DECEMBER 1991 

NO COMMISSION DECISIONS ISSUED 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-02-91 

12-04-91 

12-04-91 

12-06-91 

12-06-91 

12-09-91 

12-12-91 

12-13-91 

12-19-91 

12-19-91 

12-20-91 

12-20-91 

12-23-91 

12-24-91 

12-26-91 

Michael D. Burton v. Arch of Kentucky, Inc. 

Sec. Labor for Charles Scott Howard, II v. 

South East Coal Company, Inc. 

Peabody Coal Company 

Zeigler Coal Company 

Mustang Fuels Corporation 

Kerr-McGee Coal Corporation 

Conco-Western Stone Company 

L. Kenneth Teel, President of California 

Lightweight Pumice, Inc. 

Old Ben Coal Company 

Sec. Labor for John Van Allen v. IMC 

Fertilizer, Inc. 

UMWA for Dennis M. Blouir v. U.S. Steel 

Mining Company 

Nicholas Ramirez v. Joshua Industries, Inc. 

Danaco Exploration International 

Clifford Meek v. Essroc Corporation 

The Pittsburg & Midway Coal Mining Co. 

KENT 91-223-D Pg. 1853 

KENT 91-1352-D Pg. 1881 

LAKE 91-134 Pg. 1883 

LAKE 91-485 Pg. 1884 

KENT 91-100 Pg. 1888 

WEST 91-84-R Pg. 1889 

LAKE 91-41-M Pg. 1908 

WEST 90-284-M Pg. 1915 

LAKE 91-15 Pg. 1930 

SE 91-543-DM Pg. 1951 

PENN 91-1395-D Pg. 1960 

WEVA 91-1618-D Pg. 1961 

CENT 90-173-M Pg. 1962 

LAKE 90-132-DM Pg. 1970 

CENT 91-106 Pg. 1982 

DECEMBER 1991 

There were no cases filed in December where review was either granted 

or denied. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 1991 

MICHAEL D. BURTON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 91-223-D 

ARCH OF KENTUCKY 1 

INCORPORATED, 

Respondent 

BARB CD 90-31 

Mine No. 37 

Appearances: 

Before: 

DECISION 

Susan Oglebay, Esq., UMWA District #28, 

Castlewood, Virginia, for the Complainant; 

Marco M. Rajkovich, Esq.u Wyatt, Tarrant & Combs, 

Lexington, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

the complainant Michael D. Burton against the respondent pursuant 

to section 105(c) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. 815(c). The complainant filed his initial 

complaint with the Department of Labor, Mine Safety and Health 

Administration (MSHA), and after completion of an investigation, 

Mr. Burton was advised that the information received did not 

establish any violation of section 105(c) of the Act. Thereafter, Mr. Burton filed a complaint with the Commission, and a 

hearing was held in Big Stone Gap, Virginia. MSHA filed a 

posthearing brief, but the complaii'rant did not. However, I have 

considered all of the oral arguments made in the course of the 

hearing. 

In his MSHA complaint of July 24, 1990, Mr. Burton stated 

that at the start of the second shift on July 5, 1990, a routine 

check of the mantrip used to transport miners underground 

disclosed an inoperable sander. He alleged that shift foreman 

Scott Johnson instructed the crew to walk to the underground 

working section and refused their request for self-contained 

self-rescuers (SCSR) and union representation. Mr. Burton stated 

that Mr. Johnson "forced" the crew to walk the track entry 

towards the .longwall section which was approximately 3 to 5 miles 

away without SCSR's. Mr. Burton further alleged that Mr. Johnson 

sent him home on July 13, 1990, without pay, because he had 

previously complained about the defective mantrip sanders and 

unsafe practices in sending the crew underground without SCSR's, 

1853 
and that he was charged with certain unexcused absences because 

of his safety complaint to Mr. Johnson. 

In his Commission complaint, Mr. Burton alleged that 

following the initial filing of his discrimination complaint, the 

respondent continued to harass him and discriminate against him 

because he invoked his individual safety rights pursuant to the 

Act. Although Mr. Burton did not specify the alleged acts of 

additional harassment and discrimination, in the course of the 

hearing he provided testimony concerning a visit to the dentist 

on July 11, 1990, which the respondent initially treated as an 

unexcused absence charged against his attendance record. He also 

provided testimony concerning his placement in the respondent 1 s 

chronic excessive absenteeism program sometime in late July, 

1990, and a counseling session o.f August 1, 1990, concerning his 

work attendance. Mr. Burton believed that all of these incidents 

resulted from his July 5, 1990, complaint to foreman Johnson 

about the defective mantrip sanders and the refusal by 

Mr. Johnson to provide Mr. Burton and his crew with SCSR 1 s after 

ordering them to walk to the working section. That incident 

triggered a union safety grievance pursuant to section 103(g) of 

the Act, with notification to MSHA, and a subsequently issued 

violation by an MSHA inspector for an alleged failure by the 

respondent to comply with its SCSR storage plano 

The relief sought by Mr. Burton includes payment of backpay 

with interest for the July 13, 1990·, day that he was sent home by 

foreman Johnson, expungement from his personnel record of any 

record of any alleged unexcused absences, including the July 13, 

1990, incident, the removal of Mr. Johnson from his position as 

second shift foreman, and a request that the respondent cease and 

desist from taking any further discriminatory actions against him 

for bringing unsafe conditions to its attention. 

The respondent denied any acts of discrimination against 

Mr. Burton as a result of the July 5, 1990, mantrip and SCSR 

incident, and it maintained that any actions taken against 

Mr. Burton were taken as a business.~ justification. 

Issues 

The principal issue presented in this case is whether or not 

the incidents referred to by Mr. Burton following his initial 

encounter with shift foreman Johnson on July 5, 1990, constituted 

prohibited acts of discrimination, harassment, or retaliation 

because of that event. Additional issues raised by the parties 

are identified and disposed of in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

1854 
2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

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

( 2) and ( 3) • 

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

Complainant's Testimony and Evidence 

Michael Burton, the complainant, testified that he has been 

employed by the respondent for 14 years, and he could not recall 

having any prior work difficulties or disciplinary actions. He 

stated that he was a longwall shear operator, and that on July 5v 

1990, he was the designated mantrip driver responsible for 

inspecting the mantrip before transporting the crew to the 

working place. After finding that the sanders were inoperablep 

he proceeded to clean them and he informed the second shift 

foreman, Scott Johnson, about the situation. Mr. Johnson pointed 

to two other mantrips and instructed him to use them. However, 

one mantrip had inoperable brakes, and while he was checking the 

sanders on the third mantrip, Mr. Johnson "got red faced and mad 

and said walk in" (Tr. 5-8). Mr. Burton stated that the working 

section was three miles away and when he asked for a selfcontained rescuer before starting to walkp Mr. Johnson said nnon 

(Tr. 9). Mr. Burton stated that he had previously been exposed 

to smoke during a motor fire and wanted to take a self-rescuer 

with him. A certain number of self-rescuers are required to be 

on each mantrip which the crew usually rides to the section. 

However, since they were walking, he wanted to take one with him 

(Tr. 10). 

Mr. Burton stated that Mr. Johnson informed him that he did 

not need a self-rescuer because the mine was on a storage plan 

which required that self-rescuers be located at several strategic 

underground locations. Mr. Johnson also informed him that after 

the sanders were repaired, the mantrip would come in and pick up 

the crew at the point where they had walked to (Tr. 10-12). 

Mr. Burton stated that 14 men were walking into the section and 

he later learned that four self-r.~scuers were kept at each head 

piece location. He believed that there were eight head pieces 

located along the three miles into the section (Tr. 13). 

Mr. Burton stated that he and the crew began walking at 

2:45 p.m., and that the mantrip picked them up at approximately 

4:00 p.m. (Tr. 13). 

Mr. Burton stated that he never refused to walk to the 

section, and that other crew members also asked for selfrescuers. He requested to speak with a union safety 

committeeman, but Mr. Johnson denied his request. A few days 

later, union safety representative Bob Clay found out about the 

matter and contacted an MSHA inspector who came to the mine for 

an inquiry in response to a verbal section 104(g) complaint by 

1855 
Mr. Clay. The inspector interviewed some of the miners, 

including Mr. Burton. As a result of the inquiry, a section 

104(d) (1) citation was issued for an alleged violation of 

mandatory standard section 75.1101-23, and the parties stipulated 

that the citation was subsequently modified to a section 104(a) 

citation (Exhibit AIJ-1; Tr. 18-20). 

on cross-examination, Mr. Burton confirmed that he is 

provided with a WO filter type rescuer and an SCSR when he is 

underground and that he is trained to use them. He stated that 

prior to the adoption of the SCSR storage plan, he was given an 

SCSR and was responsible for it at all times while underground. 

After the adoption of the plan, he no longer was responsible for 

the SCSR and they were stored on the mantrips, other mobile 

equipment, and at various locations throughout the mine, He 

further confirmed that he was trained about the location and use 

of escapeways and evacuation routes, and that company policy 

required him to check the mantrips, including the sanders, to see 

that they are operable (Tr, 45-49). 

Mr. Burton confirmed that three supervisors and a longwall 

engineer were also scheduled to ride the mantrip with the crew to 

the section on July 5, 1990. After beginning work on the sanders, 

and performing other duties assigned by foreman Johnson while 

awaiting the repairs to the mantrips, Mr. Johnson then told the 

crew, including the three foreman and the longwall engineer to 

start walking. Mr. Burton confirmed that Mr. Johnson told him 

that he did not need to take an SCSR with him because there was a 

storage plan in effect underground. Mr. Burton confirmed that he 

did not refuse to walk, and did not invoke his individual safety 

rights, or refuse to continue walking when he encountered 

slippery conditions (Tr. 49-53). 

The dental visit of July 11, 1990 

Mr. Burton stated that on July 11, 1990, he was experiencing 

teeth and gum problems and did not go to wqrk. He visited his 

dentist that day, and upon his return to work the next day he 

submitted a doctor's excuse pursuant to standard company 

procedure (Exhibit C-1). He gave the excuse to his immediate 

foreman Hubert Boggs, and mine clerk Jim Waldron informed him 

(Burton) that it contained insufficient information (Tr. 23). 

Mr. Burton stated that he had turned in similar doctor 9 s slips in 

the past and never had any problems with them, but that 

Mr. Waldron told him to get another one within 24-hours and that 

he wanted to know about his specific problem which required a 

visit to the dentist. Mr. Burton then obtained another dentist 

slip (Exhibit C-2), but Mr. Waldron would not accept it and told 

him that it was late but that he would let mine superintendent 

Dan Strickle look at it and determine whether to excuse the 

absence (Tr. 24-25). 

1856 
Mr. Burton stated that his dentist informed him that the 

respondent contacted him about his condition, but that no 

decision was made as to whether the dental visit was considered 

excused or unexcused. Mr. Burton stated that it was still 

unexcused until a few months later after he filed his 

discrimination complaint. At that time, he reviewed his work 

records and found that his absence of July 11, 1990, had been 

changed to an excused doctor's visit (Tr. 26). He confirmed that 

he is not paid for any doctor's visit, regardless of whether it 

is excused or unexcused (Tr. 28). However, an accumulation of 

unexcused absences may lead to a suspension (Tr. 29). He stated 

that no one ever informed him that his unexcused absence had been 

changed to an excused absence (Tr. 29). 

on cross-examination, Mr. Burton acknowledged that he knew 

about the information which had to be included in a doctor's 

excuse slip in order to establish an excused absence, and he 

conceded that the first slip which he obtained did not contain 

all of the required information. He believed that the second 

slip was acceptable, but that the respondent would not accept it 

and considered it as an unexcused absence. He confirmed that if 

he were to work without an excuse, management would not know 

about the problem requiring him to be off and would consider his 

absence as unexcused. However, if he subsequently brings in an 

excuse, the absence would be excusedu as it was in this caseu 

albeit at a later date (Tr. 71). 

The Grievance Meeting of July 13, 1990 

Mr. Burton testified that the safety grievance meeting 

concerning the SCSR incident of July 5, 1990, was scheduled for 

12:00 noon. He expected the meeting to last for an hour and he 

believed he had adequate time to go home and return before his 

work shift began at 2:15 p.m. He stated that he needed to go 

home to eat lunch, and to obtain his work clothes and medicine. 

When he realized that he would not have time to go home before 

his shift began he spoke with foreman Scott Johnson at approxiapproximately 1:00 p.m., and told him that-he did not have his 

work clothes and had not eaten.·· Mr. Johnson did not reply and 

"never said no or yes" (Tr. 31). The grievance meeting ended at 

2:42 p.m., and Mr. Burton stated that he went straight home and 

returned to the mine as quickly as possible, arriving at 

3 : 3 7 p • m. (Tr • 3 2 ) • 

Mr. Burton stated that when he returned to the mine the crew 

was "at the mantrip getting ready to get on11 • Mr. Johnson was 

standing at the ramp and said nothing to him as he walked by to 

go and change into his work clothes. After changing into his 

work clothes ten minutes later, Mr. Burton stated that "I asked 

him what he wanted me to take in or if the other men had went in 

or not. By then I didn't know" (Tr. 33). Mr. Johnson then told 

him that 11 You 1 re too late. I can't let you go to work" and sent 

1857 
him home (Tr. 33). Mr. Burton stated that another miner, Bobby 

Rogers, was permitted to go home and return to work, but he did 

not know when Mr. Rogers may have returned to work. Mr. Burton 

did not believe that there were any problems or inconvenience 

with allowing him to go to work and he stated that "other people 

has went in before that have been late" CT=. 32, 33). Mr. Burton 

stated that the mantrip had not left when he returned at 

3:37 p.m., but he was not sure whether it was still there 

10 minutes later after he changed clothes (Tr. 34). He also 

confirmed that he was not paid for that day and that this is the 

basis for his back pay claim (Tr. 35). 

On cross-examination, Mr. Burton acknowledged that some of 

the miners who attended the grievance meeting came to the meeting 

prepared to go to work after it was over, and that they did soo 

Although no one from management gave him permission to go home, 

he casually mentioned to Mr. Johnson his need to go home but 

Mr. Johnson "never did reply back" and did not tell him to go 

(Tr. 74). Mr. Burton then left the mine and went home, and upon 

his return Mr. Johnson told him that he was tardy and sent him 

home. Mr. Burton was charged with an unexcused absence and lost 

eight hours pay (Tr. 76). 

Mr. Burton stated that at 1:00 p.m., the grievance meeting 

was still in session, but he could not recall whether he had 

already testified. Assuming that he had, he believed he could 

have gone home at that time (Tr. 76). He confirmed that he lived 

seven to eight miles from the mine, and he explained that he did 

not take his work clothes or equipment with him because "I was 

late that day. I can't remember if I had to go get my allergy 

shot that day and I had my wife's vehicle •.• Something came up 

that day and I was running to get to the meeting that day at 

12:00 11 (Tr. 82). When the grievance concluded at 2:43 p.m., he 

told Mr. Johnson that he had to go home but that Mr. Johnson "was 

kind of mad at the end of the meeting and he never would talk to 

me" (Tr. 8 3 ) • 

Respondent's chronic excessive abse~teeism program 

Mr. Burton stated that a week or two after July 13, 1990, he 

was on vacation, and that upon his return to work mine clerk 

Waldron informed him that he was being placed under the 

respondent's new chronic absenteeism program because of his 

July 11 and July 13, 1990, absences when he visited the dentist 

antl when he was sent home after the grievance meeting. Mine 

superintendent Dan Stickle informed him that his vacation time 

and the two absences which were counted against him placed him in 

a "higher bracket" pursuant to the leave policy (Tr. 37). 

Mr. Burton confirmed that he was subsequently removed from the 

chronic excessive absenteeism list two months after he filed his 

complaint in this matter (Tr. 39). A copy of the notification 

letter removing him is dated October 29, 1990 (Exhibit C-3). 

1858 
on cross-examination, Mr. Burton stated that he was aware of 

the respondent's tardiness policy, and although he recalled 

hearing about such a policy notice (Exhibit R-4), he could not 

recall seeing it posted on the mine bulletin board (Tr. 58). 

Mr. Burton "guessed" that he knew that if he was late for work it 

would be considered as tardiness, and he would be subject to an 

unexcused absence. He stated that he was aware of others being 

late for work, who were allowed to go to work, and that "I know 

they had some kind of a tardiness program, but I wasn't aware of 

how it works" {Tr. 60-61). He admitted that he knew that if he 

were sent home after reporting to work late that his absence 

would be considered unexcused (Tr. 62)o 

In response to questions concerning the respondent's chronic 

excessive absenteeism policy (Exhibit R-5)v Mro Burton stated 

that he was aware of it "When I got put in it 19 (Tro 63)o When 

asked if he were aware of it prior to that timev he replied nir 

heard talk about itn v and that it 11 probably11 and 11might have 

been" discussed by management with the employees! but that he did 

not know because he could not remember (Tr. 63)o 

Counseling session of August 1. 1990 

Mro Burton confirmed that he had a counseiing session under 

the excessive absenteeism program on August 1 9 1990r and that he 

had a union representative with him (Exhibit R-6)0 He denied any 

knowledge that ten other miners who were not involved with the 

July 5, 1990, SCSR incident also received counseling at or about 

the same time (Tr. 66-67). Mr. Burton could not remember being 

told at the counseling meeting that it only pertained to the 

months of April, May, and June, 1990, and that July was not 

included. He confirmed that he was informed that his attendance 

had to at least meet the mine average, that quarterly attendance 

reviews would be made, and that his attendance would be monitored 

for the next three months (Tr. 69). 

Mr. Burton confirmed that he refused to sign the counseling 

form because of union disagreement .. cwith the policy, and his 

disagreement with the seven days of absences that he was charged 

with in April, May, and June. He believed he was only absent 

five days and not seven. He explained that he was off sick for 

five days, that he attended a hydraulic class on June 29, and 

while he was paid for that day, it was considered a leave day. 

The remaining day was a contract "floating day" off with pay 

which he had turned in ahead of time, and it was considered an 

excused absence (Tr. 91). Mr. Burton stated that he spoke with 

the mine clerk and mine superintendent Stickle about the matter 

and that "it was cleared up later after August" {Tr. 96). 

Robert Clay, Chairman of the mine safety committee, 

testified that the SCSR incident of July 5, 1990, came to his 

attention later that evening, or possibly the next day. Since he 

1859 
determined that there was a violation he was asked by the crew to 

initiate a safety grievance under the union contract, and he did 

so. MSHA was notified and called in and provided with names of 

witnesses, including Mr. Burton. Mr. Clay stated that he and 

Dickey Estep, the respondent's safety director, estimated that 

the grievance proceeding would last about an hour and it came 

"right in the middle of a longwall move, a crucial time at the 

mine" (Tr. 101-102). 

Mr. Clay stated that the meeting lasted considerably 

longer, and that sometime after 1:00 p.m., he indicated to 

foreman Scott Johnson that the meeting may go beyond the 

2:15 p.m. start of the work shift and he asked Mr. Johnson if he 

wanted the men to go to work, and Mr. Johnson "indicated to me 

yes" and that "he wanted them to go to work" because people were 

needed for the longwall move. Mr. Clay stated that 11my 

understanding was that when the grievance got through that he 

would like for the people to go to work because he needed people 

regardless of time" (Tr. 103-105) . 

Mr. Clay stated that during one of the grievance breaks he 

made Mr. Johnson aware that several of the men needed to go home 

and that Mr. Johnson "indicated to me that he didn't have a 

problem with that". Mr. Clay stated that Greg Adams, Bobby 

Rogers, and Mr. Burton went home and returned to go to work and 

that only Mr. Burton was sent back home and not allowed to work 

(Tr. 106). Mr. Clay further confirmed that he specifically 

identified the three individuals who wanted to go home to 

Mr. Johnson, including Mr. Burton, and that Mr. Johnson indicated 

that it was "okay" for them to go home after the grievance 

meeting and then come back to work (Tr. 108). 

Mr. Clay explained his understanding of the respondent's 

absenteeism policy and he confirmed that a copy is posted on the 

bulletin board. He could not remember whether any tardiness 

policy was posted at the time Mr. Burton arrived for work after 

the grievance meeting, and he confirmed that it is up to the 

discretion of the work supervisor as to whether a miner who 

arrives late for work will be allowed to go to work (Tr. 113). 

On cross-examination, Mr. Clay stated that the respondent's 

chronic excessive absenteeism policy has been upheld through the 

grievance procedure, and that the tardiness policy is in effect 

at the mine. In response to questions concerning how Mr. Johnson 

indicated that Mr. Burton, Mr. Rogers and Mr. Adams could go home 

after the grievance meeting and then return to work, Mr. Clay 

stated as follows {Tr. 118-119): 

Q. (Mr. Rajkovich continues.) How did he 

indicate that? You said he indicated he 

didn't have a problem. What did he say? 

1860 
A. He said, "Yes. We need all the people we can get. 11 

Q. Did he give them permission to go home? 

A. I took it from that that was permission for 

those people to go home and get their dinner 

buckets and return to work. 

Q. Did he specifically give them permission to 

go home and leave the mine premises? 

A. He told me. 

Q. What did he tell you? 

A. He told me, he said, "We need all the people 

that we can get. 11 

Q. Did he tell you that he gave his permission 

for those people to go home? 

A. I took that as being permission. 

Q. But did he say that? 

A. I took that as being permission. 

Respondent's Testimony and Evidence 

Joe Richard Estep, Safety manager, explained the 

respondent's SCSR storage plan, and he confirmed that it was in 

effect on July 5, 1990. He testified about the people walking 

into the mine that day for a distance of approximately 4,000 feet 

before they were picked up, and he believed the route of travel 

was safe since he traveled it and inspected the longwall face and 

working section on July 4 and 5, 1990, and he saw no hazards or 

dangers (Tr. 124-131). 

On cross-examination, Mr. Estep confirmed that he was not 

involved with the matters concerning Mr. Burton's leave and that 

he was not Mr. Burton's supervisor (Tr. 137). 

Kenneth McCoy, superintendent of High Splint #1 Mine, 

testified that he was superintendent of operations at the No. 37 

Mine on July 5, 1990. With respect to Mr. Burton's absence to 

visit his dentist on July 11, 1990, Mr. McCoy explained that 

management had prior to that time received many doctor's slips 

from employees which simply stated that they saw a doctor but did 

not explain the reasons for the visit or whether or not the 

employee was able to work. As a result of this, a policy was 

instituted requiring the doctor's slip to state that an employee 

was under a doctor's care and was unable to work, and an example 

1861 
of the type of slip required was posted and discussed at meetings 

with the employees. In Mr. Burton's case, the initial slip 

simply stated that he had gone to the dentist, but after he 

brought in an acceptable slip, his absence was excused (Tr. 139-

140) . 

Mr~ McCoy stated that he did not participate in the July 13, 

1990, grievance meeting, but he was present on the surface at 

approximately 2:30 p.m. when it ended. He stated that 

Mr. Johnson came to his office and told him that Mr. Burton was 

leaving because he had to take his wife's car home and he had to 

go eat. Mr. Johnson asked Mr. McCoy "what do you want me to 

do?", and Mr. McCoy stated that he instructed Mr. Johnson to send 

Mr. Burton home (Tr. 142). Mr. McCoy explained further as 

follows at (Tr. 143-144): 

THE WITNESS: As I recall, Mike Burton said in the 

meeting, perhaps, I don't know, to Scott Johnson, I 0m 

going home to take my wife 1 s car home and get something 

to eat. 

THE COURT: Mr. Johnson told you that? 

THE WITNESS~ No. See, Scott worked for I was 

superintendent of operations and he was the second 

shift mine foreman. He come to me for direction. He 

said, what do I do? He's going to come back in an hour 

or -- he's going to come back. When he comes back what 

do I tell him? I said, if you didn't give him 

permission to leave, when he comes back you send him 

home. 

THE COURT: All right. 

THE WITNESS: I made that decision. 

* * * * * """'-

Q. (Mr. Rajkovich continues.) And then 

Mr. McCoy, when he did come back, did you 

make that decision then not to allow him to 

go to work? 

A. Well, I didn't see him. I had already made 

the decision. When Scott came and asked me 

what do I do, I said you send him home. If 

you did not give him permission to leave, 

when he shows up you send him home. 

Q. Did Scott Johnson ever tell you if he gave 

him permission? 

1862 

* * 
A. No. I asked him that. He said he did not 

give him permission and that Mike just simply 

stated, I'm leaving. I have to take my 

wife's car home. I have to go get something 

to eat. I'll be back later. 

Mr. McCoy stated that his decision to send Mr. Burton home 

was based on the company's tardiness policy which provides that 

an employee will be sent home and charged with an unexcused 

absence if he reports for work late without prior approval or if 

he asked for approval and had no legitimate reason to be late. 

To do otherwise, he stated, "you would have your entire work 

force coming to work when they wanted" (Tro 144)0 Mr. McCoy 

identified Mro Larry Johnson as an individual who he suspended 

with intent to discharge for violating the tardiness policy. 

Mr. McCoy denied that his decision to send Mro Burton home and to 

treat it as an unexcused absence was motivated at all by 

Mr. Burton 1 s section 105(c) complaint. He also denied that his 

decision was motivated by the July 5, 1990, SCSR incident 

(Tr. 145). Mr. McCoy stated that even if Mr. Burton had a clean 

record, he would still have given him an unexcused absence for 

showing up late without prior approval. 

On cross-examinationv Mr. McCoy denied that Mr. Johnson 

informed him that two other employees were also going home after 

the grievance meeting of July 13, and he stated that Mr. Johnson 

told him that the two went to work. He then stated that he did 

not remember who told him that they returned to work immediately, 

and that Mr. Johnson "probably" told him, but that he was not 

positive (Tr. 147). 

Mr. McCoy stated that Mr. Johnson did not mention that 11 1 

need all the men I can get" in response to a statement by 

Mr. Clay that some of his men needed to go home. Mr. McCoy 

stated that Mr. Johnson mentioned that Mr. Burton had to take his 

wife's car home and get something to eat, but did not mention 

anything about medication or work clothes,_ or the fact that the 

meeting might end at 1:00 p.m. (Tr., 147). Mr. McCoy stated that 

any permission by him to allow Mr. Burton to go home and return 

to work would "depend on the circumstance". However, he would 

not have granted Mr. Burton permission to go home 11 if it meant 

coming back two hours into the shift", nor would he have granted 

permission to the other two men to leave (Tr. 149). 

Mr. McCoy stated that an example of an acceptable doctor's 

slip was mailed to the employees, and he recalled that it was 

discussed and posted. He did not know why it took "a 

considerable amount of time" to approve the second slip and clear 

the matter up with Mr. Burton. He stated that management's 

contact with Mr. Burton's dentist was standard procedure and that 

"we contact the doctor's on a regular basis" when there are 

1863 
questions and that he personally has visited doctors in this 

regard. He did not know why the dentist was not called after 

Mr. Burton brought in his first excuse rather than making him go 

back again (Tr. 151). He explained that with 250 employees "the 

updating of the cards sometimes lags behind", and that "when the 

time clerk ultimately gets to it is when it's taken care of" 

(Tr. 152) • 

In response to further questions, Mr. McCoy stated that as 

the superintendent, he would expect to know if someone other than 

Mr. Burton left the property. He stated that it was conceivable 

that Mr. Johnson may have allowed the two other employees to go 

home, but that he (McCoy) would expect people to go underground 

at the 2:15 p.m. shift starting time (Tr. 154). He stated that 

he expects the mantrip to leave at starting time, and nwith 250 

employees you don't hold their hand. You expect them to be 

responsible adults and to be at work on time and work eight 

hours" (Tr. 156) . 

Mr. McCoy stated that he was not present during the mantrip 

and SCSR incident of July 5, 1990, but after Mr. Johnson 

explained what had happened "I told him he messed up in regard to 

the self-rescuers". Mr. McCoy stated that he knew when 

Mr. Johnson sent 14 people underground with only four scsRus 

stored at strategic locations that he had violated the plan and 

that he should have allowed the employees to take the devices 

with them. Mr. McCoy stated that the next day Mr. Johnson met 

with the crew and "told them that he screwed up and gave them bad 

information" (Tr. 157). 

Mr. McCoy stated that he was not aware that Mr. Burton 

complained to Mr. Johnson about the SCSR's and sanding devices, 

and that Mr. Johnson did not tell him that Mr. Burton had 

complained. Mr. McCoy stated that it was not uncommon to have to 

repair sanders at the start of the shift. He confirmed that he 

was aware of the complaint filed with MSHA, and the citation 

which followed, and that he was at the firs~ step prievance 

meeting where the matter could not-be resolved. The union wanted 

him to write a letter stating that there was a violation of the 

law and Mr. McCoy would not agree to post such a letter 

(Tr. 159). The union then stated that it would call MSHA and 

Mr. McCoy stated that he replied "Well, call them" (Tr. 158). 

Mr. McCoy stated that he was not aggravated with Mr. Burton 

because of his involvement with the sanders and the SCSR matter, 

and he indicated that sanders always need attention because of 

moisture which stops them up. He stated that he wanted the 

sanders repaired and would think less of Mr. Burton if they were 

not repaired. Mr. McCoy confirmed that Mr. Waldron discussed the 

first dentist slip supplied by Mr. Burton with him, and it 

1864 
contained incomplete information. Mr. McCoy stated that he was 

not familiar with the second slip and could not recall seeing it 

(Tr. 160). 

James Waldron, Acting Labor Relations Manager, stated that 

on July 5, 1990, he was the mine supervisor of human resources. 

He is sometimes referred to as the "mine clerk". He stated that 

the respondent's chronic and excessive absenteeism program is a 

standardized attendance control program that has been in 

existence for approximately 12 years, and he explained that it is 

designed to maintain and correct an employee's attendance 

behavior pattern, and it includes employee counselling 

(Exhibit R-5, Tr. 161-167). Mr. Waldron confirmed that he was 

familiar with Mr. Burton's attendance record through the records 

maintain by the clerks in his department. He stated that 

Mr. Burton was designated an "irregular worker" in 1989 because 

of six days of unexcused absences, and he explained how those 

absences were entered on his leave records (Exhibits R-llp R-12, 

Tr. 168-171). He also confirmed that Mr. Burton received 

counseling, as did other employees (Exhibit R-13, Tr. 174-178). 

Mr. Waldron confirmed that he attended the grievance meeting 

of July 13, 1990, and he identified the grievants as Mr. Burton, 

Clifton Fox, Greg Adams, and Bobby Rogers. The meeting began at 

12:15 p.m., and ended at 2:25 p.m. Mr. Waldron stated that to 

his knowledge, Mr. Burton was the only person who left the mine 

after the meeting ended, and :hat the others went to work 

(Tr. 179). He observed Mr. Burton at the parking lot going to 

his vehicle, and he confirmed that Mr. Johnson informed him about 

Mr. McCoy's statements concerning Mr. Burton being sent home upon 

his return to the mine at 3:50 p.m. (Tr. 180). Mr. Waldron 

stated that Mr. Johnson told Mr. Burton that he could not work 

and that this was consistent with the tardiness policy. 

Mr. Burton would have been charged with an unexcused absence for 

leaving the mine even if he had a "clean" attendance record 

(Tr. 181-182). 

