about double cutting? 

A. Well, personally, I think there would be, I 

don't think you could stay in compliance with the 

dust control. · I've never been· exposed to a plan 

double cutting was permitted, I'm not saying it is 

not done. 

We feel, we question anyone submitting a plan 

that has double cutting, under the normal dust 

control measures, we have. We may ask them to come 

up with a plan, to show more sprays, I would have to 

say, if I was on that section, and they were double 

cutting, I would probably give them a violation. 

Q. And why would you do that? 

A. If I found people inby. 

JUDGE KOUTRAS: Now wait a minute, you just added two 

caveats, you wotild issue them a viol~tion if you 

found people inby, and if you found dust, right? 

THE WITNESS: Well, double cutting, usually, the way 

I interpret double cutting --

JUDGE KOUTRAS: No, the question is, is double cutting 

per se, a violation of any standard, per se, in and 

of itself? 

THE WITNESS: Okay, no, I would say no. 

JUDGE KOUTRAS: Okay, now. 

BY MS. ROONEY: 

Q. Are there any problems that you are aware of, 

that are associated with double cutting, with 

reference to dust? 
A. I don't think we have ever evaluated a longwall 

with double cutting, so I wouldn't know. 

Q. Okay. 

If during the course of double cutting, a person 

had to work inby the shear machine, would that be a 

violation of the plan? 

A. It would be. 

Mr. Norwich stated that he has no knowledge that 

double cutting .was being done at the mine. He indicated 

that dust would be the principal h~zard associated with 

working inby the shearer machine during longwall mining 

{Tr. 318). He also stated that "longwalls historically 

have a bad record o·f compliance within the two milligram 

standards" (Tr. 319). During the review of the 

respondent's dust plan, he assumed they were single 

cutting and using a single clean up run. He also alluded 

to a "half cut", which he could not explain. {Tr. 320). 

He confirmed that during the four years of reviewing the 

mine ventilation plan, he has never observed any double 

cutting, and no one ever reported it to him. Although he 

has heard some "talk" among his fellow inspectors about 

double cutting, he could not remember whether it pertained 

to the mine here in question {Tr. 321). 

On cross-examination Mr. Norwich confirmed that the 

mine ventilation plan contains no specific prohibition 

against double cutting, and when asked why he assumed the 

respondent was only single cutting at the mine, he 

_responded as follows (Tr. _322) : 

Q. Why did you assume that_they were only single 

cutting? 

A. Maybe I'm not that well acquainted with long 

wall systems, I'm assuming, they are doing everything that I see done at other mines that I inspect, 

and I didn't know that anyone was double cutting. 

Q. You are not familiar with any mine that is now 

double cutting on the long wall? 

A. I am not. 

Mr. Norwich stated that if a ch6ck setter positioned 

himself between the two shearer drums while moving the 

shields, he would not be considered to be "inby the 

shearer" {Tr. 322). He confirmed that the ventilation on 

2229 
the longwall is pulled across the front of the face from 

the headgate, and then down the face of the longwall 

and into the rear return, and he described the three 

locations on the longwall where the ventilation is checked 

(Tr. 323). He confirmed that he personally is not aware 

that the respondent was not complying with the ventilation 

requirements in the 7 right longwall section (Tr. 324) 

With regard to paragraph 7 of the dust plan (exhibit 

P-3), Mr. Norwich offered the following explanation 

concerning the positioning of the shearer operators (Tr. 

324-325): 

Q. You have already read paragraph number 2 in, and 

then there's paragraph number ·7, which says both 

shear operators, will stay outby the machine as much 

as possible, can you explain to us what is meant by 

that. 

A. It's hard to regulate any type of a control, if 

you don't try to get in something, and I think the 

intent of this one was, is when they cut headgate 

side, it was not required for both of them to be at 

the machine, because one of them would have to get 

over on the intake side. 

I know sometimes it takes two people to run the 

shear, they need it for the back drum, and forward 

drum, and there could be times, and this was a heavy 

generating source of dust, at the head gate, because 

all the velocity comes in this way, but there 

probably wouldn't be the two people there, so as 

much as possible, we like to see, the people that 

are not required to be in the dust, to get away from 

it, stay on fresh air. That was the intent. 

Mr. Norwich confirmed·that he visited the 

longwall section in question, and he described the dust 

control measures which were being used. He also confirmed 

that he had no reason to believe that the respondent was 

out of compliance with the required dust control measures 

during May, 1983, and he indicated that the plan in use at 

that time had been in effect for some 4 years (Tr. 328). 

Mr. Norwich stated that the dust plan was revised as 

of October, 1983 (Exhibit G-3-A), and during the review 

process he confirmed that he recommended that the change 

be adopted, and it was approved. He explained the change 

as follows (Tr. 329-331): 

Q. What is the current language.that may be 

comparable to ft, if at all? 

2230 
A. The new one? 

Q. Yes, sir. 

A. We asked, we sai~ no employee permitted inby the 

shear machine during mining. Eastern approached us, 

and they said that there was times, they needed an 

employee, inby the shear, when it is mining coal or 

cutting, to take care of the shields, when they are 

into bad top, they had two or three instances, where 

it was necessary, to have someone inby these 

machines. 

And we said, all right, or the district manager 

approved in that way, our thinking was, if you have 

to have people in that area, and we understand that 

there's times in mining, where you would have to have 

someone inby, inby the drums, or the longwall 

machine. 

So we would have to give them some little bit of 

leeway in here, bad top is one thing, you want to get 

the chocks pulled up, or the shields pulled up, so it 

might be necessary to have a man back there, so they 

said it was necessary, to make gas tests, or for what 

reason. 

* * * * * * * 

Read paragraph number 1 in here, which says, 

"No employee is permitted inby the tail drum of 

the shear, exception,_ when wearing a_Racal, R-a-c-a-1 

air stream type of air helmet~ or approved filter 

type respirator, or B, when inspecting areas inby 

for brief periods, of time 1 "did I read that 

correctly? 

A. You did. 

Q. And is thi9 a part of the ventilation plan that 

you approved, as well as your district manager? 

A. That's right, I recommended it for approval. 

In response to further questions, Mr. Norwich 

confirmed that as long as the provisions of the new dust 

plan are followed, it makes. no difference whether the 

respondent single cuts or double cuts. Although he 

indicated that he was under the impression that the 

respondent was single cutting, he also confirmed that he 

2231 
has never specifically approved a plan involving double 

cutting in his District No. 3. (Tr.337). 

Mr. Norwich stated that if an inspector reported to 

the mine manager that an operator was engaged in double 

cutting, MSHA would evaluate the dust atmosphere on the 

tailgate side to determine whether the dust exceeded the 

two milligram standard (Tr. 338-339). He confirmed that 

if the respondent could stay in compliance with the two 

milligram dust standard while double cutting, MSHA could 

do nothing about it (Tr. 339). 

During further testimony, it was confirmed that the 

new dust plan provision recommended by Mr. Norwich was 

finally approved on December 20, 1983, and that the UMWA 

had contested that plan approval and is in the process of 

attempting to obtain a restraining order in court (Tr. 

340-341). 

When asked about the respondent's dust compliance 

record on the longwall section in question during its 

operation, Mr. Norwich stated "I don't know" (Tr. 345). 

He then indicated that "I think it is a big improvement 

now, I would say, than when they first started" (Tr. 346). 

When asked whether he knew what the instant proceedings 

were all about, Mr. Norwich replied "No, I don't, sir" 

(Tr. 348). 

Russell Toothman, testified that he has been employed 

by the respondent at the Federal No. 2 Mine for nine years 

on the midnight shift. He has been a longwall mechanic 

for the past nine months, and prior to that he was a 

certified electrician for four years. Mr. Toothman 

-Confirmed that part of his. duties including. the checking 

of the longwall mine telephonesr and he indicated that he 

usually carries tools such as screwdrivers, crescent 

wrenches and a hawk bill knife (·Tr. 366). 

Mr. Toothman confirmed that he was at work on 

August 5, 1983, and that Mr. Toth conducted a meeting. 

After the section boss and Mr. Wells firebossed the face, 

Mr. Toothman instructed to turn on the power and to check 

the phones, and he believed that Mr~ Toth asked him to do 

this (Tr. 367). Mr. Toothman indicated that he proceeded 

to the headgate where he encountered Mr. Ribel. Mr. Ribel 

told him that he was going down the face to check the 

phones. Mr. Ribel then started down the pan line across 

the longwall face, and Mr. Toothman explained how this was 

done by paging each other over the phones which Mr. Ribel 

was checking (Tr. 369-372). 

2232 
Mr. Toothman stated that the telephones are about 100 

feet apart, and he assumed that Mr. Ribel called him from 

each of the phones as he walked past them CTr. 372). 

Mr. Ribel advised him that the #52 phone and the #89 

phones were weak, and he then called him at the tail to 

advise him again that the two phones were not working 

properly and that he had been instructed to wait for the 

pan line to start (Tr. 373-374). 

Mr. Toothman stated that after he received the calls 

from Mr. Ribel, he proceeded to grease the shearer head 

drum, and while he was doing this somewhere between the 

No. 14 and 20 shields, Mr. Toth approached him and asked 

him if there were any trouble witn the phones (Tr. 375). 

Mr. Toothman reported what Mr. Ribe°l had told him about 

the #52 and #89 phones, and Mr. Toth proceeded to the head 

gate and called Mr. Ribel who was positioned at the tail 

CTr. 376). Mr. Toothman and Mr. Toth then proceeded 

together down the pan line checking the phones. They 

stopped at the #51 phone and called Mr. Ribel at the tail, 

and the phone sounded weak. They then stopped at the #89 

phone, and Mr. Toth wanted him to call the headgate to 

test the phone, but no one was there to answer. Mr. Ribel 

then approached him and indicated that he would go to the 

headgate so that the phone could be tested, and 

Mr. Toothman observed Mr. Ribel walk towards the headgate, 

but after reaching the area around the #69 or #70 phone, 

Mr. Toothman was diverted because he was checking for 

loose wires on the #89 phone. He then called Mr. Ribel at 

the headgate on that phone, and it was weak (Tr. 377). 

Mr. Toothman confirmed that while he and Mr. Toth 

were at the #89 phone, he discussed the fact that he 

(Toothman) repaired the #a9 phone the preV'i.ous evening and 

he showed Mr. Toth where a wire.had corroded off. 

Mr. Ribel had left before that conversation took place, 

and Mr. Toothman estimated that· it would have taken Mr. 

Ribel 5 or 6 minutes to reach the headgate from the #89 

phone (Tr. 380). 

Mr. Toothman stated that after speaking with 

Mr. Ribel over the i89 phone, Mr. Toth instructed him to 

proceed toward the tail to check out the other phones. 

Mr. Toth proceeded towards the head, and Mr. Toothman 

observed him walk up the longwall towards the head for a 

distance of approximately 20 shields, but was distracted 

by a phone call and lost sight of him (Tr. 378). 

Mr. Toothman stated that as he proceeded to the #52 

phone to check it, he heard Mr. Toth calling him to come 

to the head. When he arrived there, Mr. Toth and another 

mechanic were there; and the mechanic was preparing to 

2233 
take the wires off the #32 phone to check it. Mr. Toth 

instructed Mr. Toothman to take the face off the phone, 

and when Mr. Toothman unscrewed it and lifted up the lid 

he found an orange speaker wire hanging down. The #32 

phone was one which was checked earLier by Mr. Ribel, and 

Mr. Toothman received no report that it was not working. 

As soon as Mr. Toth observed the loose wire, he summoned 

Mr. Ribel to the phone, and Mr. Toothman stated that the 

following conversation took place (Tr. 382-383): 

Q. What occurred, when Mr. Ribel came down? 

A. ·Mick said, do you see that, and he said, what, 

that wire, and Mick said yes. 

Q. Did anything else occur? 

A. Rob said t didn't cut it,·and then they went to 

the head. 

Mr. Toothman testified that a wire in the #32 phone 

appeared to have been cut, and he confirmed that he had a 

hawk bill knife with him that evening, that he always 

carried one, and that he used it to change and reconnect 

electrical wires (Tr. 383). 

On cross-examination, Mr. Toothman stated that the 

wire on the #89 phone which he repaired did not appear to 

have been intentionally pulled off, and he denied that he 

told Mr. Toth that this was the case CTr. 384). 

Mr. Toothman confirmed that during the two or three week 

period prior to August 5, 1983, there were problems with 

the longwall phones due to dampness and water, and he 

-detected no difference in .the number of pho.nes that 

required repairs in the weeks prio~ to August 5, than 

there had been on other occasions1 He confirmed that the 

phone problems he encountered were caused by wet phone 

receivers and bad batteries (Tr. 385). 

Mr. Toothman stated that no special qualifications 

were required for Mr. Ribel to check the telephones in 

question, and he con~irmed that when Mr. Ribel walked away 

from the #89 phone to the headgate he could not observe 

him as he passed the #32 phone and no one else was on the 

face at that time (Tr. 386). Mr. Toothman confirmed that 

Mr. Ribel had not previously reported that the #32 phone 

was not operating properly. He also confirmed that he and 

Mr. Toth walked down the face in response to Mr. Ribel's 

report of two inoperative phones, and neither Mr. Toth nor 

Mr. Toothman touched the #32 phone as they passed it 

together. 

2234 
Mr. Toothman stated that after Mr. Ribel left the #89 

phone to proceed to the head, he would have walked the 

face for the second time by himself. After this, 

Mr. Toothman and Mr. Toth proceeded down the face from the 

tailgate to the headgate to check the phones, and when 

they stopped at the #70 shield, Mr. Toothman stopped to 

check it and Mr. Toth continued to walk ahead of him, and 

before that time Mr. Toth would have been about 100 feet 

ahead of him as they walked the face checking the phones 

{Tr. 390-391). Mr. Toothman confirmed that he never saw 

Mr. Toth doing anything to, or even being around, the #32 

phone {Tr. 393). He also estimated that it took him 

about a minute to unscrew the cover from the phone which 

he checked, and that someone could have cut the wire in a 

matter of seconds {Tr. 395). 

Steve R. Reesernan testified that he has been employed 

at the Federal No. 2 Mine for 8 years as a longwall 

shearer operator. He confirmed that he was at work on the 

midnight shift on August 5, 1983, and was present during 

the meeting conducted by Mr. Toth. Mr. Reeseman believed 

that the meeting was called to settle "some of the 

disputes that was going on at this time" {Tr. 404). He 

stated that the "disputes" involved "this double cutting, 

being inby the shearer", and he also indicated that there 

was a morale problem and arguments over double cutting in 

the dust while the machine as running {Tr. 404). 

Mr. Reeseman testified that at the meeting, Mr. Toth 

discussed the matter of a ventilation curtain being 

installed by Mr. Kanosky in an area where the top was bad. 

Mr. Kanosky was upset, and Mr. Wells began giggling. 

-Mr. Toth became upset·with.Mr. Wells, and-~when he asked 

him why he was giggling, Mr. Wells,.replied "none of your 

business" {Tr. 405). Mr. ReesemaR t~en stated that 

Mr. Toth made the remark that "i:f you think it's funny*** 

all this petty stuff that has been going out to the safety 

department, every day, and every qay, is going to stop, or 

you will be next" {Tr. 406). Mr. Reeseman also claimed 

that Mr. Toth made the statement that he was tired of 

Mr. Kanosky complain~ng to the safety department every day 

{Tr. 412-413}. 

Mr. Reeseman stated that after the meeting,·he 

proceeded to work on the face shield, and that he wore an 

air hat while doing that work. The shearer was at the #9 

shield, and he was at the #11 shield {Tr. 409). While 

there, he observed Mr. Toth coming in his direction, and 

when he first saw him, he was between the #32 and #18 

phones, and there was enough illumination for him to see 

Mr. Toth clearly {Tr. 410). Mr. Toth asked him whether 

2235 
the #9 phone was paging in, and Mr. Reeseman replied that 

it was. Mr. Toth then proceeded to the #32 phone, picked 

it up, and asked him, if it was paging in, and 

Mr. Toothman replied that it was not. Mr. Toth then asked 

for a mechanic to take the phone apart to see what was 

wrong with it. Mr. Reesem~n then told the mechanic 

trainee, Jim Fowley, to take a screwdriver and to proceed 

to the #32 phone in response to Mr. Toth's request for a 

mechanic. Mr. Fowley left, and Mr. Reeseman "went on 

about my business, checking the shearer", and he did not 

observe the #32 phone being opened (Tr. 412). 

On cross-examination, Mr. Reeseman confirmed that at 

the time Mr. Toth made the statement about Mr. Kanosky, 

Mr. Ribel and Mr. Toothman were not present. When asked 

whether he was certain that double cutting was discussed 

by Mr. Toth at the August 5, meeting, Mr. Reeseman replied 

"it's been so long,· I don't really remember" and he 

indicated that he was not certain (Tr. 413). Mr. Reeseman 

was asked about his prior testimony during the arbitration 

hearing in Mr. Ribel's case, and in particular his 

testimony that what was discussed at the meeting was "the 

firebossing and the gas checks, and this little penny-ante 

stuff" (Tr. 415). 

Mr. Reeseman confirmed that he did not see Mr. Toth 

alone at the #32 phone, and that he was between the #32 

and #18 phones when he observed him (Tr. 415). In 

response to further questions concerning the purported 

arguments among the men over double ·cutting, Mr. Reeseman 

indicated that the chock setters and shearer operators 

"would be the only ones inby the shearers, and the dust at 

the time" (Tr.416). He confirmed that the shift before 

-his was a maintenance shift, and that the~one after it was 

production. He believed that shift was double cutting, 

but he never observed it (Tr. 417). 