On cross-examination, Mr. walQ..ron confirmed that he assumed 

that no one but Mr. Burton left after the meeting because he did 

not watch each employee and Mr. Johnson did not tell him that 

anyone else left (Tr. 182). He further explained Mr. Burton's 

leave records and the leave entries that resulted in his being 

counseled, and he conceded that an error was made with respect to 

an absence, but that it was later corrected (Tr. 181-187). He 

also conceded that one of his clerks should have checked to 

determine whether Mr. Burton had any "floating days" available, 

and that vacation days should not have been counted in the 

attendance formula (Tr. 188, 191). 

1865 
Posthearing testimony 

Two miners who purportedly were allowed to go home and then 

return to work, at the conclusion of the July 13, 1990, grievance 

meeting (Greg Adams and Bobby Rogers), and foreman Scott Johnson 

were not called by the parties to testify in this case. At the 

conclusion of the hearing, the parties were advised that these 

were critical witnesses and that I would consider ordering 

posthearing testimony. I subsequently ordered the parties to 

take the testimony by deposition or affidavit and to. file it with 

me. The parties have done so. 

Gregory W. Adams and Bobby Rogers gave the 

following identical statement: 

That on July 13, 1990, I attended the safety grievance 

meeting; subsequently, I went home prior to reporting 

to work; that as a result of returning home I was late 

for my shift; that Mro Johnson was aware that I was 

going to be late and approved it; and that he was aware 

that I was late and took no disciplinary action. 

Aff iant Scott Johnson 1 currently employed as a senior 

planning engineer for Arch of Wyoming, Rock Springs 1 Wyoming 

stated that he was employed as a shift supervisor at the No. 37 

Mine on July 13, 1990. He stated that he attended a safety 

grievance meeting on that day, and he confirmed that Mr. Burton, 

Mr. Adams, and Mr. Rogers, as well as others, were present. He 

identified these three individuals, and Mr. Clifton Fox, as the 

"grievants". Mr. Johnson stated that the meeting began at 

approximately 12:00 noon and was concluded by approximately 

2:25 p.m. Since the meeting had extended beyond the shift 

starting time of 2:15 p.m., and the four grievants missed the 

mantrip into the mine, he arranged for another mantrip to 

transport these individuals to their underground section. 

Mr. Johnson stated that he was approached by Mr. Clay and 

Mr. Burton at the conclusion of the..grievance meeting, and 

Mr. Burton informed him that he was going home to eat and let his 

wife have their vehicle. Mr. Johnson stated that he told 

Mr. Burton, in the presence of Mr. Clay, that he should have come 

prepared to go to work as Mr. Adams and Mr. Rogers did, and that 

he would not be allowed to go to work if he left the mine and 

returned later. Mr. Johnson stated that shortly thereafter, at 

approximately 2:30 p.m., while making arrangements for another 

mantrip, he walked through the bathhouse and observed Mr. Burton, 

Mr. Adams, and Mr. Rogers having a conversation. Mr. Johnson 

stated that at approximately 2:42 p.m., he saw Mr. Burton get 

into his vehicle and leave the property. 

Mr. Johnson stated that shortly after he observed Mr. Burton 

leave the property, he informed superintendent of operations Ken 

1866 
McCoy that Mr. Burton had left and asked his advice as to what to 

do about the situation. Mr. Johnson confirmed that he informed 

Mr. McCoy that he had not given Mr. Burton permission to leave, 

and Mr. McCoy concurred that Mr. Burton should not be allowed to 

go to work that day and instructed him to send Mr. Burton home 

when he showed up. 

Mr. Johnson stated that at approximately 2:50 p.m., the 

mantrip was readied, and Mr. Adams and Mr. Rogers got into the 

mantrip and left for their assigned work section underground. 

Mr. Burton returned to the property at approximately 3:50 p.m., 

and Mr. Johnson told him that he would not be allowed to work 

that day. 

Mr. Johnson stated that between the time the grievance 

meeting ended and the time he saw Mr. Burton leave the property, 

he saw none of the other individuals in question leave the 

property, and to the best of his knowledge they did not leave. 

He denied that he gave any of these individuals permission to 

leave the property, or that he eve= stated directly or indirectly 

that he had "no problem" with their leaving. He further denied 

giving Mr. Burton permission to leave, and he stated that when 

the subject was raised by Mr. Clay and Mro Burton, he informed 

them that if Mr. Burton left he would not be lowed to return to 

work. Mr. Johnson stated that given the short time span between 

the conclusion of the grievance meeting and the departure of the 

underground mantrip, and based on his observations in the 

bathhouse, he had no reason to believe that anyone other than 

Mr. Burton left the property during that time. 

Mr. Johnson stated that his initial conversation with 

Mr. Burton when he informed him that he would not be allowed to 

come to work if the left the property was based on his 

interpretation of the company's leave policy and was in no way 

intended to discriminate against Mr. Burton. Mr. Johnson stated 

that he confirmed that interpretation with Mr. McCoy, who then 

instructed him to tell Mr. Burton that he would not be allowed to 

work upon his return. -

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c} of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 {3d Cir. 

1981}; Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 {1984) ; Secretary on 

1867 
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other ground sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no 

way motivated by protected activity. If an operator cannot rebut 

the prima facie case in this manner it may nevertheless 

aff irmately defend by proving that it was also motivated by the 

miner's unprotected activities alone. The operator bears the 

burden of proof with regard to the affirmative defense. Haro v. 

Magma Copper company, 4 FMSHRC 1935 (1982). The ultimate burden 

of persuasion does not shift from the complainant. Robinette, 

supra. See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983) ~ 

and Donovan v. Stafford Construction Company; No. 83-1566 D.C. 

Cir. {April 20, 1984) (specifically-approving the Commission°s 

Fasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, ~~U.S.~~' 76 l.ED.2D 667 {1983), 

where the Supreme Court approved the NLRBis virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd another grounds sub nom. 

Donovan v. Phelps Doge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965): 

It would indeed be the unusual case in which the link 

between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many case~ the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

1868 
In Bradley v. Belva coal Company, 4 FMSHRC 982, 993 (June 

1982), the commission stated as follows: 

As we emphasized in Pasula, and recently reemphasized 

in Chacon, the operator must prove that it would have 

disciplined the miner anyway for the unprotected 

activity alone. Ordinarily, an operator can attempt to 

demonstrate this by showing, for example, past 

discipline consistent with that meted to the alleged 

discrimiatee, the miner's unsatisfactory past work 

record, prior warnings to the miner, or personnel rules 

or practices forbidding the conduct in question. Our 

function is not to pass on the wisdom or fairness of 

such asserted business justifications, but rather only 

to determine whether they are credible and, if so 1 

whether they would have motivated the particular 

operator as claimed. 

Mr. Burtonvs Protected Activity 

It is clear that Mr. Burton enjoys a statutory right to 

voice his concern about safety matters or to make safety 

complaints to mine management or a mine inspector without fear of 

retribution or harassment by management. Management 

prohibited from interfering with such activities and may not 

harass, intimidate, or otherwise impede Mr. Burton's participation in these kinds of activities. Secretary of Labor ex rel. 

Pasula v. Consolidation Coal co., 2 FMSHRC 2786 (October 1980), 

rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex 

rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 

1981). Baker v. Interior Board of Mine Operations Appeals, 595 

F.2d 746 (D.C. Cir. 1978); Chacon, supra. 

The Alleged Acts of Discrimination 

The SCSR incident of July 5, 1990 

Mr. Burton's assertion that he and his crew "were forced" to 

walk to their working section without their SCSR's suggests that 

foreman Johnson somehow coerced or intimidated Mr. Burton to do 

something against his will, thereby exposing him to a hazard, 

because he informed foreman Johnson about the inoperative sanding 

devices on the mantrip which the crew was scheduled to use to 

transport them to the section. However, I am not convinced that 

this was the case. 

I have carefully reviewed Mr. Burton's testimony, and I 

cannot conclude that he specifically lodged a safety complaint 

with Mr. Johnson with respect to the inoperable sanding devices. 

Mr. Burton's testimony reflects that while he was pre-shifting 

the mantrip in compliance with Company policy he found that the 

1869 
sanders were clogged and he proceeded to clean them, thus 

delaying the departure of the mantrip. Mr. Johnson then pointed 

to two other mantrips and suggested to Mr. Burton that he should 

use one of those. However, the second mantrip had inoperable 

brakes and Mr. Johnson agreed that it should not be used. 

Mr. Burton then discovered that the third mantrip also had some 

clogged sanders, and while he was in the process of checking it 

out in preparation of cleaning the devices, Mr. Burton stated 

"walk in" . 

Mr. Burton testified that Mr. Johnson was "red faced and 

mad" when he made the statement "walk in 91 o This suggests that 

Mr. Johnson was chagrined at Mr. Burton personally and was 

somehow taking it out on him. However, quite the opposite could 

also be true. As the shift foreman responsible for getting the 

crew to work on time, Mro John~on may have been frustrated over 

the lack of any operable mantrips, and reacted out of that 

frustrationo I find no evidence that Mro Johnson harbored anv 

ill will toward Mro Burton at the time in question 9 and 

Mr. Burton was not the only person who began to walk to the 

section. The entire crew, including several management 

employees, began walking. No one, including Mr. Burton, voiced 

any complaints about walking, and Mro Burton and the union miners 

did not invoke their individual safety rights, did not refuse to 

walk in, and apparently did not protest to Mro Johnsono I also 

take note of the fact that Mr. Johnson informed Mr. Burton that 

the mantrip would pick up the crew after the sanders were 

repaired, and safety manager Estep testified the men were picked 

up after they had walked approximately 4,000 feet, which is less 

than a mile. 

With regard to the self rescu~ devices, I find no evidence 

to support any reasonable conclusion that Mr. Johnson 1 s refusal 

to allow Mr. Burton to take one from the mantrip with him when he 

began to walk was done to punish or harass Mr. Burton. Contrary 

to Mr. Burton's assertion that he had complained about the unsafe 

practice of sending the crew into the section without the 

devices, I find nothing in his testimony to support any such 

conclusion. The testimony shows that Mr. Burton simply asked 

Mr. Johnson for a self-rescue device and was refused. Mr. Burton 

confirmed that Mr. Johnson explained to him that he did not need 

the device because the mine had a plan that required such devices 

to be stored at strategic locations along the travelway taken by 

the crew. The fact that Mr. Johnson was subsequently proved 

wrong and conceded that he had erred is not relevant to his state 

of mind on July 5, when he refused Mr. Burton's request. 

Further, Mr. Burton conceded that he is provided with a personal 

filter type rescue device at all times while underground and that 

he is trained in its use. Although Mr. Burton testified that he 

wanted to take the mantrip device with him because of a prior 

experience when he was exposed to smoke from a motor fire, there 

is no evidence that he told Mr. Johnson about this incident, and 

1870 
Mr. Burton admitted that no one invoked their individual safety 

rights by refusing to proceed to the section without the SCSR's. 

Superintendent McCoy candidly admitted that Mr. Johnson made 

a mistake by not allowing Mr. Burton and the crew to take the 

SCSR devices with them when they were directed to walk to the 

section, and Mr. McCoy confirmed that Mr. Johnson met with the 

crew the next day and conceded to the miners that he was in error 

and had given them some bad information. Further, the July 5, 

1990, incident concerning the miners walking without the SCSR's 

was the subject of a grievance filed by the union, and it 

resulted in a citation issued by MSHA for a violation of the SCSR 

storage plan. Although the evidence reflects that Mro Burtonv as 

well as others, were "witnesses" at the grievance meeting, that 

particular event took place after July 5, 1909. Under the 

circumstances, I cannot conclude that Mr. Johnson's actions on 

July 5, 1990, standing alone, constituted illegal discrimination 

within the parameters of section 105(c) of the Act. In my viewr 

the union pursued the proper avenue of appeal in that matter when 

it filed a grievance and requested MSHA to pursue the mattero 

The Dental Visit of July 11, 1990. 

The evidence establishes that the typewritten complaint 

letter dated March 21, 1991 1 containing Mr. Burtonas signaturef 

which was filed with the Commission, was in fact drafted and 

typed by union safety committee chairman Robert Clay, who also 

addressed the hand-written envelope (Tr. 45). As noted earlier, 

the letter states in part that "Since my initial charge was 

filed, Arch of Kentucky management has continued to harrass and 

discriminate aginst its employees, namely me." I take note of 

the fact that Mr. Burton's MSHA complaint was filed on July 24, 

1990, after his dental visit of July 11, 1990, and I assume that 

the "initial charge" referred to in the Commission complaint 

letter is the grievance filed by the union concerning the July 5, 

1990, incident. Mr. Burton and three other miners have been 

characterized as the "grievants" in those proceedings. 

Mr. Burton confirmed that an.employee is not paid for any 

absences from work due to doctor or dentist visits regardless of 

whether the absence is treated as excused or unexcused. However, 

an accumulation of unexcused absences may adversely impact on his 

attendance record pursuant to the company absenteeism program. 

In this case, the parties stipulated that Mr. Burton's absence 

from work because of the visit to his dentist was initially 

recorded on his record as unexcused, but was eventually changed 

to excused (Tr. 27). In the couse of the hearing, Mr. Burton's 

counsel asserted that Mr. Burton believed that he was treated 

unfairly with respect to the dental excuse matter and that his 

treatment by the respondent "was harassing and an attempt to 

harass him" (Tr. 196). Although not specifically alleged, 

1871 
counsel suggested that the respondent's follow-up telephone calls 

to the dentist to verify Mr. Burton's visit was also harassment. 

Mr. Burton acknowledged that he was aware of the information 

required to be included on a doctor's excuse slip to support an 

excused absence. Although he stated that he had previously 

turned in slips similar to the one which he initally turned in to 

his immediate foreman Hubert Boggs (exhibit C-1), he conceded 

that the slip did not contain all of the required information. 

Under the circumstances, I conclude and find that Mr. Waldron 

acted correctly in rejecting the initial slip submitted by 

Mr. Burton, and I find no credible evidence of any harassmento 

With regard to the second dentist slip (exhibit C-2)u 

Mr. Burton testified that he obtained that one after Mr. Waldron 

instructed him to do so within twenty-four hours of his rejection 

of the first one. Mr. Burton confirmed that Mr. Waldron rejected 

the second slip because it was late, but informed him that 

superintendent Strickle would make a determination as to whether 

or not it was acceptable. Mr. Strickle did not testifiy, and no 

testimony was elicited by the parties from Mr. Waldron concerning 

the dental slips in question. 

Superintendent McCoy explained the respondentQs policy 

concerning doctorvs excuse slips and follow-up calls by 

management to doctors to verify an employee's absence. Mr. McCoy 

confirmed that Mr. Waldron discussed the first slip with him, and 

that it contained incomplete information. Mr. McCoy testified 

that he was not familiar with the second slip, and did not recall 

seeing it, and he did not know why it took so long to ultimately 

approve it as an excused absence. However, he explained that the 

updating of the leave cards of 250 employees sometimes lags 

behind, and that the time clerks ultimately take care of them. 

I find no evidence of any involvement by foreman Scott 

Johnson in the matter concerning Mr. Burton's dental leave slips. 

As noted earlier, Mr. Burton's second leave slip was apparently 

accepted and his records wer~ ultimately corrected to reflect an 

excused absence. I find no evidence of any animus by management 

towards Mr. Burton, and I find reasonably plausible Mr. McCoy's 

explanation that with the number of employee records dealt with 

by his clerks, the updating of individual cards is somewhat lax. 

Indeed, Mr. Burton's counsel observed during the hearing that the 

respondent's bookkeeping was "a little shaky", and she candidly 

discounted any suggestion that management altered Mr. Burton's 

leave records or that there was any management conspiracy against 

him (Tr. 188-192). Under all of these circumstances, I cannot 

conclude that management's handling of Mr. Burton's dental leave 

slips amounted to discrimination or harrassment because of any 

protected safety activity on his part. 

1872 
The Chronic Excessive Absenteeism Program and the Counseling 

Session of August l, 1990. 

As noted earlier, Mr. Burton's discrimination complaints did 

not specify the particular acts of alleged management harassment. 

In the course of the hearing however, Mr. Burton implied that his 

placement in the respondent's chronic excessive absenteeism 

program and his counseling session of August 1, 1990, resulting 

from his placement in the program, were acts of harrassment or 

retaliation because of his safety complaints. In addition, 

Mr. Burton's counsel questioned "whether certain things occurred 

because in retaliation for it that series of events that ended up 

with the citation" (Tr. 204). counsel expressed confusion °

1about 

the handling of the chronic absenteeism policy 11 and she 

questioned the fact that Mr. Burton was unaware of certain 

matters that were placed in his personnel records. Counsel also 

asserted that 11 it 1 s a fair inference 11 that these events occurred 

because Mr. Burton caused problems for the respondent 

(Tro 205-206) o 

The parties stipulated that the respondent was free to 

establish an additional chronic excessive absenteeism policy 

beyond that covered by the Union/Management Agreement of 1988 

(Exhibits R-3r R-4; Tr. 57). Mr. Burton testified that in late 

Julyg 1990 1 Mr. Waldron informed him that he was being placed 

under the respondent 1 s chronic absenteeism program because his 

vacation time, coupled with his absences of July 11 and July 13, 

1990, placed him in a "higher bracket" as compared to other 

employees. However, Mr. Burton confirmed that he was subsequently removed from the chronic excessive absenteeism list. 

The record reflects that Mr. Burton had been previously 

designated an "irregular worker" on July 15, 1989, because of an 

accumulation of six days of unexcused absences during May and 

June, 1989. Mr. Burton's counsel indicated that she would 

stipulate that the respondent designated Mr. Burton as an 

irregular worker, but she contended that the designation was 

improper, that Mr. Burton had·no notice that he was so 

designated, and that several of the recorded absences were the 

result of a general mine strike during which all union employees 

were affected (Tr. 172). 

Mr. Waldron confirmed that Mr. Burton was placed in the 

chronic absenteeism program in July, 1990, because of his 

attendance record during the months of April, May, and June. 

Mr. Waldron denied that Mr. Burton's July absences were included 

in the computations which resulted in his being placed in the 

program (Tr. 174). Mr. Waldron stated that Mr. Burton, as well 

as several other employees, were considered "pattern missers" or 

"long weekend syndrome" workers who missed work on Fridays and 

Mondays, and that this was one of the determining factors for 

counseling him (Tr. 176-177). Mr. Waldron confirmed that in 

1873 
addition to Mr. Burton, ten other employees were also counseled 

in late July and early August, 1990 (Tr. 176; exhibit R-13). 

Mr. Waldron confirmed that Mr. Burton was no longer in the 

chronic absentee program, and he candidly conceded that errors 

were made in connection with some of the charged absences and 

that the leave clerks should have checked more closely and not 

counted Mr. Burton's vacation days or "floating days" against his 

attendance records for purposes of the counseling program. 

Mr. Waldron explained the different leave codes used in making 

entries on an employee's leave cards, and he confirmed that at 

the time he counseled Mr. Burton he relied on the leave entries 

made on his records by his clerks. However, when he later 

determined that Mr. Burton should have been credited with certain 

excused, rather than unexcused. days, the appropriate corrections 

were made to his records (Tr. 185-188). 

As noted earlier, Mr. Burton is no longer under the 

respondent's chronic excessive absenteeism programv and 

Mr. Waldron candidly conceded that administrative errors were 

made in designating some of Mr. Burton's absences as "unexcusedu, 

but that corrective action was taken to correct the records. I 

find no credible evidence to support any reasonable inference 

that Mr. Burton was placed in that program because of the July 5, 

1990, SCSR incident which eventually led to the grievance and a 

citation being served to the respondent. As noted earlier, I 

find no evidence of any animus by management against Mr. Burton, 

and Mr. Mccoy agreed that Mr. Burton acted properly in bringing 

the mantrip sanders condition to Mr. Johnson's attention and that 

he would have thought less of him if he had not done so. I also 

find no evidence that Mr. Johnson had anything to do with 

Mr. Burton's attendance record problems. 

With regard to Mr. Burton's designation as an "irregular 

worker" in July, 1989, that event preceded the July 5, 1990, SCSR 

incident and I find no evidence that his designation was 

motivated by an protected activity on his part. As for the 

counseling session of August 1, 199..9, the respondent's evidence, 

which I find credible, establishes that ten other employees were 

also counseled at approximately the same time as Mr. Burton, and 

none of those employees were involved in the July 5, 1990, 

incident. Further, Mr. McCoy's credible and unrebutted testimony 

establishes that he had previously disciplined another miner by 

suspending him with intent to discharge for violating the 

respondent's tardiness policy (Tr. 144). Under the circumstances 

I cannot conclude that Mr. Burton was "singled out" for any 

"special treatment" because of his involvement in the July s, 

1990, SCSR incident, or because he saw fit to exercise his right 

to file a discrimination complaint with MSHA. In short, I find 

no credible evidence to support any reasonable finding of 

disparate treatment of Mr. Burton by management because of any 

protected activity on his part. What the evidence does suggest 

1874 
is a rather inept and disjointed system of recordkeeping by the 

respondent with respect to employee attendance records, and a 

rather lax and untimely method of correcting records when errors 

are discovered. 

The tardiness incident of July 13. 1990. 

According to the testimony of the various witnesses, the 

grievance meeting ended sometime between 2:25 p.m. and 2:42 p.m. 

Mr. Johnson stated that he observed Mr. Burton leave the mine to 

go home at 2:42 p.m., and that he returned at 3:50 p.m. 

Mr. Waldron, who also observed Mr. Burton at the parking lot 

after the meeting ended, also placed his return at 3:50 p.m. 

Mr. Burton testified that he returned at 3:37 p.m. All of the 

witnesses agreed that the normal starting time for the shift was 

2:15 p.m. In any event, regardless of the slight time 

discrepancies, I find that Mr. Burton went home after the 

grievance meeting ended and returned to the mine with the 

intention of going to workv albeit after the normal shift 

starting time. 

The most significant part of Mr. Burton 1 s complaint is his 

contention that Mr. Johnson sent him home and would not allow him 

to work because he (Burton) had previously complained about the 

defective mantrip sanders and Mr. Johnson's sending employees 

underground without SCSR's. In support of this conclusionv 

Mr. Burton maintains that Mr. Johnson allowed other employees to 

go home after the grievance meeting was over and to return to 

work late, and that they were not sent home without pay. In 

short, Mr. Burton relies on this alleged disparate treatment by 

Mr. Johnson to support a conclusion that Mr. Johnson retaliated 

and discriminated against him because of their prior encounter of 

July 5, 1990, concerning the mantrip sanders and SCSR's. 

There are two critical issues presented here. The first is 

whether or not Mr. Burton had foreman Johnson's permission to go 

home and return to work late after the conclusion of the 

grievance meeting, and the second is whether or not Mr. Johnson 

gave other employees permission to go home at the conclusion of 

the grievance meeting and allowed them to work late upon their 

return to the mine. If Mr. Burton had permission to go home and 

return to work late, then his unexcused absence would not stand 

scrutiny under the respondent's tardiness program. If foreman 

Johnson did in fact give other employees permission to go home 

and return to work late, but denied the same privilege to 

Mr. Burton, one could reasonably conclude that this disparate 

treatment was the result of animus by Mr. Johnson towards 

Mr. Burton and would support a reasonable inference that 

Mr. Johnson retaliated against Mr. Burton because of the July 5, 

1990, incident which prompted the union to file a grievance and 

which resulted in the issuance of a citation to the respondent. 

1875 
Mr. Burton testified on direct examination that when he 

realized he would not have time to go home before his work shift 

was scheduled to begin, he talked to foreman Johnson during the 

grievance meeting and told him that he had not eaten and did not 

have his work clothes or mining hat with him. Mr. Johnson did 

not reply, said nothing, and "never said no or yes" (Tr. 31-32). 

Mr. Burton repeated this testimony during cross-examination, and 

he conceded that no one in mine management gave him permission to 

go home (Tr. 73-74). In response to several bench questions, he 

admitted that he did not specifically ask Mr. Johnson for 

permission to go home and that he simply casually mentioned to 

him that he had a need to go home (Tr. 75). Mr. Burton also 

confirmed that he had no knowledge that Mr. Johnson was asked if 

he wanted the men to go to work even though they would be late 

(Tr. 80). Mr. Burton also indicated that he again told 

Mr. Johnson at the end of the meeting of his need to go home 

and that Mr. Johnson did not reply (Tr. 83). 

Mr. Clay testified on direct examination that after 

realizing that the grievance meeting would likely extend beyond 

the normal start of the working shift at 2:15 p.m., he mentioned 

this to Mr. Johnson and Mr. Johnson indicated that he expected 

and wanted the men to go to work after the meeting was over; 

regardless of the time (Tr. 103-105). Mr. Clay stated that 

during a break in the grievance meeting 1 he told Mr. Johnson that 

several of the men had to go home after the meeting and that 

Mr. Johnson indicated that he had "no problem" with this and that 

he needed everyone to work regardless if they first had to go 

home (Tr. 106-107). Mr. Clay further testified that he 

specifically identified Mr. Adams, Mr. Rogers, and Mr. Burton to 

Mr. Johnson as the individuals who needed to go home at the 

conclusion of the grievance meeting and that Mr. Johnson stated 

that it was 11 0.k. 11 for them to do so and to return to work 

regardless of the time they returned (Tr. 108). 

On cross-examination, and when pressed to explain his 

testimony that Mr. Johnson said that he had, 11 no problem" with 

Mr. Burton, Mr. Adams, and Mr~ Rogers going home, Mr. Clay stated 

that Mr. Johnson indicated "Yes. We need all the people we can 

get" (Tr. 118). In response to several repeated questions 

seeking a direct answer to the question of whether or not 

Mr. Johnson specifically gave his permission for the three named 

individuals in question to leave the mine after the grievance 

meeting and to then return to work, Mr. Clay stated that he 

construed Mr. Johnson's statement "we need all the people that we 

can get" as permission for the three individuals to go home 

(Tr. 119) . 

After viewing Mr. Clay during the course of the hearing, and 

upon careful examination of his testimony, I find him to be less 

than a credible witness. I do not believe his direct testimony, 

which was given in response to my bench questions, and I have 

1876 
given it little weight in support of any conclusion that 

Mr. Johnson gave his permission for Mr. Burton, Mr. Rogers, and 

Mr. Adams to go home after the grievance meeting and to then 

return late to work. Indeed, Mr. Burton conceded that no one 

from mine management, including Mr. Johnson, gave him permission 

to go home after the grievance meeting and I take note of the 

fact that Mr. Burton identified only Mr. Rogers as someone who 

had gone home, and said nothing about Mr. Adams. 

In their identical affidavits, Mr. Adams and Mr. Rogers 

stated that they went home after the grievance meeting, and as a 

result of going home, they were late for their work shift. They 

do not state that Mr. Johns.on gave them permission to go home 

after the meeting or that Mr. Johnson knew that they were going 

home. Although they both asserted that Mr. Johnson was aware 

that they would be late and approved of it, I construe this to 

mean that Mr. Johnson had no objection to their going to work 

late after the grievance meeting ended. Howeverv I reject their 

assertions as credible evidence that Mro Johnson gave them 

permission to go home, or that he even knew that they had gone 

home. 

In his affidavit Mr. Johnson stated that since the grievance 

meeting had extended beyond the normal start of the work shift 

and the four grievants {Burton, Adams, Rogersu and Fox) missed 

the scheduled mantrip, he arranged for another mantrip to 

transport these individuals underground. While in the process of 

making these arrangements, Mr. Johnson observed Mr. Burton leave 

the mine at approximately 2:42 p.m., and Mr. Adams and Mr. Rogers 

left in the mantrip to go to work at 2:50 p.m. At no time did 

Mr. Johnson see anyone other than Mr. Burton leave the property, 

and to the best of his knowledge Mr. Adams and Mr. Rogers did not 

leave the mine. Mr .. Johnson denied that he had given any of 

these individuals, including Mr. Burton, permission to leave the 

property, and he denied that he ever stated that he had "no 

problem" with their leaving. 

Safety committee Chairman Clay initially testified that 

miners are aware of the respondent's tardiness and excused 

absence policy and that it is posted on the bulletin board 

(Tr. 110) •. He later stated that he could not remember whether 

the policy was posted at the time Mr. Burton was sent home, but 

he confirmed that there was an "oral policy" which vested 

discretion in the work supervisor to send someone home if he 

reported late for work (Tr. 112-113)). He further confirmed that 

the policy has been upheld through the union grievance procedures 

(Tr. 114) • 

Mr. Burton was rather equivocal about his knowledge of the 

mine tardiness policy. He initially testified that he was aware 

of the policy but could not recall seeing it posted. He 

"guessed" that he knew if he were late for work he would be 

1877 
considered tardy and charged with an unexcused absence. He also 

indicated that he knew there was "some kind" of a tardiness 

program, but denied any knowledge as to how it worked. Finally, 

he admitted that he knew that if he were sent home after 

reporting to work late his absence would be considered unexcused, 

and he acknowledged that he would not be paid for such an 

absence. 

After careful consideration of all of the testimony and 

evidence, I conclude and find that Mr. Burton was well aware of 

the respondent's tardiness policy and that he knew if he were 

sent home after reporting late for his work shift he would not be 

paid. After viewing Mr. Burton during the hearing, and taking 

into consideration the fact that he has worked for the respondent 

for some 14 years, I remain unconvinced that he was ignorant of 

his rights and responsibilities· with respect to timely reporting 

for work, and I am not persuaded that he did not know about the 

policy and rules in this regard. 

The credible and unrebutted testimony of Mr. McCoy 

establishes it was he, and not Mr. Johnson, who made the decision 

to send Mr. Burton home and not allow him to work upon his late 

return to the mine after going home at the conclusion of the 

grievance meeting. I conclude and find that Mr. McCoy 0 s decision 

in this regard was based on Mr. Johnson 1 s statement to him that 

he had not given Mr. Burton permission to go home, and the 

respondent's policy of treating tardy work starts where an 

employee does not have permission to go to work late as unexcused 

absences. I further conclude and find that Mr. Johnson was 

simply carrying out Mr. McCoy's instructions when he informed 

Mr. Burton that he would not be allowed to go to work and sent 

him home. 

Mr. Burton conceded that some of the miners who were at the 

grievance meeting came to work that day with their work clothes 

and other equipment prepared go to work after the meeting ended 

(Tr. 72-73). Mr. Burton explained that he did not bring his work 

clothes and equipment with him because he was late leaving his 

home, had his wife's car, and was late for the meeting (Tr. 81-

82). These are matters within Mr. Burton's control, and in 

hindsight, better planning on his part may have prevented the 

situation which resulted in his arriving late for work after 

going home and missing the mantrip which Mr. Johnson had arranged 

for the other miners who were also late after the grievance 

meeting. Under the circumstances, Mr. Burton has no one to blame 

but himself for being sent home and not allowed to work that day. 

I find that Mr. Burton made a unilateral decision to leave 

the mine at the conclusion of the grievance meeting of July 13, 

1990. I further find that Mr. Burton did not have the permission 

of foreman Johnson or any other management official to leave the 

1878 
mine to go home and to return later to go to work. Mr. Burton's 

contention that Mr. Johnson sent him home and would not allow him 

to work because of the prior SCSR incident of July 5, 1990, is 

rejected. As noted earlier, the decision to send Mr. Burton home 

was made by Mr. McCoy, and it was carried out by Mr. Johnson. 

Further, the decision not to allow Mr. Burton to work was based 

on his leaving the mine without permission rather than reporting 

to work immediately after the grievance meeting ended. By taking 

it upon himself to leave without permission, Mr. Burton arrived 

back at the mine later than the other miners who had also 

attended the meeting but who were on their way to their working 

section by the time Mr. Burton returned and got dressed and 

presented himself to Mr. Johnson for further instructions. 