Larry Hayes, testified that he has been employed by 

the respondent at the mine in question as a longwall 

mechanic for approximately seven years. He was laid off 

from March 12 through July 12, 1983, and he confirmed that 

he was working on August 5, 1983, when the meeting at the 

mine was held by Mr. Toth. Mr. Hayes stated that he 

had just returned to work after his lay off. He recalled 

a discussion about Mr. Kanosky refusing to go under bad 

top to install a curtain. Mr. wells laughed about this, 

and this made Mr. Toth angry. When Mr. Toth asked 

Mr. Wells what he was laughing about, Mr. Wells told him 

it was none of his business. 

Mr. Hayes stated that the subject·of double cutting 

was not discussed at the August 5 meeting. He confirmed 

2236 
that during his employment at the mine he has observed 

double cutting "off and on". He has observed Mr. Wells, 

Mr. Kanosky, and Mr. Ribel double cutting, and he stated 

that they would be working inby the shearer as it moved 

from the tailgate to the headgate {Tr. 421-422). He has 

never discussed double cutting with Mr. Ribel, 

Mr. Kanosky, or Mr. Wells, and he indicated that "it had 

been discussed among different members, * * * some say 

they didn't mind, and others say they did mind" {Tr. 422). 

Mr. Hayes stated that he has checked the phones on 

the longwall face in question and that he found problems 

such as mashed cables, and broken receivers which had 

fallen into the gob {Tr. 422). Although he has opened 

phones to check the batteries, sine~ he is not a phone 

mechanic, he could not state whether any phone wires have 

been cut. He indicated that it is much easier to "change 

out" a phone rather than to repair it {Tr. 423). 

On-cross-examination, Mr. Hayes confirmed that during 

the August 5, meeting, Mr. Toth did mention the fact that 

he was concerned over "problems" with the phones, but 

that he did not elaborate further {Tr. 424). Mr. Hayes 

also confirmed that he had not previously worked under 

Mr. Hawkins' supervision, and Mr. Hawkins would not likely 

know about his prior job classifications {Tr. 425). 

With regard to the purported statement made by 

Mr. Toth concerning Mr. Kanosky, Mr. Hayes stated as 

follows {Tr. 426-426): 

Q. You were talking about Mr. Toth's comments to 

Mr. Kanosky, and if I understood you, you were saying that he said something to Mr. Knosky about if you 

were wrong, you would suffer ~ome consequences? 

A. Yes. 

Q. If I understand this incident about the curtain, 

hanging the curtain that Mr. Knosky had refused to do 

the job, is that pretty much what it was? 

A. He didn't really refuse, he had questioned about 

being bad top, going under the bad top, to get the 

curtain and bring it outby. 

And, at Tr. 427: 

A. [W]hat he was really trying to say to him, I 

don't know, like I said, this meeting did not really 

pertain to me. I hadn't been out there before, I 

22~~7 
wasn't involved in any of the disputes that had been 

going on. So other than hearing him say that, and 

what he meant by it, I have no idea. 

James Merchant testified that he has been employed at 

the Federal No. 2 Mine sin9e October 19, 1968, and that he 

is presently employed as a shuttle car operator. He 

confirmed that he has served on the UMWA mine safety 

committee for eleven years, and until three years ago he 

served as the committee chairman (Tr. 429). 

Mr. Merchant testified that the complainants 

"approached him" about double cutting, and a meeting was 

called sometime in May, 1983, with mine management. Prior 

to this time, meetings were held with the longwall coordinator, Mick Toth. Present at these meetings were 

representatives of the International UMWA, and the issue 

of double cutting was only one of the many issues under 

discussion (Tr. 432). Mr. Merchant confirmed that 

discussions were also held with MSHA "several years ago" 

over the question of double cutting, and he indicated that 

MSHA's position was that nothing could be done about it 

unless the respondent was caught in the act of double 

cutting (Tr. 433). Mr. Merchant claimed that at that 

time, an MSHA inspector named "Phillips" advised him that 

double cutting was illegal, but that when they went to the 

longwall to observe the process, single cutting was taking 

place CTr. 434). 

Mr. Merchant stated that his normal mine duties do 

not entail work on the longwall, and he indicated that 

safety complaints which he has passed ·on to mine 

management have met with mixed results (Tr. 435). 

On cross-examination, Mr. Merqhant stated that while 

the safety committee may inspect any.area of the mine 

without prior notice, they still have to notify the 

dispatcher so that arrangements may be made to take them 

to the particular section which they may wish to examine 

(Tr. 437). Mr. Merchant expressed an opinion that he is 

not too enchanted with Mr. Hawkins as a foreman, but he 

conceded that he has, not formally complained to mine 

management about Mr. Hawkins (Tr. 440). He could not 

recall when he met with Mr. Toth about the subject of 

double cutting. In response to further bench questions, 

Mr. Merchant stated as follows (Tr. 444-450). 

JUDGE KOUTRAS: What's a violation of law, in your 

opinion? 

THE WITNESS: Double cutting, number one, is. 

2236 
JUDGE KOUTRAS: What does it violate? Sir. I'm going 

to hand you Title 30, Code of Federal Regulations, 

and I defy you to find in there, any standard that 

says that double cutting is illegal. You haven't 

been here all day, hearing all the testimony. What 

law do you think double cutting violates? 

THE WITNESS: Number one, it violates the man's 

health hazards, breathing that dust. 

JUDGE KOUTRAS: Well, now, I don't want to get you 

upset, but what I want to ask you, is you made a 

statement that double cutting violates the law. In 

your opinion, what law does it ·violate, the procedure, double cutting, in and of itself? 

THE WITNESS: The flow of air; when you double 

cutting, that man is behind, he is eating all --

that air is shoving all that dust, coal dust, right 

down his throat, face, his vision, his ears, and 

everything, you are eating all that dust. 

JUDGE KOUTRAS: What does that violate? 

THE WITNESS: That violates, what .we are fighting 

for now, black lung, which I have it real bad, out 

of thirty-seven years in the coal mine. 

JUDGE KOUTRAS: Well, now, if you have got six miners 

telling you that they are double cutting, why does 

it take someone to actually be there to see them, 

before anything is done, before MSHA is called to 

come to the mine; to conduct an investigation, and 

to issue citations, because of the double cutting. 

if it is illegal, why hasn't-there been the first 

citation issued, at this mine? 

You have people who come to you, who work 

right in it, that's first hand evidence, why do you 

have to have somebody there observing the process? 

THE WITNESS: You don't, we have people that's 

afraid to come forward, and they tell us, they say 

we don't want to be involved, whether they are 

threatened, I can't prove that. 

JUDGE KOUTRAS: Do you realize that under this law, 

you have an absolute right to call an MSHA inspector, 

and ask for an inspection right on the spot? 

2239 
THE WITNESS: True. 

JUDGE KOUTRAS: Has that ever been done on double 

·cutting. 

THE WITNESS~ No. 

JUDGE KOUTRAS: Why? 

THE WITNESS: Because they can't catch them. 

JUDGE KOUTRAS: Have you ever called an inspector to 

come to the mine, to interview any miners who worked 

in double cutting, and have been exposed to all this 

dust? 

THE WITNESS: No, I haven'to 

JUDGE KOUTRAS: Why? 

THE WITNESS: 

them. 

Because I know that you can't catch 

JUDGE KOUTRAS: The point is, I don't think that you 

have to catch them, do you, do you feel that you 

actually have to see them double cutting, and inby 

this machine, before you can say that they are doing 

it? I can't believe that Eastern Associated, with all 

these people in there, can double cut in secret? 

THE WITNESS: They are not double cutting in secret. 

When we are there, they are single cutting, and the 

minute, which I'm told, I'm not there, when I leave, 

what happens when I Leave. But as seo.n as the men 

get on the outside, they way, before~you all call for 

the right of way to come outside·, they went back to 

double cutting. 

JUDGE KOUTRAS: Well, let me ask you this, has a 

Federal inspector ever been called, and has a Federal 

inspector ever come to that mine, and confronted the 

mine superinteh~ent, and said to him, number one, are 

you double cutting, and if the-answer to that is in 

the affirmative, then double cutting I understand --

has that ever happened? 

THE WITNESS: 

them. 

* * 

Because it is impossible to catch 

* * * * 

JUDGE KOUTRAS: Do you know what Eastern Associated 
Federal 2 Mine's track record is, with regard to the 

two milligram respirable dust standard? 

THE WITNESS: Not right off, I don't. 

JUDGE KOUTRAS: Do you.know whether they have a dust 

problem? 

THE WITNESS: They used to, they used to have a bad 

dust problem. 

JUDGE KOUTRAS: You don't know whether the longwall 

dust situation at that mine is such that would -- if 

they are double cutting, then theoretically they 

should be out of compliance, shouldn't they? 

THE WITNESS: 

the time. 

They used to be out of compliance all 

JUDGE KOUTRAS: Well, how long ago was that? 

THE WITNESS: Well, dates I don't have them, because 

I didn't --

JUDGE KOUTRAS: I don't need dates, give me years? 

THE WITNESS: Oh, it hasn't been a little over a 

year ago, I don't know the standards now, I could 

bring my records and show you. 

Respondent's Testimony and Evidence 

Jack E. Hawkins, testified that he is employed by the 

the respondent at the subject mine as a longwall foreman. 

He testified as to his background and experience, 

including his foreman's duties, .an·d he confirmed that he 

has been a longwall foreman for two years, but held other 

foreman positions prior to this·time. He holds a B.S. 

degree in wood science from West Virginia University, and 

he identified exhibit RX-1 as a sketch of the longwall 

face as it existed on the 7 right longwall section at the 

relevant times in question (Tr. 463~467). 

Mr. Hawkins explained the operation of the longwall 

shearer, and he identified exhibit RX-6 as a photograph of 

the "Dowty four legged shields" used to support the 

roof during longwall mining. He also identified 

photographic exhibits RX-6-a and RX-6-b, which depict the 

shields and the coal conveyor used to transport the mined 

coal from the longwall face. 

Mr. Hawkins explained that the face ventilation comes 

up the longwall headgate, sweeps across the face, and then 

2241 
down towards the tailgate. He characterized the mine 

ventilation system as an "exhaust system", and he 

explained that air is exhausted from the mine. He 

indicated that the air ventilation is checked with an 

anemometer during each shift, and he explained the methods 

to diffuse the dust createg during longwall mining, 

including the use of ventilation check curtains, dust 

deflectors located on the shearer and shield, watersprays 

on the shearer cutting drums, and standard respirators and 

air hats which are available for all employees (Tr. 

467-477). 

Mr. Hawkins testified that over the past two years 

the amount of dust on the longwall has decreased 

significantly and he attributed t~l~ to the aforementioned 

dust control devices, and the installation of a new Sager 

Shearer which permits a better dispersion of the dust. He 

stated that all of this equipment was in use on the 7 

right longwall in May, 1983, and that_it had been in use 

for approximately ten months prior to that time (Tr. 479). 

Mr. Hawkins confirmed that layoffs occurred at the 

mine in January and March, 1983, and that 120 miners were 

laid off as a result of the March reduction. He also 

confirmed that the layoffs resulted in a realignment of 

the workforce and that he was changed from afternoon 

foreman to midnight shift foreman. In Mid-March, 1983, he 

became the longwall foreman for the crew which included 

the three complainants (Tr. 481). 

Mr. Hawkins stated that in single cutting of the 

longwall face the shearer would cut the coal starting from 

the tail entry toward the head, and would then simply then 

_back toward the tail wi thoμt cutting coal in a "clean-up" 

mode. In double cutting, the shea~er would actually cut 

the coal a second time while proceedfng from the head back 

to the head CTr. 482). 

Mr. Hawkins admitted that after becoming longwall 

foreman on the 7 right face, he frequently talked to his 

crew about double cutting, and that this was "an ongoing 

thing" between mid-March and April, 1983. He indicated 

that the crew was not double cutting at that time, and 

that they did not agree to double cut. He confirmed that 

he spoke to Mr. Ribel, Mr. Kanosky, and Mr. Wells on 10 to 

15 occasions, but they refused t~ double cut because "they 

felt that double cutting involved·more work, and that it 

would increase production and jeopardize the union 

brothers called back that had been laid off." Mr. Hawkins 

denied that the complainants ever indicated any safety 

concerns in double cutting and that "safety wasn't really 

an issue." (Tr. 483)". 

2242 
Mr. Hawkins confirmed that he spoke to his crew about 

double cutting because production on his shift was so far 

below that of the other shifts, and he was trying to 

increase production. He also confirmed that the 

complainants expressed no interest in double cutting, that 

he again spoke with them on approximately May 18, 1983, 

and he explained what he told them. Mr. Hawkins stated 

that at no time did he ever direct or order the 

complainants to double cut (Tr. 486). 

Mr. Hawkins stated that when he spoke to the 

complainants about double cutting, he explained certain 

"benefits" which would result, and he explained what he 

said as follows (Tr. 486-487; 492): 

Q. What were those benefits, and what did you tell 

these three men? 

A. First of all, our production being as low as it 

was, we weren't allowed to have any overtime, between 

shift type work. At that time, there had been 

several members of the crew that were interested in 

working between shifts. The other shifts were 

working between shifts, and we weren't allowed to 

because our production didn't warrant it. I told 

them that if our production increased that.we would 

be allowed to stay in between shifts. of° course, 

they really didn't--. They weren't interested in 

staying in. So, it didn't affect them--

BY MR. POLITO: 

Q. Did they tell you that, or, how do you know 

that? 

A. Just from past experience. They didn't stay in. 

Especially, Rob and Danny had never --, Mr. Wells and 

Ribel had never stayed in much between shifts. John 

Kanosky had frequently stayed in. 

* * * * * * * 

Q. Had you assigned some, or all, of these duties 

that you just described, these tasks, to the chock 

setters, prior to May 18, 19~3? 

A. Yes, they'd done them all b~fore, I'm sure. 

Q. Now, you started to testify about what you told 

them about their opportunities to work through their 

2243 
dinner hour or not, depending on whether or not they 

single cut or double cut. Now, just explain the 

relationship between the two and what you told the 

i:nen? 

A. Well, obviously,, if they were standing at the 

headgate, without anything to do for a half hour, I 

was going to put them on dinner during that half hour 

until they were needed again. If they were single 

cutting, they were going to be there for that half 

hour. If they were double cutting, they'd be setting 

the shields up as the shearer came to the headgate, 

and they wouldn't be idle, obviously. It would be to 

my advantage, then, and the Company's advantage, to 

work them through their dinner, and they'd get the 

benefit of the extra money; I'd get the benefit of 

the extra production. 

Q. If they were not double cutting, you say that 

you would have an opportunity to stagger them through 

their lunch breaks? 

A. Right. One or two of them at the end of the 

time that the shields were pulled in and the shearer 

was at the tailgate, ready to come back to the head, 

I could, at that time, send one or two of them to 

dinner. They could have their dinner over with by 

the time they were needed again to set the shields. 

Mr. Hawkins stated that the day after the May 18 

meeting with the complainants', he asked them "to set the 

shields up beside the shearer", and they refused and 

advised him that they wanted to invoke their individual 

-safety rights. However, t,hey agreed to cGn.tinue the shift 

single-cutting, and he advised them that a meeting would 

be held after the shift. Pending_ the· meeting, he asked 

the complainant's to work between the two cutting drums on 

the shearer, an area of some 30 feet CTr. 494-495). As a 

result of the meeting with the mine safety committee, the 

company safety department, and division longwall 

coordinator Cliff Dennison, it was decided by Mr. Dennison 

that the crew would not be made to double cut beside the 

shearer. Mr. Hawkins never again asked, ordered, or 

directed the complainants to double cut, and as far as he 

was concerned, that was the end of the matter. (Tr. 496). 

Mr. Hawkins denied that he subsequently met with the 

complainants and gave them certain "options" about double 

cutting versus single cutting (Tr. 496). With regard to 

the question as to why the complainants did not work 

through their dinner hour and get paid overtime. 

Mr. Hawkins explained as follows (Tr. 498-501): 

2244 
Q. There were a couple of days in there, though, 

between the 18th and 31st, that he did not work 

through the dinner hour? 

A. Right. 

Q. And, with respect to Mr. Wells, I believe it 

shows that he did not work through the dinner hour 

from May 19 until June 1. 

A. Right. 

Q. Okay? Then, with respect to Mr. Ribel, the 

next man, it shows that he did not work over the 

lunch hour from May 19 through May 31, and also 

shows that he was off on May 24~ Is that correct? 

A. Right. May 24 and 31. 

Q. Well, actually, it was June 1, wasn't it, 

that he was off? 

A. Yes, it would be. 

Q. Can you explain for us, please, why these three 

chock setters did not receive overtime, why they 

didn~t work through and get paid overtim~ for the 

dinner hour during those periods? 

A. Sure. The first couple of times after I had met 

with them and told them I was gofng to make them 

double cut, they had come up to me and insisted that 

they take their dinner -- • We have a district agreement that says I have to offer. the men dinner between 

the third and the fifth hour-of-the shift. So, what 

was happening here was, these three guys were coming 

up, -- well, two of them, normally, sometimes 

three, -- were coming up·and saying, "We want to take 

our dinner -- ". 

Q. Are these men you're talking about, Kanosky, 

Wells and Ribel? 

A. Yes, sir. The three Complainants. 

They were insisting on taking their dinner four 

and a half hours into the shift Well, if they want 

to take it, I have to offer it to them. At that 

point, I had to give them, all three~ their dinner at 

the same time. I didn't have the opportunity to 

2245 
float them out through dinner, one at a time. This 

happened twice, that I remember, in which they insisted on taking their dinner, and it was late enough 

in the shift that I had to give them dinner all at 

the same time. At that time --

Q. Why would you have to give it to them, if they 

came·to you four and a half hours into the shift and 

said, "We want to take our dinner. We don't want to 

work through our dinner." Why did you have to give 

it to them in that half hour? 