I find no reasonably supportable credible evidence, either 

direct, or circumstantial, to support any conclusion that 

Mr. Johnson or Mr. McCoy, individually or collectively, were 

motivated by a desire to retaliate against Mr. Burton, or to 

harass him for any protected activity on his part when they would 

not allow him to go to work when he reported back to the mine 

after leaving without permission. To the contrary, I conclude 

and find that management's decision to send Mr. Burton home 

pursuant to company policy when he left the mine without 

permission and returned later to report for work was a reasonable 

and plausible management decision incident to its right to 

control the work force. As previously noted by the Commission 

Bradley v. Belva Coal Company, 4 FMSHRC 982 (June 1982), citing 

its Pasula and Chacon decisions, etc., "Our function is not to 

pass on the wisdom or fairness or such asserted business 

justifications, but rather only to determine whether they are 

credible and, if so, whether they would have motivated the 

particular operator as claimed". 

I further find no credible evidence of any disparate 

treatment of Mr. Burton by mine management with respect to its 

refusal to allow him to return to work and sending him home when 

he arrived back at the mine after leaving without permission. 

The available credible evidence establishes to my satisfaction 

that Mr. Burton was the only indiv,idual known to Mr. McCoy and 

Mr. Johnson who left the mine without permission to go home after 

the grievance meeting ended, and their motivation in sending 

Mr. Burton home was based on what I believe was a reasonable 

belief that this was the case. Even if I were to accept as true 

the fact that Mr. Adams and Mr. Rogers also went home after the 

grievance meeting, I find no credible evidence to support any 

reasonable conclusion that Mr. McCoy and Mr. Johnson knew that 

they had gone home, or that Mr. Johnson had given them permission 

to leave. Further, as noted earlier, both of these individuals 

were ready to return to work timely following the grievance 

meeting when Mr. Johnson made arrangements for a special mantrip 

to take them to their work places, but Mr. Burton was not. 

1879 
ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony and 

evidence adduced in this case, I conclude and find that 

Mr. Burton has failed to establish a violation of section 105(c) 

of the Act. Accordingly, his complain IS DISMISSED, and his 

claims for relief ARE DENIED. 

~lit~ Administrative Law Judge 

Distribution: 

Marco M. Rajkovich, Jr.Q Esq.u Wyatt, Tarrant & Combsu Lexington 

Financial center, 250 West Main Streetu Lexingtonu KY 40507 

(Certified Mail) 

Susan Oglebayu Esq., UMWA District #28 0 PoOo Box 28u Castlewood, 

VA 24224 (Certified Mail) 

/ml 

1880 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 4 1991 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 91-1352-D 

ON BEHALF OF 

CHARLES SCOTT HOWARD II, No. 404 Mine 

Complainant 

v. 

SOUTH EAST COAL COMPANY, INC., 

Respondent 

DECISION APPROVING SETI'LEMENT 

Before~ Judge Melick 

This case is before me upon a Complaint of Discrimination in 

which the Secretary has also filed a petition for assessment of 

civil penalty under the Federal Mine Safety and Health Act of 

1977. The Complainant, Secretary has filed a motion to approve a 

settlement agreement and to dismiss the case. A reduction in 

penalty from $1,500 to $400 and payment of damages of $327 to the 

individual Complainant, Charles Scott Howard, is proposed. I 

have considered the representations and documentation submitted 

in this case, and I conclude that the proffered settlement is 

appropriate. 

WHEREFORE, the motion for approval of-,ettlement is GRANTED, 

and it is ORDERED that Respondent pay a civ 1 penalty of $400 to 

the Secretary of Labor and damages of $327 o Charles Scott 

Howard, within 30 days of this order. 

rl I ' .l'.\l. ' A./\.\ ...,..... \ /~' i /~ '--.., 

J ii ;t'\ l 

G ry EH.ick \ l 

Admin stratjve Law Judge l \ i 

~ 

~' 

1881 
Distribution: 

James W. Craft, Esq., Polly, Craft, Asher & Smallwood, P.O. 

Box 786, 104 North Webb Avenue, Whitesburg, KY 41858 

(Certified Mail) 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashvil , TN 37215 

(Certified Mail) 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 

(Certified Mail) 

Mr. Charles Scott Howard, P.O. Box 88, Roxana, KY 40336 

(Certified Mail) 

/fb 

1882 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OEC 4 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. LAKE 91-134 

A.C. No. 11-00585-03787 

Mine No. 10 

DECISION APPROVING SETTLEMENT 

Appearances~ Susan J. Bissegger, Esq., Office of the Solie 

u.s. Department of Labor, Chicago, I for 

the Petitioner; 

David R. Joest, Esq., Midwest Division Counsel, 

Peabody Coal Company, Henderson, Kentucky, for the 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed several 

motions to approve a settlement agreement the latest at hearings 

on November 26, 1991. A reduction in penalty from $1,200 to $600 

is proposed. I have considered the representations and 

documentation submitted in this case, and r conclude that the 

proffered settlement is appr6pri~£i'under the criteria set forth 

in Section llO(i) of the Act. / 

A I, WHEREFORE, the motion for apfrroval of settlement is GRANTED, 

and it is ORDERED that Respondentvfpay \penalty of $600 within 

30 days of this order. ! ! 

. .r1 r 

i \'' /;l;v\ ;J\}_}\ 

Gqry Melitk \ "-......_ 

Administr,tive Law JU.·dge 

~ I: 

Ii 

N 

I 

1883 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 6 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 91-485 

Petitioner A.C. No. 11-00586-03653 

Vo 

Murdock Mine 

ZEIGLER COAL COMPANY, 

Respondent Docket Nao LAKE 91-498 

A.C. No. 11-00612-03555 

Appearances~ 

Before: 

Spartan Mine 

DECISIONS 

Rafael Alvarez, Esq., U.So Department of Labor, 

Office of the Solicitor, Chicago, Illinois, for 

the Petitioner; 

Gregory s. Keltner, Esq., Zeigler Coal Company, 

Fairview Heights, IL, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties 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 

two alleged violations of certain mandatory safety standards 

found in Parts 70 and 75, Title 30, Code of Federal Regulations. 

The respondent filed timely answers denying the alleged 

violations, and the cases were docketed for hearings on the 

merits in st. Louis, Missouri, with two additional cases 

concerning these same parties. Those cases were heard on the 

merits, but the parties decided to settle the instant cases and 

they were afforded an opportunity to present oral arguments on 

the record in support of the proposed settlements, and bench 

decisions were rendered. 

stipulations 

The parties stipulated to the following (ALJ-1) : 

1. The Commission has jurisdiction in these 

proceedings. 

1884 
2. The respondent owns and operates the subject 

mines. 

3. The respondent's mines are underground mines 

which extract bituminous coal, and the mines 

affect interstate commerce. 

4. The respondent extracted 14,918,109 tons of 

coal at all of its mines ending on 

February 5, 1991. 

5. The respondent extracted 994,759 tons of coal 

from the Murdock Mine from February 5, 1990 1 

to February 5, 1991. 

6. The respondent had 183 violations in the 

preceding 24 months ending on May 30, 1991 1 

at the Murdock Mine. 

7. The payment of the full penalty assessment on 

each citation will not impair the 

respondent's ability to continue in business. 

With respect to the respondentijs Spartan Mine, the parties 

agreed that the mine produced 1,290,418 tons of coal from May, 

1990, to May 1991. MSHA's counsel asserted that the mine had 56 

violations during the 24 months preceding the issuance of the 

contested citation in Docket No. LAKE 91-498. This history 

includes five violations of 30 C.F.R. § 70.lOO(a}, (Tr. 7). 

Discussion 

Docket No. LAKE 91-485 

In this case the respondent was served with a section 104(a) 

non-"S&S" Citation No. 3537733, on March 18, 1991, charging an 

alleged violation of mandatory safety standard 30 C.F.R. 

§ 75.512. The cited condition or p.ractice ·states as follows: 

The continuous miner 

operating condition. 

(foot) switch failed 

circuit. 

was not being maintained in a safe 

Under test the emergency stop 

to de-energize the tramming 

Petitioner's counsel asserted that upon further 

investigation of this matter MSHA has determined that the cited 

regulation does not apply to the facts presented and that the 

citation was issued in error. Under the circumstances, counsel 

moved to vacate the citation and to withdraw MSHA's proposed 

civil penalty assessment. The motion was granted from the bench 

(Tr. 6-7). My bench decision is herein reaffirmed, and the 

citation IS VACATED. 

1885 
Docket No. LAKE 91-498 

In this case the respondent was served with a section 104(a) 

11 5&5 11 Citation No. 9941672, on April 2, 1991, charging an alleged 

violation of mandatory health standard 30 C.F.R. § 70.lOO(a). 

The cited condition or practice states as follows: 

The results of five (5) respirable dust samples 

collected by the operator as shown by computer message 

No. 003-0(036) dated March 20, 1991, indicates the 

average concentration of respirable dust in the working 

environment of the designated occupation in mechanized 

mining unit No. 003-0(036) was 2.3 mg/m3 which exceeded 

the applicable limit of 2.0 mg/m3. Management shall 

take corrective actions to lower the respirable dust 

and then sample each production shift until five (5) 

valid samples are taken. 

The respondent did not dispute the fact of violation in this 

case. The parties agreed to a proposed settlement requiring the 

respondent to pay a civil penalty assessment of $75 for the 

violation in question. In support of the reduced penalty 

assessment the petitioner 1 s counsel asserted that although the 

designated occupation which was tested exceeded the legal 

respirable dust limit of 2.0 mg/m3 1 mine management has 

constantly taken the necessary corrective measures to maintain a 

dust-free working environment and that the mine has a traditional 

history of compliance with the respirable dust requirements. 

Further, counsel asserted that the violation was not the result 

of aggravated conduct by ~he respondent, and that the cited 

condition was timely abated in good faith (Tr. 8-10). 

After careful consideration of the pleadings and arguments 

presented in support of the proposed settlement of this case, and 

taking into account the six statutory civil penalty criteria 

found in section llO(i) of the Act, the proposed settlement 

pursuant to Commission Rule 30, 29 C.F.R. §,2700.30, was approved 

from the bench (Tr. 11). My decision in this regard is herein 

reaffirmed. 

ORDER 

Docket No. LAKE 91-485. Section l04(a) Citation 

No. 3537733, March 18, 1991, 30 C.F.R. § 75.512, IS VACATED. The 

petitioner's proposed civil penalty assessment is WITHDRAWN AND 

DISMISSED. 

Docket No. LAKE 91-498. Section 104(a) Citation 

No. 9941672, April 2, 1991, 30 C.F.R. § 70.lOO(a), IS AFFIRMED. 

The respondent shall pay a civil penalty assessment of $75 in 

satisfaction of the violation. Payment is to be made to MSHA 

1886 
within thirty (30) days of the date of this decision and order, 

and upon receipt of payment, this proceeding is dismissed. 

#~e:.~ Administrative Law Judge 

Distribution: 

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

Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory So Keltner 1 Esq., Zeigler Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

/ml 

l.887 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 6 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 91-100 

Petitioner A. c. No. 15-16901-03502 

v. 

MUSTANG FUELS CORPORATION, 

Respondent 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before~ Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 {the Act). The parties have filed a motion to 

approve a settlement agreement and to dismiss the case. A 

reduction in penalty from $450 to.$175 is proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that respondent pay a penalty of $175 within 

30 days of this order. 

Distribution: 

Anne T. Knauff, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Ms. Donna Johnson, Secretary/Treasurer, Mustang Fuels 

Corporation, P. o. Box 134, Barbourville, KY 40906 (Certified 

Mail) 

dcp 

1888 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 

KERR-MCGEE COAL CORPORATION, 

Contestant 

v. 

SFCRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

REVIEW ADMINISTRATION, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

REVIEW ADMINISTRATION, 

Petitioner 

v. 

KERR-MCGEE COAL CORPORATION, 

Respondent 

9 1991 

CONTEST PROCEEDINGS 

Docket No. WEST 91-84-R 

Citation No. 3242337: 10/25/90 

Docket No. WEST 91-85-R 

Order Noa 3242340: 10/25/90 

Jacobs Ranch 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-220 

A.C. No. 48-00997-03513 

Jacobs Ranch 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Respondent/Petitioner; 

Charles w. Newcom, Esq., SHERMAN & HOWARD, Denver, 

Colorado, for Contestant/Respondent. 

Before: Judge Lasher 

These three consolidated contest/civil penalty proceedings 

came on for hearing in Denver, Colorado, on July 23, 1991. KerrMcGee Corporation (herein 11 K-M 11 } in two contests challenges Citation No. 3242337 issued on October 25, 1990, by MSHA Inspector 

Jimmie Giles 1 charging a violation of 30 c.F.R. § 40.4 and 

1 The Citation, issued pursuant to Section 104(a) of the 

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

seq. (herein "the Act 11 ), describes the alleged violation in these 

terms: "The operator has failed to post a list of the representatives of the miners on the mine bulletin board." The Citation, 

which was served on Ron Crispin, Manager of K-M's Jacobs Ranch 

Mine, did not designate the infraction as "significant and 

substantial." 

1889 
§ 104(b) "failure to abate" Withdrawal Order No. 3242340 2 issued 

approximately 10 to 20 minutes after the Citation was issued. 

The Secretary of Labor (herein "MSHA 11 ) in the related penalty 

proceeding captioned seeks assessment of a penalty for the violation alleged in the citation. 

Contentions of the Parties 

The general issues are whether K-M violated 30 C.F.R. Part 

40.4 and§ 103(f} of the Act by failing to post the designation 

of representative of miners {in the record three times as Exhibits K-1, M-1, and A-1 to the stipulation) and, if so, the appropriate amount of penalty for such violation" 

As MSHA points outr there is no question that K-M did not 

post the "designation" and that it refused to abate the allegedly violative practice by posting it after being requested to do 

so by MSHA--which resulted in MSHAus issuance of a n ilure to 

abate" withdrawal order" The issue then is whether the def ens es 

asserted by K-M r ieve it from posting the designation and excuse the failure to abate. 

K-M states the issues as: 

1" Can a union r or an employee of that union v uv representue 

miners at a mine when the union does not represent the minevs 

employees pursuant to the provisions of the Labor Management 

Relations Act ("LMRA 11 )? 

2. Does MSHA's application to 30 C.F.R. Part 40 create an 

unnecessary and improper conflict between MSHA's regulations and 

the LMRA? 

3. Under Utah Power & Light Co. v. Secretary of Labor, 897 

F.2d 447, 452 (10th Cir. 1990) is it an "abuse" for a union, 

which does not represent employees at a mine pursuant to the 

provisions 

2 This "no area affected" Order, which did not close or 

shut down any area of the mine or equipment, alleged "The operator has made no effort to post a list of the miners 1 representatives on the mine bulletin board, and refuses to do so." In its 

Notice of Contest, K-M contends that "No viola ti on can be found 

because the designation of the United Mine Workers of America as 

a representative of miners under 30 C.F.R. part 40 for Jacobs 

Ranch Mine miners is improper." 

1890 
of LMRA to seek to become a 11 representative of miners" under 3 O 

C.F.R. Part 40 to facilitate organizing efforts at the mine? 

4. If a union's use of 30 C.F.R. Part 40 would require a mine 

operator to waive its rights under the LMRA, is such a use of Part 

40 an "abuse?" 

K-M's contentions then are: 

1. Properly interpreted, 30 C.F.R. Part 40 requires that 

before a labor union, or an employee of a union, can "represent" 

miners and thus be a "Representative of Miners," under the Act the 

union must be certified as a representative under the LMRA (To 

33-34); 3 

2. MSHA 0 s application of 30 C.F.R. Part 40 to K-M unnecessarily and impermissibly conflicts with the LMRA (To 43q 44); 

3. The designation in this matter is for union organization 

purposes and is thus an abuse of Mine Act regulations as applied to 

K-M, and under Utah Power & Light, supra, K-M can take action 

against the abuse (see T.37); 

In this connectionQ KM alleges that 11 Both the UMWA" s at~ 

tempt to gain under Mine Act regulations what it cannot acquire 

under the LMRA (access to mine property and various mine recordsu 

and a role in mine business as it relates to health and safety 000) 

and MSHA's proposed application of Part 40 at K-M which aids the 

UMWA in this organizing endeavor are an abuse." 

4. K-M, in this litigation, does not raise the issue of 

technical defects in the designation of miners (Te 49). 

30 C.F.R. Part 40, headed "Representative of Miners" consists of 

five sections which appear below. 

3 K-M's Jacobs Ranch Mine employees have never been represented for collective bargaining purposes by UMWA or any other 

union. CT. 75). 

1891 
The Regulation 

§ 40.l Definitions. 

As used in this Part 40: 

(a) "Act" means the Federal Mine Safety and 

Health Act of 1977. 

(b) "Representative of miners" means: 

(1) Any person or organization which represents two or more miners at a coal or other mine 

for the purposes of the Actu and 

( 2) "Representatives authorized by minersu• v 

11miners or their representative" u 11 authorized 

miner representative" u and other similar terms 

as they appear in the Act. 

§ 40.2 Requirements. 

(a) A representative of miners shall file with 

the Mine Safety and Health Administration District 

Manager for the district in which the mine is located the information required by § 40.3 of this 

part. Concurrently, a copy of this information 

shall be provided to the operator of the mine by 

the representative of miners. 

Cb) Miners or their representative organization 

may appoint or designate different persons to represet them under various sections of the act relating to representatives of miners. 

(c) All information filed pursuant to this part 

shall be maintained by the approp:r:iate Mine Safety 

and Health Administration-District Office and shall 

be made available for public inspection. 

(Approved by the Off ice of Management and Budget 

under control number 12190042) 

(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 

et seq.)) 

[43 FR 29509, July 7, 1978, as amended at 47 FR 

14696, Apr. 6, 1982] 

1892 
§ 40.3 Filing procedures. 

(a) The following information shall be filed by 

a representative of miners with the appropriate 

Oistrict Manager, with copies to the operators of 

the affected mines. This information shall be 

kept current: 

(1) The name, address, and telephone number 

of the representative of miners. If the representative of miners. If the representative is an organization, the name, address, and telephone number 

of the organization and the title of the official 

or position, who is to serve as the representative 

and his or her telephone number. 

(2) The name and address of the operator of 

the mine where the represented miners work and the 

name, address, and Mine Safety and Health Administration identification number, if known, of the mine. 

(3) A copy of the document evidencing the 

designation of the representative of minerso 

(4) A statement that the person or position 

named as the representative of miners is the representative for all purposes of the Act; of if the 

representative's authority is limited, a statement 

of the limitation. 

(5) The names, addresses, and telephone numbers, of any representative to serve in his absence. 

(6) A statement that copies of all information filed pursuant to this section have been delivered to the operator of the affected mine, prior to 

or concurrently with the filing of this statement. 

(7) A statement certifying that all information fled is true and correct followed by the signature of the representative of miners. 

(b) The representative of miners shall be responsible for ensuring that the appropriate District 

Manager and operator have received all of the information required by this part and informing such 

District Manager and operator of any subsequent 

changes in the information. 

1893 
§ 40.4 Posting at mine. 

A copy of the information provided the operator 

pursuant to § 40.3 of this part shall be posted 

upon receipt by the operator on the mine bulletin 

board and maintained in a current status. 

§ 40.5 Termination of designation as representative of miners. 

(a) A rep:cesenta tive miners who becomes unable 

to comply with the requirements of this part shall 

file a statement with the appropriate District Manager terminating his o.r her designationo 

(b) The Mine Safety and Health Administration 

shall terminate and ra~ove from its files all designations of representatives of miners which have 

terminated pursuant to paragraph (a) of this section 

or which are not in compliance with the requirements 

of this parto The Mine Safety and Health Administration shall notify the operator of such terminationo 

FINDINGS 

A. Stipulated Facts (Ex. M-7) 

1. Kerr-McGee is the owner and opera tor of the Jacobs Ranch 

Mine, located in Campbell County, Wyoming. T.lere are no issues 

of jurisdiction in this matter. 

2. On or about July 24 and 25, 1990, seven miners enployed 

at the Jacobs Ranch Mine signed Exhibit A to the Stipulation 

which may be introduced into evidence in this case. 

3. Exhibit A 4 lists the UMW a·s the miners' representative 

and lists UMW representatives to represent miners at the Jacobs 

Ranch Mine. 

4 The stipulation refers to Exhibits "A", "B", and 11 cn, 

which are described in the stipulation and are contained in the 

Exhibits file as part of the record. 

1894 
4. Employees at the Jacobs Ranch Mine have never been 

unionized by the UMW or any other union. 

5. One of the UMW representatives, Dallas Wolf, resides in 

Gillette, Wyoming, and is International ~eller/Organizer for the 

UMW, who is living in Gillette for the purpose of unionizing the 

coal miners in the Powder River Basin, including the miners at 

the Jacobs Ranch Mine. 

6. ~he second listed UMW representative, Bob Butero, 

resides in Trinidad, Colorado, and is an international representative of the UMW" 

7" After Exhibit A was signed by the seven employees listed 

thereon, it was mailed by Dallas Wolf to the District Managerv 

Coal Mine Safety and Health, District 9 in Denverv Coloradoo 

8 o Exhibit A was received by the Coal District 9 off ice and 

returned to Mr. Wolf for further information o The additional information was provided and received by the Coal District 9 office 

on or about August 30, 1990. 

9. On or about September 6u 1990 the Coal District Manag~ 

erv District 9u mailed a letter to Mr" Wolf u acknowledging receipt of Exhibit A. 

10. The letter to Dallas Wolf from William Holgate, dated 

September 6, 1990, acknowledging receipt of Exhibit A is attached 

as Exhibit B and may be admitted into evidence in this case. 

11. Dallas Wolf mailed Exhibit A to K-M Jacobs Ranch Mine, 

on or about August 30, 1990. 

12. Exhibit A was received by the Jacobs Ranch Mine and 

discussed by K-M management at the mine and at the office in 

Oklahoma City, Oklahoma. It was determined by management that 

the designation would not be posted at the time, or in any other 

location because of the view of'K::..M, which MSHA disagrees with, 

that Exhibit A is not proper under 30 C.F.R. 40. 

13. On or about October 25, 1990, MSHA received a 103(g) 

complaint regarding the Jacobs Ranch Mine. The complaint alleged 

that Exhibit A had not been posted at the mine as required by 30 

C. F. R. 4 0. 4. 

14. Upon receipt of the complaint, Coal Mine Inspector 

Jimmie Giles proceeded to the Jacobs Ranch Mine and presented a 

copy of the complaint to mine management, including Ron Crispin. 

1895 
15. Mr. Crispin informed Mr. Giles that Exhibit A had not 

been posted. During the visit by Inspector Giles, Mr. Crispin 

read a statement of position to Mr. Giles. The statement of position is attached hereto as Exhibit C and may be introduced into 

evidence in this case. 

16. Thereupon, Inspector Giles issued a 104Ca} citation to 

the Jacobs Ranch Mine for a violation of 30 C.F.R. 40.4, Citation 

No. 3242337. 

17. Inspector Giles informed the mine operator 1 through 

Mr. Crispin, that they would have approximately 15 minutes to 

abate the Citation by posting Exhibit A. 

18. Mr. Crispin conferred with the Oklahoma City office and 

determined that the opera tor would not post Exhibit A. 

19. After about 20 minutes, Exhibit A had not been posted 

and Inspector Giles had been notified that the mine would not 

post it. Inspector Giles the issued Order No. 3242340, a 104{b) 

order for failing to abate a citation. 

20. Mr. Giles then left the mine and returned to his office 

in Sheridanv Wyomingo 

21. As a result of the citation and order, K-M management 

representatives traveled to McAlester, Oklahoma, for a conference 

with MSHA sub-district manager, Joseph Pavlovich. No change was 

made in the citation or order as a result of the conference. 

22. On or about November 16, 1990, K-M filed a timely notice 

of contest with regard to the citation and order issued in this 

matter. Thereupon, the Secretary of Labor filed a timely 

response. 

B. Findings in Connection with Stipulation 

Exhibit M-1 (Ex. A to the Stipulation entered into by the 

parties) consists of a total of nine pages and 

a. 

5 

designates Bob Butera, International Safety Representative and Dallas Wolf, International Teller, 5 of UMWA as 

Exhibit K-36, page 11. 

1896 
"representatives" and seven employees as "alternate representatives" to serve as representatives of the miners 

under the Federal Mine Safety and Health Act of 1977, 

"for all purposes" (T. 32), 

b. was "submitted as requiredn by 30 C.F.R. 40.3, and 

c. prior to the submission of Exhibit M-1, there had been 

no prior designations, i.e., no miners' representatives 

under the Mine Act at the subject mine (T. 26-28, 54, 

151) . 

Exhibit C to the Stipulation, Respondentgs written statement 

of position objecting to the designation referred to in paragraph 

14 of the Stipulation which was read to the MSHA inspector who 

issued the Citation, provides as follows~ 

Kerr-McGee does not believe it can lawfully be required to accept the designation of a non-~~ployee 

walk-around representative at the Jacobs Ranch Mine 

or to recognize any other action by a non-employee. 

MSHA Inspectors are entitled to~ and encouraged tov 

talk to Jacobs Ranch employees as a part of all inspections" Inspections should proceed on that basis 

without outside interferenceo 6 

C. General Findings 

The subject coal mine is located in the Powder River Basin 

of Wyoming. The UMWA, since the summer of 1990, has been actively seeking to unionize the subject mine as well as other mines in 

the Powder River Basin. Dallas Wolf is an international representative of the UMWA who moved to Gillette, Wyoming, in April 

1990, to engage in union organizing activities. The UMWA held 

6 I find it significant that this was the reason K-M gave 

at the time for its refusal to post the designation and that on 

its face, the basis so asserted directly contradicts the fundamental holding of the landmark case, ~tah Power & Light Co., 

supra, that non-employee persons and organizations can serve as 

miners' representatives for walk-around purposes. '!he emphasis 

here is on opposition to 11 non-employee walk-around" representatives and "outside interference." Nothing is said about "abuse," 

even assuming arguendo that at this juncture recognizable abuse 

was a viable legal concept. 

1897 
several meetings in Gillette which were attended by Jacobs Ranch 

miners, which meetings were organized by Mr. Wolf. In July 1990, 

the UMWA sponsored several days of safety training, presented by 

Robert D. Butero, International Health and Safety representative 

residing in Trinidad, Colorado. Issues discussed during the 

safety training included safety and walk-around rights of miners. 

At the end of the safety training sessions, July 24 and 25, 1990, 

seven Jacobs Ranch miners signed the designation (Ex. M-1). 

Mr. Wolf played a key role in the preparation, circulation, and 

filing of the designation. The use of 30 C.F. 'R. Part 40 and the 

designation of miners' representatives was part of UMWA's organizing strategy and was an organizing "tool." 7 

After the designation was signed, it was sent to MSHA and 

was received on August 18, 1990. Concurrentlyu Mr. Wolf mailed a 

copy to the mine. 

Subsequently the designation was corrected by additional 

information and completed forms were sent to and received by MSH..~ 

and K-M. (Bxs. M-3 and M-4). 

Upon receipt of the designation, KM by general managB~ent 

decision determined not to post it even though it was familiar 

with the UP&L decision granting walk-around rights to non-employees (T. 147). K-M's determination not to post was made several 

months prior to the appearance of. MSHA Inspector Jimmie Giles at 

the mine when the Citation and Order were issued. K-M made no 

protest of the designation during this period and the testimony 

of its Manager of Administration, Ronnie D. Crispin, in this and 

related connections has considerable significance in this matter: 

Q. Okay. In between the time you decided not to post 

and the time Mr. Giles wrote his citation, did you 

send any letters to MSF.A explaining why you didn't 

want to post that designation form? 

A. No, we did not. 

* * * * * 

7 In this record K-M at best showed UMWA. used Part 40 as a 

"tool" to create employee interest and to enhance its standing. 

Beyond that K-M's fear as to UMWA.'s future action was 

speculative. 

1898 
Q. Mr. Crispin, is it your understanding that this 

designation, Exhibit M-1, is somehow abusive or 

something that was abused by the union? Is that 

your understanding of M-1? 

* * * * * 

A. Personally, I feel, yes, it's an abuse of intent 

in that. 

Q. (My Ms. Miller) Will you explain why you think 

that with regard to this document. 

A. Because it designates United Mine Workers as a 

Representative. 

Q. What 1 s abusive about that? 

A. Because, obviouslyp they do not represent our 

employees. 

Q. In the collective bargaining sense, they don't 

represent your employees? 

A. That 1 s correct. 

Q. Is there anything else that you see that's abusive 

about that document, anything else, or is that the--

A. That's the issue. 8 CT. 148-149) 

On or about October 25, 1990, MSHA received a Section 103Cg) 

complaint stating that the Jacobs Ranch Mine had not posted the 

designation of representative form as required by Part 40 regulations. Inspector Giles then traveled to the mine on that day and 

presented the complaint to mine management, i.e., Ron Crispin. 

Mr. Crispin informed the inspector that, indeed, the designation 

had not been posted and that it would not be posted. Crispin 

told Inspector Giles that the two miners designated as walk8 In terms of K-M's intent and purpose in refusing to post 

the designation, this testimony coincides with the written-out 

reason given to Inspector Giles when the Citation and Order were 

issued. 

1899 
a round representatives were union members and were not employed 

at the Jacobs Ranch Mine. Mr. Crispin further indicated that the 

mine had not received a notification from MSHA that the designation was a valid one. Inspector Giles then called his supervisor 

and the Denver District Off ice to determine the status of the 

designation form. Giles learned that MSHA did not notify K-M 

regarding a designation but that the representative of miners 

provided a copy to the operator, as noted on the form. He then 

issued the 104(a) citation and, as shown in the stipulation, 

i armed K-M that he would allow them 15 minutes to post the 

designation, and abate the decision. Mr. Giles herea£ter was 

informed that the designation would not be posted and he then 

issued the 104(b) order for a failure to abateo 

On January 2, 1991, MSHA District Manageru William Holgateu 

had a letter hand-delivered to K-M. The letter informed K-M of 

his intention to request that the asessment office begin a daily 

penalty if the citation was not immediately abatedo K-M was 

given 24 hours to abate and it did so at that time. 

Normally, the procedure for an inspection is for the inspector to be accompanied by a representative of the operator and 

a representative of the minerso Upon arrival at the minef the 

MSHA inspector will contact the operator to let him know that he 

is at the mine and ask if there is a designated representative of 

the miners available. If so, the inspector will contact that 

representative; if not, he may ask the miners present if they 

would like to select someone to accompany the inspector. CTr. 

166). The inspector is supposed to control the inspection and if 

the representative of the operator or the representative of the 

miner who is accompanying the inspector does something inappropriate the inspector should interrupt the inspection and explain 

that the representative is to only accompany the inspector and 

assist him in the inspection. CT. 167). The inspector would 

stop a representative from engaging in any union organizing activity and if it persists would prohibit that representative from 

participating in the inspection. . ( T. 168) ~ 

Based on many years of experience, MSHA subdistrict manager 

Joe Pavlovich testified to the practical aspects of a walk-around 

representative's duties: 

A. Basically, what the person does is just travel 

with an inspector and assist him most of the 

time. What we end up finding is, we probably 

train the people in health and safety regulations, as much as anything, through their accompaniment and asking questions and showing 

them what the correct interpretations of the 

regulations are and the conditions that we find. 

CT. 168-169). 

1900 
Q. Is there a time when someone who is not employed at the mine might be valuable to the 

inspector. 

A. Well, we have had people involved in accident 

investigations who would not be familiar with 

the mine, but they are valuable to the inspection work force at the time, usually in their 

knowledge of accidents or accident types or 

assistance in mine rescue or whatever we're involved in at the time. CT. 169). 

During the course of the inspection, the walk-around representative will have access to certain training records. (See 

for example, Exhibit M-17). In spite of testimony to the contrary by Mro Crispin, that is the only non-public record that is 

kept by the mine that the inspector and the representative might 

view. The other documents that would be accessible to a minersu 

representative are accessible to the general public, and the 

miners' representative thus does not see anything that he could 

not otherwise see or review. (T. 171-173). 

DISCUSSION AND ADDITIONAL FINDINGS 

The position of MSHA is found meritorious and is adopted. 

Examinaton of the pertinent provision of the Act and the 

regulations disclose no restrictions or qualifcations on "persons" or "organizations" in their inherent right to serve as representatives of miners. Specifically, there is no requirement of 

prior certification by the National Labor Relations Board {see T. 

34) nor any intimation of such to be found. 'I'he term "representative of miners" includes any individual or organization that 

represents any group of miners at a given mine and does not require that the representative be .. a recogrii zed representative 

under other labor laws. (See Legislative History Conference 

Report excerpt, Ex. M-6). The language of the regulation is 

express. It is concluded that UMWA was at material times an 11 organization" within the meaning of 30 C.F.R. 40.l(b}(l) and was 

not barred from representing miners as authorized by MSHA's regulations. The interpretations of MSHA to this effect have been 

consistent. Likewise precedent has been consistent, including 

the Utah Power & Light decision mentioned previously. 

1901 
In Secretary of Labor v. Benjamin Coal Company, 9 FMSHRC 17, 

51-52 (January 1987), Judge George Koutras stated" ••• it seems 

clear to me that in addressing the very concerns raised by the 

respondent [Benjamin Coal] with respect to the application of the 

collective bargaining provision of the National Labor Relations 

Act with respect to the definition of the term "representative," 

the Secretary, in promulgating Part 4 0 clearly distinguished the 

NL'RB law and the Mine Act purposes and rejected any notion that a 

representative of miners can only be based on any 'majority 

rule.' • . • I conclude • . • that the fact that the UMWA. may not 

represent the respondent's miners for puposes of NLRB or NLRA 

collective bargaining purposes does not foreclose its representation of the miners who designated it to act as their representative in the exercise of their rights under the Mine Act o 11 

I find merit in MSHA 8 s position that there is no conflict 

between the Mine Safety and Health Act and the Labor Management 

Relations Act in their application here. Although K-M uses the 

term "representative" in discussing both Acts, the term does not 

have the same meaning in both Acts. Under the LMRAP a representative is elected by a majority of the workersu pursuant to LMRA 

regulations. The purpose of the representative is to present the 

needs of the employees to the employer, concel:'ning terms and conditions of employmento Pursuant to the LMRA nRepresentatives 

designated or selected for the purposes of collective ba.rgaining 

by the majority of the employees in a unit appropriate for such 

purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining 

in respect to rates of pay, wages, hours of employment, or other 

conditions of employment .•• " 29 u.s.c. § 159(a). The representation, under the Labor Management Relations Act, is pervasive; 

it covers virtually all aspects of the labor-management relationship, and for a long term. The requirements of the LMRA that 

both sides are obliged to meet are extensive, and have been the 

subject of a long legal history. By contrast, under the Mine 

Safety and Health Act, a representative can be chosen by only two 

or more miners, pursuant to regulation, solely for the purpose of 

accompanying the mine inspector dur_ing his' inspection. 9 

9 MSHA seeks a representative of miners at each mine for 

the purpose of assisting the mine inspector and accompanying the 

inspector to point out any problems tha miners may have noticed. 

The representative remains with the inspector during the investigation and his only allowed activity is that of advising and observing the mine inspector. Should the representative engage in 

any other activity, he will be asked to leave and another representative will join the inspector. In MSHA terms, this person is 

a "walk-around representative." 

1902 
"Representative of Miners" is defined at 30 C.F.R. § 40.l(b) as 

"Any person or organization which represents two or more miners 

at a coal or other mine for the purposes of the Act." 

MSHA has determined that any person qualified to be on a 

mine site may act as miner's representative. ~1e representative 

need not be an enployee of the mine, nor a member, or nonm~~ber, 

of any labor or other organi za ti on. Because the Secretary is 

charged with administering the Mine Act, a remedial statute, the 

Secretary's construction of the Act "is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act. In order to sustain construction by the 

agency that administers the statute, a Court need only find that 

the agency's interpretation is reasonable. Unemployment Compensation Corrun'n v. Aragon, 328 U.S. 143, 154-154 (1946). The Court 

"need not find that [the administering agency 1 s] construction is 

the only reasonable one, or even that it is the result [the 

court] would have reached had the question arisen in the first 

instance in judicial proceeding." Id. at 153. Accord: Udall Va 

Tallman, 380 U.S. 1, 16 (1965); Chevron U.S.A., Inc. v. NRDC, 

Inc., 467 U.S. 837, 843 (1984). As the Tenth Circuit states in a 

case dealing with the Secretary's interpretation of the similar 

Occupational Safety and Health Actg 

tt[The] interpretation given a statute by the administrative 

agency charged with carrying out the mandate of the statute of 

the statute should be given great weight. Indeed, the interpretation given a statute by the administrative agency charged with 

its enforcement should be accepted by the courts, if such interpretation be a reasonable one. .~nd this is true even though 

there may be another interpretation of the statute which is itself equally reasonable." Brennan v. OSHRC, 513 F.2d 553, 554 

(10th Cir. 1975). 

In this regard, the Mine Act Senate committee report states: 

"Since the Secretary of Labor is charged with responsibil ty for 

implementing this Act, it is the in ten ti op of the Cammi ttee, 

consistent with generally accepted precedent, that the Secretary's interpretation of the law and regulations shall be given 

weight by both the Commission and thecourts. s. Rep. No. 95-181, 

95th Cono, 1st Sess. 49 (1977), reprinted in Senate Subcommittee 

on Labor, Committee on Human Resources, 95th Cong., 2d Sess. 

Legislative History of the Federal Mine Safety and Health Act of 

1977 at 637 (1978). 

The Secretary's interpretation of the statute and regulation 

is actually supported by the Tenth Circuit's decision in Utah 

Power & Light Company v. Secretary of Labor, supra. In that 

1903 
case, miners at the Deer Creek Mine in Utah designated as a representative of miners for walk-around purposes a member of the 

United Mine workers who was not employed at the Deer Creek Mine. 

Although the Deer Creek Mine also recognized the UMW as a representative for collective purposes pursuant to the LMRA, the Court 

focused on the meaning of "representative" as used in the Mine 

Act in determining that "the Act clearly spells out the purpose 

of a miners' representa ti:ve·• s participation in an inspection." 

That participation is solely to aid the inspector in this investigation. The Court did not compare a walk-around represen tative to a collective bargaining representative for purposes of 

i::.he LMRA. The statements made by the Court with regard to the 

meaning of "representative" were in the context of addressing the 

issue raised by the mine operator, that if non-e..11ployees of the 

mine were allowed to act as walk-around representativesv it may 

open the door for unions to participate at mines not represented 

by a labor organization. The Court found no merit in the operatorv s contention that would cause it to limit walk-around rightso 

Instead, the Court determined that the Mine Act and the regulations place no limits on who may be chosen as a walk-around representative and hence it is logical to inf er that the "no limitation" aspect of the designation extends to members of labor and 

other organizationso The Court noted that the Secretaryus position was amply supported by the history of the Mine Actv and that 

the Secretary 1 s interpretation of the Act was uureasonable and 

supportable." (See T. 174). 

The Court, in passing, merely noted the argument of the mine 

operator regarding possible abuse, and dismissed the argwnent 

with the one sentence that K-M relies on here. That sentence, 

when read in the context of the decision, does not give K-M the 

right to ignore the posting requirements and to ignore an order 

issued by MSHA. The Court stated: 

UPL's argument ignores the fact that, as with a 

federal inspector, the Act clearly spells out the 

purpose of a miners' representative's participation in an inspection. S..ection 103 Cf) provides 

that an authorized miner's representative shall 

have the opportunity to accompany a federal inspector during the inspection of a mine "for the 

purpose of aiding such inspection." While we recognize UPL's concern that walk-around rights may be 

abused by non-employee respresentatives, the _E2-

tential for abuse does not require a construction 

of the Act that would exclude non-e..11ployee representatives from exercising walk-around rights altogether. The solution is for the operator to take 

1904 
action against individual instances of abuse when 

it is discovered. (Emphas.is added.) 

'K-M has shown no individual instance of abuse in this case. 

Nor has it shown, beyond speculation, that UMWA's organizing 

strategy, or for that matter the purposes of any of those signatory to the designation, contemplated misuse of Part 40 rights by 

ther "outside" or fifth-column type infiltration of working 

areas to enlist menbers, distribute literature, purloin confidential K-M records, etc., under the facade of Mine Act walk-around 

participation. I am unable to conclude, absent clearer basis and 

authority to do so, that the exercise of important safety rights 

granted under one Act of Congress can per .se be abusive because 

such exercise is either controlled or influenced to some degree 

by an organization engaged in union organizing the rules for 

which are set forth by an agency created by another Act of Congress. One would reasonably expect that both parties 1 having 

various rights under various laws and regulationsf would exercise 

them. 

The exercise of rights under the Mine Act by certain K-M 

employees to desgna te UMWA as their "representative of miners 19 is 

found not to be an 11 abuse 11 even though UM~'A has not been cert 

fied as collective bargaining representative for K-Mis employees 

or appropriate units of then. 

CONCLUSIONS 

1. The exercise of a right given under one law, the Mine 

Safety and Heal th Act, as part of a labor organization 1 s program 

to organize miners under another labor law, is not per .se an 11 abuse." If, in exercising the right, 11 in di vi dual instances" 

occur where a union engages in improper conduct, then the question of specific abuse arises and must be determined on a case by 

case basis. · 

2. In the process of designation of- miners' representatives 

under the Act the subjective intent of the union, organization, 

or person does not determine whether there is an abuse. The 

right to designate miners' representatives exists under the Act 

independent of whether union organizing is ongoing (and is an 

ulterior motive), and "abuse" thereof must be something beyond 

the exercise of the right. 

3. Conversely, depriving a union, other organization, or 

person of their full rights under the Mine Act to designate a 

representative under the Act by failing to post the designation, 

while being part of a mine operator's own opposition to organizing efforts can at the same time be a violation of the Act. 

1905 
In conclusion, no merit is found to the defenses and contentions raised by K-M which have been specified previously herein 

and analyzed. ~he fact that it refused to post the designation 

is admitted. Accordingly, the violation as charged in the 

Citation and Order is found to have occurred. 

ssessment of 

K-M is a large mine operator {265-270 employees in 1990); 

(T. 135) with a history of eight prior violations during the 

pertinent two-year period preceding the instant violation. 

(Ex. M-5) o 

The violation is found to have occurred as a result of a 

well-deliberated decision by K-M to challenge the validity of the 

regulation requiring posting of the miners 1 designation of representatives made in the background of its resistance to the UMWA 

organizing campaign. In gauging culpabilityv whether negligence 

or deliberate action, the reason originally assigned by K-M for 

refusing to post the designation appears to rest on thin legal 

ground, and the failure to post did deprive miners of rights 

guaranteed in the Act and irnplamenting regulations. 

The infraction was of a moderate degree of seriousness since 

it deprived the miners of their rights (T. 55) including their 

right to know who th r representatives were and the scope of 

their authority so that safety concerns could be communicated to 

then in advance of inspection. 10 

Finally, it does not appear that K-M, upon notification of 

the violation, proceeded to promptly abate the same. 

In mitigation, it is noted that K-M established that it has 

a favorable safety record. 

Upon consideration of the foregoing, a penalty of $300 is 

found appropriate for this violation and such is here 

ASSESSED. 

10 As the Tenth Circuit Court stated in Utah Power & Light 

Co., supra, " ••. knowledge on the part of the miners of the 

identity, whereabouts, and scope of responsibility of their 

representatives promotes the purposes of the Act." (See T. 

53-54). 

1906 
ORDER 

1. Contestant K-M's Notices of Contest in the two Contest 

Proceedings are DENIED: Citation No. 3242337 and Withdrawal 

Order No. 3242340 are AFFIRMED; the two Contest proceedings 

a re DISMISSED. 

2. Respondent K-M shall, within 30 days from the date of 

this decision, pay to the Secretary of Labor the sum of $300 as 

and for the civil penalty above assessed . 

Distribution: 

. if:u~-/d ~~&< cft·~ Michael Ao Lasher u Jr o 

Administrative Law Judge 

Charles W. Newcom, Esq., SHERMAN & HOWARD, 633 17th Streetu Suite 

3000, Denver, CO 80202 (Certified Mail) 

Curtis B. Hendricks, Esq., KERR-MCGEE Corp., P.O. Box 25861, 

Oklahoma City, OK 83125 (Certified Mail> 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Robert D. Butero, UMWA, 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

ek 

1907 
fEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 12 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONCO-WESTERN STONE COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

ROSS CAMPBELL, EMPLOYED BY 

CONCO-WESTERN STONE COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-41-M 

A. C. No. 11-00040-05507 

Aurora Quarry Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-52-M 

A. C. No. 11-00040-05508-A 

Aurora Quarry Mine 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U. S. Department of Labor, Chicago, Illinois, for 

the Secretary; 

Joseph c. Loran, Esq., Murphy, Hupp, Foote, Mielke 

and Kinnally, Aurora, Illinois, for the 

Respondents. · 

Before: Judge Maurer 

These consolidated cases are before me upon the petitions 

for civil penalties filed by the Secretary pursuant to 

sections llO(a) and llO(c), respectively, of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., the 

"Act'', seeking civil penalty assessments for alleged violations 

of certain mandatory safety standards found in Part 56, Title 30, 

Code of Federal Regulations. 

The issues presented herein are whether the respondents 

have violated the standards as alleged in the petition for 

assessment of civil penalties, whether the violations were 

"significant and substantial," and the appropriate civil 

penalties that should be assessed based on the civil penalty 

criteria found in section llO(i} of the Act. An additional issue 

in the section llO(c) case is whether Ross Campbell, as the agent 

1908 
of the corporate mine operator, knowingly authorized, ordered or 

carried out the cited violations of the mandatory safety 

standards alleged in the petition for civil penalty. 

These issues were tried before me on June 28, 1991, in 

Aurora, Illinois, and all parties have filed posthearing briefs 

which I have duly considered in making the following decision. 

Citation/Order No. 3259899 was issued by MSHA Inspector 

Arthur J. Toscano on February 6, 1990, and alleges violations of 

30 C.F.R. § 56.14100(c), 30 C.F.R. § 56.1410l(a) (1), and 

30 C.F.R. § 56.1410l(a) (2). 

From February 5 through February 7, 1990, Inspector Toscano 

had conducted an inspection of Conca-Western Stone Company 1 s 

Aurora Quarry. On February 6, he encountered a 11 beat-up" green 

Ford pick-up truck parked on a ramp in front of the main garage 

and repair building at the quarry site. He observed that the 

parking brake was permanently wired up in the off position, the 

doors did not close or latch, the seat of the truck was bare coil 

springs with only a piece of rubber covering over it, and there 

was a large hole in the floor of the truck where the floor pan 

area had rusted through. The truck also had no muffler. The 

exhaust pipe ended at the hole in the floor. The inspector next 

attempted to conduct a service brake check. When he pushed on 

the brake pedal, it went right to the floor. When he attempted 

to pump it up by pushing on the pedal two or three more times, it 

came up a little bit. 

At this time the radiator was also out of the truck. My 

impression is that this truck was probably taken out of service 

de facto on an economic basis with or without the inspector's 

action, but the fact remains that it wasn't tagged out of service 

or placed in a designated area posted for that purpose prior to 

the inspection. Furthermore, Foreman Randy Brey, standing in for 

the Superintendent, Ross Campbell, who was on vacation, told the 

inspector that when and/or if a replacement radiator was 

purchased, the truck would be xet,urned to service. Brey further 

informed him that the truck had been used in the condition the 

inspector found it in until the radiator was removed. In fact, 

the truck had been used up until the day before the inspection in 

all likelihood. 

Respondents, however, admit only that the parking brake was 

inoperative. They contest the existence of the violation with 

respect to the service brakes and also deny that the truck's 

"defects" made its continued operation hazardous to persons in 

the area and further deny the degree of negligence alleged and 

the inspector's finding of a "significant and substantial" 

violation. They affirmatively assert that the vehicle had been 

taken out of service prior to the inspection. 

1909 
Respondents also argue that the inspector failed to follow 

his own regulations for testing the service brakes. He declined 

to do so because he claims it wouldn't have been safe to move the 

truck, let alone perform a 15-20 m.p.h. brake test on it. I 

cannot find any fault with the inspector's reasoning here, 

especially since he could visually observe that the front service 

brake system was disconnected and totally inoperable. The truck 

was designed with a four wheel braking system and he determined 

that it would be hazardous to operate the truck without service 

brakes on all four wheels. I concur. 

Randy Brey also testified. On the day of the inspection, he 

was "acting like a foreman" because Ross Campbell was on 

vacation. He states that it was Ross Campbell, the 

superintendent, who was responsible at the quarry site for the 

safety and health of the miners. 

Brey is very familiar with the truck in question. It has 

been in service at the quarry for the 17 and 1/2 years that he 

has worked there. It was used as a maintenance vehicle and 

carried tools, parts, welding equipment, etc. It was driven for 

short distances mostly, generally no more than a half-mile at a 

time and never off the site. 

This witness was aware of and corroborated the inspector 1 s 

testimony concerning the generally poor condition of the truck; 

i.e., the doors that wouldn't close, the hole in the floorboard, 

loud engine exhaust into the truck, and "bad" brakes. However, 

he insisted that he was not aware that it had 11 no 11 brakes, he 

had only heard that it had "bad" brakes. This he learned from 

the men that drove it every day, since he had not driven it in 

6 months or so at the time of the inspection. 

Inspector George Lalumondiere testified that after 

Citation/Order No. 3259899 was written, he was assigned to do a 

special investigation into a possible "knowing violation" (a 

section llO(c) investigation). Based on the information he 

gathered from the quarry employees qJ1.d from 'Ross Campbell 

himself, he felt that although Campbell denied having actual 

knowledge of it, had he (Campbell) used prudent care, he had 

every reason to know of the condition of the truck because he was 

the superintendent and the person responsible for the safety and 

health of the employees, and he saw the truck daily in operation 

around the mine site. 

A sampling of some of these witness statements taken from 

miners during the section llO(c) investigation provide a basis 

for his opinion. John Raue relates that the truck was in 

terrible shape; no brakes, no windows in the doors or back of the 

truck, doors that wouldn't stay shut and floorboards that were 

rusted completely out of the truck (Petitioner's Exhibit No. 2). 

Mike Mertens related that the truck had no brakes, no 

1910 
floorboards, doors that wouldn't stay closed, worn out ball 

joints and tie rod ends and was just in terrible shape. When he 

complained to Ross Campbell about it, Campbell told him it was 

better than walking (Petitioner's Exhibit.No. 5). 

Campbell himself admits that the exhaust system was bad, 

there was a hole in the floor, the door wouldn't latch, and the 

parking brake was not working. He also admits that all of these 

things should have been fixed. He does, however, dispute that he 

was aware of any problem with the truck's service brakes. As far 

as he was concerned, they worked. 

After the inspection and citation of February 6, 1990, the 

truck was discarded. It was never repaired or used again after 

that. 

Basically, with the exception of the disagreement over the 

status of the service brakes, the evidence is unrefuted and 

really undisputed that the truck had myriad other safety-related 

discrepancies. It looked like the inspector, Brey and the other 

miners, including even Superintendent Campbell say it looked. 

With regard to the service brakes, my impression is that they 

were probably marginally operative; but only by pumping the brake 

pedal and then since only the rear set of brakes was even 

connected, they were most likely not effective in stopping the 

vehicle once it had any momentum. It is also my impression that 

but for the radiator being out of the vehicle, they would have 

been using it in just the condition it was in on the day of the 

inspection. I therefore find and conclude that the truck had not 

been taken out of service, except for the absence of the radiator 

necessarily shutting it down for the time being. The truck was 

not marked or tagged out for repairs. It was also not in any 

designated area set aside for equipment that had been taken out 

of service. 

Because of the totality of circumstances involving the 

truck, I concur with the Secretary that the truck presented a 

safety hazard to the miners.whodF:ove or rode in or on it as well 

as to the miners who were pedestrians in the quarry site area all 

in violation of 30 C.F.R. § 56.14100(c). 

Specifically with regard to the brakes on the vehicle, I 

conclude and find that the credible testimony of the inspector 

establishes that the front service brakes were disconnected and 

therefore inoperable and the parking brake was admittedly 

inoperable, all in violation of 30 C.F.R. § 56.1410l(a) (l) 

and (2). I conclude and find that any reasonable interpretation 

of the intent of this standard requires that the brakes perform 

the function for which they are normally designed when they are 

on the truck. This truck was designed by the Ford Motor Company 

to operate under normal conditions with wheel brakes on all four 

wheels and a parking brake. Moreover, the inspector tested the 

1911 
remaining rear service brakes by pumping the brake pedal and 

found them to be in his opinion inadequate to stop the vehicle. 

I therefore find that it was not necessary and would in fact have 

been imprudent on his part to risk the life and limbs of anyone 

else conducting a diagnostic braking test with this truck. 

Respondent's argument that he should have performed the testing 

described in 30 C.F.R. § 56.1410l(b) is without merit and is 

rejected. 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation 11 of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designa~ed 

significant and substantial "if, based upon the particu~ar facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

With the exception of the violation of 30 C.F.R. 

§ 56.1410l(a) (2), the parking brake violation, I find all the 

remaining violations (the other two) to be of a significant and 

substantial nature. That finding is deleted from the parking 

brake violation and the ordered civil penalty will reflect that. 

The lack of adequate service brakes (by itself a significant and 

substantial violation) combined with all the other admitted 

safety-related deficiencies of this vehicle seriously compromised 

the safety of all those who had to operate the vehicle or be in 

the vicinity where it was being operated. I conclude and find 

therefore that its operati.on on the quarry site presented a 

reasonable likelihood of an accident which would reasonably and 

likely be expected to result in at least injuries to the driver 

as well as any other occupants or pedestrian quarry personnel 

exposed to the hazard. Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984) . 

Turning now to the individual respondent, the evidence in 

this case clearly supports the char"Cjes that the respondent, Ross 

Campbell, was an agent of a corporate mine operator and that he 

knowingly authorized the violations of the mandatory standards 

discussed herein. The condition of the truck was so obvious that 

he should have known of it and I find he did know of it. He 

observed rhe truck daily in use and even used it himself on 

occasion. Miners had complained to him about the truck's 

condition and in any event it was his own responsibility as 

superintendent ~o keep the truck in compliance with the pertinent 

mandatory standards. 

The Commission has defined the term "knowingly, 11 in Kenny 

Richardson v. , 3 FMSHRC 8 (1981), 689 F.2d 632 

(6th Cir. 1982), cert g~nieQ, 461 U.S. 928 (1983) as follows: 

1912 
"Knowingly", as used in the Act, does not have any 

meaning of bad faith or evil purpose or criminal 

intent. Its meaning is rather that used in contract 

law, where it means knowing or having reason to know. 

A person has reason to know when he has such 

information as would lead a person exercising 

reasonable care to acquire knowledge of the fact in 

question or to infer its existence . • . We believe 

this interpretation is consistent with both the 

statutory language and the remedial intent of the coal 

Act. If a person in a position to protect employee 

safety and health fails to act on the bas of 

information that gives him knowledge or reason to know 

of the existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 3 FMSHRC 16. 

The facts of this case clearly meet this definition. 

These "S & S" violations were also serious because by 

allowing this piece of equipment to deteriorate to the extent it 

had by the time the inspector found it, the miners had been 

permitted to work in the presence of serious safety and health 

hazards for quite some time. These conditions could have led to 

reasonably serious injuries. On the other hand 1 I consider the 

violation involving the parking brake to be neither 11 significant 

and substantial" nor serious. 

I concur in the inspector's original finding of "moderate" 

negligence.-

Considering all the applicable criteria contained in 

section llO(i) of the Act, I find the following civil penalties 

to be appropriate: 

Docket No. LAKE 91-41-M 

STANDARD VIOLATED 

30 C.F.R. § 56.14100(c) 

30 C.F.R. § 56.14101(a) (1) 

30 C.F.R. § 56.14101(a) (2) 

Docket No. LAKE 91-52-M 

STANDARD VIOLATED 

30 C.F.R. § 56.14100(c) 

30 C.F.R. § 56.1410l(a) (1) 

30 C.F.R. § 56.1410l(a) (2) 

1913 

PENALTY 

$500 

$500 

$100 

PENALTY 

$300 

$300 

$ 50 
ORDER 

Cenco-Western Stone Company is ORDERED to pay civil 

penalties of $1100 within 30 days of the date of this decision. 

Ross Campbell is ORDERED to pay civil penalties of $650 

within 30 days of the date of this decision. 

Law Judge 

Distribution~ 

Miguel Jo Carmonau Esqou Office of the Solicitoru Uo So 

Department of Laboru 230 South Dearborn Streetu 8th Flooru 

Chicago, IL 60604 (Certified Mail) 

Joseph Co Loran, Esq., Murphy, HUPPu Foote, Mielke and Kinnallyu 

North Island Centeru Po Oo Box 5030u Aurorau IL 60507 (Certified 

Mail) 

dcp 

1914 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 13 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

L. KENNETH TEEL, PRESIDENT OF 

CALIFORNIA LIGHTWEIGHT 

PUMICE, INC., 

Respondent 

SEC RETA RY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)v 

Petitioner 

v. 

GEORGE W. WEINBECK, EMPLOYED 

BY CALIFORNIA LIGHTWEIGHT 

PUMICE I INC. I 

Respondent 

: 

CIVIL PENALTY PROCEEDING 

Docket Noo WEST 90-284-M 

A.C. No. 04-04602-05527 A 

Docket No. WEST 90-326-M 

A.Co No. 04-04602-05539 A 

Docket No. WEST 90-356-M 

AoCo NOo 04-04602-05536-A 

Battle Mountain Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-325-M 

A.C. No. 04-04602-05526 A 

Battle Mountain Mine 

DECISION 

Appearances: J. Phillip Smith, Esq., Office of the Solicitor, 

U.S. Department of La·bor, Arlington, VA, 

for Petitioner; 

L. Kenneth Teel, Pro Se, 

for Respondent - Teel. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration ("MSH_~") alleges Respondents, as employees 

of California Lightweight Pumice, Inc. ("CLP") violated Section 

llO(c) of the Federal Mine Safety and Health Act, 30 u.s.c. 

§ 801, et seq. the ("Act"). 

A hearing on the merits was held in San Bernardino, California, on October 30, 1991. 

1915 
The parties waived closing arguments and the filing of post 

trial briefs. 

Threshold Issues 

Prior to the hearing, CLP filed a notice of its filing of a 

petition under Chapter 11 of the Bankruptcy Code, Title 11, U.S.C. 

The corporation asserts that under 11 u.s.c. § 362, it is entitled to an automatic stay of the instant cases. 

As a threshold matter, the motion of CLP for a stay is without merit. CL~ is not a party to these cases. The Secretary is 

proceeding under Section llOCc) of the Act against L. Kenneth 

Teel as an employee and President of CPL. Further, the Secretary 

is proceeding against George W. Weinbeck as Production Manager 

and Supervisor of CPL. 

Section llO(c), 30 u.s.c. § 820(c) of the Act provides as 

fallows: 

Cc) Whenever a corporate operator violates a 

mandatory health or safety standard or knowingly violates or fails or refuses to comply with 

any order issued under this Act or any order 

incorporated in a final decision issued under 

this Act, except an order incorporated in a 

decision issued under subsection (a) or section 

105(c) any director, officer, or agent of such 

corporation, who knowingly authorized, ordered, 

or carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed 

upon a person under subsections (a) and (d). 

In addition, Section 362(b) of the Bankruptcy Code specifically provides this exception: 

(b) The filing of a petition urider section 

301, 302, or 303 of this title does not operate as a stay-

(4) under subsection (a)(l) of this section, 

of the commencement or continuation of an action or proceeding by a governmental unit to 

enforce such governmental unit's police or regulatory power; 

1916 
If CLP had been a party herein, an automatic stay would not 

have been appropriate since CLP would be within the above exception. Shippers Interstate Service, Inc. v. National Labor Relations Board, 618 F.2d 9, (7th Cir. 1980), Heiney v. Lion Coal 

~o., 4 FMSHRC 572, 574-575 (1982). 

A further threshold issue is the proof required in a case 

arising under Section llO(c) of the Act. 

In construing this section, the Commission has stated that 

the word "knowingly" as used in this portion of the _Z\ct does not 

have any meaning of bad faith or evil purpose or criminal intento 

Its meaning is rather that used in contract lawv where it means 

knowingly or having reason to know" .A person has reason to know 

when he has such information that would lead a person exercising 

reasonable care to acquire knowledge of the fact in question or 

to infer its existenceo United States Vo Sweet Briarv Incov 92 

Fo Suppo 777v 779 (DoSoCo 1950v quoted approvingly in Secretary 

v. Kenny Richardson, 3 FMSHRC 8 (198l)p affirmedv Richardson Vo 

~ecretary of Labor and FMSHRC, 689 F. 2d 632 (6th Cir. 1982), 

cert. denied, 461 U.S. 928 (1983)0 

It is accordingly appropr te to analyze the evidence as it 

relates to whether the individuals her n 11 knowingly 11 violated 

the regulations. 

A further predicate for an agent's liability under section 

llO(c) is a finding that the corporate operator violated the Act. 

Kenny Richardson, supra, 3 FMSHRC at 9. 

~ final threshold issue, raised by Respondent Teel, is whether these cases should be dismissed because of "double jeopardy". 

Specifically, Mr. Teel argues the company paid almost $20,000 in 

fines and the Secretary should not be permitted to proceed 

against employees. 

I reject Respondent's argumer,i_ts. In-a civil proceeding such 

as involved here Congress can fashion such remedies it deems 

necessary and they need only be rationally related to a legitimate governmental interest. Richardson, supra, 689 F.2d at 633. 

Further, double jeopardy (Fifth Am~ndment) relates to criminal 

trials. It is not involved in these cases. 

1917 
Docket No. WF.ST 90-326-M 

In this case, Citation No. 3069893 alleges L. Kenneth Teel 

violated 30 C.F.R. § 56.11001. 1 

The citation reads as follows: 

Safe access was not provided into the 

parts trailer in that the company was using a pallet for stairs into the trailer. 

The unsafe access was being used by employees on a daily bases (sic). Management was aware that this condition existed. 

Photo number 11 shows the violation and 

the hazard. 

ARLE \•L BROWN, an MSHA inspector for 16 yearsv identifi 

the legal identity report subnitted by CLP to MSHA (Tro 19-21~ 

Ex. P-1). ~he report indicates Kenneth Teel is president of CLP 

and George Eugene Weinbeck is a supervisor. (Tre 21). 

The Company produces a lightweight aggregate used in building materials. It eventually enters interstate commerce. (Tr. 