A. As I said, by district agreement, they have to 

be offered dinner between the third and the fifth 

hour of the shift. 

Q. What if they are not? What are the consequences? 

A. If they're not, they have to be given their 

dinner and paid through it also. 

Q. Oh, they would be paid whether they took it or 

didn't. 

A. Right. They'd take their dinner and still get 

paid for it. So, after that happened a couple of 

times, I started sending them to dinner for several 

days without asking them. I just -- • The third 

hour came. I'd sent one of them to dinner. A half 

hour later, I'd send another one, until I had all 

three in. That way, I could operate the face and 

still have two chock setters up there and one on 

dinner, at that time •. 

That didn't continue for very long until I realized that I wasn't givins t.hem the same opportunity 

as I was the rest of the crew. Basically, the rest 

of the crew had the opportunity to work through 

dinner. I wasn't asking them to do it. So, I 

started asking them, again, every day, if they wanted 

to work through dinner, and, normally, they refused 

to work. They wanted to take their dinner instead of 

working through it. 

Q. Was there a period of time, from the period 

May 19 through May 31, that you asked them to let you 

know at the beginning of the shift whether they 

wanted to work through or take their lunch break? 

A. Well, the first day that they all came at one 

2246 
time and wanted to take their dinner, I asked them to 

let me know. They wouldn't do it though. They'd let 

me know four and a half hours into the shift that 

they wanted to take it. 

Q. So, there was a period of time then, when you 

were just telling them that you wanted them to take 

their dinner break, and didn't want them to work 

through their dinner break. 

A. For a few days, I didn't give them the option, 

no, sir. 

Q. Okay. And why was that, Mr. Hawkins? 

A. Well, I just sent them to dinner instead of 

letting them wait until four and a half hours into 

the shift and insisting on taking it. 

Q. And, by sending them, you were able to stagger 

them? 

A. Right. I was able to send them one at a time so 

that I could still have two chock setters to operate 

the shields. 

Q. You were avoiding the situation where all three 

of them would have to take it during the same half an 

hour, and you would be without chock setters? 

A. Right. 

Mr. Hawkins denied that he ever refused to let the 

-complainants work thrbugh _their dinner hour. in retaliation 

for their refusal to double cut. With reference to the 

question of working between shifts, Mr. Hawkins explained 

as follows (Tr. 503-504) :. 

Q. Do those records show that, with one or two 

minor exceptions, no employees worked overtime 

between shifts from approximately April 18, through 

May 18? . 

A. Right. They -- • In that time, we didn't work 

any amount of over. 

Q. I think there is one exception in there, if I 

recall, that an employee had wor~ed. 

A. There may be if we had been broken down at the 

end of the shift that somebody would have stayed to 

2247 

I 
repair the equipment to get ready for the next shift 

or something. 

Q. Okay. Now you say, at that point in time, that 

is, April and May, were you or were you not authorized to permit employees to work between shifts and 

collect overtime pay? 

A. No, I wasn't authorized to do it. 

* * * * * * * 

Q. · On these occasions when overtime between shifts 

was available, after June 2, do the records reflect 

whether Mr. Ribel worked overtime? 

A. Not according to the time we have listed here, 

down through June 17th. 

Q. I believe you have already testified there were 

occasions prior to May 18, prior to this incident on 

My 18th that he refused opportunities for overtime 

between shifts on this one? 

A. Yes, sir. 

With regard to reassigning one of the chock setters 

away from his normal classified work, Mr. Hawkins 

explained as follows (Tr, 504-507; 508): 

Q. Now, there was testimony yesterday, Mr. Hawkins, 

that, between May 18th, or May 19th and May 31, you 

took one of the chock setters away from his normal 

classified work bf chpck setting and~ssigned him 

other work. Is that true? 

A. For a very few days, .yes, sir. 

Q. Explain what you did, and why you did it. 

A. At this time, we had·quite a high amount of 

absenteeism. W~ normally have 15 men and a Foreman 

in each crew, on a longwall crew. We were experiencing anywhere from two to five people being off 

every day, and that left us short in some areas of--

as far as manpower goes, paiticularly what we term 

the utility man, the man who's responsible for 

watching the stage loader and tailpiece area, keeping 

the spillage cleaned up, keeping the cables drug. 

We didn't have a utility man. To the best of my 

memory, the utility man at that time, was Tom Walls, 

2248 
and he was operating the headgate while the headgate 

man operated the shearer. And so, the utility job 

was not filled and someone had to pick up that work 

that he normally did. One of the chock setters 

normally did that while two chock setters did their 

normal job. 

* * * * * * * 

Q. You started to explain and I interrupted you, 

why you assigned the one chock setter to perform 

these.duties. 

A. They had to be done. Spillage and so forth has 

to be cl~aned up our of the walkway to avoid a violation on that. The cables, of course, had to be 

drug. If they're not drug down, the machine basically, would pass them up. Of course, the rockdusting is common mining practice. The area has to 

be rockdusted and kept that way. It's work that has 

to be done by someone, and the classified man that 

normally did it was performing another job then. 

Q. Did you feel that you could operate a single 

cutting method with just two chock setters? 

A. Yes, sir. 

Q. Were you, during that period, those few days 

that you said you did it this way, able, efficiently, 

to operate with just two chock setters? 

A. Yes, we had no problem in doing that. 

Q. Did you, at some point in time then, change 

again, and go back from two chock setters to three 

chock setters? 

A. Yes, I did. 

Q. And why was that? 

A. Basically, they staged a slowdown so that the 

chock setters were not operating fast enough to keep 

up with the shearer as it idled back to the tail. 

And, at Tr.(509-512): 

Q. Was your assignment of the two men -- , your 

assignment of one chock setter each shift for these 

several days to do general work, or utility work, in 

2249 
retaliation for the fact that they had refused to 

double cut for you? 

A. No, sir. 

Q. Then what was the reason for it? 

A. As I stated, we were short people. Someone had 

to do the outby work. At that time, it was beneficial for the man that was, basically, idle, to do 

that. Whenever I had to put three chock setters back 

on the face, then the mechanics had to do the outby 

work that they had been doing. 

Q. The work that you had assigned the third chock 

setter to do, the general work, was there any type of 

work you assigned them to do during these several 

days that they had not done before? 

A. No, sir. They had done it before. Really 

every member of the crew had done most every job up 

there. 

Q. was that work assigned to other members of the 

crew besides the chock setters? 

A. Yes, sir. It had to be done. When they didn't 

do it, some other member had to do it. 

Q. There was testimony yesterday that, while you 

were using just two chock setters to move the shields 

and assigned the third chock setter to do general 

setters work. Do you agree with that? 

A. No sir. In reviewing th·e time sheets for that 

period, there was never a utility man paid chock 

setter rate, if be did perform --

JUDGE KOUTRAS: That wasn't the question. Forget 

reviewing. Was a man actually doing it? 

THE WITNESS: No, sir. The chock -- , or, the 

utility man did not perform chock setter duty. 

* * * * * * * 

Q. Did you have any· confrontations, or problems of 

any kind with Mr. Ribel after June 1, or after 

May 31, 1983? 

A. Nothing to speak of. There were a lot things 

that came up, safety disputes that they thought 

2250 
were --, that I was doing something wrong. They 

would take it outside; bring the commiteeman in, or 

sometimes, involve the State or Federal Inspector. 

In every case, I can't -- • In every case there 

wasn't anything came of it. 

Q. Did you, at any time, threaten Mr. Ribel, after 

June 1, or any time, before or after June 1, to discharge him or take any other adverse action against 

him for refusing to double cut or filing his complaint with MSHA? 

A. No, sir. 

Q. The records show that the affidavit, or the 

statement, was signed by Mr. Ribel, Mr. Wells, and 

Mr. Kanosky on May 31, that is, the first complaint 

they made to MSHA. Do you know when you became aware 

of the fact that they had even filed that complaint 

with MSHA? 

A. I'm not positive. I would say about a week 

later. 

Q. Would they have told you about a week later? 

A. No, they didn't tell me. 

Q. You received a copy of the Complaint in the 

mail. Is that correct? 

A. Yes, sir. 

Mr. Hawkins confirmed. that Mr. Wells was injured on 

the job. However, he denied that he ever refused Mr. 

Wells any help in pulling the cables~ and he indicated 

that Mr. Kanosky was helping Mr. Wells with the cable at 

the time of the injury. When Mr. Wells fell, Mr. Kanosky 

summoned Mr. Hawkins to the scene, and Mr. Hawkins stated 

that he filled out the accident report and listed Mr. 

Kanosky as a witness to the incident. (Tr. 513). 

Mr. Hawkins stated that in August, 1983, an unusual 

number of problems existed with the telephones used along 

the 7 right longwall faces. He explained that the phones 

were being intentionally damaged, and he demonstrated how 

this was done (Tr. 514-517). He also explained that 

inoperative or damaged phones were replaced (Tr. 519). He 

also confirmed that production delays resulted from inoperative or damaged phones (Tr. 521). 

2251 
With regard to the events on the midnight shift on 

August 5, 1983, when Mr. Ribel was discharged, Mr. Hawkins 

stated that longwall coordinator Toth went into the 

section with the crew to meet with them at the request of 

a State inspector to resolve a union-management conflict. 

Mr. Hawkins took Mr. Wells with him to fireboss the 

section, and when they returned, Mr. Toth asked him to 

send two men to check the face phones. Mr. Hawkins sent 

Mr. Ribel and Mr. Toothman to check the phones, and he 

explained why he did this (Tr. 526-530). 

Mr. Hawkins stated that after the meeting was over, 

he went to the face area, and Mr. Toth, Mr. Ribel, and 

Mr. Toothman were in the process 0f checking the 

telephones along the longwall face. Mr. Hawkins confirmed 

that he was present when the #32 telephone was opened, and 

he identified the telephone produced at the hearing as the 

same telephone in question. (Tr. 534). Upon examination 

of the inside of the phone, he confirmed that the orange 

wire in question is "separated" (Tr. 537). 

Mr. Hawkins stated that the hawkbill knife which 

Mr. Ribel had on his person on the evening of August 5, 

was not necessary for him to use while performing any of 

his normal duties as a chock setter (Tr. 540). 

Mr. Hawkins also stated that Mr. Toth did not consult with 

him when he suspended Mr. Ribel with intent to discharge 

him, nor did he ever suggest to Mr. Toth prior to that 

time that Mr. Ribel be terminated (Tr. 540-541). 

Mr. Hawkins denied that he ever told Mr. Wells that 

Mr. Toth was "out to get him", and he also denied that 

Mr. Toth had ever made such a statement to him (Tr. 542). 

Mr. Hawkins indicated that.after Mr. Wells bid off the 

chock setters' job, a vacancy was createa, and Mr. Wells 

attempted to bid back on that job-a week later. However, 

the vacancy had been filled by someone senior to Mr. Wells 

(Tr. 542). 

With regard to the "safety slips" which he issued to 

Mr. Wells in August, Mr. Hawkins confirmed that he relied 

on what Mr. Wells had told him, and that this served as 

the basis for the slip. (Tr. 543). 

On cross-examination, Mr. Hawkins confirmed that the 

new longwall shearers were obtained in early 1982, and 

they were used on the 7 right panel in early 1983 when 

longwall mining began (Tr. 544). He was sure that dust 

samples were taken by the respondent, but he does not know 

the results, and he confirmed that he would be made aware 

of any dust non-compliance, and that it was possible that 

the panel may have been out of compliance from early 1983 

until May, 1983, but he was not sure (Tr. 545). 

2252 
Mr. Hawkins confirmed that 20 dust air hats were 

available for use by his crew, and that the two shearer 

operators usually wore them (Tr. 546). He also explained 

the procedures for cleaning the shearers, changing the 

bits, and he confirmed that with the new longwall system 

it would take approximately a half an hour to complete a 

double cutting cycle (Tr. 549). 

Mr. Hawkins confirmed that as soon as he took over 

the shift, he asked the complainants to double cut and 

they refused. When he asked them why, he stated as 

follows (Tr. 550). 

A. Well, they didn't want -- • There were various 

responses. They didn't want to work beside the 

shearer operators because there were too many people 

working in a limited area. They didn't feel that 

that was safe. They didn't want to increase the production. They felt that double cutting would 

increase the production. They felt that they were 

required to do more work whenever they were double 

cutting, as opposed to single cutting when they had 

basically, time off to loaf. 

Q. Did anyone ever express any concern to you about 

working inby the shearer because of the dust? 

A. No, not to my recollection. 

Q. When was the first time that you ever heard 

about that concern? 

A. Whenever I receiyed the complaint and talked to 

Mr. Cross. 

Mr. Hawkins stated that no one ever expressed any 

concern to him about working inby the shearer because of 

the dust, and he first became aware of this when he 

received the complaint (exhibit G-1, Tr. 551). He 

confirmed that during his tenure on the afternoon shift it 

was a common practice to double cut, and that single 

cutting took place occasionally "when the crew was teed 

off about something" (Tr. 551). When the complainants' 

refused to double cut Mr. Hawkins stated that he looked 

more closely at the mine dust control plan and spoke to 

his supervisor to find out why his midnight crew was the 

only crew which was not double cutting, particularly when 

the day shift had never had a complai~t about double 

cutting, and the section was inspected by State and 

Federal inspectors (Tr. 552). 

2253 
Mr. Hawkins explained the ventilation along the face 

of the longwall, and he confirmed that when he discussed 

the double cutting with the mine safety department it was 

his understanding that as long as a miner stood beside the 

shearer machine, and was not inby the machine, this would 

not be illegal and it would not violate the ventilation 

plan (Tr. 563). 

Mr. Hawkins explained his concern about production on 

his section and he also explained the reasons why he 

wanted to stagger the dinner hours for his crew (Tr. 

576-578). He also explained that during single cutting, 

there was less work to be done by the chock setters, and 

that this prompted him to allocate the time among the crew 

(Tr. 581-584). 

With regard to the telephones on the longwall, 

Mr. Hawkins confirmed that there were problems during the 

months of July through August, and these problems included 

water in the phones, loose electrical connections, and the 

like, and he confirmed the repair work that was done on 

the phones (Tr. 586-588). Mr. Hawkins testified as to the 

events of August 5th, the evening that Mr. Ribel was 

discharged, including his movements that evening (Tr. 

589-596). 

Michael Toth, longwall coordinator, testified as to 

his background and experience, and he stated that he was 

not involved in any discussions between Mr. Hawkins and 

his crew with regard to the question of double cutting on 

the longwall. He explained that unaer the applicable mine 

plan in effect in May, 1983, it was legal for miners to 

work between the cutting drums of the longwall shearing 

machine, and in his view, working in_ that position would 

not place a miner "inby the shear-er" ·(Tr. 635). He 

confirmed that he has been present on the operating 

sections of the mine where double cutting was taking place 

with miners working between the shearer drums, and that 

Federal and state inspectors were present CTr.636). He 

explained that this was an eveTy-day occurrence, and he 

named several MSHA inspectors who would have been present 

when this was going on (Tr. 636-638~. Although he 

indicated that the respondent was cited by an MSHA 

inspector for a miner being inby the shearer, no citations 

were ever issued because miners were working between the 

drums (Tr. 638). 

Mr. Toth stated that none of the complainants in this 

case had ever come to him to complain about the manner in 

which double cutting was taking place 1Tr. 638). In his 

view, any dust problems which may have existed on the 

2254 
7 right longwall section have decreased during the 

two-year period of 1982-1983, and he attributed this 

improvement to the installation of deflectors 0 water 

sprays, and·the use of air helmets (Tr. 640). 

Mr. Toth stated that problems with the longwall 

phones increased sometime after the vacation period in 

July, 1983 0 and he explained these problems in some detail 

(Tr. 641-644). With regard to the evening of August 5, 

1983, Mr. Toth stated that he went to the mine for a 

meeting with the midnight crew about the manner in which 

Mr. Hawkins was fire-bossing the sectionv and he explained 

his movements that evening (Tr. 645-650). He stated that 

the subject of double cutting was not discussed at the 

meeting, and he denied that he ever made a statement to 

Mr. Kanosky that he was going to be fired (Tr. 650). 

Mr. Toth stated that he had no knowledge that Mr. Kanosky 

had complained to i state inspector-about the manner in 

which a ventilation curtain had been installed (Tr. 651), 

and he detailed the manner in which he inspected the 

phones on the longwall the evening of August 5 (Tr. 

653-663). He denied that he cut the wires on the #32 

telephone, and denied that he had a knife or cutting tools 

with him that evening CTr.664). When asked why he decided 

to suspend Mr. Ribel, with intent to discharge him, 

Mr. Toth responded as follows (Tr. 664-667)~ 

Q. Could you tell us specif iGally the reason why 

you decided to suspend Mr. Ribel with intent to discharge that evening? 

A. The reasoning behind it was the fact I couldn't 

place anybody el~e b~ that particular phone by himself. You know, he was the only one·. I didn't see 

him do it. I told him I didn't see him do it. But I 

assumed that he did it because I couldn't put nobody 

else by it by their self. And --

Q. Would you state whether or not your decision to 

terminate him or suspend him with intent to discharge 

was based in any way on the fact that he and other 

members of his crew had refused to double cut in May, 

or at any time in the year 1983? 

A. None whatsoever, no. 

Q. Would you state whether or not your decision to 

suspend him with intent to discharge was based in any 

way on the fact that he and Mr. Kanosky and Mr. Wells 

had filed a Complaint with MSHA on May 31, 1983? 

2255 
A. You know tf'iat had nothing to do with me. I was 

aware of it, but I had nothing in it, you know. 

Q. What effect, if any, did those two situations, 

refusal to double cut or the filing of the MSHA 

Complaint have on you? 