2 2) 0 

Mr. Brown issued Citation No. 3069893 under section 

104(b)(2) of the Act and served it on Gale Ashley, CPL's manager. 

(Tr. 2 3) • 

During the regular inspection, Mr. Brown went into the ba.ck 

part of the mine where the company stored parts and time cards. 

Instead of a stairway, they used a leaning unsecured 4 foot X 4 

foot pallet to provide access to the trailer. The trailer was a 

working place as time cards were stored there. (Tr. 24, 26: Ex. 

P-4). CLP aba.ted the violation by constructing a regular stairway. 

(Tr. 26). Someone might stumble on the pallet and break an ankle. 

(Tr. 28). From talking to people, the inspector learned Mr. Teel 

knew the trailer was there. Ih addition, Mr. Teel had used the 

pallet himself to climb into the trailer. 

1 § 56.11001 Safe access. 

Safe means of access shall be provided and maintained to all working places. 

1918 
The inspector did not know who owned the storage trailer. 

(Tr. 28). He further agreed he didn't.see any employee enter, 

leave or punch a timecard in the trailer. (Tr. 29). 

L. KENNETH TEEL, President of CLP, testified. He indicated 

the trailer was used to store filters and parts. Further, the 

van was owned by Capistrano Bulk Transport. In addition, only 

the production manager and Mr. Teel had keys and access to the 

trailer. 

In Mr. Teel's opinion, the use of the pallet to provide 

access was not unsafe. The trailer was not used to house time 

cards. (Tr. 31-34) • Mr. Teel agreed that he personally had used 

the parts trailer many times. The company paid a civil penalty 

in this matter. (Tr. 33)o 

Discussion 

The safe access regulation, § 56.llOOlu has been previously 

construed to the effect that each means of access to a working 

place must be safe. The Hanna Mining Company, 3 FMSHRC 2045, 

2046 (1981}~ Homestake Mining Company, 4 FMSHRC 146u 151 (1982)0 

It is apparent that an unsupported pallet leaning against a 

trailer for support is not safe. (See photograph Exa P-4)a It 

is further uncontroverted that both Messrs. Teel and Ashley had 

access to the trailer. 

The evidence establishes that Respondent Teel violated this 

regulation. Further, Mr. Teel, CPL's president, knew of the 

violative condition since he used the pallet to enter the trailero 

Accordingly, Citation 3069893 should be affirmed and a civil 

penalty assessed. 

1919 
Docket No. WF.ST 90-284-M 

In this case, Citation No. 3463959 alleges L. Kenneth Teel 

violated 30 C.F.R. § 56.3131. 2 

The order reads as follows: 

The pit wall perimeter had loose and unconsolidated material 

and rocks that had not been stripped back for a distance of 10 

feet nor was it sloped to the angle of repose. Several rocks 

were directly above a haulage road. (The rocks were about 2 feet 

in diameter). This is an active pit exposing employees to the 

hazards of falling rocks and material. The pit wall is about 50 

feet high. 

ARTHUR L. ELLIS, a MSHA inspector experienced in miningv 

issued Order No. 3463959 under Section 104(a) and 107(a) of the 

Mine Act. (Tr. 37v 38L 

When the inspector arrived at the mine site, a loader was 

across the road. A sign stated the mine had been closed. After 

a short time, George Weinbeck arrived and explained that the 

BLM 3 had closed down the mine. Mr. Ellis advised Gene Ashley 

that he desired to make a regular inspection. (Tr. 39) o Ashley 

explained they had been working until the afternoon of the day 

before. At that time BLM had closed it down and locked the 

gates. 

Mr. Ashley stated he would accompany the inspector but he 

left and did not return. Mr. Ellis again attempted to make his 

2 

3 

§ 56.3131 Pit or quarry wall perimeter. 

In places where persons work or travel in performing their assigned tasks, loose or unconso1 ida ted material shall be sloped to the angle of 

repose or stripped ba.ck for at least 10 feet 

from the top of the pit or quarry wall. Other 

conditions at or near the perimeter of the pit 

or quarry wall which create a fall-of-material 

hazard to persons shall be corrected. 

aureau of Land Management manages the property for the 

U.S. Government. The land is leased by CPL. 

1920 
inspection and his supervisor advised him to obtain a key from 

BLM and proceed with the inspection. (Tr. 40, 41). 

Mr. Ellis observed the pit and the plant. He issued a 

104(a) and a 107(a) order to be sure that no one would work the 

pit until the hazard was correct~d. (Tr. 41). Mr. Ellis talked 

to Mr. Teel who told him he was aware of the rocks and it would 

take 5 to 10 minutes to remove them. Mr. Teel also told him· to 

mail the company his enforcement documents. (Tr. 42). The pit 

wall was about 50 feet high. (Tr. 43). Mr. Ellis issued a termination order on July 6, 1989. The rock and loose material had 

been removed about 10 feet around the perimeter of the pit wallso 

(Tr. 44). 

Mr. Bllis agreed Mr. Teel was at the office in Capistrano 

Beach when he talked to him by telephone o (Tr o 4 5 v 4 6) o 

L. KENNETH TEEL testified the material in this particular 

pit was wet and fineo The entire surrounding pit and high wall 

area was unstable. (Tr. 46, 47). The company had terraced back 

but the native soil was unstable. He indicated the soil was like 

"hour-glass. 11 It was a daily thing to attempt to remove and keep 

the benched area cleano Once a dozer was up there, the rocks 

would continue to fall down. According to Mro Teelu when the 

citation was issued, Mr. Ellis saw some large rocks but an 

equipment operator in an enclosed cab could not have been injured. 

(Tr. 47, 48). Mr. Teel did not feel this was an unsafe condition& 

Further, it was something that was corrected on a daily basis. 

(Tr. 47). The miners do not have to get out of their trucks when 

they enter the pit. (Tr. 49). Mr. Teel testified he was only 

aware of the condition after the citation was issued. Mr. Teel's 

office is in Orange County and the mine site is in Ingo County 

Ccalifornia). According to Mr. Teel it is 200 miles from the 

mine site to his office in Orange County. He vaguely remembered 

talking to Mr. Ellis by telephone. 

CLP was closed down by BLM because they had not met all the 

terms of their mining and reclamation plan. (Tr. 50). Mr. Teel 

indicated the haul truck drivers would normally drive in a circle 

around the pit and position their trucks to drive forward out of 

the pit. (Tr. 5). 

ARTHUR L. ELLIS (recalled) indicated the company had been 

working the afternoon before the inspection. 

The inspector felt the situation had to be corrected before 

anyone traveled under the highwall along the highway. A boulder 

1921 
could come down and crash through one of the trucks. The hazard 

here was caused by rocks and unconsolidated material falling on 

the workers. {Tr. 53). Mr. Ellis had seen a loader operator 

mingling or walking around underneath the pit area. (Tr. 54). 

Mr. Ellis agreed this was the only time he had seen an unsafe 

condition in this pit. However, he had written citations for the 

same thing at a different pit in this mine. (Tr. 56). When Mr. 

Ellis talked by telephone with CPL's President, Mr. Teel, he 

indicated very clearly that he was aware of the condition that 

had been cited. 

After BLM closed the mine, it remained closed when Mr. Ellis 

issued his termination order. At that time, Mr. Ellis did not 

observe any employees. Howeverv he saw a loader and a haul truck 

in the pit area but not in the pit itself. (Tr. 57u 58). 

In Mr. Ellis' opinion, the described condition had ~isted 

for several days and they would have been working while this condition existed. (Tr 58, 59). Gale Ashley and George Weinbeck 

said they had worked the pit the previous afternoon. (Tr. 60)0 

Discussion 

The regulation, § 56.3131 requiresu in effect, that in 

places where persons work or travel, loose material shall 

sloped to the angle of repose or stripped back 10 feet from the 

top of the pit or quarry wall. 

Mr. Teel states he was in his office some 200 miles from the 

pit and, therefore, did not know of the condition described by 

Mr. Ellis. I reject Mr. Teel's asserted lack of knowledge of the 

hazardous condition. Mr. Teel agrees Mr. Ellis saw "a couple of 

large rocks." Mr. Ellis when recalled as a witness described the 

hazard as the falling of rocks and loose unconsolidated material 

on workers below. Further, he stated it would be very possible 

for these boulders to come down and crash through one of the 

trucks. (Tr. 53). I further reject Mr. Te~l's testimony since he 

himself describes this pit and high-wall as being more or less in 

a continuing state of flux. He described it as "wet," "awfully 

fine," "unstable," "hour-glass sand." {Tr. 47). In short, the 

record establishes that the violation § 56.3131 was "knowingly" 

authorized by Mr. Teel. 

The mine was closed before the 107{a) order was issued. 

However, Mr. Ellis issued the 107(a) order in order to be sure no 

one would work in the pit until the hazard was corrected. <Tr. 

41). His actions properly addressed the hazardous conditions. 

1922 
V'IBST 90-356-M 

In this case, Citation No. 3463076 alleges L. Kenneth Teel, 

an employee of CPL, violated 30 C.F.R. § 56.3200 4 

The citation, issued under§ 104Ca) and 107(a) of the Act, 

provides as follows: 

A hazardous condition has developed in the 

Phase I pit in that a bench failure has created 

an approximate 80' highwall with loose unconsolidated material along the face. Additionally numerous large boulders were along the 

outer edge of the crestline. Employees were 

working and traveling near the bottom of the 

highwalL 

RODRIC M. BRELANDu a MSHA Assistant District Manager 9 is 

experienced in mine safetyo 

On August 28, 1989, Mr. Breland issued a 107 (a> imminent 

danger order alleging a violation of 30 C.F.R. § 56.3200. The 

order, served on Gene Ashleyv alleges a bench failure exis on 

an 80-foot high wall. There was loose unconsolidated material 

along the face. Also, numerous large boulders were along the 

outer edge of the crestline. Employees were working and traveling near the bottom of the high wall. (Tr. 61-63). 

On August 28, Mr. Breland received a call from BLM representatives. They were concerned about hazardous activity at the 

site. They were particularly concerned about equipment and 

material going over the edge. MSH~ has a history of problenIB at 

this operation with the maintenance of high walls" (Tr" 64). 

4 § 56.3200 Correction of hazardous conditions. 

Ground conditions that create a hazard to 

persons shall be taken down or supported before other work or travel is permitted in 

the affected area. Until corrective work is 

completed, the area shall be posted with a 

warning against entry and, when left unattended, a barrier shall be installed to impede unauthorized entry. 

1923 
The order described this as a Phase I pit, which is the same one 

described by Mr. Ellis in his previous testimony. 

Mr. Breland was 250 miles from the pit and in a telephone 

call Mr. Ashley acknowledged that the conditions existed. 

Namely, they were working on a high wall 80 to 100 feet high. 

Also, there was equipment above and below the high wall. (Tr. 

65). Mr. Breland then issued a 107(a) order over the telephone 

and drove to the site, arriving the morning of August 29. 

When Mr. Breland arrived, he found a good-looking face in 

the pumice area but the alluvium above it was very "sandy likeo ui 

(Tr. 66-67). The material had sloughed in several areas to the 

edge of the pumice wall. Also there were large unconsolidated 

boulders a.11 along the face. You could see where a loader had 

been operated directly beneath it. You could also see where a 

cat had worked that area on the edge of the upper part of the 

wall. (Tro 67v Ex. P-8u P-9). 

It is not uncommon for operators to get out of their vehicles. 

The boulders, by their sizeu could do substantial damage to 

a piece of equipment below or a fatality could result if a boul~ 

der struck a minero (Tra 70)a 

A termination order was issued on August 20, 1989. The pit 

had been benched down from the top and no hazard existed at that 

time. <Tr. 71, Ex. P-10). 

Mr. Breland was sure that Mr. Teel was aware of the condition. There had probably been at least three violations of the 

same standard. MSHA's Denver Tech Support had looked at the property and made some recommendations. 

'l'he company was advised that benches were required. 

In Mr. Breland's opinion, a ·condition of imminent danger 

with a high degree of negligence existed. There was also aggravated conduct. (Tr. 72). 

The order was not terminated until August 20, 1991, two 

years later, because it took that long to establish a bench face 

that was sa f e • ( Tr • 8 0 ) • 

L. KENNETH TEEL indicated that nearly every day they clean 

off the bench areas with a dozer. Later the loader operator 

1924 
would come in at the bottom of the pit and remove any of the material that had fallen into it. At that point the pumice would 

be removed. (Tr. 83). 

In Mr. Teel 1 s opinion, the pit was not in an unsafe condition. (Tr. 84;. This pit was the only one approved for mining 

at the time. 

The company paid a civil penalty for this violation. CTr. 

84) • 

Mr. Teel became aware of the condition of this pit when 

Mr. Ellis issued his citation. 

In Mr. Teel's view, the inspections by MSHA and BLM came 

about because of an argument in Bankruptcy Court over CPLus 

mineral lease. (Tr. 86). Furtherv the pumice is stable once the 

overburden is removed. (Tr. 87)o The loose unconsolidated material in Phase I pit was caused by earthquake faults. The bench 

failure was caused by nature. 

~ODRIC BRELAND (recalled) the bench in this particular 

high/wall had not been properly constructed. The angle of repose 

discussed by Mr. Teel had nothing to do with the sandy materialo 

(Tr. 87) • 

Discussion 

The hazardous condition described by Mr. Breland is virtually uncontroverted. Workers were exposed to the described hazardous conditions. 

Mr. Teel testified he knew of the condition of the Phase I 

pit when Mr. Ellis issued his order in the prior case. The 

evidence shows the order by Mr. Ellis was issued July 6, 1989. 

(Ex. P-5). The order by Mr. Breland was issued more than a month 

later on August 28, 1989. 

The foregoing evidence establishes Mr. Teel "knowingly" 

authorized the violation. 

Citation No. 3463076 should be affirmed and a penalty 

assessed. 

1925 
Citation No. 3463783 

This citation, issued under Section 104(d)(2) of the Act, 

alleged a violation of 30 C.F.R. § 56.3130. 5 

The citation reads as follows: 

The pit walls were not being mined in a manner 

to maintain the walls and bench stability. 

The walls were about 80 to 100 feet high with 

no benches except at the crest line. The 

bench at the crest line on the east wall had 

sloughed and filled with loose materialo The 

entire pit must have benches that are maintained. This pit is known as the Phase I pita 

This is an unwarrantable violationo 

ARTHUR L. ELLIS, a previous witness, observed the bench 

failure on the crest line on the east wall. 'fue bench had filled 

with material and was slipping over down into the bottom of the 

pit. The pit was 80-100 feet deep. Mr. Ellis also noticed loader tracks down at the bottom of the pito There were no other 

benches in the pit. (Tr. 96). 

The hazard here involved 

material on the people below. 

mit benches to be developed. 

ted on August 20, 1991. (Tr. 

the fall of loosev unconsolidated 

The citation was modified to per-

(Tr. 97). The citation was terrnina100) • 

The witness indicated Mr. Teel was aware of the need for 

benching. (Tr. 100, 101). This was a serious violation which 

Mr. Teel disregarded. Possible injury or death could occur. 

(Tr. 101) • 

5 § 56.3130 Wall, bank, and slope stability. 

Mining methods shall be used that will maintain wall, bank, and slope stability in places 

where persons work or travel in performing 

their assigned tasks. When benching is necessary, the width and height shall be based on the 

type of equipment used for cleaning of benches 

or for scaling of walls, banks, and slopes. 

1926 
Mr. Ellis agreed Mr. Ashley is the manager of the mine and 

makes all of the decisions regarding employees, type of equipment 

and type of mining. He was hired to manage the mine in a safe 

condition. However, Mr. Teel, as President of CPL, was totally 

in charge. (Tr. 102, 103). 

The parties stipulated that the company paid a civil penalty 

in connection with this violation. (Tr. 104). 

Mr. Teel offered a list of the amount of fines it paid. 

(Ex. R-1). Mr. Teel indicated that he had not had a salary from 

the company for six months. (Tr. 106, 107). 

Discussion 

The evidence establishes the corporate operator violated the 

contested citation. Furtherv the evidence is uncontroverted that 

Mr. Teel, President of the company, was aware of the need for 

benching. 

Citation No. 3463783 should be affirmed and a civil penalty 

should be assessed. 

WEST 90-325-M 

In this case the Secretary of Labor is proceeding on Order 

No. 3069865 against George w. Weinbeck. The Secretary alleged 

that at all times involved herein Respondent Weinbeck was acting 

as Production Manager and Supervisor of CPL. 

Respondent Weinbeck was advised by certified mail of the 

hearing scheduled in San Bernardino, California. The return 

receipt is attached to the notice of hearing in Docket No. WEST 

90-284-M. 

'Respondent Weinbeck failed to appear at the hearing and a 

default was entered against him for failure to prosecute his 

contest. (Tr. 92, 93). · 

Accordingly, MSHA Order No. 3069865 and the proposed penalty 

therefor should be affirmed. 

Civil Penalties 

The statutory criteria to access civil penalties are contained in Section llO(d), 30 u.s.c. § 820(i). 

1927 
The initial criterion is the operator's history of previous 

violations. CPL has an excessive prior adverse history but this 

proceeding is against Kenneth Teel. It is not shown that, as an 

individual, Mr. Teel has a prior history. 

All of the citations and orders herein indicate Mr. Teel 

knew of the violative conditions. He was accordingly negligent 

in failing to remedy the condition. 

The record indicates Mr. Teel has not received any salary 

from the bankrupt corporation for the last six months. CPL is 

his sole source of income. However, there is no showing of the 

precise effect the assessment of penalties will have on Mr. Teel. 

The gravity concerning Citation No. 3069893 was low. The 

pallet was only minimally used. 

The remaining citations involve high gravity. The circum~ 

stances were such that a fatality could have occurred. With the 

exception of Citation No. 3463076, Mr. Teel rapidly abated the 

violative condition and has thereby demonstrated good faith. 

The Judge believes the penalties set forth in the order of 

this decision are appropriate for Mr. Teel as President of CPL. 

For the foregoing reasons I enter the following~ 

ORDER 

1. WEST 90-326-M ( L. Kenneth Teel): Ci ta ti on No. 3069893 

is AFFIRMED and a civil penalty of $75 is ASSESSED. 

2. WEST 90-284-M ( L. Kenneth Teel): Ci ta ti on No. 3463959 

is AFFIRMED and a civil penalty of $150 is ASSESSED. 

3. WEST 90-356-M ( L • Kenneth Teel): Ci ta ti on No. 3463076 

is AFFIRMED and a civil penalty of $150 is ASSESSED. 

Citation No. 3463783 is AFFIRMED and a civil penalty 

of $150 is ASSESSED. 

4. WEST 90-325 (George E. Weinbeck): Citation No. 3069865 

and the proposed penalty of $400 are AFFIRMED. 

Law Judge 

1928 
Distribution: 

J. Philip Smith, Esq., James B. Crawford, Esq., Office of the 

Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 

501, Dallas, TX 75202 (Certified Mail) 

Mr. L. Kenneth Teel, President, CALIFORNIA LIGHTWEIGHT PUMICE, 

INC., 35541 Camino Capistrano, Capistrano Beach, CA 92624 

(Certified Mail) 

Mr. George E. Weinbeck, c/o 209 West French Streetv Ridgecrestu 

CA 93555 (Certified Mail) 

sh 

1929 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 9 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 91-15 

A.C. No. 11-00590-03802 

Docket No. LAKE 91-16 

A.C. No. 11-00590-03803 

Docket No. LAKE 91-58 

A. C. No. 11-00590-03814 

Docket No. LAKE 91-59 

A. C. No. 11-00590-03815 

Docket No. LAKE 91-70 

A. C. No. 11-00590-03816 

: Docket No. LAKE 91-109 

A.C. No. 11-00590-03822 

1930 

Mine No. 26 

Docket No. LAKE 91-88 

A. C. No. 11-02392-03822 

Docket No. LAKE 91-107 

A. C. No., 11-02392-03824 

Mine No. 25 

Docket No. LAKE 91-57 

A. C. No. 11-00589-03769 

Docket No. LAKE 91-87 

A. C. No. 11-00589-03771 

Docket No. LAKE 91-99 

A.C. No. 11-00589-03773 

Docket No. LAKE 91-112 

A.C. No. 11-00589-03775 
Appearances: 

Docket No. LAKE 91-426 

A.C. No. 11-00589-03781 

Mine No. 24 

DECISION 

Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago 1 Illinois for 

Petitioner; 

Gregory s. Keltner, Esq., Old Ben Coal Company, 

Fairview Heights, Illinois for Respondent, 

Before: Judge Weisberger 

These cases were consolidated for purposes of hearing, and 

subsequent to notice, the cases were heard in St. Louisv 

Missouri, on October 16-17, 1991. At the hearing, Robert Stamm, 

James Holland, Arthur Wooten, and Mark Eslinger 1 testified for 

Petitioner; Jerry Lane Bennett, Roger Griffith, Jerry Conner, 

Alfred Lynch, Robert Allen McAtee, and George Dawe testified for 

Respondent. The parties waived their right to submit posthearing findings of fact and briefs, and in lieu thereof 

presented closing oral argument. 

Docket No. LAKE 91-15 

A. Citation No. 3220508 

I. 

On August 22, 1990, Robert Stamm an MSHA inspector asked the 

union escort who accompanied him on an inspection of the 12 CM2 

working section to check the brakes of a battery powered vehicle 

{golf cart) used to transport miners to and from the working 

section. Stamm asked the escort 1:;9 pull the brake handle and he 

said that there was no resistance on the handle. Stamm said that 

he observed that the parking brakes"··· would not secure the 

vehicle for motion when parked" (Tr.16). Upon examination, he 

observed that the linkage for the parking brakes was not 

connected. He said that it did not appear that the golf cart was 

out of service, and no one told him that it was out of service. 

Also, Stamm indicated that there was nothing blocking the wheels 

of the golf cart. Stamm issued a Citation alleging a violation 

of 30 C.F.R. § 75.1725(a). 

1931 
II. 

Section 75.1725(a) supra provides as follows: 

"Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or equipment 

in unsafe condition shall be.removed from service immediately11 • 

Respondent argues that section 75.1725(a) supra does not 

specifically require that vehicles be provided with parking 

brakes, and that, in either event, the vehicle in question was 

safe, inasmuch, as when observed by Stamm, it was parked in a 

crosscut that was "more or less close to being level" 

(Respondent's Exhibit R-A, Page 13), and was perpendicular to the 

ribs. Thus, Respondent argues that should the vehicle have 

rolled, it would have been stopped by one of the ribs. 

Also, Jeffrey Lane Bennett, Respondent 1 s safety inspector, 

indicated that with the exception of underpasses, the terrain of 

the mine is level. He indicated that there are not more than 6 

or 8 underpasses where a parked vehicle can roll. In essence he 

opined that a vehicle parked in an area of an underpass would not 

roll excessively, as in each of these areas there is a 20 foot 

incline, a 20 foot level area, followed by another 20 foot 

incline. He further opined that a vehicle would not parked in 

such an area, as it would block the main travelway. I find 

Respondent's arguments without merit for the reasons that follow. 

In essence, Section 75.1725(a), supra requires that 

equipment in "unsafe condition" be removed from service. There 

is no evidence in the record that the golf cart in question was 

not removed from service. Hence, in order to ascertain whether 

Section 75.1725(a) supra has been violated, it must be determined 

whether or not the golf cart was in an "unsafe condition". 

In making this determination reference is made to the common 

usage of the term "safe". Webster's Third New International 

Dictionary, (1986 edition) ("Webster's") defines "safe" as 11 2. 

Secure from threat of, danger, harm or loss:", Webster's defines 

"free from" as "(a) lacking: without. 11 "danger" is defined in 

Webster's as 11 3. liability to injury, pain, or loss: PERIL, 

RISK .... " Since the parking brakes did not work due to the fact 

that the linkage was disconnected, the vehicle would immediately 

drift or roll if the operator of the vehicle would take his foot 

off the brake pedal when the vehicle is on an incline. 

Although there was no immediate risk of injury inasmuch as 

the golf cart was parked in a level area, it is clear that should 

the golf cart be parked in an area of the mine that is not 100 

percent level, it might roll by itself or be hit by another 

vehicle and then roll, possibly causing a ninjury to persons in 

the area. Hence, the golf cart being operated without parking 

brakes, was not free from risk, as its operation, in some 

1932 
circumstances, could have led to an injury. Accordingly I find 

that Section 75.1725(a) supra has been violated by Respondent. 

III. 

According to Stamm, in essence, should the golf cart in 

question be parked in an area that is not level, it would be 

reasonably likely that a miner getting out of the vehicle would 

be injured by the vehicle rolling over him. Stamm stated, in 

essence, that, accordingly, should the parking brakes not be 

repaired, an injury could result with continued operation of the 

golf cart. Stamm said that he has read reports of investigations 

of accidents wherein injuries, including a fatality, have 

occurred when parking brakes have been inoperable in golf carts, 

and scoop cars. He indicated ~n cross-examination that, in 

evaluating the likelihood of an injury as a consequence of 

parking brakes not being operable, he was 11 speaking ... in terms 

of possibilities". (Tr. 36) 

In analyzing whether the facts herein establish that the 

violation was significant and substantial, I take note of the 

recent decision of the Commission in Southern Ohio Coal Company, 

13 FMSHRC 912, (1991), wherein the Commission reiterated the 

elements required to establish a significant and substantial 

violation as follows: 

We also affirm the judge's conclusion that the 

violation was of a significant and substantial nature. 

A. violation is properly designated as significant and 

substantial "if, based on the particular facts 

surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 

FMSHRC 1, 3-4 (January 1984), the Commission explained: 

In order to establish that, a violation 

of a mandatory standard"'is significant and 

substantial under National Gypsum the 

secretary must prove: (1) the underlying 

violation of a mandatory safety standard; 

{2) a discrete safety hazard -- that is, a 

measure of danger to safety -- contributed to 

by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood 

that the injury in question will be of a 

reasonably serious nature. 

See also Austin Power Co. v. , 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 

1933 
(December 1987) (approving Mathies criteria). The 

third element of the Mathies formula "requires that the 

Secretary establish a reasonable likelihood that the 

hazard contributed to will result in an event in which 

there is an injury" (U.S. Steel Mining Co., 6 FMSHRC 

1834, 1836 (August 1984)), and also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (U.S. Steel Mining co., Inc. 6 FMSHRC 

1573, 1574 (July 1984); see also Halfway, Inc., 8 

FMSHRC 8 1 12 (January 1986) . 11 (Southern Ohio, supra at 

916-917). 

Petitioner has established a violation of Section 75.1725(a) 

supra as discussed above, II. infra. Also, it is clear that the 

violation herein i.e., the lack of an operative parking brake, 

did in some measure contribute to the hazard of a miner being 

injured by being hit or run over by the vehicle in question. 

However, the record fails to establish that the third element set 

forth in Mathies, supra i.e. a reasonable likelihood that the 

hazard contributed to will result in an injury, as it has not 

been established that there was a "reasonable likelihood that the 

hazard contributed to would result in an event in which there 

injury", U.S. Steel Mining Co., 6 FMSHRC 1834-1836 (August 

1984). In this connection I note that, when cited by a Stamm, 

the golf cart was parked perpendicular to the ribs in a dead-end 

cross-cut. Also the grade of the floor was level" Petitioner 

did not contradict the testimony of Bennett that in the mine in 

question, the floor is level except for 6 or 8 areas containing 

underpasses. There is no evidence that in the normal course of 

mining the vehicle in question would have been stopped or parked 

in terrain that would have allowed it to drift or roll. Hence I 

conclude that the violation herein was not significant and 

substantial. 

IV. 

Stamm opined that the violation herein resulted from 

Respondent's moderate negligence, as, had the brakes been checked 

before the golf was placed in operation, Respondent would have 

known that the brakes were not in safe operating condition. In 

essence, Stamm said that, in questioning management, "it did not 

come out" that the brakes were checked. (Tr. 20) Respondent did 

not rebut or impeach the testimony of Stamm in this regard, nor 

did it introduce in evidence the existence of any mitigating 

circumstances. I thus find that Respondent was negligent, in 

that it should have known of the lack of parking brakes and 

should have fixed them or taken the vehicle out of operation. 

Also, I find that should an injury have occurred as a result of 

the violation herein, it could have been of a reasonably serious 

nature. However taking into account the relatively level of 

terrain of the mine in question, I conlcude that the possibility 

of the vehicle rolling and causing injury was somewhat remote. 

1934 
considering the other statutory factor of Section llO(i) of the 

Act stipulated to by the parties, I conclude that a penalty 

herein of $75 warranted. 

B. Citation Nos. 3220561, 3220562, 3220565 

Petitioner indicated that it vacated No. 3220561, 3220562, 

and 3220525 on the ground that, upon review, it was determined 

that each of the vehicles in question, which had initially been 

cited in violation 75.1725(a) supra, did have a braking system. 

Based on Petitioner's representations, I find that the vacation 

of these citations is proper. 

Docket Nos. LAKE 91-426, LAKE 91-59, and LAKE 91-16 

A. Docket No. LAKE 91-426 

I. 

On February 11, 1991, James Holland an MSHA Inspector, 

conducted an inspection of the face of the first north entry, at 

Respondent's No. 24 mine. Holland indicated that he did not see 

any warning device after the last row of roof boltsu and that 

inby that point there was approximately 15 feet of unsupported 

roof. Holland also indicated that there were no physical 

barriers installed, and Respondent has not challenge this 

testimony. He issued a citation alleging a violation of 30 

C.F.R. § 75.208 which provides as follows: "Except during the 

installation of roof supports, the end of permanent roof support 

shall be posted with a readily visible warning, or a physical 

barrier shall be installed to impede travel beyond permanent 

support". 

Roger Griffith, a safety inspector employed by Respondent 

accompanied Holland on February 11, 1991. He stated that as he 

was approaching the face, he saw a tag with a piece of reflecting 

tape attached to the last row of roof bolts on the right side, 

inby a curtain which had also. been hung on the right side at the 

next to last row of bolts. He indicated that the height of the 

bolted roof was approximately 8 feet, and he observed the tag 

when he was approximately 6 to 10 feet away. 

According to Respondent's counsel the whereabouts of 

specific tag in question, is not known. However, according to 

Griffith the words "unsupported top", the initials of an 

examiner, and a date had been placed on the specific tag in 

question, but otherwise it was the same as exhibit R-3. He also 

indicated that the specific tag in question had a piece of 

reflecting tape on it that was "somewhat similar" in size to that 

found on exhibit R-3. (Tr.125) However, he indicated that in 

the mine atmosphere a tag such as exhibit R-3, gets dirty and 

turns dark in color. 

1935 
Griffith stated that, at the No. 24 Mine, tags such as 

exhibit R-3 are used to provide a warning of unsupported top or 

other hazardous conditions. He indicated that tags with 

reflective tape are "readily visible". (Tr.124) Griffith also 

indicated in this connection that a union walkaround who 

accompanied him and Holland on February 11, 1991, asked him "how 

can he (Holland) go ahead and issue a citation even though we had 

an examiner's tag hanging there" (Tr.102). 

It is clear that, in the area in question, these was no 

physical barrier installed to impede travel beyond permanent 

support. Hence the issue for resolution is whether the end of 

permanent supports were, as required by Section 75.208 supra, 

"posted with a readily visible warning''· "Post" as a transitive 

verb including its use with the suffix ed is defined in 

"Webster's" as follows: (1) to affix (as a paper or bill) to a 

post, wall, or other usual place or public notices: PLACARD ... 