A. None. I didn't want them to double cut. It 

wasn't a forced issue Uh, the discrimination charge, 

you know, I was aware of it. I was real -- real 

aware of the problems that they was having. Jack and 

everybody at the mine was. But, you know, I had 

nothing in it, you know. It didn't affect me. I 

didn't feel that the double cutting had anything to 

do with the production being low. And, you know, as 

far as what problems they had with Jack, it didn't 

I'd like to seen them got along a lot better, but 

that had nothing to do with it. 

Q. One of your reasons for being there that evening 

was to discuss and, if possible, try to resolve some 

of the problems that had existed betwen Mr. Hawkins 

and his crew. Isn't that true? 

A. Yes, sir. 

Q. Did you discuss your decision to suspend 

Mr. Ribel with intent to discharge with Mr. Hawkins 

before you made the decision? 

A. No. 

Q. He didn't play any part in the decision? 

A. No, he didn't. 

Q. Had he ever suggested to you in any way, or, 

anybody ever suggested to you that you should try to 

fire or terminate or dismiss, in any way, Mr. Ribel? 

A. No, things.-- • It just don't work like that. 

Nobody's -- • I never discussed it with anybody. 

Never had it on my mind or nothing. It just wasn't 

that way. 

Q. There has been a suggestion made, or an inference made at this hearing before you testified, that 

Mr. Ribel was set up by mine management, including 

you. 

225G 
A. Well, it wasn't no setup. I've heard a lot 

about setups and entrapments and stuff. It wasn't 

that way. 

Q. Have you learned anything since August 5 that 

would indicate to you.that anybody else, other than 

Mr. Ribel, was walking by himself past the 32 phone 

during the midnight shift on August 5, prior to the 

time that you and Mr. Reesman and Mr. Toothman 

opened the phone? 

A. ~. 

Q. were all of you there when the phone was opened, 

together? 

A. When the phone was opened, Rob wasn't there. I 

was there, and Foley, and Russell Toothman, and Steve 

Reesman, and I think Roy McCormick 'was there. You 

know, I -- • There was several people there, I 

can't --

JUDGE KOUTRAS: Where was Mr. Ribel at that 

time, when it was opened? 

THE WITNESS: He was at the headg~te at that 

time. 

BY MR.,POLITO: 

Q. Have you ever told Mr. Hawkins, or anybody else, 

that you were out to get or were going to get 

Mr. Wells next? 

A. No, I never did say that~ 

Frank Peduti testified that he is employed by the 

respondent as a division electrical engineer and that the 

Federal No. 2 Mine is under his area of jurisdiction and 

has been for the past two years. Mr. Peduti stated that 

he has been employed by the respondent for 14 years, and 

he testified as to his background and experience. He 

stated further that he holds a B.S. degree in electrical 

engineering from the University of West Virginia and that 

he is a registered professional ~ngineer (Tr. 709-710}. 

Mr. Peduti examined the mine telephone in question, 

exhibit R-7, and he confirmed that he had previously 

examined it after Mr. Ribel's discharge and that he 

testified on behalf of the respondent at the arbitration 

hearing held in Mr. Ribel's case. Mr. Peduti stated that 

based on his experience, education, and background, it was 

2257 
his professional opinion that the telephone wire, which is 

orange in color, and which is used on the telephone 

speaker, was cut with a sharp instrument or a knife, 

including possibly a hawkbill knife. He explained the 

basis for his opinion, which included an examination of 

the condition of the wire at the time of his examinations, 

including the teflon protective outer cover of the wire. 

In his opinion, the separated condition of the wire was 

not caused by'normal wear and tear or corrosion, but by 

the wire being cut (Tr. 710-715). 

On cross-examination, Mr. Peduti reiterated his 

beliefs and opinions, based on his practical experience, 

as to why he believed the phone wire in question appeared 

to have been cut (Tr. 715-718). 

Joseph Luketic, respondents Employee Relations 

Officer testified as to the procedures followed in the 

adjudication of Mr. Ribel's grievance filed under the 

applicable National Bituminous Coal Wage Agreement, 

exhibit R-8, and he identified exhibit R-3 as the standard 

grievance complaint filed by Ribel, exhibit R-4 as a 

Western Union mailgram from the arbitrator who heard 

Mr.Ribel's case advising Mr. Luketic as to his decision 

denying the grievance, and exhibit R-5 as the arbitration 

decision issued by the arbitrator, Lewis R. Amis, on 

August 22, 1983 (Tr. 722-728). 

Mr. Luketic explained the procedures followed to 

select an arbitrator to hear Mr. Ribel's case, and he 

confirmed that Mr. Amis was selected from a panel of 

available trained arbitrators, and that his selection as 

the arbitrator was agreed to by Mr. Ribel's UMWA District 

31 representative Fr~d Kelly. Mr. Luketic .stated that 

Mr. Amis was not an attorney and he indicated that he was 

a part-time teacher at the Univer~ity of Pittsburgh (Tr. 

729-731). 

Docket No. WEVA 84-66-D 

In this case, the parties entered into certain stipulations concerning jurisdiction, and agreed that while 

the issue here is whether or not the safety slip issued to 

Mr. Wells by Mr. Hawkins was out of retaliation for 

Mr. Wells' prior safety complain~s, all of the testimony 

and. evidence adduced in the prior ·hearings on January 11 

and 15, may be incorporated by reference in this 

proceeding (Tr. 6). 

MSHA's Testimony and Evidence 

2258 
Mr. Wells confirmed that he filed his complaint in 

this case on August 8, 1983, and he did so because of a 

safety slip given to him by Mr. Hawkins on July 29, 1983 

(Tr. 20). Mr. Wells explained that while working as a 

chock setter on that day he reached over the longwall pan 

line chain to retrieve some roof cribs. The chain was not 

running. After he had taken the cribs off the spill 

tray, the chain started up and it had not been cleared 

over the longwall face telephones. Mr. Wells then went to 

the longwall head area and asked Mr. Hawkins why the chain 

had been started without first being cleared over the 

telephone. Mr. Wells stated that Mr. Hawkins inquired as 

to why Mr. Wells was concerned, and that he (Wells) 

informed him that the chain started while he was taking 

crib blocks off. Mr. Hawkins then asked him if he wanted 

him to give Mr. Wells a safety slip for being on the 

chain without first having it locked out. Mr. Wells then 

informed Mr. Hawkins "if you feel that's what you have to 

do" c·rr. 21). Later, Mr. Hawkins gave him a safety slip 

for being on the chain, and Mr. Wells denie that he was on 

the chainb, and he stated that he tried to explain this to 

Mr. Hawkins and to Mr. Toth, "but they didn't want to 

hear"(Tr. 21). 

Referring to a diagram (exhibit RX-1), Mr. Wells 

explained that he was at the tail end of the longwall, 

somewhere between the No. 9 and 10 shields, and he stated 

that he was standing on the shield legs when he reached 

over the chain to remove the cribs, .and that it was proper 

for him to stand on the legs. He had removed at least 

five cribs, and the chain began moving as he removed the 

last crib. The proper procedure is for the pan line to be 

"cleared" by announcing it three times over the phones. 

After it was "cleared'", the headgate attendant may then 

start the chain (Tr.25). 

Mr. Wells stated that he did not feel that he was 

exposed to any hazard or danger when the chain started, 

and he indicated that had he crossed over the pan line to 

do some work, he would have locked it out. He stated that 

he was familiar with the lock out procedures, and that he 

had previously locked out the pan line while performing 

work on the face side of the line. He confirmed that the 

pan line should be locked out any time anyone needs to 

cross over the spill tray to per~orm any work (Tr. 27). 

Mr. Wells stated that had the chain beer. moving, he would 

not have reached over and picked the cribs off (Tr. 29). 

Mr. Wells asserted that to safely perform his work of 

pulling the shields, it was important for him to be able 

to hear the pan line clearance. He then stated that on 

the day in question, the clearance procedure was not 

2259 
necessary to his work, but that he was simply concerned 

that the pan line was not cleared over the phone before it 

was started. He stated that he had a safety copcern and 

made a safety complaint (Tr. 29). 

Mr. Wells stated that. he never received any prior 

safety slips, had never previously been disciplined for 

safety related reasons, and had never received any type of 

verbal warnings. He believed that Mr. Hawkins was aware 

of the fact that he had filed a discrimination complaint 

on June 1, 1983, and he asserted that Mr. Hawkins 

confronted him "to the fact that he was going to get even 

with me for the complaints that I filed" (Tr. 29). 

On cross-examination, Mr. Wells explained that the 

procedures for "clearing" the pan line begins with the 

headgate attendant personally picking up the phone at the 

headgate and callirig or announcing a "warning" that he is 

about to start the chain by stating "clear the chain" 

three times. The phones along the longwall face are 

approximately 100 feet apart, and if they are working 

properly, the attendant's warning should be heard by those 

persons working around each of the phones CTr. 31). 

Mr. Wells confirmed that he was some 500 feet from the 

headgate on the day in question, and could not have 

observed the headgate attendant give any signal. However, 

he insisted that he was not accusing the attendant of not 

doing his job, but simply wanted Mr. Hawkins to know that 

no warning was sounded over the phone in his work area 

before the chain started up. Mr. Wells asserted that his 

concern was over the fact that a safety procedure had not 

been followed in that he heard no warning (Tr. 33). 

Mr. Wells confirmed that a lock-out device was 

available at the phone near where he was working, and that 

such devices are located by each iongwall phone. Once the 

device is depressed, the face chain will not move. The 

lock-out device is a back-up safety precaution to the 

phone pager system (Tr. 35). Mr. Wells conceded that 

he did not lock-out the chain before removing the crib 

blocks in question (Tr. 38). 

Mr. Wells confirmed that the safety procedures for 

miners working along the longwall are included as part of 

the roof control plan, and that an instruction for the use 

of the lock-out switch is part of these instructions. He 

confirmed that Mr. Hawkins usually goes over a part of the 

plan with the work crew every night, ~nd that he has 

covered the lock-out procedures. Mr. Wells could not 

specifically state whether Mr. Hawkins discussed the plan 

on the evening of July 29, 1983, but he recalled that he 

has explained the plan on other occasions, including the 

2260 
use of the lock-out device while working on the face (Tr. 

41). 

Mr. Wells reiterated that while pulling a shield, 

crib blocks fell down on the chain, and he was removing 

them. He explained where he was positioned, and in 

response to further questions, he detailed his work 

movements and how he reached over the chain to retrieve 

the cribs (Tr. 44-S3). He described the dimensions of the 

crib block as 36 inches long, six inches wide, and eight 

inches high, but had no idea how much they weigh. He 

confirmed that the blocks which fell were stacked up to 

support the roof in the tailgate entry. He marked exhibit 

RX-1 with an "A" to show where he reached over to the 

spill tray to retrieve the blocks, and he described the 

area as the "head side of the tail motor" (Tr.SS). He 

denied that the cribs had fallen eight feet from where he 

claimed he reached over the spill tray, and he asserted 

that they were within easy reaching distance (Tr. S9). 

Mr. Wells confirmed that he was aware that there were 

problems with the longwall phones. When asked to explain 

when Mr. Hawkins made the statement that he was "going to 

get back at him for having filed the lOS(c) complaint," 

Mr. Wells asserted tht "it had occurred on more than one 

incident, like for instance, I would be pulling cables, or 

doing something other than my job" CTr. 60). Mr. Wells 

could not specify when Mr. Hawkins made the statement. 

However, he stated that he kept notes on such incidents, 

but did not have them with him since he keeps them in his 

clothes basket at the mine (Tr. 61). 

Mr. Wells stated that he had no idea what a "contact 

and observance" is. However, when counsel corrected 

himself, and indicated that the term is "contact and 

observation", Mr. Wells stated that he was familiar with 

that term (Tr. 64). He explained that this is a procedure 

authorizing a supervisor to give a miner a warning if the 

supervisor observes a safety regulation infraction (Tr. 6S). 

Mr. Wells denied ever being warned about not following 

safety procedures. When shown a copy of a document with his 

name on it (exhibit RX-1), dated January S,1983, indicating 

that Mr. Larry Henderson talked to him about crossing the 

pan line while it was running, Mr. Wells denied denied any 

knowledge of the matter. He denied that his signature was 

on the slip, and he denied ever receiving it (Tr. 66-68). 

He did acknowledge that the document is a "contact and 

observation" (Tr. 67). 

In response to bench questions, Mr. Wells indicated 

that the work of retrieving the roof cribs required his 

reaching over the pan line spill tray, and while that 

2261 

I 
concerned him, he did not lock it out (Tr. 75). He stated 

that it was his understanding that simply reaching over. 

the pan line did not require him to lock it out (Tr. 76). 

Mr. Wells conceded that had he locked the pan line out, he 

probably would not have received a safety slip (Tr. 79), 

and he conceded that when Mr. Hawkins gave him the safety 

slip on July 29, he made no statement that he was doing it 

out of retaliation (Tr. 83). 

Mr. Wells stated that he filed a grievance regarding 

the safety slip in question, and when asked about the 

disposition of this action on his part, he replied "in the 

negligence of our district, nothing came of it" (Tr. 84). 

He then stated that his union did not take the matter any 

further (Tr. 86). 

John Kanosky, Jr., confirmed that on July 29, 1983, 

he was working on the longwall as a chock setter with 

Mr. Wells at the tail of the longwall. He confirmed that 

the shift started at midnight, and he confirmed that he 

observed Mr. Wells picking up cribs from the pan line, and 

when asked whether the pan line was moving, Mr. Kanosky 

replied "at first no, when he first went over, not at 

first" (Tr. 92). He confirmed that he heard no 

"clearance" when the chain started moving. He stated that 

he asked Mr. Hawkins why the chain hadn't been "cleared", 

but he could not recall his response (Tr. 94). 

On cross-examination, Mr. Kanosky confirmed that he 

was assisting Mr. Wells in pullin~ the longwall shields, 

and he confirmed that the chain was not locked out when 

Mr. Wells reached over the spill tray to retrieve the crib 

blocks (Tr. 98). He also confirmed that he and Mr. Wells 

did not lock out the pan line, and that when it started 

up, Mr. Wells "pulled away from it" and that no one ever 

stopped it (Tr. 100). 

Mr. Kanosky stated that he did not go with Mr. Wells 

to seek out Mr. Hawkins after the pan line started up, and 

that when he later spoke with Mr. Hawkins, he advised him 

that the phones were out, ana he could not recall 

Mr. Hawkins' reply <.Tr. 101). Mr. Kanosky "guessed" that 

his conversation with Mr. Hawkins was a "safety complaint" 

(Tr. 102). Mr. Kanosky stated that while helping 

Mr. Wells, he (Kanosky) did not ~each over the spill tray, 

and he confirmed that after he advised Mr. Hawkins that 

the phones were not working, Mr_ ·Hawkins did not issue him 

a safety slip, even though Mr. Hawkins knew that he had 

filed a previous discrimination complaint (Tr. 105). 

Mr. Kanosky stated that while normal procedure calls 

for the locking out of the pan line when one has to cross 

') ') [~ ') ._.._ut.., 
the chain to do some work, if he simply has to reach 

across the chain, he does not lock it out (Tr. 110). When 

asked why the distinction, he replied "I don't know" (Tr. 

111). He did not believe that simply reaching over the 

chain while it is moving is unsafe, and he conceded that 

it was possible that one could get his arm caught in the 

moving chain while reaching over (Tr. 112-113). 

James L. Foley testified that he worked on the 

midnight shift on the longwall on July 29, 1983, and that 

he was "setting shields towards the tail" (Tr. 116). 

Mr. Foley stated that the normal procedure calls for the 

"clearing" of the chain before it starts moving, and on 

the evening in question he did not hear the chain 

"cleared" before it began moving. he stated that he asked 

Mr. Hawkins about it, and Mr. Hawkins told him that 

"apparently the phone was not working" (Tr. 118). 

Mr. Foley stated that any time anyone crossed over 

the spill tray, the lock-out procedures were to be used, 

and when asked why anyone would cross the spill tray, he 

replied "to shovel the pan line, to set bits, in my case, 

to grease, service, anything you had to do across the 

spill tray" (Tr. 118). 

On cross-examination, Mr. Foley confirmed that after 

speaking with Mr. Hawkins about the fact that.the phone 

pager did not work, he did not contact the mine safety 

committee, about the matter (Tr. 119). 

Respondent's Testimony and Evidence 

Jack Hawkins, longwall foreman, testified as to the 

·formal grievance procedures in effect at -the mine in 

question with respect to employee discipl·ine involving 

safety matters (Tr. 130-133). He- con·f irmed that he issued 

a safety slip to Mr. wells on July 29, 1983, and when 

asked why, he replied as follows (Tr. 133): 

A. He had taken cribs off the pan line at the tailgate, without having locked out, and the conveyor 

started, and he-put himself in a position to be 

injured, by his own negligence; by not locking it 

out. 

Mr. Hawkins identified exhibit R-1. as the safety 

slip which he issued to Mr. Wells~ and when asked to 

explain the circumstances under which-he issued the slip, 

he replied as follows (Tr. 134-137): 

Q. Okay, and what was the basis for your decision 

2263 
to issue Mr. Wells, that slip? 

A. The only thing that I knew about this, is 

exactly what he told me. And like he related the 

matter, when he came to discuss. it with me. 

Q. Well, would you explain to the Court, exactly 

what happened, to cause you to issue the slip, 

on tha.t evening? 

A. Mr. Wells, first of all, Mr. Ribel come to the 

head gate, from setting shields down the face, and 

told me that the phones hadn't been working properly. 

What he asked me, was why the pan line started 

without being cleared, because I was standing right 

beside the man, whenever he cleared it. 

So he said, well the phone must not be working, 

and I asked him where he was, he said that he was 

down around 89 shield, whenever the chain started, so 

my electrician at that time, was working on the 

shear, I went down the pan line myself, and checked 

the phones, calling the head gate, from the tail. 