[signs are ed throughout the state] .•. uu The record 

indicates that there was some physical evidence present which 

would alert a miner to the presence of unsupported roof e.g., the 

curtain, the last row of volts, the contrast in color between 

areas that were hand rock dusted and the ribs and roof in the 

unsupported area that was not dusted, and the presence of gob 

material on the floor under. the unsupported roof. However, these 

are insufficient to comply with section 75.208 supra, which 

requires that a warning be affixed to some portion of mine. This 

language clearly contemplates the use of some device, as opposed 

to the reliance on evidence of the physical conditions in the 

mine. 

Further, Section 75.208 supra mandates that the warning 

device, must be "readily visible". Although Griffith saw the 

device in question from a distance 6 to 8 feet, Holland, who has 

approximately 16 years experience inspecting mines, and in 

addition, a total of approximately 6 years experience working in 

mines, testified that he did not see the tag in question. There 

is nothing in the record to impeach the credibility of Holland, 

or to question the veracity of his testimony that he did not see 

the device. Since the device was not seen by an inspector 

trained to observe conditions in a mine, I conclude that it was 

not "readily visible". In this connection I do not place much 

weight on Griffith's testimony that the walkaround asked him how 

Holland could issue a citation "even though we had an examiner 1 s 

tag hanging there" (Tr. 102). Inasmuch, as the declarant did not 

testify in person, his demeanor could not be observed. Hence, 

this hearsay testimony is inherently unreliable. 

For the above reasons I conclude that the Respondent herein 

1936 
did violate Section 75.208 as alleged. 1 

II. 

Holland indicated that in his opinion the violation herein 

was significant and substantial. In reaching this determination 

the only factor he considered was that he was awa~e of 6 injuries 

including a fatality that had occurred in face areas inby · 

unsupported roof. He opined that in the absence of a readily 

visible warning, a miner by accident, either in a scoop, or on 

foot to take a methane reading at the face, go beyond 

permanent support, and thus get seriously injured. On 

cross-examination, he was asked to describe the analysis he went 

through in concluding that the violation was significant and 

substantial. He answered as follows: "The condition that exists 

where soembody could get seriously injured before it can be 

corrected". (Tr.80). [sic] 

I do not place much weight on the opinion of Holland, 

inasmuch as was not based on the proper evaluation to be used 

in determinating whether the violation was significant and 

substantial {See Mathies, supra). The absence of either a 

physical barrier, or a posted readily visible warning impeding 

travel beyond permanent support violated section 75.208 supra, 

and also contributed to the hazard of a person inadvertently 

going under unsupported roof, and thus being subject to the-risk 

of becoming injured from a roof fall. However, due to the 

presence of various clues providing notice to a miner of the end 

of the supported roof area and commencement of unsupported roof 

e.g., the last row of roof bolts, the presence of the curtain, 

and the contrast between rock dusted and non rock dusted areas, I 

conclude that it has not been established that there was a 

reasonable likelihood that the hazard herein contributed to by 

the violation would have resulted in an injury producing event 

(U.S. Steel, supra) According I conclude that it has not been 

established that the ·Jiolation herein was significant and 

substantial. (See Matii.ies, U. S. Steel supra) . 

1 I ascribe no merit to Respondent's argument that section 

75.208 does not require certain dimensions of a warning 

device, nor does it require that such a device contain or be made 

of reflectable material. I find that the basis of the violation 

herein was not that the device was not of a sufficient size nor 

that it was not reflectable, but rather that the device that was 

used was not "readily visible". 

1937 
III. 

The gravity of the violation herein i.e. that as a 

consequence thereof a person might have been inadvertently 

subjected to a hazard of being injured by a roof fall, and the 

negligence of the Respondent in committing this violation are 

mitigated somewhat when taking into account the fact that a 

warning device had been posted that was visible at least to 

Griffith. Also there were other physical clues present to warn a 

person of the demarcation between the end of the supported roof 

and the commencement of unsupported area. I find that a penalty 

of $100 is appropriate for this violation. 

B. Docket No. LAKE 91-59 

1. Citation No. 3538629 

On November 2 1990 Inspector Stamm conducted an inspection 

of in Mine No. 26 and found that a visible warning or physical 

barrier was not posted at the end of permanent roof supports 

outby the working face of the 47th south entry of the 12CM-2(007-

0) working section. A cut had been extracted 17 feet inby the 

last row of roof bolts. The inspector issued Citation No. 

3538629 alleging a violation of 30 C.F.R. 75.208. 

Respondent does not contest the violation. Also taking into 

account the facts concerning this citation as set forth in the 

parties' stipulations (paragraph 9-A, Joint Exhibit 1), and the 

facts testified to by Stamm in a deposition taken September 25, 

1991, (Exhibit R-E}, I conclude that Respondent did violate 

section 75.208 supra. 

According to Stamm, in essence, the violation is to be 

considered significant and substantial inasmuch as a person "may 

possibly" go inby the last row of bolts and thus be subject to 

unsupported roof (Exhibit R-E page 9). He indicated that once a 

person is under unsupported roof, there is a reasonable 

likelihood of a serious injury in tb~ event"of a roof fall. 

I find that Stamm did not use the proper standard in 

evaluating whether the violative condition herein was significant 

and substantial. Consistent with my decision in Docket 

No. LAKE 91-46 infra A., I find the violation was not significant 

and substantial. Also consistent with the decision in LAKE 91-

426, infra A., I find a penalty of $100 appropriate for this 

violation. 

1938 
2. Citation No. 3538761 

I. 

On November 2, 1990, Arthur Wooten, an MSHA inspector, 

conducted an inspection at Mine No. 26, and found that a readily 

visible warning device or a physical barrier was not installed to 

impede travel beyond permanent roof support at the 53 north o 

point face area of the 12-8 working section. According to 

Wooten, an area of approximately 10 feet by 15 feet containing 4-

6 inches of loose cap coal was unsupported. The inspector issued 

citation No. 3538761 alleging a violation of 30 C.F.R. 75.208. 

Respondent's does not contest th violation. Based on the 

testimony of Wooten, who indicated that when he examined the area 

in question there was no visible warning to impede travel beyond 

permanent roof support, I find that Respondent herein did v ate 

section 75.208 

IL 

Wooten opined that the violation herein was significant and 

substantial. He indicated in his deposition, of September 25, 

1991, in essence, that in order for a violation to be significant 

and substantial the violation must be one that 11 could cause 11 

serious injury if it isn't corrected, people have to be in the 

area, and there has to be a reasonable likelihood an injury. 

(Exhibit R-C, Page 14). According to Wooten, the situation 

presented herein will cause an injury of a reasonably serious 

nature. He indicated that these was a possiblity that someone 

could go into the area of unsupported roof and thus be exposed to 

cap coal, and an injury of a reasonably serious nature. He 

indicated that there were 6 to 8 people in the area. 

Jerry Conner, a safety inspector employed by Respondent, 

accompanied Wooten. Conner indicated that the entry in question 

was rock dusted 2 feet outby the last row bolts, and there was a 

curtain on the right side on the J,.ast bort. On cross-examination 

he indicated that the purpose of rock dusting is not to warn 

miners of the last open crosscut but rather to seal coal from 

air. He also indicated that the purpose of a curtain is to blow 

air to the face, and that it is not used as a warning device to 

keep miners away from the face. 

Alfred Linch, Respondent's manager of safety, indicated that 

prior to 1988 when section 75.208 was promulgated, he 

trained employees to recognize unsupported face by the presence 

of gob on the floor, and by the end of ventilation controls. He 

said that rock dusting is not normally done inby the last set of 

roof bolts. Accoringly, a clue is this provided as to where the 

unsupported portion of the roof begins. He said that the last 

definite indicator of supported roof the last row of bolts, 

19 39 
and that beyond that point it is dangerous. He also indicated 

that miners were taught that the face is inby the last open 

crosscut. 

The presence of significant amounts of cap coal in the 

unsupported roof increased the hazard of a person being seriously 

injured should he go under this unsupported roof. However, in 

evaluating whether the violation herein was significant and 

substantial, it must be determined whether there was a reasonably 

likelihood that this hazard contributed to by the violation would 

have resulted in an injury i.e. whether there was a reasonable 

likelihood that, as a consequence of the lack of a barrier or 

posted visible warning, that a miner would have entered the 

unsupported area. My determination in this regard is the same as 

I set forth above in Docket No. LAKE 91-426r infra A. 1 for the 

reasons stated there. 

Consistent with my Decision in LAKE 91-426 infra A., I find 

that a penalty of $100 is appropriate for the violation found 

herein. 

C. Docket No. LAKE 91-16 

The parties stipulated as follows~ 

On August 31, 1990 Inspector Wolfgang Kaak 

conducted an inspection in Mine No. 26 and found the 

face of the 9th W entry of working section 12cm-8, I.D. 

005, was not posted with a readily visible warning 

device. The last row of permanent supports, roof 

bolts, was about 15 feet inby the 5815 survey tag and 

the face was then an additional 10-12 feet without any 

permanent supports. The section was idle at this time 

but, two repairmen and one examiner were on the 

section. The inspector issued Citation No. 3538909 for 

a violation of 30 C.F.R. 75.208. (Joint Exhibit 1, 

Par.10) 

Based on the facts set forth in paragraph 10 of the parties' 

stipulations (Joint Exhibit 1), and based on the fact that 

Respondent does not contest Citation No. 3538909, I find that 

Respondent did violate Section 75.208 A, supra. I find, 

consistent with my decision in LAKE 91-426, infra, A., and find 

that the violation was not significant and substantial, and that 

a penalty of $100 is appropriate. 

1940 
Docket Nos. LAKE 91-57 (Citation Nos. 2819363, and 2819364), 

LAKE 91-99, LAKE 91-107, and LAKE 91-109 

A. Docket No. LAKE 91-57, (Citation Nos. 2819363 and 

2819364) 

The parties stipulated as follows: 

On October 16, 1990, Inspector Mark Eslinger 

conducted an inspection in Mine No. 24 and found that a 

golf cart was being charged at the 12CM3 intake 

escapeway. Two repairmen were working on the section 

and Steve Vercellina, (Marcilleno) Underground mine 

manager, was also present on the section (sic). The 

golf cart was located in the 7th west entry off the 1-

10 main north. The inspector issued citation No. 

2819363 for an alleged violation of 30 C.F.R. 75.1105. 

(Joint Exhibit 1, Par. 17) 

B. Docket No. LAKE 91-99 

The parties stipulated as follows: 

on December 12~ 1990 Inspector Robert Cross 

conducted an inspection in Mine No. 24 and found that 

battery powered golf cart No •. 18 was being charged at 

no. 43 crosscut into the no.2 north belt drive 

transformer. The inspector issued Citation no. 3536795 

for an alleged violation of 30 C.F.R. § 75.1105. 

C. Docket No. LAKE 91-109 

The parties stipulated as follows: "On January 3, 1991 

Inspector Michael Pike conducted an inspection on mine no. 25 and 

found that battery powered gofer located in proximity to "E" 

shaft was being charged. The inspector issued Citation No. 

3537125 for an alleged violation of 30 C.F.R. § 75.1105. 11 (Joint 

Exhibit 1, Par. 15) 

D. Docket No. LAKE 91-107 

The parties stipulated as follows: 

On January 3, 1991 Inspector Michael Pike 

conducted an inspection on mine no. 25 and found that 

golf cart no. 1 located at no. 26 crosscut on the 14th 

east travelway of the longwall no. 4 (ID 004) was being 

charged. The inspector of the longwall no. 3538804 for 

an alleged violation of 30 C.F.R. § 75.1105. (Joint 

Exhibit 1, Par. 16) 

1941 
Respondent and Petitioner further stipulated that the only 

issue to be decided in Docket Nos. LAKE 91-99, 91-109, 91-107 and 

91-57 (Citation Nos. 2819363 and 2819364), is whether 30 C.F.R. § 

75.1105 is applicable, and further whether the vehicles involved 

in these citations were charging stations. The parties do not 

contest the facts that arose during the conduct of the 

inspection. 

The parties, in addition, stipulated as follows: 

Petitioner and Respondent stipulate that Citation 

No. 2819363, LAKE 91-57, is representative of the cases 

before this court and the parties are bound by the 

courts decision on LAKE 91-57 for LAKE 91-99, LAKE 91-

109, LAKE 91-107 and LAKE 91-57. The parties do not 

waive their right to appeal the courts decision on 

whether 30 C.F.R. § 75.1105 is applicable. {Joint 

Exhibit 1, Par.20). 

E. citation No. 2819363 (Docket No. LAKE 91-57) 

1. Introduction 

Mark Eslinger, a supervisory engineer for MSHA 1 testified 

that when he observed the golf cart in question on October 16, 

1990, a charger located on the golf cart and "enclosed in metal" 

(Tr. 218), was plugged into an outlet which was located in a 

crosscut off the intake escapeway. The golf cart's batteries, 

located under the seat of the cart, were plugged into the 

charger. Eslinger tested the air current, and it was revealed 

that air was flowing down the intake, and was not being vented 

directly to the return. 

According to Eslinger, hydrogen gas which it was released in 

the charging process is "very explosive" (Tr.207). Thus, 

according to Eslinger, if the air in the area where batteries are 

being charged is not vented to the return, in the event of an 

electrical short, a fire could result endangering persons inby. 

The mine in question has designated battery charging station 

where batteries, removed from equipment, are charged by chargers 

located at the station. Batteries that are charged at the 

station and the chargers at the station are larger than the 

chargers and batteries located on the golf cart. 

Eslinger issued Citation No. 2819363 alleging a violation of 

30 C.F.R. § 75.1105. 

1942 
2. Regulation 

30 C.F.R. § 75.1105, as petinent, provdes as follows: 

Underground transformer stations, battery-charging 

stations, substations, compressor stations, shops, and 

permanent pumps shall be housed in fire-proof 

structures or area. Air currents used to ventilate 

structures or areas enclosing electrical installations 

shall be coursed directly into the return. 

3. The golf cart as a battery charging station. 

In essence, according to Robert Allen McAtee 1 Respondent's 

safety manager for the Old Ben Division, and not contradicted by 

Eslinger, the installations referred to in the first sentence of 

Section 75.1105 supra are primarily permanent in nature. Hence, 

Respondent argues that accordingly the term "battery charging 

stations 11 1 is limited to those that are permanent in nature. 

However, there is no indication in the legislative history of 

Section 3ll(c) 2 of the Federal Mine Safety and Health Act of 

1977 (the 1977 Act) of any intent to limit the term "battery 

charging station" to only those that are permanent. 

The wording of Section 3ll(c) of the 1977 Act is identical 

to that found in Section 3ll(c) of the Federal Coal Mine Health 

and Safety Act of 1969 ("the 1969 Act"). The Report on the 

Committee on Labor and Public Welfare which accompanied S.2917, 

the Senate version of the bill that subsequently became the 1969 

Act, in the section by section analysis of the bill's provisions, 

evidences congressional intent with regard to section 212(c) 3 to 

" •.. reduce the possible fire hazards with accompanying inherent 

dangers to human life and property." (S. Rep. No. 91-411, 9lst 

Cong., 1st Sess. (1969), reprinted in Legislative History Federal 

Coal Mine Health and Safety Act at 78). ("Legislative History'')) 

Further, the explicit Congressional concern with regard to the 

specific hazard section 31l(c) supra is to guard against is 

expressed as follows: 11 In the event a fire should occur in one 

of these installations the type or equipment enclosed is of such 

a nature that considerable smoke and fumes are emitted and 

therefore should be coursed directly into the return aircourse 

before endangering human life." (Legislative History, supra at 

78) • 

2section 75.1105 supra contains the same language as section 

31l(c) of the 1977 Act 

3Section 212(c) contains language identical to that found at 

section 3ll(c) of the the 1969 Act. 

1943 
Hence, the gravamen of congressional concern was not for the 

hazards encountered in permanent installations, but rather the 

need to vent air directly into the return from the type of 

equipment whose nature is such that "considerable smoke and fumes 

are emitted." This concern would clearly encompass the situation 

presented herein, i.e., a battery being charged on a mobile 

vehicle. According to Eslinger, such a procedure emits hydrogen, 

an explosive gas, in the same fashion that such gas is released 

when batteries are charged at a "permanent station". There is 

insuff ient evidence in the record to permit a conclusion that 

·the hazard of such an emission is less when batteries are charged 

on a vehicle, than when batteries are charged at a perG~nent 

station. 

F-urther, the Conference Report on the 1969 Act in 

section by section analysis, states with regard to Section 3ll(c) 

that it '' ... provides for fire-proof structures or areas that 

house certain underground equipment. It also requires that all 

other underground structures be of a fire-proof construction. 

Also, air c~rrent use to ventilate these structures 0r areas 

shall b.:; coursed directly into the return." (Legislative History 

supra at 1134). Hence the expressed Congressional concern is for 

those structures or areas that house certain equipment" 

Webster 1 s defines "house" as follows~ ii" •• 3 ~ to serve as a 

shelter, 4: CONTAIN". Hence the common meaning of the term house 

does not have any connotation of permenance. Thus, I conclude 

that there is an absence of any Congressional i~tent to limit the 

scope of Section 311(c) to only permanent installations. 

The first sentence of Section 75.1105 supra requires as 

pertinent, that "battery-charging stations" be housed in fire 

procf structures or areas. Neither the 1977 Act, nor the 1969 

Act, nor the regulations set forth in volume 30 of the Code of 

Federal R.2gulations, define any of the relevant terms of section 

75.1105 sutira such as "battery charging stations 11 , or "electrical 

installations". Hence, reliance is placed on the common meaning 

of these terms. Webster~ defines "station" as ... 2: the place 

or position in which something or someone stands or is assigned 

to stand or remain." "Standu··is defined as: " ... (9b) to occupy 

a place or location." Nebster's defines "occupy" as ... 2a: to 

fill up (a nlace or extent)." Hence the common usage of the term 

"station" does not include a connotation of permanence. Thus, I 

conclude tha~ a golf cart, when parked, i.e., standing in a 

certain place and having its battery charged, considered a 

"station", and as such is within the purview of the first 

sentence of Section 75.1105 supra. 

4. The qolf cart was an area enclosing an electrical 

The second sentence of Section 75.1105 supra requires, that 

"air currents used to ventilate structures or areas enclosing 

1944 
electrical installations shall be coursed directly into the 

return." 

The Senate Report, Legislative History supra at 78, in its 

analysis of 212(c) of the Senate bill which became Section 3ll(c) 

of the 1969 Act states as follows: 

This section provides for certain underground 

equipment that could cause fires if not functioning 

properly to be placed in fireproof structures. Air 

that is used to ventilate the structure and which might 

contain noxious fumes must be passed directly to the 

return air. 

Experience has shown that such a requirement will 

reduce the possible mine fire hazards with accompanying 

inherent dangers to human life and property. In the 

event a fire should occur in one of these installations 

the type of equipment enclosed is of such a nature that 

considerable smoke and fumes are emitted and therefore 

should be coursed directly into the return aircourse 

before endangering human life. 

Thus, as explained in the Senate Report, Legislative 

History, supra, at 78, the 11 installations 11 that were of a concern 

to Congress are those that enclose the type of equipment that are 

of "such a nature that considerable smoke and fumes are 

emitted ..• " Hence, since hydrogen, an explosive gas, is released 

when batteries are hooked up to a charger on the golf cart, it is 

consistent with Congressional concern to hold that the smoke and 

fumes thus produced should be coursed directly to the return. 

It next must be analyzed whether the golf cart in question, 

when parked for the purpose of having its batteries charged by 

the charger on the cart, is considered an "electrical 

installation" within the purview of the second sentence of 

Section 75.1105, supra. Reliance is placed on the common usage 

of the term "installation". "Installation" is defined in 

Webster's as follows: "··· 2(a): something that is installed for 

use". "Install 11 is defined in Webster's as follows: "··· 3: to 

set up for use or service". "Set up" is defined in Webster's as 

follows: " .•. 5(b): to assemble the parts of an erect position 

for use or for operation." Hence, once the golf cart in question 

is set up to be used to facilitate the charging of batteries 

i.e., the cart is parked and the on-board charger, is hooked-up 

to and charging the batteries, it is clearly an installation. 

An alternative analysis, is that the second sentence of 

Section 75.1105, supra is to be read in connection with first 

sentence (See, Clinchfield Coal Co., 4 FMSHRC 465, at 467 (Judge 

Melick, 1982), and that the term "electrical installations" in 

the second sentence refers to those set out in the first 

sentence. Hence, air currents ventilating an area enclosing an 

1945 
electrical installation i.e., a battery charging station, shall 

be coursed directly into the return. (See , 5 FMSHRC 

1577, at 1579 (Judge Broderick) (1983). Thus, since the golf 

cart in question was being used as a battery charging station 

(See E, (2) , the air currents in the area in which it is 

located shall be coursed directly to the return (Section 75.1105, 

supra). Since is not contested that the air in the air 

currents in the area where the golf cart was parked was not being 

coursed to the return it is clear that section 75.1105 has been 

violated. 

I find that a penalty of $20 appropriate for each of the 

two citations in Docket No. LAKE 91-57, and for each of the 

violative conditions cited in Docket Nos. LAKE 91-99, LAKE 91-

107, and LAKE 91-109. 

R.gcket Nos. LAKE 91-57 {Citation No. 3538517), LAKE 91-70. 

(Citation No. 3220619) and LAKE 91-87 (Citation 3220799) 

A. Docket No. LAKE 91-57 

The parties stipulated as follows~ 

On October 2, 1990 Inspector Robert Montgomery 

conducted an inspection in mine No. 24 and found that 

the oxygen content in the No. 1 West Bleeder entry from 

the No. 3 crosscut inby to the upper corner was less 

than 19.5 volume per centum. The lowest measurement 

18.2 volume per centum at the No. 9 crosscut an air 

sample bottle was collected. There are air operated 

pumps in this entry. This the active bleeders for 

the long wall P 16 off the North entries. The 

inspector issued Citation No. 3538517 for an alleged 

violation of 30 C.F.R. § 301. (sic) (Joint Exhibit 1, 

Par.21) 

B. Docket No. LAKE 91-87 

The parties stipulated as follows: 

On November 27, 1990 Inspector Robert Cross 

conducted an inspection in the No. 24 Mine and found 

that the 1st west bleeder off the 2 main north entry 

was not being ventilated by a direct current of air 

containing not less than 19.5 per centum of oxygen. At 

No.6 crosscut the oxygen content measured 18.8 per 

centum. An air samples was collected to substantiate 

this citation. The inspector issued Citation No. 

3220799 for an alleged violation of 30 C.F.R. § 75.301. 

(Joint Exhibit 1, Par.22) 

1946 
C. Docket No. LAKE 91-70 

I. 

The parties stipulated as follows: 

On September 14, 1990 Inspector Robert Stamm 

conducted an inspection in Mine No. 26 and found that 

the 16 north active longwall 2 bleeder entry was not 

being ventilated by a direct current of air containing 

not less than 19.5 per centum of oxygen. At a location 

60 feet outby survey station 710 feet the oxygen 

content measured 18.6 per centum. The inspector issued 

Citation No. 3220619 for an alleged violation of 30 

C.F.R. § 301. (Joint Exhibit 1, Par.23) 

The cited standard, 30 C.F.R. § 75.301, provides in as 

follows: 

All active workings shall be ventilated by a 

current of air containing not less than 19. volume per 

centum of oxygen, not more than 0.5 volume per centum 

of carbon dioxide, and no harmful quantities of other 

noxious or poisonous gases .... 

Essentially, it is not contested that the various oxygen 

readings cited in the citations at issue, were obtained in 

bleeder entries which are part of the bleeder system. The 

readings obtained are not at issue, and the only issue for 

resolution is whether the area in which readings were taken i.e. 

within a bleeder entry is to be considered, "active workings". 

The parties further stipulated as follows: 

Petitioner and Respondent stipulate that 

LAKE 91-87 and 91-70 are representative of all the 

cases involving whether 30 c..,F.R. § 75.301 is 

applicable. The parties further stipulate that the 

courts decision shall be applicable to LAKE 91-57, 

Citation No. 3538517, LAKE 91-87 and LAKE 91-70. The 

parties reserve the right to appeal the courts decision 

on whether 30 C.F.R. § 75.301 is applicable. 

II. 

Testimony adduced by petitioner's witness Robert Stamm, and 

Respondent's witness Jeffrey Bennet tends to establish that, once 

a week, at least one of the bleeder entries is traversed by a 

miner in order to obtain methane readings at an evaluation point 

located in bleeder entry. Also, one of the bleeder entries in 

question contained water pumps. Eslinger indicated that one of 

1947 
Respondent's pumpers had told him that he went into the entry 

daily to check the pumps. Thus, it is Petitioner's position that 

the entries in question should be considered active workings, as 

miners are required, on a regular basis, to traverse them in 

order to work. Petitioner further argues that, accordingly, if 

these entries are not to be considered active workings, and the 

quality of the air is not to be checked, then the miners 

traversing these entries would be subject to the hazards of 

exposure to inadequate oxygen or, harmful gases. Also, 

Petitioner argues that if miners do not go into these entries to 

maintain water pumps, then accumulated water might not be pumped 

out. Accordingly, there is a risk that water in the entries 

might accumulate to the point where the water would be of such a 

quantity as to prevent methane gas from escaping from the gob, 

thus creating a potentially explosive atmosphere. 

The issue raised in this case has already been litigated 

before three of the Commission judges. In U.S. Steel Corp., 6 

FMSHRC 291 {1984), Judge Koutras was presented with the issue as 

to whether carbon dioxide readings an excess 0.5 percent taken at 

a bleeder evaluation point were violative of of Section 75.301, 

supra. Judge Koutras, concluded that the Operatoris argument was 

sound and logical that"··· when read together with the other 

standards found in part 75, a bleeder entry is not active 

workings .... 11 (6 FMSHRC, supra at 307) Further, Judge Koutras 

found, in essence, that the fact that a certified examiner must 

travel to the bleeder evaluation points once a week to make an 

inspection, does not place these point within the purview of 

Section 75.301 supra. In Rochester and Pittsburgh Coal Co., 11 

FMSHRC 1318 (1989), I was presented with the same issue and 

concluded that Judge Koutras' decision was well founded, and 

chose to follow it, concluding that a bleeder system is not a 

part of the active workings of a mine. In Rusthon Mining Co., 11 

FMSHRC 1506 (1989), this same issue was presented to Judge Melick 

who decided to follow U.S. Steel, supra, and Rochester and 

Pittsburgh Coal Co., supra and found that"•·· bleeder evaluation 

point No. 9 here cited is notwithiff the [active workings] of the 

subject mine". (Rusthon, supra at 1507). 

I choose to follow my previous decision in Rochester and 

Pittsburgh Coal Co., supra, inasmuch as it was based on the well 

founded decision of Judge Koutras in U.S. Steel Corp., supra and 

was followed by Judge Melick in Rusthon, supra. I do not find 

Southern Ohio Coal Co. v. FMSHRC, (Civ. No. 90-1827, unpublished 

decision, August 14, 1991, 4th Cir.) cited by Petitioner to be 

relevant to a disposition of the issues at bar. In Southern Ohio 

Coal Co., supra the issue presented was whether the operator 

violated 30 C.F.R. § 75.400 which precludes an accumulation of 

coal in "active workings". The Court, in Southern Ohio, supra, 

analyzed the evidence of record, and found that there was 

substantial evidence to support the finding of the Commission 

1948 
that the area cited was one where miners regularly work or 

travel, and was thus in an "active working". In Southern Ohio, 

supra the Court was not presented with the specific issue herein 

i.e. whether a bleeder entry is to be considered within the 

purview of "active workings." Hence it is not relevant to a 

disposition of the issues presented herein. 

Inasmuch as areas cited for non-compliance with section 

75.301 supra, were in bleeder entries and not within active 

workings, Respondent herein did not violate Section 75.301 as 

charged. Therefore, in Docket No. LAKE 91-57, Citation No. 

3538517 is to be VACATED, in Docket No. LAKE 91-70, Citation No. 

3220619 is to be VACATED, and in Docket No. LAKE 91-87, Citation 

No. 3220799 is to be VACATED. 

Docket No. LAKE 91-58 (Citation Nos. 3538568 and 353856<:D_ 

At the hearing Petitioner moved for approval of the parties 1 

agreement to settle the issues raised by the issuance of these 

citations by having them amended to cite a violation of 30 C.F.R. 

§ 75.1714-3(a), and affirming the proposed penalty of $20 for 

each violations cited in these citations. The motion is granted 

based on the representations made by counsel at the hearing on 

the motion. It is concluded that the parties 1 settlement and the 

penalties agreed upon are appropriate under the Act. 

Docket No. LAKE 91-88 

At the hearing, Petitioner indicated that Citation Nos. 

3539422 and 3539428 were VACATED. Based upon the representations 

of counsel, I conclude that the vacation of these citations was 

proper, and accordingly Docket No. LAKE 91-88 is to be DISMISSED. 

Docket No. LAKE 91-112 

At the hearing, Petitioner indicated -that the parties had 

agreed to settle this case by reducing the proposed penalty from 

$345 to $75. Based on the representations and documentation 

submitted at the hearing, and considering the specifics of the 

violation set forth in the issued citation, I conclude that the 

proffered settlement is appropriate under the terms of the Act. 

Accordingly the motion to approve settlement is GRANTED. 

1949 
ORDER 

It is ORDERED that Citation Nos. 3220508, 3539435, 3538629, 

and 3538761, be amended to reflect that the violations alleged 

therein were not significant and substantial. It further ORDERED 

Citation Nos. 3538517, 3220619, 3220799, 3539422, and 3539428 be 

VACATED.. It is further ORDERED that Docket Nos. LAKE 91-70, 

LAKE 91-87, LAKE 91-88 be DISMISSED. It is further ORDERED that 

Citation No. 3538909 be amended to reflect the fact that the 

violation alleged therein was not significant and substantial. 

It is further ORDERED that Respondent pay $690 within 30 days of 

this decision as civil penalty for the violations found herein" 

Distribution: 

~·~ L'-/ 

Avram Weisberger 

Administrative Law Judge 

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

Labor, 230 South Dearborn Street, 8th Floor, Chicagov IL 60604 

(Certified Mail) 

Gregory S. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

nb 

1950 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 19 1991 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JOHN VAN ALLEN, 

Complainant 

Vo 

IMC FERTILIZER, INC., 

Respondent 

Docket No. SE 91-543-DM 

Noralyn Mine & Mill 

DECISION 

Appearances: Glenn M. Embree, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia for the 

Complainant; 

Before: 

Daintry E. Cleary, Esq., Holland & Knight, Tampa, 

Florida, for the Respondent. 

Judge Melick 

This case is before me upon the complaint by the Secretary 

of Labor on behalf of John Van Allen, pursuant to section 

105(c) (2) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq., the "Act," alleging that IMC Fertilizer, 

Inc., (IMC) suspended Mr. Van Allen on February 9, 1990, in 

violation of section 105(c) (1) of the Act. J; More particularly 

1

/ Section 105(c) (1) of the Act provides as follows: 

"No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against 

or otherwise interfere with the exercise of the statutory rights 

of any miner, representative of miners or applicant for 

employment in any coal or other mine subject to this Act because 

such miner, representative of miners or applicant for employment 

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

including a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health violation in a coal 

or other mine, or because such miner, representative of miners or 

applicant for employment is the subject of medical evaluations 

and potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of mine-rs or 

applicant for employment has instituted or caused to be 

1951 
it is alleged that Van Allen, employed by IMC as an electrician, 

refused on February 9, 1990, to install a NEMA Type 1 electrical 

junction box in an unsafe location. 2

/ Van Allen maintains that 

as a result of such refusal he was unlawfully suspended from work 

for 35 hours. He seeks expungement from his employment records 

of reference to this suspension and back pay and interest for 

lost wages. The Secretary also seeks a civil penalty of $1,500 

for the alleged violation. 