And I would reach the head gate on the phones down to 

51, but I couldn't reach the tail. 

When I got to 70, of course, each phone, I would 

check and make sure that everything visibly was right 

with it. When I got to 70, I called the head gate, 

called the tail, and couldn't reach the tail, and I 

moved the wires, where they connected into the phone, 

and called the tail, and I could reach the tail, so I 

assumed that that's where the problem was, with the 

phone system. 

At that point, I would call the tail, and 

would call the head, and I knew that the communication was complete along the face, and I went back 

to the head gate, and it .wasn't very long after that, 

several minutes later, Mr. Wells came to the head 

gate, and he wa~ pretty mad, and asked me why the 

chain had been started without.being cleared, and I 

tried to explain to him, that the chain had been 

cleared, and he said that he was down there, taking 

cribs blocks off that pan line, and he got two or 

three fingers torn off, if John Kanosky hadn't been 

there to turn the chain off. 

Of course, I knew that that was right, because 

the chain having started, had immediately been turned 

2264 
off, and then later it had started back up. 

But I tried to explain to him, that the trouble 

was in the phone, and the phones were not working 

down past 70, but he wouldn't listen to it, and he 

was wanting to blame the head gate man, because he 

was nearly injured, and I tried to explain to him, 

that it was his own fault, for not locking the pan 

line out, it didn't make any difference whether the 

head gate man, had given the warning over the phone, 

if he would have had the pan line locked out, he 

wouldn't have been nearly injured. 

Q. Mr. Hawkins, did you ask_ Mr. Wells, if he had 

in fact locked out the pan line, before the chain 

started? 

A. I didn't ask him that directly, what I said was, 

I believe, you mean to tell me you were up on that 

chain, without having locked out? 

He didn't answer the question, he didn't say 

yes, no, what he said was, to the best that I remember is, they are supposed to clear that chain 

before they start it. 

Then I said, it sounds to me, like you are trying to talk yourself into an unsafe work slip, he 

said, well, do whatever you think is right. That 

pretty much was the end of our conversation. 

Q. What was your understanding of the position that 

Mr. Wells was in, when he was removing crib blocks 

from the chain, based- on your conversation? 

A. Based on our conversation, he led me to believe 

that he was up on top of the conveyor, removing crib 

blocks? 

Q. And that's when you·-- what do you mean, when 

you say he was on top of the conveyor, removing crib 

blocks? 

A. That he had crossed over the spill tray, and was 

standing on the conveyor chain, throwing the crib 

blocks off. 

Mr. Hawkins testified as to the location where he 

believed the crib blocks had fallen, and based on his 

conversation with Mr. Wells, he believed that Mr. Wells 

was standing in front of the spill tray reaching across to 

retrieve the blocks, but was actually standing on the 

2265 
conveyor itself. Mr. Hawkins again stated that when he 

asked Mr. Wells whether he was on the chain, Mr. Wells 

again did not reply but simply stated that the pan line 

had to be cleared before it was started up (Tr. 142-143). 

Mr. Hawkins explained. the lock out procedures, and he 

stated that simply pushing the lock out button located at 

the person's work area will prevent the chain from moving, 

and it cannot be started again until that person does it. 

He also indicated that the lock out procedures are part of 

company policy as well as the roof control plan. These 

procedures are part of the miner's training and they are 

discussed at daily roof control meetings (Tr. 147). While 

conceding that lock out procedures may not be discussed 

daily, he stated that they were "pr6bably" discussed every 

second or third day, and that he did cover the roof 

control plan provisions on the midnight shift of July 29, 

1983, and that Mr. Wells was present (Tr. 148). 

Mr. Hawkins admitted that two days after the Wells 

incident he (Hawkins) had removed a crib block from the 

moving pan line without locking it out. He stated that he 

was standing in the walkway beside the spill tray and 

simply reached over the spill tray and removed the block 

from the top of the coal as it passed by. He did not 

believe this to be unsafe since he simply bent over and 

picked the block off and there was no way he could have 

been injured (Tr. 150). 

Mr. Hawkins stated that when he issued the safety 

slip to Mr. Wells he was aware that he had filed a safety 

complaint in June, but he denied that.this influenced him 

in any way. He stated that other employees had complained 

-about inoperative phones, -but they were not issued any 

safety slips (Tr. 152). 

On cross-examination, Mr.·Hawkins conceded that on 

July 29, 1983, he did not view the crib blocks in 

question, nor did he go to the area to investigate the 

incident (Tr. 154). Mr. Hawkins stated that he made no 

inquiries as to how far the cribs had fallen over on the 

chain, and he asserted that Mr. Wells did initially claim 

he was standing beside the spi1·1 tray, and the first time 

he (Hawkins) heard that contention is when he received a 

copy of Mr. Wells' discrimination complaint (Tr. 156). 

Mr. Hawkins stated that the roof control plan is 

posted at the mine and that the safety committees have 

copies (Tr. 162). He explained the safety slip warning 

procedure, and he confirmed that while Mr. Wells did not 

receive a copy of the notice that he issued, the safety 

committeeman did, and the slip was addressed to him (Tr. 

2266 
164; 166-167). With regard to an asserted previous 

warning given by Henderson to Mr. Wells, Mr. Hawkins 

stated that he was not previously aware of this, and did 

not know whether Mr. Henderson had in fact given it to 

Mr. Wells (Tr. 166). 

In response to further questions, Mr. Henderson 

stated that apart from his understanding that Mr. Wells 

was standing on the conveyor when he removed the cribs, 

from his experience and past observations, he knows that 

operators lock out the pan line and then get up on the 

chain and remove the cribs. He also reiterated that when 

he asked Mr. Wells whether he was on the chain, Mr. Wells 

did not deny it (Tr. 168-169). 

Mr. Hawkins stated that while he decided to recommend 

the issuance of the safety slip to Mr. Wells on July 29, 

before doing so he had to get appro~al. He spoke with the 

shift foreman and Mick Toth, the longwall coordinator, and 

they concurred in his decision. The following Monday, 

August 1, 1983, he asked Mr. Wells to bring his safety 

committeeman with him to discuss the safety slip, but due 

to the unavailability of the committeeman , the meeting 

was delayed until the next day. After meeting with the 

safety committee, the slip was issued on August 2, 1983 

(Tr. 171). Mr. Hawkins believed that the union has not 

pursued the issuance of the slip any further, and he is 

unaware of any grievance being filed (Tr. 178). 

Gary M. Hartsog, respondent's safety division 

inspector, testified as to his background and training, 

and he stated that he holds a B.S. degree in mining 

engineering from West Virginia University, and will 

receive his Master's in mining in May. His. duties include 

supervision of safety programs at the three mines under 

his division's jurisdiction (Tr. i961. 

Mr. Hartsog confirmed that he is familiar with the 

longwall safety practices and procedures at the Federal 

No. 2 Mine, and he explained the lock out procedures for 

the longwall. He confirmed that the lock device, once 

engaged, electrically locks out the pan line and it will 

not start (Tr. 197). Mr. Hartsog stated that if one were 

to position himself on the conveyor itself, this would be 

a violation of company safety practices. He identified a 

section of the West Virginia Mining Law, page 299, which 

states "no person shall perform work on the pan line or on 

the face side of the pan line unless such equipment is 

de-energized and locked out". In his view, anyone working 

on the pan line has to first lock out the line (Tr. 200). 

22·67 
Mr. Hartsog believed that reaching over a pan line to 

remove crib blocks would be an unsafe act, regardless of 

whether it violates company policy, and this is because 

"anything can happen". When asked whether Mr. Hawkins' 

act of removing a crib from a moving pan line was unsafe, 

Mr. Hartsog stated "no, because there was coal in the pan 

and this was laying on top of the coal". However, he 

would still not recommend doing what Mr. Hawkins did (Tr. 

203). Based on his knowledge of the safety slip given to 

Mr. Wells, he believed it was justified (Tr. 204). 

On cross-examination, Mr. Hartsog confirmed that he 

was not present at the August 2 meeting when the safety 

slip was issued, and he learned about it later that day 

(Tr. 205). He also confirmed that employees are made 

aware of company safety policies and procedures (Tr. 206). 

In response to further questions, Mr·. Hartsog identified 

copies of previous "safety observations" issued to other 

employees including Mr. Wells, by Mr. Hawkins and other 

supervisors, and he testified as to what these were all 

about (Tr. 210-212). 

MSHA's Rebuttal 

Mr. Wells was called in rebuttal, and he confirmed 

that he received the safety slip in question on August 2, 

1983, during a meeting in the mine foreman's ~railer with 

his safety committeeman and Mr. Hawkins and Mr. Toth. 

Mr. Wells stated that there was a discussion over the fact 

that the slip indicated that he was standing on the chain, 

when in fact he was not (Tr. 232). He then acknowledged 

that the slip does not indicate that he was on the chain, 

and he stated that he explained to Mr. Toth nd Mr. Hawkins 

that he simply reached over it CTr. 233). 

On cross-examination, Mr. Wells stated that he 

understood that he was being issued a safety slip because 

he was allegedly working in the face area without locking 

out the pan line (Tr. 236). He then conceded that he had 

no notes of the meeting or the incident in question (Tr. 

237). He conceded that simply picking some cribs off the 

top of coal on a mov~ng pan line is not as serious as 

standing on a pan line without havi~g it locked out (Tr. 

24 7} • 

Respondent's Rebuttal 

Mr. Toth was recalled, and he testified that it was 

his understanding that the ·safety slip was issued because 

Mr. Wells "was in the pan line while taking cribs out". 

Mr. Toth stated that during the meeting of August 2, 1983, 

Mr. Wells did not deny that this was the case, and that 

2268 
his excuse centered around his belief that Mr. Hawkins had 

removed cribs from a moving pan line, and that this was 

unsafe (Tr. 253). 

On cross-examination, Mr. Toth stated that a State 

investigation was conducted over the safety slip incident, 

and it focused on Mr. Wells' assertion that Mr. Hawkins 

had performed an unsafe act by removing cribs from a 

moving pan line. He stated that the committeemen 

initiated the inquiry a few days after August 2, 1983, and 

no State findings of any violations by Mr. Hawkins were 

ever made (Tr. 256-262). 

Mr. Kanosky was recalled as the Court's witness, and 

he explained where Mr. Wells was standing when he removed 

the cribs in question. Mr. Kanosky stated that at no time 

did he ·see Mr. Wells standing on th_e pan line or crossing 

over it (Tr. 264). 

Mr. Hawkins was recalled as the Court's witness, and 

he confirmed that Mr. Wells did not specifically inform 

him that he was standing on the pan line when he removed 

the cribs, and that when asked about it, Mr. Wells did not 

deny it (Tr. 267). Mr. Hawkins also confirmed that from 

past experience, he knew where the cribs would have 

fallen, and that when they are knocked out, one. cannot 

reach them by simply reaching across the pan line to 

remove them (Tr. 268). He reiterated the conversation 

with Mr. Wells as follows (Tr. 269): 

THE WITNESS: If I coula remember a quote 

that he said. First he asked me why the pan line 

started without~ or who cleared the, who was the 

s.o.b. that cleared the p~n line without, or started 

the pan line without clearing it? 1 told him it had 

been cleared. He said, "I \ifas taking the crib blocks 

off of that tail and I almost got several fingers 

torn off if John Kanosky hadn't been there to turn 

it off." And, that's when I asked him, "You mean you 

were up on that tail without having locked it out?" · 

Then his next statement was, "But, they're 

supposed to clear that chain b~fore they start it." 

And, I said, "Danny, it sounds to me like you're 

trying to talk yourself into.an unsafe work slip?" 

He then said, "Well, you do _whatever you think is 

right." And, that was about the end of the conversation. 

In his deposition of March ~4, 1984, Larry 

Henderson testified. that he is employed by the respondent 

as a longwall section foreman at the Federal No.2 Mine. 
He explained the procedures used by mine management to 

insure that the men comply with all safety rules and 

regulations, and these include on the job task training, 

and safety contacts and observations. 

Mr. Henderson stated that on January 5, 1983, he was 

the longwall section foreman on the midnight shift, and 

that Mr. Wells was a member of his crew on that shift. 

Mr. Henderson stated that during the course of the shift 

he made out·an employee safety observation of Mr. Wells 

and he identified exhibit RX-3 as a copy of the record he 

made of that safety observation. He confirmed that he 

made this observation notation after observing Mr. Wells 

crossing the panline while the fac.~ conveyor was still 

running and not locked out. 

When asked whether he informed Mr. Wells about what 

he had done, Mr. Henderson replied as follows (Tr. 10-11): 

Yes, but I'm not -- maybe I didn't say it in a way 

that he could remember. I hollered at him, and told 

him, you don't cross a panline while it's running, 

but other than that -- that's about it I'd say. 

Mr. Henderson believed that he stopped Mr. Wells and 

told him about crossing the panline, and he explained that 

had he not stopped him he would not have written "o.k" on 

the observation slip. He also confirmed that the slip is 

given to the safety department where it is kept on file. 

Mr. Henderson identified exhibit -1, as the 

respondent's safety policies, rules a~d practices, and he 

confirmed that section 11, item 8, prohibits crossing over 

the face conveyor chain without locking it· out. He 

believed that Mr. Wells violated thip rule when he crossed 

the moving panline on January 5, -1983. 

Mr. Henderson identifiSd exhibit -2, as a copy of a 

portion of the West Virginia mining regulations, and he 

indicated that section 7.06, prohibits anyone from working 

on the face side of the panline unless it is deenergized 

and locked out. He,believed that Mr. Wells also violated 

this provision by crossing over the panline into the face 

area. 

Mr. Henderson stated that it was his understanding 

that Mr. Hawkins issued Mr. Wells the safety slip in 

question because Mr. Wells was standing on a moving chain 

removing crib blocks without locking it out. Mr. Henderson 

stated that had he observed Mr. Wells standing on a moving 

panline he would probably issue him a safety slip because it 

is dangerous. 

2270 
On cross-examination, Mr. Henderson confirmed that he 

did not observe Mr. Wells at the time Mr. Hawkins gave him a 

safety slip, but that he did discuss the matter with 

Mr. Hawkins. He did not discuss it with Mr. Wells. 

Mr. Henderson stated that he has discussed the State 

and company rules and regulations with his men, and he 

indicated that all longwall personnel know that they are not 

to cross a moving panline without locking it out. 

Mr. Henderson confirmed that employment safety 

observation records such as the one filled out for Mr. Wells 

are not given to the employee or to the safety committee, 

and they are not notified that such a record has been made 

of the infraction. 

Mr. Henderson stated that that when he observed 

Mr. Wells cross the moving panline, it was at the end of the 

shift, and he indicated that Mr. Wells was going to the 

dinner hole to get his bucket. He stated that he did not 

pick out Mr. Wells for observation, but simply observed him 

go up on the inside of the spill pan and jump to the face 

side of the conveyor panline, a distance of two to three 

feet. He also stated that he did not issue Mr. Wells a 

safety slip because "it was probably his first time and 

* * * he was just needing to be told that it .was unsafe, 

and not to cross the panline" (Tr. 28). 

Mr. Henderson could not remember Mr. Wells' response 

when he told him that it was unsafe to cross the panline. 

He stated that he "more or less probably hollered at him", 

and that since it was the end of the shift, Mr. Wells left 

the mine. He indicated that he was approximately 15 to 20 

feet from Mr. Wells when he holler~d at him, and that no one 

else was present. 

Findings and Conclusions 

Docket No. WEVA 84-4-D 

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 Cl) 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 Co., 2 FMSHRC 2768, (1980), re~'d on 

other grounds sub. nom. Consolidation Coal Co. v. Marshall, 

663 F. 2d. 1211 C3d Cir. 1981); and Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). 

The operator may rebut the prima facie case by showing 

2271 
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 Cl) 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 

Co., 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the Complainant. Robinette, 

supra. See also Boich v. FMSHR, 719 F. 2d 194 (6th Cir. 

1983); and Donovan v. Stafford Constr. Co., No. 83-1566, 

D.C. Cir. (April 20, 1984) (specifically-approvint;the 

Commission's Fasula-Robinette test). See also NLRB v. 

Transportation Management Corp., U.S. ,~L.Ed. 2d. 

667 (1983). 

Protected Activity 

In this case, the critical issue.presented is whether 

or not the refusal by the three complainants to perform the 

so-called "double cutting" on the 7-right longwall section 

because they believed it was not safe is protected by 

section 105(c) of the Act. The three complainants assert 

that their refusal to engage in double cutting prompted 

their section foreman, Jack E. Hawkins, to retaliate against 

them by allegedly withholding certain employee benefits and 

privileges from them. These benefits included (1) working 

through the usual lunch hour and being paid, and (2) 

opportunities to stay over between shifts to perform certain 

job tasks at overtime pay rates. Conversely, the 

complainants assert that Mr. Hawkins advised them that their 

refusal to agree to his purported demands to double cut 

would result in his assigning them work which would cause 

them to either request transfers to other j.obs or quit their 

employment. 

The first question for determination is whether or not 

the process of double cutting is safe or unsafe. Based on a 

preponderance of all of the credible testimony and evidence 

adduced in these proceedings, -I cannot conclude that the 

complainants have established that the double cutting of 

coal along the 7-rigpt longwall face is per se unsafe. MSHA 

has produced no credible testimony Gr evidence to establish 

that double cutting is either unsafe or violates any laws or 

mandatory safety standards. As a matter of fact, the record 

establishes that the respondent h-as engaged in the process 

of double cutting for at least six years, and no one, 

including the complainants and the mipe safety committee, 

have ever complained to MSHA or challenged this method of 

mining coal. Further, MSHA has produced no evidence to 

establish that the process of·double cutting violates any 

safety or health standards, and there is no evidence that 

the respondent has ever been cited for this practice. 

2272 
The record in these proceedings suggests that the 

principal complaint by the complainants with regard to the 

issue of double cutting lies in their belief that requiring 

them to position themselves inby the longwall shearing 

machine exposed them to high levels of coal dust, which not 

only violated the applicable mandatory regulatory dust 

exposure levels, but also' threatened their health and safety. 

In short, the complainants assert that the process of double 

cutting requires them to work inby the coal cutting shearer, 

thereby exposing them to dangerous levels of coal dust. 

After careful scrutiny of the record, I cannot conclude 

that the complainants have established that the respondent 

required them to be inby the coal cutting shearers during 

the process of double cutting. The complainants have 

presented no credible evidence to establish that the 

respondent required anyone to stand- inby the coal cutting 

shearers while performing their chock setter duties. To the 

contrary, respondent's evidence and testimony, including 

company policy and safety regulations, mandates that all 

miners who work on the longwall section position themselves 

between the shearer cutting drums so as to avoid exposure to 

any coal dust generated inby the cutting shearers. In 

addition, the respondent has established that its cutting 

methods include the use of water sprays and other dust 

supression devices, and that it has provided appropriate 

personal dust protection devices such as respirators and 

dust helmets. Further, aside from a possible isolated 

citation for non-compliance with the dust standards, MSHA 

has produced no evidence that the respondent's 7-right 

longwall section has been out of compliance with the 

applicable coal dust regulations, nor has it produced any 

evidence of any citations ~eing issued ag~±nst the 

.cespondent for double cutting. 

Having concluded that the·process of double cutting 

coal is not a violation of ahy law or mandatory safety 

standard, the next question presented is whether or not the 

asserted refusal and reluctance by the complainants to 

double cut coal was reasonable' and protected under the Act. 

The record here establishes that the double cutting of 

coal has been engaged in for at least six years, and that at 

least two working shifts at the mine have engaged in this 

practice without complaint for at least that long. Absent 

any proof by the complainants that they were required to 

position themselves inby the shearers 7 thereby exposing them 

to coal dust, I cannot conclude that their complaints are 

justified or reasonable. 

2273 
On the facts of this case, I conclude that the 

complainants may not rely on an unsupported conclusion that 

they were exposed to dangerous level of coal dust, without 

establfshing through some credible evidence that 

respondent's double cutting process required them to be inby 

the coal cutting machine, thereby exposing them to coal dust. 

Further, the complainants have not rebutted the fact that 

the respondent's coal suppression measures, including the 

furnishing of respirators and air helmets, afforded ample 

protection to any miner required to work on the subject 

longwall. The complainants would have me believe that -('lny 

miner who chooses not to wear these protective devices, or 

who chooses to ignore company policy and regulation by 

deliberately positioning himself inby the coal cutting 

shearer, thereby voluntarily exposing himself to dangerous 

dust levels, should somehow be permitted to avail himself of 

the protections afforded him under the Act, and to hold the 

mine operator accountable for these actions. I reject these 

arguments. 

The record here further establishes that once the 

complainants made their double cutting objections known to 

mine management, they were not required to double cut. In 

fact, their particular shift was permitted to continue to 

single cut coal. While it is true that foreman Hawkins 

attempted to change their minds by meeting with them and 

discussing the personal advantages which would inure to them 

by agreeing to double cutting, taken in context, I find 

nothing intimidating or illegal in this. Foreman Hawkins' 

interests were to increase production, and absent any 

showing that his requests required the complainants to 

engage in job tasks which were illegal or unsafe, I cannot 

conclude· that his meeting with the complainants and his 

so-called "options" ~ere discriminatory. 

On the facts of this case, ~ conclude and find that 

once the complainants declined· 'foreman Hawkins' "options" 

for double cutting, and once single cutting was in place, 

Mr. Hawkins had the right to ~estructure his work force in a 

manner which he believed was most productive. 

The complainants' assertion that Mr. Hawkins withheld 

certain overtime opportunities from them and that he 

reassigned them work that caused them to either bid off 

their jobs or quit their jobs is simply unsupported by any 

credible evidence or testimony. Respondent has established 

that once the system of single cutting was instituted on the 

complainant's shift, there was a legitimate business reason 

for reassigning certain work tasks, and the complainants' 

arguments to the contrary are rejected. 

2274 
With regard to the question of permitting the 

complainants to continue to work through their lunch hour, 

with compensation, as they had previously been accustomed to 

when they were engaging in double cutting, I conclude and 

find that since mine management has the inherent right to 

regulate its work force, it could change its policy and 

require the complainants to take their lunch break and to 

conform to management's work requirements. This is 

particularly true in this case where there is absolutely no 

evidence that Mr. Hawkins' actions violated any 

labor-management agreement, or that the complainants 

instituted any grievances or otherwise complained about the 

issue. It is also true where the record here established 

that after a short period, Mr. Haw~ins recanted his prior 

position, and permitted the complai'nants to adjust their 

lunch hours. Further, on the basis of the record, the 

complainants had not established that they were treated any 

differently from anyone else. 

In view of the foregoing findings and conclusions, I 

find that the complainants have failed to establish a prima 

facie case of discrimination. Accordingly, their complaints 

are rejected and case Docket No. WEVA 84-4-D IS DISMISSED. 

Findings and Conclusions 

Docket No. WEVA 84-66-D 

This case concerns a complaint _by Mr. Wells that 

Mr. Hawkins discriminated against him by issuing hi~ a 

safety slip after Mr. Wells complained that a panline chain 

had started up without prior warning MSHA argues that when 

Mr. Wells confronted Mr. Hawkins about this incident, 

Mr. Wells was making a saf.ety complaint and that Mr. Hawkins 

retaliated by issuing him the slip'- .for assertedly violating 

company safety policy by standing-on-the panline or working 

at the face without first. having locked it out. MSHA 

asserts that even though Mr.·Wells did not personally feel 

that he was in any danger when the panline started up 

without warning, there could have been other crew members 

who were in unsafe positions when the chain started without 

warning. 

MSHA argues that the issuance of the safety slip on 

August 2, 1983, was motivated by Mr. Wells' protected 

activity, which MSHA claims took place on June 1, 1983, when 

Mr. Wells filed a previous discrimination complaint, and 

again on July 29, 1983, when he confronted Mr. Hawkins about 

the panline starting up without prior warning. In support 

of its argument that Mr. Hawkins retaliated against 

Mr. Wells for his prior complaints, MSHA points to the 

asserted intimidating remarks by Mr. Hawkins to Mr. Wells 

227-5 
when Mr. Wells confronted Mr. Hawkins, the fact that 

Mr. Hawkins personally did not observe Mr. Wells standing on 

the panline, and the fact that Mr. Hawkins himself 

purportedly engaged in the same kind of unsafe activity when 

he picked some roof timbers off a moving panline without 

locking it out. MSHA concludes that the respondent has not 

re~utted its asserted prima facie case by showing that no 

protected a~tivity occurred, and that the issuance of the 

safety slip was of a pretexual nature. 

With regard to MSHA's first assertion that Mr. Wells 

did not feel that his safety was jeopardized, if this were 

in fact the case, then Mr. Wells' asserted "safety 

complaint" could be construed to be. unfounded and 

unreasonable. In any event, the record in this case belies 

the assertion by MSHA that Mr. Wells did not believe that 

his safety was in jeopardy. The record here established 

that Mr. Wells and Mr. Kanosky claimed that they were 

"highly disturbed" that the belt had started without a prior 

audible warning, and I simply do not believe Mr. Wells' 

claim that he felt that he was safe. His testimony on this 

issue casts doubts in my mind as to his credibility and 

consistency. Having viewed Mr. Wells during the course of 

the hearings in these proceedings, I take particular note of 

the fact that he has consistently maintained that all of his 

complaints and confrontations with mine management hav.e been 

prompted by his asserted fears for his safety •. 

It seems clear to me from the testimony of Mr. Wells 

and Mr. Kanosky that they were both disturbed over the fact 

that the panline had started up without their hearing any 

advance warning sounded over the mine ·telephone located at 

their work station. Mr. Hawkins explained that he heard the 

headgate operator cal°! a warning over thE- longwall 

telephone, and there is no dispute that Mr. Wells and 

Mr. Kanosky did not hear it. Mr.-Hawkins later determined 

that the telephone at the· Wells'and Kanosky work station was 

inoperative, and this fact remains unrebutted. 

With regard to MSHA's second point concerning other 

miners being placed in jeopardy by the sudden starting of 

the panline chain, I· note that MSHA called not one witness 

to support this conclusion. While Mr. Wells, Mr. Kanosky, 

and Mr. Foley expressed their safety concerns with regard to 

someone possibly catching their arms or clothing in a moving 

panline chain, they apparently wer~ not too concerned about 

reaching over a moving panline ch~in without first locking 

it out. 

Mr. Kanosky testified that he and Mr. Wells were 

working in close proximity to each other at the chain tail, 

and that Mr. Kanosky was helping Mr. Wells pull in some 

2276 
shields, putting cribs under the shields, and cleaning up 

spillage. He admitted that neither he nor Mr. Wells had the 

chain locked out while performing this work (Tr. 99-100). 

Mr. Kanosky also admitted that when the chain started up, 

neither he nor Mr. Wells activated the lock out or stop 

switch to stop the chain (Tr. 100). When asked whether he 

too reached over the panline, Mr. Kanosky responded that "I 

don't know for sure whether I did" (Tr. 104). 

In response to certain bench questions, Mr. Kanosky 

stated that if he had to cross over the chain to do some 

work at the face, he would lock out the chain. However, if 

he simply had to reach over the chain to retrieve some 

material, he would not. When asked whether anyone could get 

hurt by reaching over a chain w~thout first locking it out, 

he replied "not the way he (Wells} did it." Based on 

Mr. Kanosky's concessions that someone could get hurt by 

reaching over an unsecured chain which suddenly started up 

without warning (Tr. 111-112), I frankly fail to comprehend 

the inconsistent distinctions drawn by Mr. Kanosky. 

Mr. Kanosky's testimony reflects that both he and 

Mr. Wells were performing the same work at the panline, that 

they both failed to lock out the chain, that they both 

complained to Mr. Hawkins about the chain starting up without warning, and that Mr. Hawkins may have had knowledge of 

their prior complaints. Yet, on these facts, Mr. Kanosky 

was not issued a safety slip. It seems to me that had 

Mr. Hawkins' motivation in issuing the slip to Mr. Wells was 

to retaliate against him for prior comlaints, he would also 

have issued one to Mr. Kanosky. 

Mr. Hawkins' alleged "intimidating" remarks to the 

effect that "what f •••••• ~.ing difference does it make," in 

response to the complaint by Mr. Wells that he did not hear 

the audible warning that the panLine"was starting up, must 

be taken in context. Mr. Hawkins testified that he heard 

the headgate operator make the audible announcement, and it 

seems reasonable to me that at that time that he assumed 

that everyone else along the panline heard it. Further, it 

also seems reasonable to me that Mr. Hawkins believed that 

all miners would comply with company policy and lock out the 

chain before performing work at or near the panline. I 

believe Mr. Hawkins' testimony concerning his version of 

this event, and taken in context, I cannot conclude that his 

asserted remark was intimidating. Given the circumstances 

and background concerning the confrontational work relationship which obviously existed betwen Mr. Hawkins and the 

complainants, I believe that the remarks attributed to 

Mr. Hawkins, which he denies, would be natural and expected. 

2277 
A copy of the so-called "safety slip" is a matter of 

record in this case {Exhibit RX-1). It appears to be a 

company form captioned VERBAL NOTICE OF, with two options 

for checking by the person who issues it. The first option 

is labeled "Improper Action", and the second states "Safety 

Instruction". The document reflects that it was issued by 

Mr. Hawkins to Mr. Wells, and it states that Mr. Wells was 

given a verbal notice of a violation for "working in the 

face area without having the panline locked out electrically". The "explanation" portion of the form is filled and 

states the following: 

On 7/29 at about 3:30 a.m., Danny Wells was 

removing crib blocks from around the tail drive 

when the conveyor was started. The man admitted 

not having the stop switch off as per company 

policy. 

The testimony concerning the actual issuance of the 

safety slip in question is most confusing. Mr. Hawkins 

stated that he intended to issue such a slip on Friday, 

July 29, 1983, the day that Mr. Wells confronted him about 

the panline chain starting up. Mr. Hawkins then determined 

that he had to consult with his superiors before finalizing 

the-issuance of the slip, and that after such consultation, 

and further contact with the union safety committee, the 

slip was issued on August 2, 1983. However, Mr. Hawkins 

stated that the slip was not given to Mr. Wells, but that he 

showed it to him {Tr. 166, 167). Mr. Hawkins also explained 

the slip was only a record of the verbal warning given to 

Mr. Wells {Tr. 166). When called in rebuttal, Mr. Wells 

confirmed that he received the slip during a meeting with 

union and management representatives present on August 2, 

i983. 

When asked whether he had f iiea a grievance over the 

issuance of the safety slip, Mr. Wells responded that "I 

went every step that there was, on this safety slip, and in 

the negligence of our district, nothing came of it" (Tr. 84). 

He then explained that his union met with mine management 

about the matter, and that while he spoke with his safety 

committee and the union's district office, he heard nothing 

further about the matter {Tr. 85). ·MsHA's counsel had no 

knowledge of the union grievance procedures in such matters, 

but was of the opinion that any appeal rights inuring to 

Mr. Wells concerning the issue had not been finalized 

{Tr. 86). Respondent's counsel disagreed, and he indicated 

that to his knowledge Mr. Wells.has no pending grievance on 

the question of the issuance of the safety slip {Tr. 178). 

Mr. Hawkins stated that to his knowledge, the union has 

dropped the matter, and that he has never been asked for any 

input into any grievance by Mr. Wells CTr. 178). 

2278 
In my view, the fact that Mr. Hawkins did not actually 

see Mr. Wells standing on the panline when the chain was 

started is not particularly critical. It seems clear to me 

that Mr. Hawkins issued the safety slip on the assumption 

that Mr. Wells was standing on the panline without having 

activated the lock out switch. Mr. Hawkins' assumption was 

based on his testimony that Mr. Wells did not deny that he 

was standing on the panline when Mr. Hawkins asked him if 

this were in fact the case. In addition, Mr. Hawkins' 

assumption was based further on his prior knowledge and 

experience that miners do stand on such panlines when 

retrieving fallen roof cribs, as well as on his understanding as to the location of the fallen cribs, as well as 

Mr. Wells' explanation as to where ·he was located when he 

was performing the work. 

Mr. Wells conceded that he did- not lock out the panline 

before attempting to retrieve the cribs. Having viewed 

Mr. Hawkins during the course of the hearings, I find him to 

be a credible witness, and I believe his version surrounding 

the events in question. I believe that when Mr. Wells 

confronted Mr. Hawkins, he did so with the intent of 

provoking him into yet another confrontation over safety. 

While it may be true that Mr. Wells' complaint could be 

construed to be a safety complaint, one can conclude from 

the record in this case that any time Mr. Wells- spoke with 

Mr. Hawkins, it could be construed to be a complaint. I 

believe Mr. Hawkins' assertion that when he asked Mr. Wells 

whether he had been standing on the.panline when it suddenly 

started up without warning, Mr. Wells said nothing and did 

not deny it. Considering the fact that Mr. Wells did not 

impress me as an individual who would back away from any 

-Opportunity to confront M~. Hawkins on a safety matter, it 

seems strange to me that Mr. Wells· .. would :not respond or deny 

that he was standing on the panline w·hen he was removing the 

fallen cribs. Rather than denying it, which I believe any 

reasonable person would do, Mr. Wells simply exclaimed to 

Mr. Hawkins that he should "do what you have to do". 

Mr. Hawkins accomodated him by subsequently issuing him a 

safety slip, and Mr. ~ells now belatedly cries "foul". 

The critical question in this ~ase is whether or not 

the record supports the respondent's contention that the 

safety slip issued to Mr. Wells was justified. MSHA's 

position is that it was not. Further, MSHA is of the view 

that the safety slip was issued to.Mr. Wells in retaliation 

of prior safety and discrimination complaints. After 

careful review and scrutiny of the record here, I cannot 

conclude that the safety slip, or verbal warning, issued by 

Mr. Hawkins to Mr. Wells, was discriminatory or retaliatory. 

I conclude that Mr. Wells violated company policy by failing 

2279 
to lock out the panline before performing work around the 

panline chain. In my view, the question of whether Mr. Wells 

was actually standing on the panline, or performing work 

in close proximity to the panline, is not critical. What 

is critical is the state of mind of Mr. Hawkins at the time 

he issued the verbal warning. 

Having carefully considered MSHA's arguments in support 

of its theory of this case, I conclude that it is based on 

hindsight and inferences drawn from unsupported conclusions 

as to what may have motivated Mr. Hawkins in issuing the 

safety slip~ Considering the on-going and continuous 

confrontations between the complainants in these proceedings 

and Mr. Hawkins with regard to the.question of double 

cutting, it seems obvious to me that any decisions made by 

Mr. Hawkins were met with immediate claims that he was 

discriminating against the complainants. 

Based on a preponderance of all of the credible 

testimony and evidence adduced in this case, I conclude and 

find that Mr. Hawkins had a reasonable belief that Mr. Wells 

exposed himself to possible injury and harm when he 

proceeded to remove the roof cribs in question without 

locking out the panline chain. I further conclude and find 

that while it is clear that Mr. Wells performed work on the 

panline without locking out the chain, Mr. Hawkins also 

believed that Mr. Wells was also standing on the panline 

when he performed the work, and that when Mr. Wells did not 

deny it, Mr. Hawkins was justified ·in issuing Mr. Wells a 

verbal warning. I further find and conclude that MSHA has 

failed to establish a prima facie case of discrimination. 