Van Allen has had several years of vocational training 

including a 2-year program at a technical school in electrical 

subjects. He is a licensed electrician in Polk County, Florida 1 

and in the City of Lakeland, and has been performing electrical 

work for about 9 years. As an electrician for IMC, he was sent 

on February 9, 1990, to install a junction box on a high voltage 

motor in the Noralyn Mill Flotation Plant. A junction box is an 

enclosure that provides mechanical protection for electrical 

connections. In this case it was used to enclose a capacitor and 

wire leads exiting the motor and connecting with the conduit and 

wiring. 

In the flotation plant impurities are separated from the 

phosphate producto It is a five to six story structure with open 

and partially steel grated floorso The mine product enters the 

plant at an upper level and sand and other impurities settle to 

the bottom of the flotation tanks while the phosphate ore floats 

to the top. When the plant is in operation large volumes of 

water are used and water pours through the gratings to the area 

below -- including the area in which the junction box was to be 

installed. The area is also periodically cleaned with water from 

high pressure hoses. There seems to be general agreement that 

the area is therefore usually wet. 

On February 9, 1990, the plant was on a maintenance day and 

not in operation. At the assigned location the motor was also 

locked out by Van Allen so that it could not have been accidently 

energized. Van Allen then removed the existing NEMA Type 4 

junction box. He then noticedthat·the replacement box he was 

provided was not what he deemed to be of the correct NEMA 

classification. It was a NEMA Type 1 box having openings in its 

fn. 1 (continued} 

instituted any proceeding under or related to this Act or has 

tes~ified or is about to testify in any such proceeding, or 

because of the exercise by such miner, representative of miners 

or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 11 

2

/ NEMA (National Electrical Manufacturers Association} 

classifications explained in Exhibit C-2 provide a uniform 

industrywide system of classification for electrical enclosures. 

1952 
corners and was not waterproof. According to Van Allen if water 

and feed material were to accumulate around the open lugs and if 

a ground should become broken, an employee touching the motor or 

box could be electrocuted. 

Van Allen testified that he had been trained in the NEMA 

classifications and observed that a NEMA Type 1 box is an indoor 

box which should not be exposed to rain, dust, or water 

conditions. A NEMA Type 4 box on the other hand is designed for 

outdoor use and for wet conditions. Concerned about the use of a 

NEMA Type 1 box under the circumstances, Van Allen contacted 

electrical foreman Rainer Theiss, and advised him that the NEMA 

Type 1 box was not suitable for the noted location and that he 

needed a NEMA Type 12 box. 3/ Theiss did not then order Van 

Allen to install the Type 1 box but told him only to continue to 

prepare the box for installation. 

Subsequently, when Van Allen went to the electrical shop for 

parts, he met with Steve Davis, the IMC maintenance 

superintendent in Davis 1 nearby office. After explaining the 

problem to Davis, Davis agreed that Van Allen could use anything 

to make the NEMA Type 1 box safe in Van Allen's opinion, 

apparently suggesting the use of tape and a sealant. Van Allen 

admits that he could thereby have made the box waterproof but 

agreed to do this only on a temporary basis until such time as a 

NEMA Type 4 or Type 12 box could be obtained and installed. 

According to Van Allen, he would thereby "give them the 

opportunity to get their plant back into operation and a correct 

box [could] be later installed." Van Allen refused to do this 

however, when Davis purportedly stated that it would have to be 

on a permanent basis. 

Curtis Wilson, an electrician's helper, was assisting 

Van Allen when the issue arose. After Van Allen refused to 

install the NEMA Type 1 box, he told Wilson to locate electrical 

foreman Theiss. According to Wilson when Theiss later arrived, 

Theiss told Van Allen that it was the correct box and ordered him 

to install it. van Allen refused ... .and aske-d for a "safety man," 

3

/ It is not disputed that a NEMA Type 12 box, just as a 

NEMA Type 4 box, would provide water protection under the NEMA 

classifications. See Exhibit C-2. None of the classifications 

would appear on their face to be applicable to the enclosure at 

issue herein since it was for a 2300 volt motor and the cited 

standards are limited to enclosures for electrical equipment of 

"1000 volts maximum." It is also noted that compliance with NEMA 

standards is not required at this plant, that the Federal Mine 

Safety and Health Administration (MSHA) does not enforce the NEMA 

standards and nothing in the cited standards prohibits the 

installer of a Type 1 enclosure from providing his own sealant 

and waterproofing. 

1953 
purportedly a procedure under the union contract. Van Allen then 

agreed to "prep" the box but still refused to install it. 

Wayne Scott, another IMC electrician, accompanied Theiss to 

this meeting with Van Allen. He overheard Van Allen state that 

he would perform any other work but would not install the NEMA 

Type 1 box. Jim Mathis, another IMC electrician, also heard the 

conversation between Van Allen and Theiss. Mathis added that Van 

Allen also stated during the conversation that if Theiss insisted 

that he install the box, he wanted a "safety man." Theiss then 

told Mathis to leave the area and he did. 

on February 22, 1990, Harry Verdier, an inspector for the 

Federal Mine Safety and Health Administration (MSHA), examined 

the NEMA Type 1 junction box that had later been installed at the 

location at issue and observed that it had been caulked in an 

apparent attempt to waterproof it. He cited the box under the 

mandatory standard at 30 C.F.R. § 56.12030 because he thought in 

a curious shift in the burden of proof, that it could not be 

proven to be waterproof. 4/ Even though he apparently believed 

the box not to have been waterproof he nevertheless did not 

believe that the cited box created either an "imminent danger" or 

a "significant and substantial" hazard but rather concluded that 

an injury or illness was 11 unlikely10 (See Exhibit C-5A). 5 / 

IMC Maintenance Superintendent Steve Davis is a graduate 

electrical engineer and has significant experience in electrical 

installations and maintenance. According to Davis, a junction 

box is merely an enclosure for the leads from the motor and to 

the conduit from the electric starter. It provides mechanical 

protection for the wires. According to Davis, there was no need 

for a waterproof NEMA Type 4 or 12 box at the cited location and 

he noted that in any event whatever type box was used it would be 

mounted onto the motor with only a sealant for waterproofing. 

Thus it is implied that if a sealant was adequate for mounting, 

it should also be adequate to waterproof the box itself-- as was 

done here. Davis also opined that the cited box was satisfactory 

in any event since it was caulked,,~ealed and watertight. He 

also noted that if water should accumulate in a junction box 

nothing would happen in any event because the connections inside 

were protected with waterproof tape. 

4

/ 30 C.F.R. § 56.12030 provides that "[W]hen a potentially 

dangerous condition is found it shall be corrected before 

equipment or wiring is energized." 

5

/ The citation was subsequently settled by agreement in 

which IMC neither admitted nor denied the violation (Exhibits R-6 

and R-7). 

1954 
Davis testified that around 11:00 a.m., on February 9, 

Theiss called advising him that Van Allen was refusing to install 

a junction box and had become belligerent insisting that he would 

not install "this piece of shit." Davis testified that before 

making a decision on the issue, he wanted to talk to Van Allen 

and determine for himself what the problem was. Subsequently 

Van Allen came into his off ice and restated his refusal to 

install the NEMA Type 1 box. Davis testified that he told 

Van Allen that with their taping standards, it would be weather 

proof and told him to therefore go ahead and install the box. 

Van Allen continued in his refusal and asked for the "third step 

of the grievance procedure." Davis then conferred with 

electrical superintendent Jim Adair, also an electrical engineer. 

Adair suggested that Van Allen be permitted to make the box 

watertight to his own satisfaction. 

Davis then returned to his· office and presented Van Allen 

the option that "if you feel like it needs to be a watertight 

box, I'll buy you the materials or whatever you want to make this 

a watertight box. 11 According to Davis, Van Allen responded that 

"he did not know if that was good enough" and continued his 

refusal to install the box. According to Davis, both Jim Adair 

and Bob Myers, another electrical engineer he consulted 7 found 

that using the NEMA Type 1 box would be safe under the 

circumstances. Davis testified that after obtaining these 

additional opinions, he again met with Van Allen and told him 

that he was being suspended for his refusal to install the 

junction box. 

Rainer Theiss, IMC electrical foreman testified that 

February 9, was a scheduled repair day and that the electrical 

power was accordingly disengaged. According to Theiss, van Allen 

first contacted him by telephone advising him in reference to the 

Type 1 box that "I don't mount that piece of shit." When they 

later met, Van Allen told him that it was not the right box and 

that he would not mount it. Theiss acknowledged that Van Allen 

expressed that it was a safety concern and admitted that he did 

not know the difference between the NEMA Type 1 and NEMA Type 4 

classifications. 

Marvin Wolgast the IMC industrial relations manager 

testified that Van Allen was given six points for discipline as a 

result of his refusal to install the junction box and, as a 

result of a three-point prior disciplinary record, was subject to 

suspension. 

In order to establish a prima facie violation of section 

105(c) (1) the Complainant must prove by a preponderance of the 

evidence that he engaged in an activity protected by that section 

and that his suspension was motivated in any part by that 

protected activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980) rev'd on other 

1955 
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United 

castle Coal co., 3 FMSHRC 803 (1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the adverse action was not motivated by the 

protected activity. Failing that, the operator may defend 

affirmatively against the prima facie case by proving that it was 

also motivated by unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. 

Pasula, supra; Robinette, supra, (the so-called Fasula-Robinette 

test). See also Donovan v. Stafford Constr. Co., 732 F.2d 954, 

958-59 (D.C. Cir. 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96 

( 6th Cir . 19 8 3 ) . 

Within this general framework, it is also well-established 

that in certain circumstances a miner's refusal to work 

constitutes protected activity. Fasula, supra, Robinette, supra 

Miller Vo FMSHRC, 687 F.2d 1994 (7th Cir. 1982); Simpson Vo 

FMSHRC, 842 F.2d 453 (D.C. Ciro 1988)0 The genesis for the 

recognition of certain work refusals as protected activity the 

Senate Report on the 1977 Act, which endorsed a miner's right to 

refuse "to work in conditions which are believed to be unsafe or 

unhealthful." So Rep. No. 91, 95th Cong., 1st Sess. 35 (1977). 

In order to be protected, work refusals must be based upon 

the miner's "good faith, reasonable belief in a hazardous 

condition." Robinette, 3 FMSHRC 812; Gilbert v. FMSHRC, 866 F.2d 

at 1439. The complaining miner has the burd.en of proving both 

the good faith and the reasonableness of his belief that a hazard 

existed. Robinette, 3 FMSHRC at 807-12; Secretary on behalf of 

Bush v. Union Carbide Corp., 5 FMSHRC 993. A good faith belief 

"simply means honest belief that a hazard exists." Robinette at 

810. This requirement's purpose is to "remove from the Act's 

protection work refusals involving frauds or other forms of 

deception." Id. The Commission has rejected a requirement that 

miners who refuse to work must objectively prove that hazards 

existed. The miner must simply show that his perception was a 

reasonable one under the circumstan.~es. Haro v. Magma Copper 

co., 4 FMSHRC 1935 (November 1982); Robinette, supra. In 

determining whether the miner's belief was reasonable under the 

circumstances, the judge is to look to the.miner's account of the 

conditions precipitating the work refusal, and to the operator's 

response in order to evaluate the relevant testimony as to 

"detail, inherent logic and overall credibility." Robinette, 

3 FMSHRC at 812. The perception of a hazard must be viewed from 

the miner's perspective at the time of the wo.rk refusal. 

Secretary on behalf of Pratt v. River Hurricane Coal Co., 

5 FMSHRC 1529 (September 1983); Haro, supra. The Commission has 

eschewed the setting of a bright line threshold of severity in 

determining 11 how severe a hazard must be in order to trigger a 

miner's right to refuse work" Pratt v. River Hurricane Coal Co. 

at 1533, instead it has preferred to resolve.that issue on a 

1956 
case-by-case basis. Id., See also, Price v. Monterey coal Co., 

12 FMSHRC 1505 (1990). 

At issue herein is a work refusal based on an asserted 

safety hazard to miners other than the complainant himself. In 

secretary on behalf of Philip Cameron v. Consolidation Coal Co., 

7 FMSHRC 319 (March 1985), aff'd sub nom. Consolidation Coal v. 

FMSHRC, 795 F.2d 364 (4th Cir. 1986), the Commission held that 

"in certain limited circumstances," the protection of section 

105(c) of the Mine Act does attach to a work refusal premised on 

hazards to others: 

Therefore, we hold that a miner who refuses to 

perform an assigned task because he believes that to do 

so will endanger another miner is protected under 

section 105(c) of the Mine Act, if, under all the 

circumstances, his belief concerning the danger posed 

to the other miner is reasonable and held in good 

faith. Bjes v. Consolidation Coal Co., 6 FMSHRC 1411; 

1418 {June 1984), citing Secretary on behalf of 

Robinette v. United Castle Co., 3 FMSHRC at 807-12. We 

emphasize, however, the need for a direct nexus between 

performance of the refusing miner 1 s work assignment and 

the feared resulting miner 1 s work assignment and the 

feared resulting injury to another miner. In other 

words, a miner has the right to refuse to perform his 

work if such refusal is necessary to prevent his 

personal participation in the creation of a danger to 

others. Of course, as with other work refusals, it is 

necessary that the miner, if possible, "communicate, or 

at least attempt to communicate, to some representative 

of the operator his belief in the • . • hazard at 

issue," Sammons v. Mine Services Co., 6 FMSHRC 1391, 

1397-98 (June 1984) (emphasis added), quoting Secretary 

on behalf of Dunmire and Estle v. Northern Coal Co., 

supra, 4 FMSHRC at 133, and that the refusal not be 

based on "a difference of opinion -- not pertaining to 

safety considerations --over-the proper way to perform 

the task at hand." Sammons, 6 FMSHRC at 1398. 

I find, under the circumstances of this case, that while Van 

Allen could otherwise have properly asserted a work refusal 

premised on a hazard to others, his work refusal was not a 

reasonable one nor one made in good faith and therefore was not 

protected by section 105(c) of the Act. Consequently, IMC did 

not violate the Act by suspending Van Allen under the terms of 

its disciplinary policy. I reach this conclusion initially on 

the basis that the "hazard" presented to Van Allen was not 

sufficiently serious or imminent to support the credibility of a 

reasonable and good faith belief in a hazard sufficient to 

warrant his continued refusal to comply with orders to install 

the NEMA Type 1 junction box. 

1957 
While the Respondent's experts denied there would have been 

any hazard the Complainant himself described what appears to be 

an unlikely scenario necessary to create a hazard in the 

following colloquy: 

THE COURT: And what would happen if water got into the 

box during operation of the plant? 

THE WITNESS: A mixture of water and feed on a delta 

system, it could build up to one side of the capacitor 

that was mounted -- would be mounted inside of it. 

THE COURT: You say feed, f-e-e-d? 

THE WITNESS: Yes, sir, phosphate feed. 

THE COURT: That's the material that you say is 

dripping down from the upper parts of the structure? 

THE WITNESS: Correct. 

THE COURT: All right. And it's mixed with water? 

THE WITNESS: Correct. 

THE COURT: All right. And that could do what? 

THE WITNESS: It could cause it to wash into the box, 

build up to one side, and hit the open lugs of the 

capacitor. 

THE COURT: Open lugs, did you say? 

THE WITNESS: Yes, sir. 

THE COURT: What would happen then? 

THE WITNESS: At that point.as_ long as the frame ground 

was good in the motor, really nothing, as long as it 

only had one leg. 

If somebody came and broke that frame ground for 

any reason, then he would become the potential. He 

would get between the 2300 and go to ground. And it 

could -- I would say would --

Q. (By Mr. Embree). It would do what? 

A. It would do a lot of damage to him, if not kill 

him. It would probably become fatal to him. (Tr. 

52-53). 

1958 
The necessary combination of events to create a hazard is 

even more remote when considering the credible testimony of IMC 

expert, electrical engineer Davis. Davis testified that any 

water dripping into the Type 1 box would drain right through 

because of its holes and that the leads inside would customarily 

be sealed with waterproof tape. Indeed even the MSHA inspector 

called as a witness by the Complainant, who cited the 

subsequently installed Type 1 box as not being waterproof, 

concluded that the condition was not "significant and 

substantial" and that injuries were "unlikely." 

However, even assuming, arguendo, that Van Allen initially 

entertained a good faith and reasonable belief in a potential 

hazard, upon communicating such information to IMC officials the 

perceived danger was addressed by IMC. According to Van Allen 

himself, he could have made the NEMA Type 1 box waterproof and 

presumably safe to his satisfaction in order to enable the plant 

to resume operations. Indeed Maintenance Superintendent Davis 

offered Van Allen the opportunity to get whatever supplies he 

deemed necessary to make the box safe. Van Allen's refusal to do 

this shows clearly that his continued work refusal then was 

neither reasonable nor made in good faitho The Commission has 

made clear that a work refusal cannot be based on a mere 

difference of opinion not pertaining to safety considerations 

over the proper way to perform the task at hand i.g. providing a 

water proof junction box. Sammons, 6 FMSHRC at 1398. 

Under the circumstances, it is clear that Van Allen did not 

then entertain a good faith or reasonable belief in a hazard to 

warrant his continued work refusal. Accordingly, the Complaint 

herein must be dismissed. 

ORDER 

The Complaint of Discrimination is disJissed. 

£ 

' ' \ 

t 1 ,. I 

Distribution: 

Glenn M. Embree, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA 

30367 (Certified Mail) 

William B. deMeza, Jr., Esq., Holland & Knight, 400 North Ashley, 

P.O. Box 1288, Tampa, FL 33601 (Certified Mail) 

/fb 1959 
fEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 0 1991 

UNITED MINE WORKER OF AMERICA, 

ON BEHALF OF DENNIS M. BLOUIR 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. PENN 91-1395-D 

v. 

U.S. STEEL MINING COMPANY, 

INCORPORATED, 

Respondent 

PITT CD 91-08 

Cumberland Mine 

ORDER OF DISMISSAL 

Before~ Judge Weisberger 

Complainant has filed a statement in which he indicates his 

intention to withdraw the complaint. Accordingly, pursuant to 

29 C.F.R. § 2700.11, this case is DISMISSED . 

Distribution: 

. f ; f', , I, , f 

(. ,\....\... \,\. ·~ -----

Avram Weisberger 

Administrative Law Judge 

Thomas D. Shumaker, UMWA, District 4, 32 South Main Street, 

Masontown, PA 15461 (Certified Mail-)-

Billy M. Tannant, Esq., Employee Relations 600 Grant Street, Room 

1580, Pittsburgh, PA 15219-4776 (Certified Mail) 

nb 

1960 
FEDERAL MINE SAF!ETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 O 1991 

NICHOLAS RAMIREZ, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

JOSHUA INDUSTRIES, 

INCORPORATED, 

Respondent 

Docket No. WEVA 91-1618-D 

MSHA Case No. HOPE CD 91-07 

No. 32 Mine 

DECISION AND FINAL ORDER 

Before: Judge Melick 

By decision dated November 25, 1991, the Respondent herein 

was held to be in default. Accordingly, if it has not already 

done so, Respondent is directed within 30 days of the date of 

this decision, to pay complair.ant $3,123.62 in back pay plus 

interest in accordance with this Commission's decision in 

Clinchfield Coal Co., 10 FMSHRC 1493 \(1988). I: 

J ! 

Distribution: 

\ 

\ 

i . 

' 

; 

i 

I \. · .. · \ 

\ i Gary Melick \ 

Administrative Law 'Judge 

703-756-6261 

I 

I "·~.! ... 

; 

I 

I Mr. Nicholas Ramirez, Box 39, Holden, WV 25625 (Certified Mail) 

Joshua Industries, Incorporated, No. 32 Mine, P.O. Box 1816, 

Logan, WV 25601 (Certified Mail) 

/fb 

1961 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 2 3 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DANACO EXPLORATION 

INTERNATIONAL, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-173-M 

A.C. No. 34-01477-05504 

Corbin Mine 

DECISION 

Appearances~ Vo Denise Duckworth, Esq., Office of the Solicitoru 

U.S. Department of Labor, Dallas, TX 75202 

for Petitioner; 

Donald Cook, Pro Se, 

for Respondent. 

Before~ Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration C "MSHA 11 ) charges Respondent, Danaco Exploration International ( 11Danaco") with violating safety regulations 

promulgated under the Federal Mine Safety and Health Act, 30 

u . s . c . § 8 01 et s eg • C " the Act" ) • 

A hearing on the merits was held in Oklahoma City, Oklahoma, 

on October 23, 1991. The parties waived the filing of post trial 

briefs. 

Stipulation 

Danaco agrees the Administrativ.e Law Judge has jurisdiction 

to hear the case. (Tr. 78). 

Citation 3447756 

This citation alleges Danaco violated 30 C.F.R. § 56.12001.1 

1 § 56.12001 Circuit overload protection. 

Circuits shall be protected against excessive 

overload by fuses or circuit breakers of the correct type and capacity. 

1962 
DANIEL R. LAMBERT, is an MSHA inspector experienced in electrical matters. On June 18, 1990, he inspected Danaco. The 

quarry operated three conveyors and a rock breaker. (Tr. 7-11, 

40). Mr. Lambert found the fuse for the 7 1/2 horsepower air 

compressor was too large. This determination was made by ref erring to Article 430-51 of the National Electrical Code (NEC). 

(Ex. C-5). The NEC, used by the mining industry, sets forth the 

proper size device to put in the circuit for the size of the motor. A 30-amp time-delay fuse was being used and a 19.25-amp 

would have been proper. A maximum size fuse of 24.75 could be 

used in accordance with the NEC. (Tr. 11-13). As a result, the 

circuits were not protected against excessive overloado A short 

circuit from a ground fault could create a fire, burnsu shock and 

an electrocution hazard existed. CTro 14). 

Donald E. Cook, an owner of Danaco, confirmed that the fuse 

for the motor to the air compressor was too large as it was a 30 

amp fuse. (Tr. 77). For this reasonu the citation should be 

affirmed since the circuits were not protected against excessive 

overloads as required by § 56.12001. 

A portion of Mr. Cook's evidence deals with the fact that 

this equipment was equipped with Cll~3B heaterso If the heater 

which acts as a thermostatv is subject to excessive current it 

will heat up and automatically shut off the equipment o (Tr o 71 [! 

72, 77). 

Mr. Cook argues it is better to have the equipment shut off 

than to deal with the whole circuit with "live juice" in it. 

(Tr. 77). 

The regulation § 56.12001 requires "fuses" of the "correct 

type." The effect of the heaters is not relevant when considered 

in relation to the contested regulation. 

Since the circuit was not protected against overload, the 

citation should be affirmed and a civil penalty assessed. 

Citation No. 3447757 

In examining the long conveyor belt, Inspector Lambert found 

a fuse that was too large. Instead of the 30 amp time-delay 

fuse, a 19.25 amp fuse (or the closest round number of 20-amp) 

should have been used. The largest size fuse permitted would 

have been 24.75. (Tr. 17-20). 

1963 
In Mr. Lambert's opinion, the circuits were not protected 

against excessive overload in violation of 30 CFR § 56.12001. 2 

DONALD COOK, Danaco's owner, indicated he had Cll.3Bs in the 

equipment. Its 10.4 amps was adequate for the equipment's size 

and safe. (Tr. 77). 

The situation here is similar to the previous citation. A 

30 amp fuse was in place whereas Danaco should have used a 20-amp 

fuse. The circuits were not protected against excessive overload 

and I reject Mr. Cook's contrary opinion. Mr. Cook's use of the 

heaters as a safer means of protection cannot prevail as a defense as to the violation of this regulation. 

Citation No. 3447757 should be affirmed and a civil penalty 

assessed. 

Citation No. 3447758 

This citation alleges a violation of 30 CFR § 56.12041. 3 

Mr. Lambert issued this ci ta ti on when he detennined that the 

starter switch was too small for the size motor being used for 

the hydraulic pump of the rock cutter. (Tr. 22-28). The starter 

was rated at 25 horsepower and it was being used on a 30 horsepower motor. Printed on the starter was 11 25 H.P. 11 and size number 2. Printed on the motor name plate was "3 0 H.P." 

The starter makes and breaks the electrical circuit to the 

motor. Danaco 1 s failure to comply with the limitations on the 

equipment violates custom and practice in the industry. 

By way of a defense Mr. Cook denied the starter was inadequate. He indicated he is familiar with Danaco's electrical 

equipment. He was using a GE No. 2 magnetic starter. It is rated for a maximum of 45 amps and goes to a 25 horsepower motor. 

2 

3 

Cited supra fn 1 

§ 56.12041 Design of switches and starting 

boxes. 

Switches and starting boxes shall be of safe 

design and capacity. 

1964 
GE recommends it and the NEC will accept it. The part number is 

C21.4B heaters. That is a 20 amp heater. If there is an excess 

of 20 amps being put through the starter, the heaters will warm 

up, expand like a thermostat and shut the entire heater off. 

This makes the circuit safe without dealing with live current. 

(Tr. 71, Exh. R-1). 

Inspector Lambert indicated the starter switch was too small. 

But GE recommends it up to 45 amps. Any GE No. 2 starter on the 

front reads "maximum amps 45." (Tr. 72). 

Mr. Cook believed he had half the capacity left after he 

used 20 amps. (Tr. 73). 

I credit Mr. Cook's testimony as he should be familiar with 

Danaco's electrical equipment. Furtheru his testimony as to the 

GE No. 2 starter is uncontradicted. Finallyr I concluded such GR 

equipment capacity was of a 11 safe capaci ty11 as required by 

§ 56.12041. 

Citation No. 3447758 should be vacated. 

Citation Noo 3447760 

This citation alleges Danaco violated 30 CoF.R. § 56.120320 

Mr. Lambert issued this citation when he observed a missing 

cover plate for a 120 volt lighting outlet. The missing cover 

plate was located in a circuit breaker panel. The missing plate 

exposed wiring associated with the circuit breakers. 

The cover plate prevents a person from contacting exposed 

wires. The circuit breakers were similar to those found in most 

homes but the voltage here was higher. 

OONALD E. COOK testified the electrical panel with 6 or 8 

circuit breakers is similar to those found in most homes today. 

If too much current goes through·them, they automatically kick 

off. The wires were not exposed. The circuit breaker was measured at 3 1/2 inches by 2 1/2 inches. (Tr. 68, 70 >. 

4 § 56.12032 Inspection and cover plates. 

Inspection and cover plates on electrical 

equipment and junction boxes shall be kept in 

place at all times except during testing or 

repairs. 

1965 
Mr. Cook agrees the cover plate was missing and technically 

a cover is required, but it was unlikely anyone would stick a 

finger on anything "hot." If a miner reached up high to flip the 

switch he would be standing on a rubber mat. (Tr. 69). 

All of the circuit breakers were exposed. C Tr. 7 0) • 

The witnesses both agree there was no cover plate on the 

panel. These facts establish a violation of § 56.12032. 

At the hearing, Mr. Cook produced an electrical plug used in 

the panel. He demonstrated that only a minimal hazard would be 

involved since it would be difficult to touch the live wires when 

the electrical plug was in the panel. Danaco 1 s evidence does not 

excuse the violation. However, it is a factor to be considered 

in assessing a civil penalty since the uncontroverted evidence 

reduces the gravity. 

Citation No. 3447761 

This citation alleges a violation of 30 C.F.R. § 56.12004. 5 

Mr. Lambert issued this citation when he found the conductor 

(wiring) size was insufficient in accordance with NEC 430-210 

(Tr. 33-40u Ex. C-7). 

In Mr. Lambert's opinion, the NBC perrni ts full load current 

plus 125% to determine the necessary amperes. (Tr. 34-35). 

Mr. Lambert knew the horsepower of the motor by looking at 

the nameplate on the motor. 

In Mr. Lambert's view, the electrical wiring was insufficient. (Tr. 36). 

5 ""•'-. 

56.12004 Electrical conductors. 

Electrical conductors shall be of a sufficient 

size and current-carrying capacity to ensure 

that a rise in temperature resulting from normal 

operations will not damage the insulating materials. Electrical conductors exposed to mechanical damage shall be protected. 

1966 
According to Mr. Cook, the inspector assumed the motor was 

30 horsepower. However, Mr. Cook measured the amperage 6 at full 

load. The ampersneter indicated it was a 20-horsepower motor. 

As a result it was well within the limits of the equipment. {Tr. 

73, 74). 

Mr. Cook used an amper6neter to determine what the motor was 

drawing. (Tr. 74). ~le tag on the motor showing the horsepower 

at 30 was incorrect as the motor had been rebuilt by W.W. Electric in Oklahoma City. {Tr. 75). If it was a 30-horsepower 

motor it could have a 40-amp full load. If it was a 20-horsepower motor, a full load would be 27 according to the NECa The 

amperemeter showed Mr. Cook that all of his connections, starters and wires were legal. 

Mr. Cook checked the motor with an amperemeter when he 

installed it two years ago. He and Inspector Lambert also 

checked it with an amper&neter on the day of the inspectiono 

(Tro 74, 78). 

The pivotal issue presented here is the horsepower of the 

motor. Inspector Lambert relied solely on the motor nameplate 

which showed "30 horsepower.u 

While Mr. Cook did not unequivocally know the horsepower of 

the motor he relied on the ampersneter measurement which indicated the motor was 20 horsepower. Mr. Cook checked the motor with 

an amperemeter when it was installed two years ago, as well as at 

the time of the inspection. 

A motor plate of 30 horsepower would apparently be a contradiction with a designation of "full load amp 27." 

Mr. Cook's testimony is unrebutted that the motor had been 

rebuilt. Further, the ampereneter showed 27 or 28 amps when it 

was installed two years ago and again at the time of the 

inspection. (Tr. 78, 79). 

In short, I conclude the motor was a 20 horsepower. As a 

result, the electrical conductors were of "a sufficient size and 

current-carrying capacity" for the motor as required by 

§ 56.12004. 

Citation No. 3447758 should be vacated. 

6 Amperage: the strength of a current of electricity 

expressed in amperes. A dictionary of Mining, Mineral and 

Related Terms, 1968, page 36. 

1967 
Civil Penalties 

Section llOCi) of the Act mandates consideration of six criteria in assessing civil penalties. 

Danaco, described as a quarry and a rock breaker with three 

conveyors, appears to be a small operator and the penalties provided in this order are appropriate. 

Inspector Lambert testified the proposed penalties would not 

affect Oanaco's ability to continue in business. 

The parties agreed Danaco had a low incidence of prior adverse history. (Tr. 5, 6). 

Danaco was negligent in that the incorrect fuses and the 

missing cover plate in the electrical panel were obvious conditions. Further, the operator should have observed these defects. 

The gravity involving the missing fuses was high since an 

excessive overload could be placed on the electrical system. If 

a short circuit occurred, fire, shock and electrocution could 

resulto 

The gravity involving the missing cover plate is low since 

it is unlikely that anyone could contact any exposed energized 

wires. 

The operator abated the violative conditions. Danaco is 

accordingly entitled to statutory good faith. 