Accordingly, the complaint in Docket No. WEVA 84-66-D, IS 

DISMISSED. 

Findings and Conclusions 

Docket No. WEVA 84-33-D 

This case concerns a complaint by Mr. Ribel that he 

was discriminated against when the respondent suspended him, 

with intent to discharge, for allegedly "sabotaging" mine 

property, namely, the No. 32 telephone located on the longwall 

section. MSHA argues that Mr. Ribel was "set up" by mine 

management, that he did not sabotage the phone, and that his 

suspension and subsequent discharge came about as a result 

of his prior discrimination and safety complaints. Conversely, 

the respondent argues that Mr. Ribel's discharge was bona fide 

2280 
and totally unrelated to his prior complaints, and that 

after arbitration under the applicable management-labor 

agreement, his discharge was sustained by an arbitrator. 

In the context of a discrimination proceeding adjudicated 

under section lOS(c) of the Act, an arbitrator's finding 

that disciplinary action under the applicable 1981 Wage 

Agreement was warranted, is not binding on me in this 

proceeding. Once the complainant establishes a prima facie 

case of discrimination, the burden is then on the respondent 

to affirmatively defend that the alleged retaliatory action 

(suspension with intent to discharge), was also motivated 

by unprotected activity (intentionally cutting the phone wire) , 

and that the action taken against the complainant would have 

been taken for the unprotected activity alone. The crucial 

question in this case is whether or not the respondent has 

carried its burden of proving by a preponderance of all 

of the credible testimony and evidence of record that Mr. Ribel 

did in fact cut the wire in question, and that by doing 

so he engaged in unprotected activity which warranted the 

action taken against him. 

The instant discrimination case was heard de novo, and 

I am bound to render my decision in accordance with the 

facts and evidence adduced in the discrimination hearings 

before me. As correctly suggested by MSHA in its brief, 

the question of good cause for the discharge of a miner under 

the wage agreement may not be determined upon the same criteria 

which are in ·issue under the Mine Act. 

In their post-hearing briefs, the parties recognize 

and concede that I may consider the weight to be given the 

arbitrator's decision in connection with Mr. Ribel's 

grievance under the wage agreement. ·That grievance concerned 

the respondent's suspension of Mr. Ribel, with intent 

to discharge him, for purportedly destroying or "sabotaging" 

the No. 32 telephone by allegedly cutting a wire a hawkbill knife. The sole factual question before the arbitrator 

was whether or not the respondent established that Mr. Ribel 

had in fact cut the telephone wire in question, and if so, 

whether this act justified his discharge for cause. The 

arbitrator answered both questions in the affirmative and 

sustained the discharge. 

2281 
Respondent states that with the exception of Mr. Norwich, 

the witnesses called to testify on behalf of Mr. Ribel at 

the arbitration hearing were the identical witnesses called 

to testify on· Mr. Ribel's behalf in these proceedings (Ribel, 

Kanosky, Wells, Reeseman,·Toothman, Hayes). Likewise, 

respondent states that with the exception of Mr. Luketic, 

who handled the a~bitration case, the witnesses called on 

behalf of the respondent in these proceedings were also 

witnesses at the arbitration hearing (Hawkins, Toth, Peduti). 

Respondent argues that since MSHA has presented no new 

pertinent evidence or testimony in these proceedings that 

was not before the arbitrator, the fact that Mr. Ribel lost 

his arbitration case is no basis upon which to urge me not 

to consider the arbitrator's findings. Respondent suggests 

that because of the arbitrator's "special expertise" regarding 

mining practices and the common law of the shop, the arbitrator's 

decision would be helpful to me in this matter, and that I 

should accord it great weight. 

MSHA argues that the standards under which the arbitrator 

decided Mr. Ribel's grievance failed to take into account 

the applicable discrimination law under the Mine Act, and 

that issues such as the prior discrimination against Mr. Ribel 

for engaging in protected activity under the Mine Act, 

and the fact that he had filed complaints, were not addressed 

by the arbitrator. MSHA argues that facts developed in 

the instant proceeding (such as Mr. Toth's access to the 

damaged phone), were not addressed by the arbitrator, and 

that the arbitrator's reconstruction of the facts is deplete 

of a substantial amount of the evidence presented during the 

hearings before me. 

MSHA concludes that the record in these proceedings 

does not contain sufficient evidence to affirmatively show 

that Mr. Ribel engaged in the unprotected activity (cutting 

the phone wire), which the respondent has asserted as its 

defense in this case. Additionally, MSHA maintains that 

the "chilling" atmosphere which mine management created 

on the midnight shift of August 5, 1983, refutes the respondent's 

affirmative defense. 

2282 
I have reviewed the arbitration decision issued by the 

arbitrator, Lewis R. Amis on August 22, 1983 (exhibit RX-5). 

That decision reflects that the respondent took the position 

that its evidence conclusively proved that Mr. Ribel cut the 

phone wire in question, and that since this act constituted 

a willful destruction of company property, his discharge 

was warranted. Conversely, the Union argued that since 

no one actually witnessed Mr. Ribel actually cut the wire, 

there was sufficient doubt as to his guilt, and that this 

precluded any finding that he was responsible for cutting 

the wire. 

In his decision rendered on August 22, 1983, the arbitrator 

affirmed a prior decision which he rendered on August 13, 1983, 

and which he served on the parties by a mailgram. In that decision, 

the arbitrator ruled as follows: 

The evidence, though circumstantial, is 

clear and convincing. On C shift August 5, 1983 

#32 telephone on Section 7 right longwall was 

sabotaged. The only person with the opportunity 

and the means to perform the act was the 

grievant. Sabotage is a dischargeable offense, 

a'nd in this case the penalty is warranted. 

Hence, I must sustain the grievant's discharge. 

The grievance is denied. 

In support of his conclusion that Mr. Ribel cut the 

wire in question, the arbitrator made the following findings 

and conclusions in his August 22, 1983, written decision: 

1. The facts in this case lead to the inescapable 

conclusion that the grievant is guilty as charged. 

Very simply put, the wire in phone 32 was cut in a 

way that suggests that a knife was used; the grievant 

had a knife; and he was the only person on the section 

with an opportunity to cut the wire. 

2. While Ribel and Toothman were checking the phones 

on the section, no one else was there, th~ rest of the 

crew and Toth being at the dinner hole. Then, when 

Toth arrived on the section, he was the only person 

there in addition to the other two. At all relevant 

times he was on the section, Toth was either in the 

presence of Toothman, Toothman and Ribel, or of the 

shearmen Reesrnan and McCormick as they approached the 

shear after leaving the meeting. On the other hand, 

on two occasions Ribel was alone at or near phone 32: 

first when he made the initial check with Toothman 

and reported that the phone was paging properly --

and next when Toth sent him from the tail of the 

2283 
section back to the head to check the phones again. 

Either time he might have cut the wire in question. 

In any event, neither Toth nor Toothman had any such 

opportunity, and they are the only other possible 

candidates. 

3. The time frame in this case is very narrow. 

According to the B shift foreman, phone 32 was operating 

at the end of his shift. According to Toothman and to 

Ribel the phone was still operating during their 

initial check. It was only from the time that Ribel 

first checked phone 32 until the time Toth discovered 

that it was not paging that anyone could have tampered 

with it. The only one with the opportunity was Ribel. 

4. The Union also argues that because the evidence 

in this case is circumstantial, it is somehow lacking 

in validity. Circumstantial evidence, however, is 

sometimes the clearest and best guide to a discovery 

of the true facts of the matter at hand. In this case, 

a rational reconstruction of events leading back from 

the discovery of the cut wire in phone 32 and again 

up to that point leaves no reasonable doubt that the 

grievant cut the wire. Thus, the circumstantial evidence 

for his guilt can be said to be clear and convincing. 

To find otherwise would be to admit a belief that the 

wire severed itself, and that I am not prepared to do. 

I take particular note of the fact that nowhere in the 

arbitrator's decision is the question of any prior safety 

complaints by Mr. Ribel mentioned. The decision is devoid 

of any consideration of the ongoing disputes which had taken 

place between Mr. Ribel and Mr. Hawkins over the issue of 

double cutting, and the decision is silent with respect 

to the prior discrimination complaints filed by Mr. Ribel . 

. While it may be true that these prior complaints focused 

on a continuing confrontation between Mr. Ribel and Mr. Hawkins, 

the record supports a conclusion that Mr. Toth was not totally 

oblivious to these complaints. As a matter of fact, as the 

respondent's overall longwall corrdinator responsible for 

production, including supervisory authority over Mr. Hawkins, 

Mr. Toth had a direct interest in these complaints since 

they obviously impacted on production, and ultimately resulted 

in the midnight shift being permitted to single cut, with 

a resulting diminishment of production. 

Notwithstanding any denials to the contrary, I believe 

that Mr. Toth knew that Mr. Ribel was one of the individuals 

who were causing "problems" and filing complaints over safety 

2284 
questions. Given this background, Mr. Toth's motivations 

and state of mine with respect to the incident which resulted 

in Mr. Ribel's discharge is a critical question not addressed 

by the arbitrator. While it may be argued that the safety 

issues were not pertinent to the arbitrator's decision 

concerning "good cause" for Mr. Ribel's discharge, they are 

critical and relevant to any determination made under the 

applicable discrimination criteria pursuant to section lOS(c) 

of the Act. 

Given the apparent jurisdiction of the arbitrator to 

consider only the "good cause" criteria under the wage agreement for determining whether mine management had reasonable 

grounds for discharging Mr. Ribel, the conclusion is inescapable 

that the safety complaints which preceded the discharge, 

and which obviously were "lurking in the background," were 

not addressed or considered by the arbitrator. His decision 

was based on a circumstantial case that Mr. Ribel cut the 

wires, with absolutely no consideration given to the alleged 

retaliatory aspects of the case, and no consideration was 

given to the past discrimination complaints made by Mr. Ribel 

which arguably may have supported his subsequent assertions 

that he was singled out and "set up" for the discharge. 

While it may be true that given all of these facts, the 

arbitrator may have reached the same conclusion, it is just 

as likely as not that the result may have been different. In 

these circumstances, I have given the arbitrator's findings 

and decision little weight, and will look to the evidence 

and testimony presented during the hearings before me in 

order to determine whether or not the respondent has established 

with any degree of reasonable certainty that Mr. Ribel did in 

fact sabotage the telephone in question. 

The arbitrator found that at all times while on the section, 

Mr. Toth was in the presence of Toothman, Toothman and Ribel, 

or of the Shearmen Reeseman and McCormick. Mr. Toothman 

testified that at one point in time, after speaking with 

Mr. Ribel over the #89 telephone, Mr. Toth instructed him 

to proceed to the tail end of the longwall to check out the 

other phones and that Mr. Toth went in the opposite direction 

towards the headgate for a distance of some 20 shields, 

and that he was distracted and lost sight of him. Since 

Mr. Toothman and Mr. Toth were at the #89 telephone station 

when they proceeded in opposite directions, Mr. Toth would 

have been between the #32 and #70 telephones when Mr. Toothman 

lost sight of him. Thus, contrary to the arbitrator's 

findings, based on Mr. Toothman's testimony before me, I 

cannot conclude that Mr. Toth was at all times in the presence 

of one or more of the other individuals. As a matter of 

fact, Mr. Toothman testified that shortly after losing sight 

of Mr. Toth, and while on his way back towards the headgate, 

he was summoned to the #32 phone by Mr. Toth, and at that point 

in time Mr. Toth showed Mr. Toothman the wire which had been cut. 

2285 
Although Mr. Toothman testified that he never observed 

Mr. Toth tamper with the #32 phone, and that Mr. Toth may 

have been 100 feet ahead of him while they both proceeded 

to the headgate at different intervals, Mr. Toothman also 

confirmed that it took him only a minute to remove the 

telephone cover once he arrived at the #32 phone station. 

Given the fact that Mr. Toothman lost sight of Mr. Toth 

after he passed the #70 telephone station, and given the 

fact that it was Mr. Toth who called Mr. Toothman to the #32 

to open the phone cover, I conclude that Mr. Toth had ready 

access to the #32 telephone, unobserved by Mr. Toothman. 

Insofar as Mr. Reeseman is concerned, he testified that 

when he first observed Mr. Toth on the longwall section, 

he (Reeseman) , was standing at the #11 shield and that he 

observed Mr. Toth walking towards him, and that Mr. Toth 

was between the #18 and #32 telephones. At that point in 

time, Mr. Toth had already passed by the #32 telephone walking 

towards Mr. Reeseman. Mr. Reeseman testified that Mr. Toth 

then went to the #32 telephone, picked it up, and asked 

Reeseman whether it was paging. When Reeseman replied that 

it was not paging, Mr. Toth requested that a mechanic be 

dispatched to the phone to check it out. Mr. Reeseman then 

dispatched a trainee mechanic (Fowley) to the #32 phone station, 

and Reeseman went about his business and did not observe 

the #32 telephone being opened. Thus, contrary to the artibtrator's 

finding, on the basis of the record before me, it seems clear 

that Mr. Toth was not at all times within the presence of 

Mr. Reeseman. 

Shearman McCormick and trainee mechanic Fowley did not 

testify in the hearings in these proceedings. Although 

Mr. Hayes testified, he apparently had no information concerning 

the circumstances surrounding the #32 telephone incident. 

The arbitrator also found that while Ribel and Toothman 

were checking the phones on the section, no one else was 

there1 and that the rest of the crew and Toth were in the dinner 

hole. This finding is contrary to the testimony before me. 

That testimony supports a conclusion that after the meeting 

in the dinner hole, Mr. Toth and Mr. Reeseman were on the 

section, and Mr. Hawkins confirmed that he too was there while 

Ribel and Toothman were checking the telephones. 

Given the aforementioned findings and conclusions, I 

cannot accept the arbitrator's "inescapable conclusion" 

that the "clear and convincing circumstantial evidence" 

supports a conclusion that Mr. Ribel cut the telephone wire 

in question. While I conclude and find that the respondent 

has established through credible expert testimony that the wire 

2286 
was cut, I cannot conclude that the respondent has established 

that Mr. Ribel is the guilty party. To the contrary, I conclude 

and find that at least one or more individuals (Toth, Hawkins, 

Reeseman) were on the section at the time of the incident 

in question, and that they had access to the telephone and 

had as much opportunity to cut the phone wire as did Mr. Ribel. 

In short, I reject the notion that strong circumstantial 

evidence points only to Mr. Ribel as the culprit, and I 

conclude that there is reasonable doubt as to his guilt. 

Since I have concluded that the respondent has failed 

to establish that Mr. Ribel cut the telephone wire in question, 

the respondent's defense that Mr. Ribel was engaged in unprotected 

activity must necessarily fail. Further, since I have 

previously concluded that there was animus on the part of 

Mr. Hawkins and Mr. Toth towards Mr. Ribel because of his 

prior safety complaints, it is just as likely as not that 

Mr. Ribel's assertions that he "was set-up" has a ring of 

truth about it. Although it may be true that a strong 

circumstantial case may support a discharge of a miner for 

sabotaging company property, on the evidence and testimony 

before me I cannot conclude that the respondent has made 

out such a case. Under the circumstances, I conclude and 

find that respondent has not established any reason for 

Mr. Ribel's discharge, and that it has not rebutted Mr. Ribel's 

prima facie case. 

In view of the fpregoing findings and conclusions, I 

conclude that the respondent violated section 105(c) (1) 

when it discharged Mr. Ribel for purportedly damaging a longwall 

telephone. Accordingly, MSHA's complaint on behalf of Mr. Ribel 

IS SUSTAINED. 

In compliance with a previously issued Order of Temporary 

Reinstatement, January 4, 1984, the respondent, with Mr. Ribel's 

concurrence, agreed to continue him on the payroll, with 

all employee benefits, without actually returning him to work, 

pending my adjudication of his discrimination complaint. 

Although MSHA's initial complaints filed on behalf of 

the complainants in these proceedings requested an order 

assessing civil penalties against the respondent for its 

asserted violations of section 105(c) of the Act, I take 

note of the fact that the hearings in Mr. Ribel's case took 

place prior to the promulgation of the Commission's amended 

Rule 29 CFR 2700.42, which requires MSHA to follow certain 

procedures in seeking civil penalty assessments in cases of 

this kind, 49 Fed. Reg. 5751, February 15, 1984. I also 

take note of the fact that MSHA did not reassert its request 

for an assessment of any civil penalty in this case, and 

did not discuss the issue in its post-hearing submissions. 

2287 
In view of the foregoing, I have no basis for assessing 

a civil penalty against the respondent at this time. However, 

MSHA is free to initiate a separate proceeding against the 

respondent in accordance with the applicable Commission rules. 

ORDER 

1. Respond~nt IS ORDERED to reinstate Mr. Ribel to 

his former or equivalent po·sition at the mine in question, with 

all of his seniority rights and other benefits intact, at 

the current prevailing wages and fringe benefits. 

2. Respondent IS ORDERED to pay Mr. Ribel all back pay, 

including any fringe benefits, during the time he was off 

the payroll, from the date of his discharge on August 5, 1983, 

to the date he was actually "economically reinstated" in 

compliance with the temporary reinstatement order of January 4, 

1984, with interest computed in accordance with the Commission's 

decision and formula in Bailey v. Arkansas-Carbona Co. & Weller, 

3 MSHC 1152 (Dec. 1983). 

3. Respondent IS ORDERED to expunge any references to 

Mr. Ribel's discharge from its applicable personnel records 

concerning Mr. Ribel. 

Full compliance with this Order is to be made within 

thirty (30) days of the date of this decision. 