~or the foregoing reasons I enter the following: 

ORDER 

1. Citation No. 3447756 is AFFIRMED and a penalty of 

$20 is ASSESSED. 

2. Citation No. 3447757 is AFFIRMED and a penalty of 

$20 is ASSESSED. 

3. Citation No. 3447758 is VACATED. 

1968 
4. Citation No. 3447760 is AFFIRMED and a penalty of 

$15 is ASSESSED. 

5 • Citation No . 3 4 4 7 7 61 is VACA TED • 

Law Judge 

Distribution~ 

V. Denise Duckworth, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Donald Cook, DANACO EXPLORATION INTERNATIONAL, Post Office 

Box 277, Pittstown, OK 74842 (Certified Mail) 

sh 

1969 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 24, 1991 

CLIFFORD MEEK, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. LAKE 90-132-DM 

MSHA Case No. UC MD-90-06 

ESSROC CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Robert J. Tscholl, Esq., Canton, OH, 

for Complainant; 

John c. Ross, Esq., canton, OH, for 

Respondent. 

Judge Fauver 

This is a discrimination complaint under section 105(c) (1) of 

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

~ 

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and further findings in the Discussion below: 

FINDINGS OF FACT 

1. Respondent, Essroc Corporation, 1 has a cement division 

known as Essroc Materials, Inc., which owns and operates a grinding 

plant in Stark County, Ohio (hereafter the "Middlebranch Plant") 

where it grinds mined materials such as limestone and clay, and 

stores and ships cement, for sales in or substantially affecting 

interstate commerce. This plant was purchased by Essroc from 

United States Cement Company on or about February 27, 1990. Upon 

acquisition, with minor exceptions Essroc used the same plant, 

equipment, facilities, workforce, management personnel, line of 

products, etc., as U.S. Cement had used. Only two Middlebranch 

Plant employees of U.S. Cement were not employed by the Essroc 

Middlebranch Plant: John Bickel, an injured employee who remained 

with use, and the Complainant, Clifford Meek, who was the only use 

1 Hereafter "Essroc" refers to Essroc Corporation acting 

through its subsidiary Essroc Materials, Inc. 

1970 
Middlebranch Plant employee whose application for employment with 

Essroc was denied. 

2. Essroc's acquisition of the Middlebranch Plant was part 

of its purchase of approximately 70% of the assets of use, 

including USC plants in Bessemer, Pennsylvania, Lowellville, Ohio, 

Toledo, Ohio, and Middlebranch, Ohio. 

3. USC's Middlebranch Plant Manager, Marvin Bragg, and 

Plant Supervisor, Dale Lewis, became the Plant Manager and Plant 

Supervisor of the Essroc Middlebranch Plant. 

4. In mid 1989, Coplay Cement Company (Essroc 1 s 

predecessor) 2 began acquisition negotiations with USC. By 

January, 1990, it was evident that the acquisition of selected 

assets of USC would take place. 

5. Michael Roman, USC's Vice President of 1 

Relations, who was to become Essroc 1 s Manager of Human Resources 

for the Great Lakes Division, directed USC plant managers at 

Bessemer, Pennsylvania, Lowellville, Ohio, Middlebranch, Ohio, and 

Toledo, Ohio to evaluate their hourly employees on forms provided 

by Essroc. 

6. Marvin Bragg, Plant Manager of the USC 1 s Middlebranch 

Plant, who was to become Essroc vs Middlebranch Plant , 

filled in the evaluation forms on his hourly employees and sent 

them to Roman. The forms are dated January 26, 1990. Bragg's 

evaluation form on Meek rated him "Poor" on "Attitude Toward Work 

& Company," with the following comments: 

This employee has ability to do a lot 

unwilling, his attitude is very close to 

insubordinate, also cannot get along with 

employees. 

but is 

being 

other 

7. On January 31, 1990, USC's Middlebranch Plant hourly 

employees were requested bymanag~ment to attend a safety meeting 

with MSHA Inspector Richard L. Jones, around 7:00 a.m. Jones had 

asked management to arrange the meeting. About 10 or 11 employees 

attended. Jones said the purpose of the meeting was to discuss any 

safety or heal th concerns. A number of employees were nervous 

about raising such matters, for fear that their remarks would get 

back to management. The inspector assured them that their remarks 

would be protected by the Mine Act, and that the company could not 

retaliate against them. Several employees raised safety concerns, 

including safety defects in the crane and dust control problems. 

2

Coplay Cement created Essroc as its subsidiary to own and 

operate the facilities acquired from use. 

1971 
Meek pointed out some electrical hazards. At one point, Meek asked 

the inspector why the company appeared to know in advance when the 

inspector was coming for an inspection. As an illustration, Meek 

described a recent event that gave him concern about prior 

knowledge of inspections. The inspector became upset at Meek' s 

question and took it as an accusation that he was violating the 

law. He raised his voice in anger and verbally confronted Meek. 

Meek decided to leave the meeting at that point. As Meek and his 

helper were leaving the building, Meek saw the Plant Supervisor, 

Dale Lewis, and stated, referring to the inspector, "That guy's 

nuts. " Tr. 3 5. 

8. Later that morning, Inspector Jones went to Dale Lewis 0 

office, where he saw Lewis and the Plant Manager, Marvin Bragg" 

They asked him how the meeting went and he said it was fine with 

the exception of one employee. The inspector went on to complain 

about Meek, saying that he accused him of taking a bribe and that 

he had a bad attitude. After Meek filed a discrimination complaint 

for not being hired by Essroc, the inspector wrote an account of 

his meeting with the employees and his conversation with the 

supervisors. The inspector's written statement differs 

substantially from the testimony of a number of witnesses in this 

case. The inspector was subpoenaed by Complainant to testify at 

the hearing of this case, but MSHA, contrary to the Act, refused to 

comply with the subpoena. Rather than await enforcement of the 

subpoena in a United States District Court, Complainant offered in 

evidence the inspector's written "notes" about his meeting with 

employees and his later conversation with plant management. The 

inspector's statement was not contemporaneous with his inspection, 

was not under oath, and was not subject to questioning under oath. 

His statement is not convincing to me as compared to the testimony 

of witnesses at the hearing who were subject to examination and 

cross-examination. 

9. I find that the inspector became angry at Meek and 

communicated his anger to Meek's supervisors, Lewis and Bragg, in 

criticizing Meek for his complaint about possible prior knowledge 

of MSHA inspections. 

10. Bragg was concerned about the inspector 1 s angry reaction, 

and called Michael Roman, USC• s Vice President of Industrial 

Relations. Roman also became concerned, and sent Jim Clark, a USC 

safety director, to the Middlebranch Plant, to see if he could help 

assuage the inspector and see that the inspector was not 

retaliatory toward USC because of Meek's alleged remarks. 

11. The inspector conducted an inspection and issued 15 

citations. One was a "significant and substantial" citation, which 

resulted in the crane being shut down for repairs for about a day 

and a half. 

19 7 2 
12. After the citations were issued, Dale Lewis, the Plant 

Supervisor, contacted James Gallentine, an hourly employee, on or 

about January 31, 1990. He asked him what Meek had said to 

Inspector Jones at the employees' meeting with the inspector. 

Lewis told Gallentine that Lawrence Ousky, USC's President, was 

upset about Meek's remarks to the inspector and wanted to have Meek 

fired for making the inspector angry. 

13. That night, when Meek began his shift, Gallentine took 

him aside and warned him: "Watch your back. LarryOusky wants you 

fired." Tr. 35. Meek asked him "How do you know this?" and 

Gallentine replied, "Dale Lewis told me. I ain't supposed to tell 

you so don't say anything. Just watch your back." Tr. 35. 

14. Based on Gallentine's warning, Meek started carrying a 

concealed tape recorder to record any contacts with management. He 

recorded four of these. Two recordings he found irrelevant, and 

erased, two he found relevant and retained o They were put in 

evidence as Sides A and B of a tape cassette, Exhibit C-lo 

15. One of Meek's recordings (Side A and the beginning of 

Side B of Exhibit C-1) is USC Plant Manager Bragg's meeting with 

hourly employees on February 27, 1990. Bragg told the employees 

that Essroc was purchasing the plant from use, that they were being 

terminated by USC and would have to file a job application with 

Essroc if they wanted to work at the plant. They were told to 

apply for the same job they had with USC, if they wanted to work 

for Essroc, and to return for a meeting the next day. 

16. Early the next day, Bragg telephoned Meek and told him it 

was not necessary for him to come to the February 28 meeting, 

because Essroc was not going to approve his job application. 

17. Meek decided to attend, anyhow, and again carried a 

concealed tape recorder. When Roman and Bragg saw him in the 

meeting room (before the meeting), they asked him to talk with them 

privately, in the foyer. Meek secretly taped this conversation, on 

Side B of Exhibit C-1, ~tran§pribed ~t pages 54-59 of the 

transcript. I incorporate Sides A and B of Exhibit C-1 as Findings 

of Fact as to the statements made by the persons recorded. 

18. In mid February, 1990, a team of three Essroc supervisors 

(David J. Coale, Director of Human Resources, David Repasz, a plant 

manager of a Coplay Cement plant, and Joseph Gaffney) met with two 

USC supervisors (Michael Roman and Marvin Bragg) to review the 

evaluations at the Middlebranch Plant and to select the USC 

employees to be hired by Essroc at that plant. 

19. By the time of the above meeting, it was known by Bragg 

and Essroc that Bragg would be Essroc' s Plant Manager of the 

Middlebranch Plant, and it was known by Roman and Essroc that Roman 

would be Essroc's Manager of Human Resources for the Great Lakes 

19 73 
Division, which would include the Middlebranch Plant. 

20. Marvin Bragg and Michael Roman were key figures in 

Essroc's selection of Middlebranch Plant hourly employees, since 

Bragg would be Essroc's Middlebranch Plant Manager, and Roman would 

be Essroc's Manager of Human Resources over a multi•plant region 

that would include the Middlebranch Plant. 

21. The key recommendations concerning Essroc's rejection of 

Clifford Meek's application for employment were those of Marvin 

Bragg, who told the Essroc supervisors that Meek had repeatedly 

stated publicly that he could not work for Bragg and who, in 

Bragg's opinion, had a poor attitude, and of Michael Roman, who 

supported Bragg's negative recommendation. Bragg and Roman 

supported their recommendation not to hire Meek with four documents 

selected from Meek's personnel file and the written evaluation form 

Bragg had filled out for Essroc. 

22. Two of the documents that Bragg and Roman presented at 

the mid February meeting, selected from Meek's personnel file, are 

Separation Notices signed by Andy Coccoli, a former USC Plant 

Manager of the Middlebranch Plant, dated February 13, 1987, and 

April 24, 1987. These documents contain the following checked 

items: 

From the February 1.3, 1987, form: 

RaUng (Check ONE opposite EACH Item) 

SKILL: Good O; Fair O; Poor 0 

APPLICATION: Good Q Fair O; Poor 0 

CONDUCT: Good O; Falt Q Poor Gr' 

PRODUCTION: Good O; Fair Q PoorO 

From the April 24, 1987, form: 

Rating (Check ONE opposite EACH Item) 

SKILL: Good Q Fair Q PoorO .. J 

APPLICATION: Good Q Fair Q Poor~ 

CONDUCT: Good Q Fair O; Poor la" 

PRODUCTION: Good O; Fair O; Poor 0 

23. Andy Coccoli testified that he did not check these items 

on Meek's separation notices and, to the contrary 1 he found Meek to 

be an excellent employee in all areas, including skills, 

performance, attitude, cooperativeness, etc., and would not have 

marked anything "poor" concerning Meek. Each form has a printed 

question, "Would you re-employ? (Give reason)." The February 13 

form has a typed answer, "Yes." The April 24 form has no answer. 

I credit Coccoli's testimony, and find that the above separation 

notices were check-marked "Poor" by someone other than Coccoli, in 

19 74 
an effort to disparage Meek. This tampering with a supervisor's 

signed documents raises a serious cloud over the integrity and 

credibility of USC's evaluation of Meek. 

24. A third document that Bragg and Roman presented at the 

mid February meeting, selected from Meek's personnel file, is an 

Employee Evaluation Report on Meek prepared by Bragg and concurred 

in by his subordinate Dale Lewis, Plant Supervisor, dated January 

18, 1989. This report rates Meek as 11 Poor 11 on "Cooperation," 

"Attitude, 11 and "Initiative" and "Good" on "Work Habits" and 

"Attendance." It gives him a qualified~ recommendation for 

"Continued employment," stating: 

Must improve. This empl'Oyee has made statements to other 

employees that he is not afraid to go to jail for assault 

referring to Dale Lewis and myself [Marvin Bragg]. 

25. The last document that Bragg and Roman selected from 

Meek's personnel le to present at the mid February meeting is a 

Separation Notice, September 25, 1989, signed by Bragg which rated 

Meek as follows: 

Rating (Check ONE opposite E.ACH Item) 

SKILL: Good O; Fair lil(Poor 0 .. · 

APPLICATION: Good O; Fair O; Poor~ 

CONDUCT: Good D; Fair D;.f6or if 

PRODUCTION: Good D; Fair~ Poor 0 

The printed question on this form: "Would you re-employ? (Give 

reason)" was left blank by Bragg. 

26. In the case of the four USC personnel documents referred 

to above, USC retained Meek in its employment or reemployed him 

after layoff after the date of each document, and did not 

discipline him, reprimand him, or caution him in any way because of 

such documents. use did not present any of the documents to Meek 

while he was employed by use, and did not advise him he was being 

evaluated. 

DISCUSSION WITH FURTHER FINDINGS 

Successor in Interest 

The evidence shows continuity of the business operations of 

the Middlebranch Plant from USC to Essroc with Essroc 1 s use of the 

same plant, equipment, and essentially the same workforce and 

supervisory personnel. Al though 30% of USC's assets at other 

locations were not included in the acquisition by Essroc, the 

Middlebranch Plant was virtually a 100 percent takeover by Essroc. 

Based upon these factors, I find that Essroc, through its 

subsidiary Essroc Materials, Inc., is a successor in interest to 

use as the owner and operator of the Middlebranch Plant. Secretary 

1975 
of Labor on Behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394 

(1987), aff'd. sub nom. Terco, Inc., v. FMSHRC 839 F.2d 236 (6th 

Cir. 1987); Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (1980), 

aff'd in relevant part sub nom. Munsey v. FMSHRC, 701 F.2d 976 

(D.C. Cir. 1983), cert. denied, 464 U.S. 851 (1983). 

scope of Protected Activity 

Section 105(c) (1) of the Act3 protects miners and applicants 

for mining employment from retaliation for exercising rights under 

the Act, including the right to complain to MSHA :::ir a mine 

supervisor about an alleged danger or violation of the Mine Act. 

The basic purpose of this protection is to encourage miners 

"to play an active part in the enforcement of the Act 11 recognizing 

that, "if miners are to be encouraged to be active in matters of 

safety and health, they must be protected against any possible 

discrimination which they might suffer as a result of their 

participation." S. Rep. No. 95-181, 95th Cong. 2d Sess. 1977, 

reprinted in the Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 623 (Senate Subcommittee on Labor, Committee 

on Human Resources 1 95th Cong., 2nd Sess. (1978)). 

This provision is a key part of remedial legislation, which is 

3 Section 105(c) (1) provides: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners 

or applicant for employment in any coal or other mine 

subject to this Act because such miner, representative of 

miners or applicant for employment has filed or made a 

complaint under or related to this Act, including a 

complaint notifying the operator or the- operator's agent, 

or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health violation 

in a coal or other mine, or because such miner, 

representative of miners or applicant for employment is 

the subject of medical evaluations and potential transfer 

under a standard published pursuant to section 101 or 

because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted 

any proceeding under or related to this Act or has 

testified or is about to testify in any such proceeding, 

or because of the exercise by such miner, representative 

of miners of applicant for employment on behalf of 

himself or others of any statutory right afforded by this 

Act. 

1976 
to be liberally construed to effectuate its purposes. 

Meek's complaint to an MSHA inspector that the mine operator 

appeared to have advance knowledge of MSHA inspections was a 

protected activity under this section. Advance knowledge could be 

coming from an inspector or sources other than the inspector, e.g., 

a supervisor, clerk, or other person in the inspector's office, so 

that a miner's report of actions by the mine operator that appear 

to show advance knowledge could lead to disclosure of a violation 

of the Act if the complaint were properly investigated. Miners are 

entitled to raise such concerns with MSHA or their employer without 

fear of retaliation, in the plain interest of helping to assure the 

efficacy and integrity of mine inspections of their safety and 

health work conditions. 

Did Essroc Discriminate Against Complainant? 

Having found that Complainant was engaged in a protected 

activity, I turn to the question whether Essroc' s denial of 

employment was motivated in any part by his protected activity. 

To establish a prima facie case of discrimination under § 

105{c) of the Act 1 a miner or applicant for mining employment has 

the burden to prove that he or she was engaged in protected 

activity and that the adverse action complained of was motivated 

any part by that activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F. 

2d 1211 {3rd Cir. 1981); Secretary on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803, 817-18 (1981). 

"Direct evidence of motivation is rarely encountered; more 

typically, the only available evidence is indirect. * * * 'Intent 

is subjective and in many cases the discrimination can be proven 

only by the use of circumstantial evidence. 111 Secretary on behalf 

of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (1981), rev'd 

on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 

86 (D.C. Cir. 1983), guotingNLRBC v. Melrose Processing Co., 351 

F. 2d 693, 698 (8th Cir. 1965) • In "analyzing the evidence, 

circumstantial or direct, the [adjudicator] is free to draw any 

reasonable inference" (id.). 

The reasons given by Essroc for not hiring Meek are the 

recommendations of Bragg and Roman at the meeting in mid February, 

1990, based upon Bragg's representation that Meek had stated that 

he could not work for Bragg and that Meek had a poor attitude, 

negative evaluations from his personnel file, and Bragg's 

evaluation form filled out for Essroc. 

At the time of that meeting, Bragg, Roman, and Essroc knew 

that Bragg would soon become Plant Manager of Essroc's Middlebranch 

Plant and that Roman would soon become Essroc's Manager of Human 

1977 
Resources for the Great Lakes Division which would include the 

Middlebranch Plant. Under its "team approach," Essroc relied on 

Bragg and Roman to pick their own team to work in the Middlebranch 

Plant. I find that Bragg and Roman were facto management agents 

of Essroc in evaluating USC's Middlebranch Plant employees who 

applied for employment with Essroc and in recommending to Essroc 

who should be hired and not hired. Their role as facto agents 

of Essroc, and Essroc's successorship to USC, found above, serve to 

impute to Essroc any motivation of Bragg or Roman toward 

Complainant in their recommendation, at the February meeting, that 

Essroc not hire Meek at the Middlebranch Plant. 

The issue of discrimination by Essroc thus turns on the 

question of the motivation of Bragg and Roman. 

Bragg stated in an affidavit (he did not appear a witness) 

that, on February 23, 1990, at a meeting with the plant employees 7 

Meek stated that 11 he could not work for me [Bragg]. n I credit 

Meek 1 s testimony that he did not make such a statement. Bragg 9 s 

subordinate Dale Lewis, Plant Supervisor, was at the meeting, and 

he testified that he never heard Meek say "that he didn't want to 

work for Marvin [Bragg]." Tr. 365. 

Bragg 9 s affidavit further stated thate on February 27 1 1990, 

at a meeting with USC plant employees, Meek 11 again made the 

statement that if the same manager was in place for Essrocf he 

could not work at the Middlebranch facility because I would be in 

charge." This statement is contrary to fact, as demonstrated by 

Meek's tape recording of the meeting. At that meeting, Meek was 

cordial to Bragg, showed.a clear desire to work for Essroc at the 

plant supervised by Bragg, and made no statement indicating that he 

could not or would not work for Bragg. 

Bragg's affidavit also states that, on February 28, 1990, at 

a meeting among Bragg, Roman and Meek, "Mr. Roman asked Mr. Meek if 

he had said he would not work for me (Bragg] for Essroc. Mr. Meek 

replied that he had made such a statement." The tape of this 

meeting is contrary to Bragg's affidavit. Meek did not state that 

he had ever said he could not or would not work for Bragg, or any 

words to that effect. 

I find that Bragg's affidavit is contrary to fact, and I 

credit Meek's testimony as to what Meek stated at the meetings on 

February 23, 27, and 28, 1990. I do not credit Bragg's statement 

in his affidavit that the MSHA incident had nothing to do with the 

decision not to hire Meek. 

Roman testified that the MSHA incident was not discussed at 

the meeting with the Essroc supervisors (mid February, 1990) and 

was not a factor in the decision not to hire Meek. He also signed 

an affidavit, stating that, on February 28, 1990, at the meeting 

referred to in Bragg's affidavit, "I [Roman] asked Mr. Meek if he 

1978 
had stated that he would not work for Marvin Bragg and he replied 

that he had said this." The tape recording of this meeting is 

contrary to Roman's affidavit. I find that Roman's affidavit on 

this point is contrary to fact, and I credit Meek's testimony as to 

what he said at the February 27, 1990, meeting. 

I do not credit the affidavits of Bragg and Roman or the 

testimony of Roman as to what was said by Meek at the February 23, 

27, and 28, 1990, meetings. To the contrary, I find that 

Complainant did not state that he could not work for Marvin Bragg, 

or any words to that effect, and that Bragg manufactured an 

allegation of such statement to induce Essroc not to hire 

Complainant 0 Roman participated in this misrepresentation 

supporting Bragg's recommendation to Essroc. They used this 

opportunity to persuade Essroc not to hire himo 

I find that use management, including Bragg, Roman and Ousky,, 

wanted to fire Complainant because of his protected activity 

complaining to Inspector Jones. Bragg and Roman carried out this 

intention by recommending to Essroc not to hire Complainant. They 

knew, at the time they heard of Meek' s complaint to the MSHA 

inspector, that all USC employees would shortly be terminated by 

USC and considered by Essroc. 

Bragg 1 s and Roman vs discriminatory motivation toward Meek 

because of his protected complaint to the MSHA inspector is imputed 

to Essroc. Essroc' s adverse action motivated by this 

discriminatory motivation (rejecting his application for 

employment) was a violation of § 105(c) of the Act. 

Did Essroc Establish an Affirmative Defense? 

An operator may rebut a prima facie case by showing either 

that no protected activity occurred or that the adverse action was 

not motivated in any part by the protected activity. Failing that, 

the operator may defend affirmatively against the prima facie case 

by proving that it was also motivated by ~nprotected activity and 

would have taken the adverse -action in any event for the 

unprotected activity alone. In a "mixed motive" case, although the 

miner must bear the ultimate burden of persuasion, the operator, to 

sustain its affirmative defense, must prove by a preponderance of 

the evidence that the adverse action would have been taken even if 

the miner had not engaged in the protected activity. Baich v. 

FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983). 

Essroc has not shown that, had Marvin Bragg and Michael Roman 

not known of Meek's complaint to Inspector Jones, they would still 

have recommended that Essroc not employ him at the Middlebranch 

Plant. The record shows that, over the years, any negative 

evaluations in Meek's file at use did not result in discipline of 

him, even a reprimand or caution to him, or any action not to 

reemploy him after layoffs. The reliable evidence does not show 

19 79 
that, independent of Meek' s complaint to Inspector Jones, his 

application for employment by Essroc would not have been accepted 

as were the applications from all other USC Middlebranch Plant 

hourly employees. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Essroc is a successor in interest to USC in its acquisition 

and operation of the Middlebranch Plant. 

3. Essroc violated § 105(c) of the Act by refusing to employ 

Complainant at its Middlebranch Plant because of his activity 

protected by that section. 

4. Complainant is entitled to employment by Essroc at its 

Middlebranch Plant with back pay, interest, 4 and litigation costs, 

including a reasonable attorney fee. 

ORDER 

1. Respondent shall, within 30 days of this decision, employ 

Complainant at its Middlebranch Plant with the same position, pay, 

seniority, and all other conditions and benefits of employment that 

would apply had Respondent employed Complainant at such plant when 

the other USC Middlebranch Plant hourly employees were employed by 

Respondent following its acquisition of the plant from use in 

February, 1990. 

2. Within 15 days of this decision, the parties shall confer 

in an effort to stipulate the amount of Complainant's back pay, 

interest, and litigation costs including a reasonable attorney fee. 

Such stipulation shall not prejudice Respondent's right to seek 

review of this decision. If the parties agree on the amount of 

monetary relief, Complainant sha11 · ftie a stipulated proposed order 

for monetary relief within 30 days of this decision. If they do 

not agree, Complainant shall file a proposed order for monetary 

relief within 30 days of this decision and Respondent shall have 

ten days to reply to it. If appropriate, a further hearing shall 

be held on issues of fact concerning monetary relief. 

4Interest is computed at the IRS adjusted prime rate for each 

quarter. See Arkansas-Carbona Company, 5 FMSHRC 2042, 2050-2052 

(1983). 

1980 
3. This decision shall not be a final disposition of this 

proceeding until a supplemental decision is entered on monetary 

relief. 

Distribution: 

lJ~~aM~ William Fauver 

Administrative Law Judge 

Robert J. Tscholl, Esq., Roetzel & Andress, 220 Market Avenue, 

South, suite 502, Canton, OH 44702 (Certified Mail) 

John c. Ross, Esq., Ross & Robertson, P.O. Box 35727, Canton, OH 

44735 (Certified Mail) 

nb 

1981 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 2 6 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

THE PITTSBURG & MIDWAY COAL 

MINING CO-YORK CNYN 

COMPLEX 0 

Respondent 

Docket No. CENT 91-106 

A.C. No. 29-00095-03559 

York Canyon Underground Mine 

DECISION 

Appearances: Ernest Burford, Esq., Office of the Solicitoru 

U.S. Department of Labor, Dallas, Texasu 

for Peti tioner9 

John w. Paulu Esq., Englewood, Coloradou 

for Res pond en t. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

civil penalties under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et s.eg. the "Act." The 

Secretary of Labor, on behalf of the Mine Safety and Health Administration, (MSHA), charges the operator of the York Canyon 

Underground Mine with six 104(a) S&S, violations of mandatory 

regulatory standards found in 30 C.F.R. Part 77. 

The operator filed a timely answer contesting the alleged 

104(a) S&S violations and the appropriateness of the proposed penalties. ···· 

Pursuant to notice, a hearing on the merits was held before 

me on September 18, 1991, along with other cases involving the 

same parties and attorneys. 

Stipulations 

At the hearing, the parties read into the record the following stipulations: 

1. The Pittsburg and Midway Coal Company has engaged in the 

mining and selling of coal in the United States and its mining 

operations affect interstate commerce. 

1982 
2. Pittsburg Midway Company is the owner and operator of 

the York Canyon Mine, MSHA ID number 29-00095. 

3. Pittsburg Midway Coal Company is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et~ 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of Respondent on the date and place stated therein, and may be admit= 

ted into evidence for the purpose of establishing their issuance 

and not for the truthfulness or relevancy of any statements 

asserted therein. 

6. 'l'he exhibits to be offered by Respondent and the Secretary are stipulated to be authentic, but no stipulation is made 

as to their relevance or the truth of the matters asserted 

therein. 

7o The proposed penalty will not affect the operator 0 s 

ability to remain in businesso 

8. The operator demonstrated good faith in abating the violations. 

9. Pittsburg & Midway Coal Company is a large operator of a 

coal mine with at least one million tons of production in 1990. 

10. The certified copy of the MSHA assessed violations history accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

ISSUES 

'J'he primary issues presented--by the parties were whether or 

not the six 104(a) citations were properly designated significant 

and substantial violations and the appropriateness to the proposed penalties. 

Citation No. 3242500 - (Back-up alarm) 

In this citation MSHA charges Respondent with a 104Ca) S&S 

violation of 30 C.F.R. § 77~410. The violative condition alleged 

reads as follows: 

1983 
The #631D Caterpillar Scraper in operation outby the coal prep plant was not equipped with 

an adequate automatic device that when such 

equipment is put in reverse will give audible 

alarm. 

At the hearing, the Respondent withdrew its contest to Citation No. 3242500 including its designation as a significant & 

substantial violation of 30 C.F.R. § 77.410 and to MSHA's proposed civil penalty of $112. 

Based upon the record, it is found that there was a violation of this mandatory safety standard1 that a discrete safety 

hazard existed and that there was· a reasonable likelihood, evaluated in terms of continued normal mining operation, that the 

hazard contributed to would result in serious injuryo 

Accordinglyu it is found the violation is a significant and 

substantial violation and the full amount of MSHA 1 s $112 proposed 

penalty is assessed. 

Citation No. 3242463 (Berm on service road) 

After taking considerable testimony from the witnesses on 

Citation No. 3242463 (berm on service road) the parties agreed 

the violation was not S&S and Petitioner moved to withdraw the 

S&S designation. The motion was granted since it was clear from 

the evidence presented that there was no reasonable likelihood 

that the hazard contributed to, evaluated in terms of continued 

normal mining, would result in an event in which there would be 

serious injury. 

Citation Nos. 3242494, 3242496, 3242496 (Circuit breakers) 

At the hearing, the Petitioner also modified the three citations involving failure to properly identify circuit breakers 

from S&S to non-significant and substantial-violations as there 

was insufficient evidence to estahlTsh a reasonable likelihood 

that the hazard contributed to would result in serious injury. 

Citation No. 3242493 (Guarding on pump shaft) 

Considerable testimony was taken on this citation, particularly on the issue of whether this violation was properly designated S&S. During the time allowed for filing of post-hearing 

briefs, the Secretary was permitted to amend the citation to delete the S&S designation and to change paragraph lOA of the citation pertaining to "gravity" from "reasonably likely" to "unlike1984 
ly." This amendment was permitted in light of the evidence adduced at the hearing. The preponderance of the evidence established that there was not a reasonable likelihood that the hazard 

contributed to, evaluated in terms of continued normal mining, 

would result in serious injury. 

Assessment of Penalty 

Section 110 ( i) of the Act mandates consideration of six criteria in assessing civil penalties. This statutory criteria has 

been considered in assessing the penalties assessed in the Order 

below. 

Pittsburg & Midway Coal Company is a large operator of a 

coal mine with at least one million tons of production in 1990" 

The certified copy of the MSHA assessed violations history received with evidence accurately reflects the history of this mine 

for the two years prior to the da. te of the citation, The operator demonstrated good ith in abating the violations. 

Exposure to the hazard caused by the violations was very 

low, the gravity was low and the violations resulted from the 

operator's negligence which was low to moderate in degree" 

The penalties assessed below will not affect the operator's 

ability to remain in business. 

ORDER 

Citation No. 3242500 including the finding that the violation is significant and substantial, is AFFIRMED and a civil 

penalty of $112 is ASSESSED. 

Citation Nos. 3242463, 3242493, 3242494, 3242496, and 

3242498 are MODIFIED to delete the S&S designation and a 

penalty of $100 is ASSESSED for each of the violations. 

Respondent is ordered TO PAY·to the Secretary of Labor a 

civil penalty in the sum of $612 within thirty (30) days of the 

date of this Decision and, upon receipt of payment, this matter 

is dismissed. 

Au st F. Cetti 

Administrative Law Judge 

1985 
Distribution: 

Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

John W. Paul, Esq., PITTSBURG & MIDWAY COAL MINING COMPANY, 6400 

South Fiddler's Green Circle, Englewood, CO 80111-4991 

(Certified Mail) 

Mr. Robert Butera, International Health and Safety Representative 

for UMWA District 13, 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

sh 

1986