Distribution: 

~,~_.,~ ~a«~ y. Koutr s 

Administrative Law Judge 

Covette Rooney, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Ronald S. Cusano, Anthony J. Polito, Esqs., Corcoran, Hardesty, 

Ewart, Whyte & Polito, P.C., Two Chatham Center, Suite 210, 

Pittsburgh, PA 15219 (Certified Mail) 

Sally Rock, Associate General Counsel, Eastern Associated Coal 

Corp., One PPG Place, Pittsburgh, PA (Certified Mail) 

Barbara J. Fleischauer, Esq., Route 4, Box 362, Morgantown, WV 

26505 (Certified Mail) 

/slk 

2288 
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. 

W-P COAL COMPANY, 

Respondent 

SEP 2 4 i984 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 84-245 

A.C. No. 46-05801-03524 

No. 21 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On September 10, 1984, the Secretary of Labor filed a 

motion for approval of a settlement reached by the parties 

in this case. The violations were originally assessed at 

$8,000 and the parties propose to settle for $7,000. 

The motion states that although the violation was 

serious (it was allegedly the cause of an accident resulting 

in a fatal injury to one miner and serious injuries to four 

others) , further investigation including pretrial discovery 

has persuaded the parties that the operator's negligence was 

not as great as originally believed. I accept the representations in the motion, and conclude that the settlement 

should be approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $7,000 within 30 days of the 

date of this decision. 

jlt{,{,a-g ,.Jtt!i~de-n£l .... James A. Broderick 

· Administrative Law Judge 

Distribution: 

William M. Connor, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Harold s. Albertson, Jr., Esq., Albertson & Jones, 

P.O. Box 1989, Charleston, WV 25327 (Certified Mail) 

/fb 

2289 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

!~F;:~ ::: :::~ l984 ··-~'- -~· ~ _... ·,_) l ' 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

JOHN CAMPBELL, 

Complainant 

v. 

U.S. COAL, INC., 

Respondent 

Docket No. SE 84-56-D 

MSHA Case No. BARB CD-84-17 

No. 3-2 Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Frederick w. Moncrief and Heidi Weintraub, Esqs., 

Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Complainant; 

R. Louis Crossley, Jr., Baker, Worthington, 

Crossley, Stansberry & Woolf, Knoxville, Tennessee, 

for Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainant against the respondent pursuant to § 105(c) 

of the Federal Mine Safety and Health Act of 1977. Following 

a hearing held on June 5, 1984, with respect to MSHA's 

application for temporary reinstatement, I issued an order on 

July 9, 1984, ordering the complainant's temporary reinstatement 

pending adjudication of the merits of his complaint. 

A hearing on the merits of the complaint was convened 

on August 8, 1984, and the parties appeared pursuant to notice. 

However, prior to the taking of any testimony or evidence on 

the merits, the parties advised me that they had reached a 

proposed settlement of the dispute and they were permitted 

to make a record concerning the terms of the settlement. 

Subsequently, the parties submitted their proposed settlement 

disposition of the matter, the terms of which are as follows: 

2290 
1. Mr. Campbell agrees to direct the Secretary 

of Labor to execute any documents necessary in 

order to have dismissed the proceeding pending 

before the .Federal Mine Safety and Health Review 

Commission, including the Secretary's request 

for a civil penalty, and Mr. Campbell agrees 

not to file any other complaints against the 

Company, or any of its employees concerning 

any event which took place prior to the date 

on which this Agreement is signed by Mr. Campbell. 

2. Mr. Campbell also agrees to withdraw and not 

reassert the allegations which he made to the 

Equal Employment Opportunity Commission in which 

he alleged that the Company terminated his employment in violation of the Age Discrimination and 

Employment Act of 1967 and Title VII of the Civil 

Rights Act of 1964. 

3. By signing this Agreement and a General Release 

which is included as part of this Agreement, 

Mr. Campbell acknowledges and agrees that he is 

giving up any right which he may have under federal 

law or the laws of any state to file charges, 

complaints, or lawsuits or to assert any claim 

against the Company or any of its employees with any 

court or administrative agency concerning any events 

which took place prior to the signing of this Agreement 

and the General Release by Mr. Campbell. 

4. Mr. Campbell acknowledges and agrees that by 

signing this Agreement and the General Release that 

he is giving up any right which he may have had to 

be reinstated to employment with the Company. 

5. Upon Mr. Campbell's signing of this Settlement 

Agreement and the General Release, the Company will 

issue its check to Mr. Campbell in an amount equal to 

Seven Thousand Dollars ($7,000.00) less appropriate 

federal withholding taxes. 

6. This Agreement is in full and final settlement of 

any and all claims which Mr. Campbell may have against 

the Company, its directors, its officers, agents, 

representatives and employees and against any parent, 

subsidiary or affiliate of the Company, and the directors, 

agents, employees, representatives and/or principals 

thereof. 

2291 
7. Mr. Campbell by signing this Agreement and 

the General Release acknowledges that he has been 

afforded an opportunity to review this Agreement 

and the General Release with attorneys of his 

choice, that he has read ·and understands this 

Agreement and the General Release, and that he has 

signed this Agreement and General Release freely 

and voluntarily. 

8. Nothing contained in this Agreement, nor the 

fact that the Company has signed this Agreement shall 

be considered an admission of any wrongdoing by the 

Company. 

Discussion 

The parties are in agreement that the proposed settlement 

disposition of this matter is in their interest, and after 

review and consideration of all of the pleadings filed in 

this matter, including the terms of the settlement, I 

conclude that the settlement disposition is a reasonable 

and fair resolution of the dispute and that approval of same 

is in the public interest. 

ORDER 

In view of the foregoing, the proposed settlen-,ent is 

APPROVED, and upon full compliance and completion with the 

terms thereof as set forth above, this matter is DISMISSED. 

~~t!~ Administrative Law Judge 

Distribution: 

Frederick W. Moncrief and Heidi Weintraub, Esqs., U.S. 

Department of Labor, Office of the Solicitor, 4015 Wilson 

Blvd., Arlington, VA 22203 (Certified Mail) 

R. Louis Crossley, Jr., Esq., 530 Gay St., S.W., P.O. Box 

1792, Knoxville, TN 37902 (Certified Mail) 

/slk 

2292 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HERMAN WHALING, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 83-238-D 

v. 

Keystone No. 1 Mine 

EASTERN ASSOCIATED COAL 

CORP., 

Respondent 

DECISION 

Appearances: William B. Talty, Esq., Tazewell, Virginia 

for the Complainant; 

R. Henry Moore, Esq., Rose, Schmidt, Dixon 

& Hasley, Pittsburgh, Pennsylvania and 

Sally S. Rock, Esq., Pittsburgh, Pennsylvania 

for Respondent. 

Before: Judge Fauver 

In his complaint, filed with the Commission on August 

11, 1983, Complainant alleged that he was discriminated 

against by Respondent due to the fact that he ~as a "203-B 

letter carrier," i.e., that he had been diagnosed as having 

coal workers' pneilmoconiosis, in violation of Section lOS(c) 

(1) of the Federal Mine Safety and Health Act of 1977 .("1977 

Act"), 30 u.s.c. § 815 (c) (1). Respondent has moved to dismiss 

the complaint on the basis that the Commission and the 

Administrative Law Judge have no jurisdiction over this 

matter. 

A hearing was held on the motion to dismiss on 

September 11, 1984. At that time an oral decision was 

rendered which may be summarized as set forth herein. 

The Motion to Dismiss is grounded on the proposition 

that discrimination complaints of a miner, based on 

allegations that the miner suffers from pneumoconiosis, 

are required, under the statutes and case law of the 

Commission, to be brought under section 428 of the Black 

Lung Benefits Act, 30 u.s.c. § 938, rather than under the 

general anti-discrimination provisions of Section lOS(c) of 

the 1977 Act. 

2293 
The Commission ruled in Matala v. Consolidation Coal 

Company, 1 FMSHRC 1 (1979), that the discrimination complaint 

of a miner who suffers from pneumqconiosis should be resolved 

under the specific statutory provisions set forth in section 

428 of the Black Lung Benefits Act, rather than the more 

general provisions of section llO(b) of the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. § 820(b). 

While the anti-discrimination provisions of section 

lOS(c) of the i977 Act replace and enhance the provisions of 

section llO(b) or the 1969 Act, giving broader coverage, the 

rationale for having discrimination complaints, based on 

allegations that a miner suffers from pneumoconiosis, resolved 

under section 428, has continuing validity. 

In a recent decision by a judge of this Commission, Goff 

v. Youghiogheny and Ohio Coal Company, Docket LAKE 84-86-D~~ 

(August 24, 1984), Judge Melick followed the holding in Matala 

in dismissing a section lOS(c) discrimination complaint filed 

before the Commission. 

An examination of Part 90 of 30 C.F.R., the statutory 

scheme of the 1969 Act, the 1977 amendments thereto and the 

Black Lung Benefits Amendment, makes it clear that the 

Complaint, based on Complainant's status as a section 203(b) 

letter carrier, is properly a matter of jurisdiction for the 

Department of Labor, and not the Commission. For this reason, 

the Complaint should be dismissed. 

In view of the 90-day limitation period set out in 

section 428 and concern for the equities with respect to the 

operation of that statutory limitation period, inquiry was 

made of Respondent's counsel on that specific point. Respondent 

has agreed and acknowledged that the 90-day statutory period 

for filing complaints set out in section 428 for discrimination 

matters brought in the Department of Labor is tolled from the 

time that Mr. Whaling filed his Complaint with MSHA, June 15, 

1983, until the date of this Decision and Order. 

ORDER 

WHEREFORE IT IS ORDERED that the Motion to Dismiss is 

GRANTED and this proceeding is DISMISSED. 

Distribution: 

(/)JL~ 1--4CM v~ William Fauver 

Administrative Law Judge 

2294 
William B. Talty, Esq., 106 East· Main Street, P.O. Box 581, 

Tazewell, VA 24651 (Certified Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 

Oliver Building, Pittsburgh, PA 15222 (Certified Mail) 

Sally S. Rock, Esq., Associate General Counsel, Eastern 

Assq~iated Coal Corp., One PPG Place, Pittsburgh, PA 

152i2 (Certified Mail) 

/kg 

2295 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 2 ;·11984 

JEFFREY L. FANKHAUSER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

GEX HARDY, INC., 

Respondent 

Docket No. LAKE 84-87-D 

MSHA Case No. VINC CD 84-06 

Holmes Strip Mine 

ORDER OF REFERENCE 

As the Commission is undoubtedly aware, a large percentage 

of the discrimination cases presently being filed are by miners 

acting pro se without legal representation of any kind. 

Inasmuch as the Commission has never addressed the role of 

the trial judge in a discrimination proceeding where the miner 

is without legal representation, it is ORDERED that the captioned 

matter be, and hereby is, REFERRED to the Commission for its 

consideration and issuance of an order delienating the proper 

role of the trial judge in trying a pro se discrimination case. 

For example: 

1. Is it the responsibility of the trial judge 

to require such discovery on behalf of the 

pro se miner as he deems necessary to a full 

and true disclosure of the facts? 

2. Is it the responsibility of the trial judge 

to conduct the direct and cross-examination 

of witnesses where the miner is unable or 

incapable of doing so? 

Joseph B. Kennedy 

Administrative Law 

2296 
Distribution: 

Mr. Jeffrey L. Fankhauser, Box 23, Dundee, OH 44624 

(Certified _.Mail) 

Wm. Michael Hanna, Esq., Squire, Sanders & Dampsey, Cousellors 

at Law, 1800 Huntington Building, Cleveland, OH 44145 

(Certified Mail) 

/ejp 

2297 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFIGE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE SEP 2 8 1984 FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

STERLING ENERGY, INC., 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket Nos. KENT 82-109 

KENT 82-121 

KENT 82-147 

A.C. Nos. 15-11652-03019 

15-11652-03020 

15-11652-03501 

Ely Hollow Deep Mine 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Respondent failed to appear at the hearing. 

Before: Judge Fauver 

On February 10, 1984, a Decision Approving Settlement in 

Part and Ordering More Information was entered. In response, 

the Secretary of Labor submitted further information as to 

the parts of the proposed settlement that were not approved. 

After considering the additional information, I determined 

that the cases should go to hearing. Pursuant to notice of 

hearing, the cases were called for hearing at Knoxville, 

Tennessee on July 24, 1984. Counsel for the Secretary appeared, 

with his witnesses and documentary evidence. Respondent did 

not appear at the hearing. Accordingly, a default hearing was 

held. After considering the evidence and the statutory criteria 

for assessment of civil penalties, I entered a decision from 

the bench, assessing Respondent the following civil penalties: 

Citation 

988430 

988431 

988432 

988433 

988434 

988435 

1205543 

1205544 

1205545 

1205546 

2298 

Civil Penalty 

$56 

56 

500 

200 

500 

32 

32 

160 

98 

56 
1255547 

1205548 

1205549 

1205551 

1:205552 

1205553 

1205554 

1205559 

988585 

9934970 

1205550 

9936078 

1205571 

1205572 

1205573 

1205574 

1206199 

1206200 

1209241 

1209242 

1209243 

2005001 

2005002 

2005003 

2005005 

240 

48 

180 

210 

32 

32 

32 

240 

60 

36 

200 

50 

200 

200 

50 

85 

50 

50 

300 

200 

50 

250 

75 

75 

50 

$4685.00 

This Decision incorporates the findings in the bench 

decision for each citation and the findings in the Decision 

entered on February 10, 1984. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above civil penalties, in the total amount of $4685.00, 

within 30 days from this date. 

Distribution: 

I. ) J.t,.,.,,., 1-Mil." V\... 

~i.11iam Fauver 

Administrative Law Judge 

Carole M. Fernandez, Esq., and Thomas A. Grooms, Esq., 

Darryl Stewart, Esq., U.S. D~partment of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Mr. Ralph Ball, President, Sterling Energy, Inc., P.O. Box 

1528, LaFollette, TN 37766 (Certified Mail) 

/kg 

2299 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 8 1984 

LAYNE HAMILTON, 

·complainant 

DISCRIMINATION PROCEEDING 

v. 

STONE MOUNTAIN TRUCKING 

COMP ANY I INC. I 

Respondent 

Docket No. VA 83-46-D 

MSHA Case No. NORT CD-83-7 

DEFAULT DECISION 

Before: Judge Steffey 

A prehearing order was issued on July 2, 1984, in the 

above-entitled proceeding. That order thoroughly explained 

to complainant the procedures which are used to handle discrimination cases which are filed with the Commission after 

a complainant has received a letter from the Mine Safety and 

Health Administration advising him that its investigation of 

the complaint filed with that agency has resulted in a finding that no violation of section 105(c) (1) of the Federal 

Mine Safety and Health Act of 1977 ~as occurred. The prehearing order provided that complainant would be given until 

August 1, 1984, to advise me as to whether he had obtained an 

attorney to represent him in this proceeding. The order explained that complainant is not required to obtain an attorney 

to represent him, but that if he decided to do so, that decision would have to be made by August 1, 1984, so that the 

attorney would have time to prepare for a hearing to be held 

in October or November 1984. 

Additionally, counsel for respondent served complainant 

on June 5, 1984, with some interrogatories which complainant 

has failed to answer. The prehearing order of July 2 explained discovery procedures to complainant and stated that 

he would be required to answer the questions asked by respondent's counsel by August 15, 1984, regardless of whether he 

had decided to obtain an attorney to represent him in this 

proceeding. Counsel for respondent filed on July 2, 1984, a 

motion requesting that I issue a show-cause order to complainant requiring him to show cause, pursuant to 29 C.F.R. § 2700. 

63(a), why his complaint should not be dismissed for failure 

to reply to respondent's interrogatories. I explained on 

page 6 of the prehearing order that a show-cause order would 

be issued if complainant failed to answer the interrogatories 

and that the complaint would be dismissed if complainant 

failed to provide a satisfactory reply to the show-cause order. 

2300 
The dates of August 1 and August 15, 1984, passed without 

my receiving a reply from complainant as to whether he had obtained an attorney to represent him and without his submitting 

answers td respondent's interrogatories. Therefore, on September 5, 1984, a show-cause order was issued requiring complainant to explain in writing by September 24, 1984, why his complaint should not be dismissed for failure to provide the information requested in the prehearing order issued July 2, 

1984. The return receipt in the official file shows that complainant received the show-cause order on September 11, 1984, 

but I have received no reply to the show-cause order. Consequently, pursuant to section 2700.63(a) of the Commission's 

rules of procedure, I find respondent to be in default and the 

complaint in this proceeding will be dismissed as hereinafter 

ordered. 

Respondent's counsel filed on September 6, 1984, a motion 

requesting that the complaint be dismissed for failure of complainant to answer respondent's interrogatories by August 15, 

1984, as required by the prehearing order of July 2, 1984. Inasmuch as the motion to dismiss is based upon the default provisions of section 2700.63(a), my finding of complainant in 

default arid dismissing the complaint under section 2700.63(a) 

may be interpreted as granting respondent's motion to dismiss, 

as hereinafter provided. 

WHEREFORE, it is ordered: 

(A) The complaint filed in Docket No. VA 83-46-D is dismissed for the reason that complainant has been found to be in 

default for failure to reply to the show-cause order issued 

September 5, 1984, in this proceeding. 

(B) Respondent's motion to dismiss filed September 6, 

1984, is granted and all further proceedings in Docket No. 

VA 83-46-D are terminated. 

Richard ~e.~~ C. Steffey ~ Administrative Law Judge 

Distribution: 

Mr. Layne Hamilton, 157 Second Avenue West, Big Stone Gap, VA 

24219 (Certified Mail) 

Mark M. Lawson, Esq., White, Elliott & Bundy, Suite 300, Dominion National Bank Building, 601 State Street, P. O. Box 

8400, Bristol, VA 24203-8400 (Certified Mail) 

yh 2-301 •u.s. GOVERNMENT PRINTING OFFICE: 461-256/13607